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US Supreme Court Will Hear Key Medi-Cal Provider Rate Cut Lawsuits - Gov. Jerry Brown's Budget Assault Against Disabled Takes Legal Hits
Decision By US Supreme Court Not Expected Until Winter 2011 - Cases Critical to Hundreds of Thousands of People With Disabilities, Mental Health Needs, the Blind, Seniors, Medi-Cal Providers, Community Organizations and IHSS Workers in California - Could Have Sweeping Impact Across Nation Depending on Eventual Supreme Court Decision
CDCAN - On what could have sweeping impact across the nation on the rights of people with disabilities, mental health needs, the blind and seniors, the US Supreme Court announced in Washington, DC that it will hear and review decisions of lower federal courts in three key lawsuits that have blocked California from implementing cuts to Medi-Cal providers and a rollback of the State’s participation in wages for In-Home Supportive Services (IHSS) workers.
Several other cases, including one impacting a lower federal court ruling that blocked the State from implementing a cut in the State’s participation toward IHSS worker wages, are linked to one of the cases that the US Supreme Court will hear.
The US Supreme Court granted “cert” or certiorari to hear and review three lawsuits that were consolidated, with one hour allocated for oral argument before the court. A 1 page pdf copy of the cert document with the references to the three California Medi-Cal provider cases (that includes the IHSS case) is attached to this CDCAN Report as “20110118-Certiorari order - Medi-Cal Provider Case.pdf"
The Medicaid Defense Fund, headed by 82 year old attorney Lynn Carman of Novato, said today that he did not expect the court to hear oral argument and issue a decision in these cases until November or December of 2011.
Carman, a longtime respected advocate for the rights of people with disabilities and seniors said that the news today of the US Supreme Court taking these critical Medi-Cal lawsuits is evidence that “Governor Brown is seeking a license from the Supreme Court for States to violate federal law, in any way the State wishes, with impunity, regardless of how much injury, from violation of federal law, which this may cause. "
With Governor Brown proposing over $12.5 billion in permanent spending cuts - the majority in real reductions to health and human services as part of his 2011-2012 State budget plan, many advocates for people with disabilities, mental health needs and seniors while worried about what the US Supreme Court will ultimately do.
Advocates however are cautiously optimistic that the high court - even with a conservative majority - will uphold the lower federal court rulings blocking the Medi-Cal and IHSS provider cuts that the Legislature and Governor enacted in 2008 and 2009 but could not implement due to the lawsuits.
Advocates Fear New Spending Cuts While Supreme Court Takes Up Lawsuits
While the lawsuits are pending before the US Supreme Court, advocates fear the Governor’s new proposed sweeping cuts to Medi-Cal providers, including proposed elimination of Adult Day Health Centers, Multipurpose Senior Services Program (MSSP), proposed 10% rate reduction to nearly all Medi-Cal providers, over $750 million cut in general fund spending for developmental services - mostly to regional centers, cuts to Healthy Families program (the federally funded state health insurance program for low income children), cuts to CalWORKS, major reductions and caps on many Medi-Cal services and a reduction in SSI/SSP (Supplemental Security Income/State Supplemental Payment) individual grants to the lowest level allowed by the federal government.
US Supreme Court Eventual Ruling Could Have Huge Impact on Disability and Senior Rights - and Also the California Budget Crisis
What the US Supreme Court eventually decides could have sweeping impact nationwide on the rights of people with disabilities, mental health needs, seniors and enormous impact on the California State budget.
In the case of the state participation in IHSS worker wages, passed originally as part of the 2009-2010 State Budget in February 2009, that reduction would go into effect - if the US Supreme Court rules in favor of the State - on July 1, 2012.
The other major cut to IHSS currently blocked by a lower federal court, would have reduced or even eliminated eligibility for services under IHSS based on internal assessment tools (called functional index rankings of tasks and a overall functional index score) was not impacted by today’s announcement because the lower appeals court - the US 9th Circuit Court of Appeals - has not yet issued a ruling. That appeals court however is expected now to issue a decision soon - and that case could wind up being consolidated with the other cases now before the US Supreme Court.
In recognition of the delays caused by the lawsuits blocking the IHSS cuts, the Legislature and Governor included in the 2010-2011 State Budget passed last October provisions that delayed implementation of the two major cuts to IHSS until July 1, 2012 unless the US Supreme Court blocked the reductions.
The US Supreme Court could hear and review the case and decide to uphold (agree with) the lower federal court decisions - which means the temporary orders that blocked the Medi-Cal provider cuts and the cuts in the State’s participation in IHSS worker wages - would be permanent. However the State could - and in Governor Brown’s current 2011-2012 State Budget proposal intends to propose again - a 10% Medi-Cal provider rate cut - saying that the lower federal court rulings did not prohibit the reductions, only imposed certain requirements in the process that the State had to comply with in order to implement it.
The US Supreme Court could also hear and issue a decision that does a number of other things.
What the US Supreme Court Will Hear and Review The US Supreme Court will hear and review decisions of the US 9th Circuit Court of Appeals - which upheld lower federal district court rulings that blocked several different Medi-Cal provider rate reductions implemented in 2008 and early 2009, and a rollback of the State’s participation in IHSS worker wages that was scheduled to go into effect July 1, 2020 in three different cases:
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Autistic Boy Wins Round In Vaccine Case
By Zack Needles, The Legal Intelligencer xrl.in/71id
Less than a week after another scathing report dismissing the theory that vaccines and autism are linked made international headlines, an en banc state Superior Court panel remanded the products liability case of an 11-year-old autistic boy, directing a Philadelphia trial court to determine whether the design defect claim arose from unavoidable vaccine side effects.
The boy's parents and attorney argue that mercury contained in the vaccines -- manufactured by the pharmaceutical company defendants -- caused their son's autism.
If the trial court ultimately finds that the side effects were unavoidable, the claim will be pre-empted by a federal law governing the liability of pharmaceutical companies for drug vaccines.
If the side effects are found to have been avoidable, however, the claim could proceed.
Whether it would ultimately succeed is less clear.
Asked whether he felt the theory behind his case had been hampered by lack of support from the scientific community, the plaintiff's attorney, Marc P. Weingarten of the Locks Law Firm in Philadelphia, simply said it was a question that would need to be answered at trial.
"That's the main issue on the merits of the case and something we have to still get in front of a judge and jury," he said, adding that the Superior Court's ruling Tuesday had little to do with the merits of the case.
The panel ruled 8-1 in Wright v. Aventis Pasteur to reverse Philadelphia Common Pleas Judge Arnold L. New's ruling granting summary judgment in favor of pharmaceutical defendants Aventis Pasteur Inc., Merck & Co. Inc. and Wyeth with regard to the design defect claim.
Judge New had found that the plaintiff's design defect and failure-to-warn claims were expressly pre-empted by the federal National Childhood Vaccine Injury Act.
While Superior Court did unanimously affirm Judge New's ruling with regard to the failure-to-warn claim, it said Congress did not intend for all vaccination design defect claims to be pre-empted by federal law.
Judge Sallie Updyke Mundy said in a 72-page opinion for the majority that Section 300aa-22(b)(1) of the Vaccine Act "expressly pre-empts all design defect claims that arise from unavoidable vaccine side effects, and before granting summary judgment, the trial court was required to conduct a case-by-case inquiry to determine the nature of the vaccine side effects presented in this case."
Judge Mundy was joined in the majority by President Judge Correale F. Stevens and Judges Kate Ford Elliott, Jack A. Panella, Christine L. Donohue, Cheryl Lynn Allen and Anne E. Lazarus.
Judge Susan Peikes Gantman concurred in the result.
Judge Jacqueline O. Shogan, however, said in her concurring and dissenting opinion that "the statutory language, FDA functions, federal case law and legislative intent support the trial court's conclusions that the Vaccine Act pre-empts the design defect claim and that vaccine defendants were entitled to the presumption of proper warning."
In Wright, Jared Wright, 11, of Texas, was administered five vaccines in the first 18 months of his life that contained thimerosal, a mercury-based preservative once used in vaccines to deter bacterial growth, as well as one other vaccine, according to Judge Mundy. Jared's parents, Howard and Jacqueline Wright, claimed that the mercury in those six vaccines caused their son's autism.
Judge New wrote in his own 2008 opinion that Congress "clearly intended" the Vaccine Act to pre-empt all state design defect claims without a case-by-case assessment of whether the vaccines' side effects were unavoidable because Congress didn't want instability in the vaccine market to be caused by numerous torts over vaccine injuries.
Judge New also noted that other courts' decisions -- including the U.S. District Court for the Eastern District of Pennsylvania's 2007 ruling in Bruesewitz v. Wyeth, which was argued before the U.S. Supreme Court in October 2010 -- have been similar.
But according to Judge Mundy, while Bruesewitz found that the Vaccine Act is structured in such a way that Section 300aa-22(b)(1) stands as "an outright bar to [at least] some claims," the Superior Court found it could be interpreted the opposite way as well.
Judge Mundy said Subsection 22(e) of the Vaccine Act prevents any state from making a law prohibiting individuals from bringing civil suits against a vaccine manufacturer for a vaccine-related injury or death as long as the Vaccine Act does not pre-empt such a suit. According to Judge Mundy, this implies that the Vaccine Act pre-empts some state tort claims, but also expressly preserves others.
Toxins Found In Pregnant U.S. Women In UCSF Study
By Victoria Colliver, Chronicle xrl.in/71ix
Multiple chemicals, including some banned since the 1970s and others used in items such as nonstick cookware, furniture, processed foods and beauty products, were found in the blood and urine of pregnant U.S. women, according to a UCSF study being released today.
The study, published in the journal Environmental Health Perspectives, marks the first time that the number of chemicals to which pregnant women are exposed has been counted, the authors said.
Of the 163 chemicals studied, 43 of them were found in virtually all 268 pregnant women in the study. They included polychlorinated biphenyls or PCBs, a prohibited chemical linked to cancer and other health problems; organochlorine pesticides; polybrominated diphenyl ethers, banned compounds used as flame retardants; and phthalates, which are shown to cause hormone disruption.
Some of these chemicals were banned before many of the women were even born.
The presence of the chemicals in the women, who ranged in age from 15 to 44, shows the ability of these substances to endure in the environment and in human bodies as well, said lead author Tracey Woodruff, director of the UCSF Program on Reproductive Health and the Environment.
A call for action Woodruff said people have the ability to reduce but, as the findings show, not eliminate their exposure to chemicals. "We want to show people this is an issue we want the government to pay attention to and address," she said.
The study focused on pregnant women because of the potential for exposure to multiple chemicals to hurt their unborn fetuses, but also looked at the data for nonpregnant women. The research did not follow the subjects to determine whether actual harm occurred.
Researchers noted that the levels of certain chemicals were actually higher in the nonpregnant women, suggesting that behavioral changes made during pregnancy such as not smoking, for the health of their unborn fetuses, or physiological factors might play a role.
The study, which was funded by the Pew Charitable Trusts and a grant from the Passport Science Innovation Fund, analyzed data from the pregnant women provided by the 2003-04 National Health and Nutritional Examination Survey, a nationally representative sample of the U.S. population.
The chemicals found in 99 percent to 100 percent of the women included certain PCBs, organochlorine pesticides, perfluorinated compounds, phenols, PBDEs, phthalates, polycyclic aromatic hydrocarbons and perchlorate.
Persistent chemicals Bisphenol A, a chemical used in cans and other food packaging that has been linked to health problems including brain development, was found in 96 percent of the women. A broken-down form of DDT, a pesticide banned in the United States in 1972, was found in virtually all the women.
Arlene Blum, founder of the Green Science Policy Institute in Berkeley and a visiting scholar with UC Berkeley's department of chemistry, was not surprised by the results. She was not involved in the study.
"Certain classes of chemicals we know go into people's bodies and stay there for very long periods of time," she said, explaining that these classes of chemicals have stable bonds, meaning they don't break down easily.
Although some flame retardants were banned from clothing in the 1970s, Blum said, similar retardants were used in other consumer goods such as the foam in furniture, the plastic around television sets and even baby products. She blamed much of the ubiquitousness of the chemicals on California's strict flammability laws, which are often modeled by other states.
The American Chemistry Council responded to the study with a statement that said biomonitoring research conducted by the U.S. Centers for Disease Control and Prevention has found the mere presence of a chemical in the body does not mean that it will cause negative health effects.
The group also said bodies naturally absorb organic and man-made chemicals, but technological advances now allow researchers to measure exceedingly minute traces of these substances.
Multiple exposure Dr. Sarah Janssen, senior scientist at the Natural Resources Defense Council in San Francisco, said the levels of exposure shown in the study were low, but she was concerned about fetal harm that could be caused by the mother's exposure to multiple chemicals acting together.
"The study's results show that unborn babies are exposed to a soup of chemicals - and furthermore, because the women in the study were tested for exposure to only a fraction of chemicals on the market - the study also suggests that pregnant women are likely carrying and passing onto their fetuses many more chemicals than have been reported here," she said.
Reducing exposure While it is impossible to completely avoid exposure, here are some suggestions from health experts on reducing exposure to some harmful chemicals: Eating: Eat a well-balanced diet, wash hands often and do not smoke. This will help maintain overall health and reduce some of the effects of harmful chemicals.
Microwaving: Avoid microwaving food in plastic. Use ceramic or glass instead.
Cleaning: Keep a clean home. Toxic chemicals are present in household dust and dirt.
Shopping: Choose products wisely - everything from paints, cleaning supplies to cookware and beauty products. Select safer, nontoxic products.
Source: UCSF Program on Reproductive Health and the Environment
• • •
Dr. Andrew Wakefield:
No Fraud. No Hoax. No Profit Motive
PRNewswire - Dr. Andrew Wakefield issued the following statement today on the recent British Medical Journal articles: "The British Medical Journal and reporter Brian Deer recently alleged that my 1998 research paper was 'a hoax' and 'an elaborate fraud' and that my motivation was profit.
"I want to make one thing crystal clear for the record - my research and the serious medical problems found in those children were not a hoax and there was no fraud whatsoever. Nor did I seek to profit from our findings.
"I stand by the Lancet paper's methodology and the results which call for more research into whether environmental triggers cause gastrointestinal disease and developmental regression in children. In fact, despite media reports to the contrary, the results of my research have been duplicated in five other countries (to see citations to studies, visit tinyurl.com/4hrdt5y.) "It is not unexpected to see poor reporting and misinformation coming from Brian Deer, the lead reporter of the recent BMJ coverage. But to see coverage in other media that cites Deer's shoddy journalism in the BMJ as a final justification to claim there is no link between vaccines and autism is ludicrous. The MMR is only one vaccine of the eleven vaccinations on the pediatric schedule that has been studied for causing developmental problems such as autism. That is fact, not opinion. Any medical professional, government official or journalist who states that the case is closed on whether vaccines cause autism is jumping to conclusions without the research to back it up.
"I continue to fully support more independent research to determine if environmental triggers, including vaccines, are causing autism and other developmental problems. The current rate of autism is 1 in 110 children in the United States and 1 in 64 children in the U.K. My goal has always been and will remain the health and safety of children. Since the Lancet paper, I have lost my job, my career and my country. To claim that my motivation was profit is patently untrue. I will not be deterred - this issue is far too important."
• • •
Trial in a Vacuum: Study of Studies Shows Few Citations
By Gina Kolata, NYTimes xrl.in/71jv
Science, so the story goes, is a meticulously built edifice. Discoveries balance on ones that preceded them. Research is stimulated by studies that went on before.
But what, then, can explain the findings by two investigators at Johns Hopkins University School of Medicine? The researchers, Karen A. Robinson and Dr. Steven N. Goodman, looked at how often published papers on clinical trials in medicine cite previous clinical trials addressing the same question.
They report in the Jan. 4 issue of Annals of Internal Medicine what Dr. Goodman describes as “a rather shocking result.” He summarizes: “No matter how many randomized clinical trials have been done on a particular topic, about half the clinical trials cite none or only one of them."
“As cynical as I am about such things, I didn’t realize the situation was this bad,” Dr. Goodman said.
It seems, Dr. Goodman said in an e-mail, that “either everyone thinks their study is really unique (when others thought it wasn’t), or they want to unjustifiably claim originality, or they just don’t know how or want to look."
The situation can have serious consequences for patients, said Sir Iain Chalmers, editor of the James Lind Library, which is a source of information on appropriate tests of medical treatments. He said some patients have suffered severe side effects and even died in studies because researchers were not aware of previous studies documenting a treatment’s dangers.
“That’s the tragedy,” he said. “Not only is it unscientific, it is unethical."
+ Read more: xrl.in/71jv
• • •
Christie Says 23 Schools Get Charters
By Winnie Hu, NY Times xrl.in/71jc
Following through on his promise for more charter schools, Gov. Chris Christie announced Tuesday the approval of 23 new charter schools across New Jersey, including ones with single-sex classes or an emphasis on online learning or character-building.
Seventeen of the new schools, as well as seven previously approved, are scheduled to open in September, bringing the number of charter schools operating in the state next fall to 97, from 73. The other six schools announced by the governor are expected to open in 2012.
“We cannot ask children and families that have been relegated to failing public schools to wait any longer for relief while their hope is stolen away,” said Mr. Christie, who visited the Robert Treat Academy, a well-regarded charter school in Newark.
Mr. Christie, a Republican, also proposed changes in the state’s charter law that would allow local school boards to authorize charter schools, streamline the application process, allow more flexibility for charter school operations and encourage what he called “new and innovative types of charters."
Specialized programs will be offered at several of the 23 new charter schools, including a Hebrew-language immersion school for Teaneck and Englewood; a Jersey City school that will team up with the Liberty Science Center on a curriculum emphasizing math, engineering, technology and science; and a school for students with autism in Newark.
+ Read more: xrl.in/71jc
• • •
Salon Magazine: "Correcting Our Record"
We've removed an explosive 2005 report by Robert F. Kennedy Jr. about autism and vaccines. Here's why
By Kerry Lauerman xrl.in/71jj
In 2005, Salon published online an exclusive story by Robert F. Kennedy Jr. that offered an explosive premise: that the mercury-based thimerosal compound present in vaccines until 2001 was dangerous, and that he was "convinced that the link between thimerosal and the epidemic of childhood neurological disorders is real."
The piece was co-published with Rolling Stone magazine -- they fact-checked it and published it in print; we posted it online. In the days after running "Deadly Immunity," we amended the story with five corrections (which can still be found logged here) that went far in undermining Kennedy's exposé. At the time, we felt that correcting the piece -- and keeping it on the site, in the spirit of transparency -- was the best way to operate. But subsequent critics, including most recently, Seth Mnookin in his book "The Panic Virus," further eroded any faith we had in the story's value. We've grown to believe the best reader service is to delete the piece entirely.
"I regret we didn't move on this more quickly, as evidence continued to emerge debunking the vaccines and autism link," says former Salon editor in chief Joan Walsh, now editor at large. "But continued revelations of the flaws and even fraud tainting the science behind the connection make taking down the story the right thing to do." The story's original URL now links to our autism topics page, which we believe now offers a strong record of clear thinking and skeptical coverage we're proud of -- including the critical pursuit of others who continue to propagate the debunked, and dangerous, autism-vaccine link.
• • •
A Mom Talks with the Director
of Special Education
A satirical and slightly sarcastic look at a conversation between the parent of a child with special needs and an official from the school district who isn't quite getting it.
• • •
Do Vaccine's Cause Autism?
JB Handley from generationrescue.org joined The Steve Malzberg Show to discuss a recent study from one person that said vaccine's for certain disease don't cause Autism. JB tells us about what happened to his son at the age of 2 after he got some what are normal shots.
In This Issue:
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