Qualified immunity is a doctrine that can shield police officers and other public officials from civil suits when they violate individual rights in the course of their official duties. According to the doctrine, courts are supposed to first determine whether an individual’s right was violated and then proceed to determine whether the violation was “clearly established” in the jurisdiction—that is, whether the circumstances had happened before. This can lead to perverse outcomes in which a court can find an officer violated someone’s rights, but if the officer did so in a way completely novel, then the officer cannot be held liable for the violation. In other cases, courts can find that similar sounding circumstances aren’t the same and thus officers may prevail because those differences render the right not “clearly established.”
This morning, the Supreme Court ordered a summary reversal of a Ninth Circuit Court of Appeals opinion that had denied qualified immunity to an officer for shooting and injuring a woman. The woman, Ms. Amy Hughes, had a knife at her side and she posed no immediate threat to the officers or the person she was speaking to at the time she was shot. Other officers on the scene held their fire and were trying to gain Hughes' cooperation before Officer Andrew Kisela shot at her four times. Unfortunately, such decisions have become all too familiar at SCOTUS.
The New York Times recently reported on a proposed policy change at the Environmental Protection Agency that would require the agency to only rely on scientific research with publicly available data when setting pollution exposure standards. Proponents of the rule argue that the practice would allow other researchers to examine and replicate findings, an essential characteristic of the scientific method. Opponents argue the rule would exclude large amounts of research that rely on confidential health information that cannot be public. The Times quotes opponents who view the policy change as an attempt by the Trump administration to attack regulations they don’t agree with by undermining the scientific results on which they are based.
Increased transparency in data used in empirical research and the facilitation of replication of studies are like mom and apple pie. In an ideal world, such practices are the very essence of the scientific method. In practice, academic journals in many disciplines already require that data used in empirical and experimental work be available for replication. The International Committee of Medical Journal Editors, no strangers to the limitations of data that include personal information, recently affirmed their commitment to responsible data sharing.
While opposition to transparency certainly has bad optics, the opponents of this rule change do have a point. The struggle over transparency isn’t really about transparency. Instead, it is simply the latest chapter in the scrum over two studies whose results are the bases of EPA decisions about appropriate clean air exposure standards.
Former U.S. Secretary of Education Arne Duncan has taken to the pages of the Washington Post to let you know that you shouldn’t listen to people who tell you that “education reform” hasn’t worked well. At least, that is, reforms that he likes—he ignores the evidence that private school choice works because, as far as can be gathered from the op-ed, he thinks such choice lacks “accountability.” Apparently, parents able to take their kids, and money to educate them, from schools they don’t like to ones they do is not accountability.
Anyway, I don’t actually want to re-litigate whether reforms since the early 1970s have worked because as time has gone on I’ve increasingly concluded that we do not agree on what “success” means and the measures we have of what we think might be “success” often don’t tell us what we believe they do. These are, by the way, major concerns that I’ll be tackling with Dr. Patrick Wolf in a special Facebook live event on Wednesday. Join us!
Rather than assessing the impacts of specific reforms on what are often fuzzy and moving targets, I want to examine one crucial assertion that Duncan says needs to be “noted”: students today are “relatively poorer than in 1971.”
In 2014 the government of Ecuador, under then-President Rafael Correa, announced with great fanfare that the Ecuadorian Central Bank (BCE) would soon begin issuing an electronic money (dinero electrónico, or DE). Users would keep account balances on the central bank’s own balance sheet and transfer them using a mobile phone app. Enabling legislation was passed in September, qualified users could open accounts beginning in December, and the accounts became spendable in February 2015. A headline on CNBC’s website declared: “Ecuador becomes the first country to roll out its own digital cash.”
The subsequent fate of the electronic money project has received less attention in the American press. Less than three years after opening, the system is now shutting down. In December 2017 Ecuador’s National Assembly, at the urging of President Lenin Moreno, Correa’s hand-picked successor who took office earlier in the year, passed legislation to decommission the central bank electronic money system. The legislation simultaneously opens the market to mobile payment alternatives from the country’s private commercial banks and savings institutions. As described below, the state system had failed to attract a significant number of users or volume of payments. Account holders now have until the end of March 2018 to withdraw their funds. Complete deactivation is scheduled for mid-April.
The substitution of open competition for state monopoly in mobile money is an important victory for the people of Ecuador. The entire episode is important internationally for the lesson it teaches us about the limits to a central bank’s ability to launch a new form of money when the public prefers established forms. The lesson provides an instructive contrast to “the case for central bank electronic money” recently made by Aleksander Berentsen and Fabian Schär in the pages of the Federal Reserve Bank of St. Louis Review.
On March 30, Sally Satel, a psychiatrist specializing in substance abuse at Yale University School of Medicine, co-authored an article with addiction medicine specialist Stefan Kertesz of the University of Alabama Birmingham School of Medicine condemning the plans of the Center for Medicare and Medicaid Services to place limits on the amount of opioids Medicare patients can receive. The agency will decide in April if it will limit the number of opioids it will cover to 90 morphine milligram equivalents (MME) per day. Any opioids beyond that amount will not be paid for by Medicare. One year earlier, Dr. Kertesz made similar condemnations in a column for The Hill. While 90 MME is considered a high dose, they point out that many patients with chronic severe pain have required such doses or higher for prolonged periods of time to control their pain. Promoting the rapid reduction of opioid doses in such people will return many to a life of anguish and desperation.
CMS’s plan to limit opioid prescriptions mimics similar limitations put into effect in more than half of the states and is not evidence-based. These restrictions are rooted in the false narrative that the opioid overdose problem is mostly the result of doctors over-prescribing opioids to patients in pain, even though it is primarily the result of non-medical opioid users accessing drugs in the illicit market. Policymakers are implementing these restrictions based upon a flawed interpretation of opioid prescribing guidelines published by the Centers for Disease Control and Prevention in 2016.
Drs. Satel and Kertesz point out that research has yet to show a distinct correlation between the overdose rate and the dosages on which patients are maintained, and that the data show a majority of overdoses involve multiple drugs. (2016 data from New York City show 97 percent involved multiple drugs, and 46 percent of the time one of them was cocaine.)
Not only are the Medicare opioid reduction proposals without scientific foundation, but they run counter to the recommendations of CMS in its 2016 guidelines. As Dr. Kertesz stated in 2017:
“In its 7th recommendation, the CDC urged that care of patients already receiving opioids be based not on the number of milligrams, but on the balance of risks and benefits for that patient. That two major agencies have chosen to defy the CDC ignores lessons we should have learned from prior episodes in American medicine, where the appeal of management by easy numbers overwhelmed patient-centered considerations.”
In an effort to dissuade the agency, Dr. Kertesz sent a letter to CMS in early March signed by 220 health professionals, including eight who had official roles in formulating the 2016 CDC guidelines. The letter called attention to the flaws in the proposal and to its great potential to cause unintentional harm. CMS will render its verdict as early as today.
Until policymakers cast off their misguided notions about the forces behind the overdose crisis, patients will suffer needlessly and overdose rates will continue to climb.