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Saturday, July 30, 2011

Health Care Providers’ Religious Objections to Medical Treatment: Legal Issues Related to Religious Discrimination in Employment and Conscience Clause Provisions


Cynthia Brougher
Legislative Attorney

Edward C. Liu
Legislative Attorney


Federal law provides various legal protections for individuals who object for religious reasons to performing certain tasks required by their employer. The First Amendment to the U.S. Constitution and statutory nondiscrimination laws provide general protection to individuals wishing to exercise their religious beliefs without interference from the government or employers. An individual’s right of refusal may also be protected by specific legislation known as “conscience clauses.” These protections often arise with health care providers, including doctors and pharmacists, who object to assisting with certain reproductive procedures or dispensing birth control. Most often, objections are raised by doctors or hospitals who object to performing abortion procedures because of religious beliefs or affiliations.

Medical providers with religious objections to certain treatments highlight the tension between patients’ access to treatment and health providers’ religious freedom. In a recent example of this debate, December 2008, the Department of Health and Human Services (HHS) issued a final rule to ensure compliance with conscience clauses enacted beginning in the 1970s to protect individuals who object to abortion and other procedures. The rule took effect on January 20, 2009, but was subsequently partially rescinded by the Obama Administration in February of 2011, based on concerns that a broad reading of the 2008 final rule could be interpreted to limit patients’ access to certain health care services.

This report will discuss situations in which religious objections may be raised in health care. The report will examine the legal protections for individuals with religious and moral objections to their employment duties offered by the Free Exercise Clause of the First Amendment, Title VII of the Civil Rights Act of 1964, and federal conscience clauses. Finally, the report will analyze the two sets of protections and how they may affect health care providers who have religious objections to medical procedures.



Date of Report: July 18, 2011
Number of Pages: 14
Order Number: R40722
Price: $29.95

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Tuesday, July 26, 2011

Medicare Primer


Patricia A. Davis, Coordinator
Specialist in Health Care Financing

Paulette C. Morgan, Coordinator
Specialist in Health Care Financing

Cliff Binder
Analyst in Health Care Financing

Jim Hahn
Specialist in Health Care Financing

David Newman
Specialist in Health Care Financing

Mark Newsom
Specialist in Health Care Financing

Sibyl Tilson
Specialist in Health Care Financing


Medicare is a federal insurance program that pays for covered health care services of qualified beneficiaries. It was established in 1965 under Title XVIII of the Social Security Act as a federal entitlement program to provide health insurance to individuals 65 and older, and has been expanded over the years to include permanently disabled individuals under 65. Medicare, which consists of four parts (A-D), covers hospitalizations, physician services, prescription drugs, skilled nursing facility care, home health visits, and hospice care, among other services.

Generally, individuals are eligible for Medicare if they or their spouse worked for at least 40 quarters in Medicare-covered employment, are 65 years old, and are a citizen or permanent resident of the United States. Individuals may also qualify for coverage if they are a younger person with a permanent disability, have End-Stage Renal disease (permanent kidney failure requiring dialysis or transplant), or have amyotrophic lateral sclerosis (ALS, Lou Gehrig’s disease). In addition, individuals with one or more specified lung diseases or types of cancer who lived for six months during a specified period prior to diagnosis in an area subject to a public health emergency declaration by the Environmental Protection Agency (EPA) as of June 17, 2009, are also deemed entitled to benefits under Part A and eligible to enroll in Part B.

According to CBO estimates, in FY2011, the program will cover 48 million persons (40 million aged and 8 million disabled) at a total cost of about $569 billion, accounting for approximately 3.7% of GDP. Medicare is an entitlement program, which means that it is required to pay for covered services provided to eligible persons so long as specific criteria are met.

Since 1965, the Medicare program has undergone considerable change. During the 111
th Congress, the Patient Protection and Affordable Care Act (PPACA, P.L. 111-148) and the Health Care and Education Reconciliation Act of 2010 (HCERA, P.L. 111-152), were signed into law. They made numerous changes to the Medicare program that modify provider reimbursements, provide incentives to increase the quality and efficiency of care, and enhance certain Medicare benefits.

However, in the absence of congressional action, the Medicare program will be unsustainable in the long run. The Part A trust fund has been estimated to become insolvent in 2024. And although the Part B trust fund is financed in large part through federal general revenues and cannot become insolvent, Medicare spending growth will put increasing strains on Congress’s competing priorities.

The 112
th Congress may continue to debate the recent changes to Medicare, and may consider additional legislative action ranging from technical corrections to broader structural changes.

This report provides an overview of Medicare and will be updated to reflect any legislative changes.



Date of Report: July 12, 2011
Number of Pages: 29
Order Number: R40425
Price: $29.95

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Medicaid Reimbursement Rate Litigation: An Overview of Douglas v. Independent Living Center of Southern California


Jennifer Staman
Legislative Attorney

Given declining state revenues and increased demand for public programs like Medicaid, states have been faced with difficult choices about how to allocate limited funds. To address budget shortfalls, many states have sought to shrink their Medicaid costs in various ways, including reducing the rates at which health care providers are reimbursed for the services they provide to Medicaid beneficiaries. In several instances, providers and others have argued that the reduced rates do not comply with federal Medicaid requirements and have turned to the courts to challenge these reductions.

When challenging these reimbursement rates, Medicaid providers have often claimed that the rates violate the requirements of Section 1902(a)(30)(A) of the Social Security Act, commonly referred to as Medicaid’s “equal access provision.” This provision compels state Medicaid programs to assure that Medicaid payments “are consistent with efficiency, economy, and quality of care,” and are “sufficient to enlist enough providers” so that care and services are available at least to the extent that they are available to an area’s general population. Based on this provision, Medicare providers have argued that because of cuts in reimbursement rates, the state Medicaid program does not provide the level of care or services to beneficiaries that is required under federal law.

However, an important question arises in these cases: whether Medicaid beneficiaries and health care providers can sue state officials to enforce the equal access provision. Because the Medicaid Act contains no express language that allows private parties to challenge reimbursement rate cuts, plaintiffs desiring to challenge cuts in Medicaid payment rates under the equal access provision have sought out other legal vehicles to bring their claims. Since 2002, courts have often barred these suits when based on “section 1983.” But on January 18, 2011, the Supreme Court granted certiorari in Douglas v. Independent Living Center of California, a set of consolidated cases in which plaintiffs took a different approach to challenging provider reimbursement rates. In Douglas, health care providers and Medicaid beneficiaries challenged cutbacks in reimbursement rates for certain health care providers, arguing that since the reduced reimbursement rates do not comply with Medicaid’s equal access provision, they are preempted under the Supremacy Clause of the Constitution. The Ninth Circuit agreed, and blocked implementation of the reduced rates, explaining that the Supremacy Clause provides a basis for challenging a state’s purported failure to abide by Medicaid’s equal access provision.

Some commentators have noted that the Court’s decision in Douglas may be significant, as the case could determine whether the Supremacy Clause provides a basis for judicial review of various issues related to a state’s Medicaid program—issues that may have been immune from review because, for example, there appeared to be no private right of action. It has also been observed that the possible implications of Douglas go beyond the Medicaid program, as the Supreme Court’s decision could determine whether a private party may bring a preemption challenge with respect to federal statutes that these parties could not otherwise enforce. This report provides relevant background on the Medicaid program and an overview of the Douglas case.

In addition, it may be noted that the Centers for Medicare and Medicaid Services (CMS) recently issued proposed regulations that address the equal access provision. Although proposed regulations do not address whether a private party may bring an enforcement action under the equal access provision, the regulations do provide guidance on how states can comply with it.



Date of Report: July 18, 2011
Number of Pages: 9
Order Number: R41923
Price: $29.95

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Thursday, July 21, 2011

The Global Fund to Fight AIDS, Tuberculosis, and Malaria: Issues for Congress and U.S. Contributions from FY2001 to the FY2012 Request


Tiaji Salaam-Blyther
Specialist in Global Health

The Global Fund to Fight AIDS, Tuberculosis, and Malaria (Global Fund, or the Fund) was established in 2002 as a public-private partnership that could provide significant financial support for global responses to HIV/AIDS, tuberculosis (TB), and malaria. As of mid-2011, the Global Fund has committed to provide some $22.3 billion to help 150 countries fight these three diseases. According to a May 2011 report released by the Global Fund to describe its results between 2002 and 2010, the Fund supported treatment for 3 million HIV-positive people, nearly 8 million people with active TB, and 170 million cases of malaria, saving about 6.5 million lives.

The United States has strongly supported the Global Fund since making a founding pledge in 2001, having representatives serving on several Global Fund boards, donating more to the Global Fund than any other country, and increasing those contributions annually since FY2005. Donors last met on October 4, 2010, to make their pledges for the Global Fund over the next three years. There, the United States made its first multi-year pledge to the Fund of $4 billion.

For FY2011 and FY2012, the President requested $1.0 billion and $1.3 billion, respectively, for the Fund. Following rigorous debate on the overall budget, the 112
th Congress enacted the Department of Defense and Full-Year Continuing Appropriations Act of 2011 (P.L. 112-10), which maintained U.S. support in FY2011 for the Global Fund at FY2010 levels ($1.05 billion), excluding rescissions.

Many urge Congress to meet the President’s FY2012 request for the Fund, in large part because donors have begun to follow the lead of the United States in setting their annual contributions. Although Congress has traditionally been a strong supporter of the Fund, several issues may affect congressional views about the Fund in the future. Such factors include the following: 

Fiscal austerity.
Proposals to reduce federal spending have begun to dominate foreign aid debates, with some Members of Congress aiming to target foreign aid accounts, including those for global health, in an attempt to balance the budget. At the same time, others argue that cutting back on the relatively small size of foreign aid (about 1% of total budget authority) will do little to cut the deficit, but could imperil the lives of millions. 

Oversight and transparency.
In early 2011, reports about misuse of Global Fund resources in some grants ignited a debate about corruption in foreign aid in general, and in the Global Fund in particular. Some have called for donors to withhold support for the Fund until adequate safeguards are established. Others argue the Fund should not be penalized for oversight shortcomings, which are familiar to many aid programs. 

Role of the Global Fund in U.S. global health policy.
When the Global Fund was established, U.S. bilateral investments in HIV/AIDS, malaria, and TB were relatively small. Since then, U.S. bilateral investments in fighting these diseases have grown significantly, particularly through the President’s Emergency Plan for AIDS Relief (launched in 2003) and the President’s Malaria Initiative (launched in 2005). As U.S. investments in these programs continue to grow, some question what proportional role the Global Fund will play in U.S. global health policy.

This report provides background information on the Global Fund, discusses changes the Global Fund has made to improve the efficiency of its programs and address allegations of corruption, outlines U.S. funding for the Fund, and analyzes issues Congress might consider as it debates the appropriate level of U.S support to provide the Fund.



Date of Report: July 1, 2011
Number of Pages: 33
Order Number: R41363
Price: $29.95

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Friday, July 15, 2011

The National Institutes of Health (NIH): Organization, Funding, and Congressional Issues


Judith A. Johnson
Specialist in Biomedical Policy

Pamela W. Smith
Analyst in Biomedical Policy


The National Institutes of Health (NIH) is the focal point for federal health research. An agency of the Department of Health and Human Services (HHS), it uses its $31 billion budget to support more than 325,000 scientists and research personnel working at over 3,000 institutions across the U.S. and abroad, as well as to conduct biomedical and behavioral research and research training at its own facilities. The agency consists of the Office of the Director, in charge of overall policy and program coordination, and 27 institutes and centers, each of which focuses on particular diseases or research areas in human health. A range of basic and clinical research is funded through a highly competitive system of peer-reviewed grants and contracts.

Congress doubled the NIH budget over a five-year period from its FY1998 base of $13.7 billion to the FY2003 level of $27.1 billion. Since then, the growth rate of the NIH budget has been below the rate of inflation, which for biomedical research in FY2011 is estimated to be 2.9%. The American Recovery and Reinvestment Act (ARRA ) provided NIH with an additional $10.4 billion to be spent over the two-year period of FY2009 through FY2010. The Department of Defense and Full-Year Continuing Appropriations Act, 2011, P.L. 112-10, provides $30.8 billion for the agency in FY2011, $317 million less than FY2010, or about a 1% reduction. For FY2012, the Obama Administration has requested $31.8 billion in discretionary budget authority for NIH, an increase of $745 million (2.4%) over FY2010.

Appropriators and authorizers face many issues in working with NIH to set research priorities in the face of tight budgets. Congress accepts, for the most part, the priorities established through the agency’s complex process of weighing scientific opportunity and public health needs. While the Public Health Service Act (PHSA) provides the statutory basis for NIH programs, it is primarily through appropriations report language, not budget line items or earmarks, that Congress gives direction to NIH and allows a voice for advocacy groups. Challenges facing the agency and the research enterprise, all aggravated by restrained budgets, include attracting and keeping young scientists in research careers; improving the translation of research results into useful medical interventions through more efficient clinical research; creating opportunities for transdisciplinary research that cuts across institute boundaries to exploit the newest scientific discoveries; and managing the portfolio of extramural and intramural research with strategic planning, openness, and public accountability.

The last time Congress addressed NIH with comprehensive legislation was in December 2006 when it passed the NIH Reform Act (P.L. 109-482). Congressional oversight of NIH activities may focus on pending financial conflicts of interest regulations and proposals to reorganize the institutes and centers, such as the new National Center for Advancing Translational Sciences (NCATS). Also, health reform legislation (P.L. 111-148) requires NIH to implement the Cures Acceleration Network (CAN). The purpose of CAN is to support revolutionary advances in basic research and facilitate FDA review of CAN-funded cures. However, although P.L. 111-148 authorizes $500 million for CAN in FY2010, CAN would be funded via a specific appropriation—not through the general NIH appropriation. If CAN receives an appropriation, NIH would determine which medical products are “high need cures,” and then make awards to research entities or companies in order to accelerate the development of such high need cures.



Date of Report: June 27, 2011
Number of Pages: 46
Order Number: R41705
Price: $29.95

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