Filed under: Accountable Care Organization, Antitrust, Cost Control, Health Reform, Insurance Companies
Theresa Brown’s op-ed in the New York Times on Sunday, title “Out of Network, Out of Luck,” raised concerns about patients’ access to physicians within a restricted provider network. Brown describes the market in Pittsburgh, where two large hospital systems, each with an allied health plan, are battling for market share, leaving some patients with a painful choice: leave their treating physician, sometimes during a course of care, or pay higher out-of-network fees. Brown notes that the hospital systems’ integration with payers, and their aggressive swallowing up of physician practices, are steps taken in furtherance of the goals of cost containment and quality improvement.
The piece highlights the growing problem of network adequacy in health plans. The Affordable Care Act’s goal is expanded coverage, but it encourages some mechanisms to restrain cost. For example, health insurance exchanges’ lower-than-expected premiums resulted in part from insurance plans’ restrictive provider networks. The business proposition for narrow networks has been clear for decades, as plans can offer providers patient volume in return for price concessions. This dynamic is complicated, as Professor Tim Greaney has described, near-monopsony power of insurers in some states, and hospital system mergers undertaken in reaction to insurer power, but which can also have anti-competitive effect.
As the Pittsburgh situation demonstrates, powerful hospital systems and insurance plans will duke it out for market power, but may also combine in new, hybrid organizations. As the battleground moves from fee-for-service to more sophisticated reimbursement tools such as global payments, the elbows will get sharper, and the competition that remains will likely narrow patient choices even further. Massachusetts, the precursor in so much that is cutting edge in health policy, is showing the way. As Mechanic, Altman, and McDonough described last year, substantial pressure from plan sponsors and government have led provider systems to cooperate in programs that narrow patient choice, in the interest of restraining cost.
Is this a bad thing? Read more
Seton Hall Law & NYLPI Release Report Documenting Hundreds of Cases of Coerced Medical Repatriation by U.S. Hospitals
Filed under: Cost Control, Health Law, Hospital Finances
Medical repatriations of undocumented immigrants likely to rise as result of federal funding reductions to safety net hospitals under Affordable Care Act
New York, NY, and Newark, New Jersey, December 17, 2012 –Today, the Center for Social Justice (CSJ) at Seton Hall University School of Law and New York Lawyers for the Public Interest (NYLPI) released a report documenting an alarming number of cases in which U.S. hospitals have forcibly repatriated vulnerable undocumented patients, who are ineligible for public insurance as a result of their immigration status, in an effort to cut costs. This practice is inherently risky and often results in significant deterioration of a patient’s health, or even death. The report asserts that such actions are in violation of basic human rights, in particular the right to due process and the right to life.
According to the report, the U.S. is responsible for this situation by failing to appropriately reform immigration and health care laws and protect those within its borders from human rights abuses. The report argues that medical deportations will likely increase as safety net hospitals, which provide the majority of care to undocumented and un- or underinsured patients, encounter tremendous financial pressure resulting from dramatic funding cutbacks under the Affordable Care Act.
The report cites more than 800 cases of attempted or actual medical deportations across the country in recent years, including: a nineteen-year-old girl who died shortly after being wheeled out of a hospital back entrance typically used for garbage disposal and transferred to Mexico; a car accident victim who died shortly after being left on the tarmac at an airport in Guatemala; and a young man with catastrophic brain injury who remains bed-ridden and suffering from constant seizures after being forcibly deported to his elderly mother’s hilltop home in Guatemala.
According to Lori A. Nessel, a Professor at Seton Hall University School of Law and Director of the School’s Center for Social Justice, “When immigrants are in need of ongoing medical care, they find themselves at the crossroads of two systems that are in dire need of reform—health care and immigration law. Aside from emergency care, hospitals are not reimbursed by the government for providing ongoing treatment for uninsured immigrant patients. Therefore, many hospitals are engaging in de facto deportations of immigrant patients without any governmental oversight or accountability. This type of situation is ripe for abuse.”
“Any efforts at comprehensive immigration reform must take into account the reality that there are millions of immigrants with long-standing ties to this country who are not eligible for health insurance. Because health reform has excluded these immigrants from its reach, they remain uninsured and at a heightened risk of medical deportation,” added Shena Elrington, Director of the Health Justice Program at NYLPI. “Absent legislative or regulatory change, the number of forced or coerced medical repatriations is likely to grow as hospitals face mounting financial pressures and reduced Charity Care and federal contributions.”
Rachel Lopez, an Assistant Clinical Professor with CSJ stated, “The U.S. is bound to protect immigrants’ rights to due process under both international law and the U.S. Constitution. Hospitals are becoming immigration agents and taking matters into their own hands. It is incumbent on the government to stop the disturbing practice of medical deportation and to ensure that all persons within the country are treated with basic dignity.”
More information about this issue can be found at medicalrepatriation.wordpress.com, a NYLPI- and CSJ-run website that monitors news and advocacy developments on the topic of medical deportation.
About New York Lawyers for the Public Interest
New York Lawyers for the Public Interest (NYLPI) advances equality and civil rights, with a focus on health justice, disability rights and environmental justice, through the power of community lawyering and partnerships with the private bar. Through community lawyering, NYLPI puts its legal, policy and community organizing expertise at the service of New York City communities and individuals.
About the Center for Social Justice at Seton Hall University School of Law
The Center for Social Justice (CSJ) is one of the nation’s strongest pro bono and clinical programs, empowering students to gain critical, hands-on experience by providing pro bono legal services for economically disadvantaged residents in the region. The cases on which students work span the range from the local to global. Providing educational equity for urban students, litigating on behalf of the victims of real estate fraud, protecting the human rights of immigrants, and obtaining asylum for those fleeing persecution are just some of the issues that CSJ faculty and students team up to address.
Filed under: Cost Control, Private Insurance, Treatment, Uncategorized
The degree of effort put into selecting health care professionals varies among consumers. For instance, many relatively young users of health care may only go through the motions of selecting a primary care physician, whom they may seldom visit, and never investigate specialists that provide more particularized care. A recurring question, however, amongst more frequent health care consumers is “who provides the best care?” As consumers become older, mature, develop ailments more frequently, and raise families, this question becomes asked more and more frequently. Where is such a consumer to look for reliable information? Yes, rating systems of health care professionals are available. But the objectivity of such systems is often questioned because of the agenda of those developing the rating systems. For instance, Andrew Cuomo, the former New York Attorney General, injected New York State into the practices through which an insurance company rated the health care providers in its network. The concern identified by the Attorney General’s office was that insurance companies would rate health care providers based upon their ability to provide care cheaply, rather than on their ability to provide quality care. This concern stemmed from the undeniable profit self-interest of the insurance company. However, was such a stance by the now Governor necessary or appropriate? I think not.
Determining the quality of care delivered by a health care provider is an inherently subjective task. The outcomes of individual patients will depend upon a multitude of factors, many of which are out of the control of the provider. Different patients will react differently to different treatments because of their unique physiology. The same ailment will have indiscernibly progressed to varying degrees in different patients. A doctor could follow all the proper protocols, provide the care called for (i.e., satisfy the standard of care), yet a poor outcome could nonetheless result. The outcome in these instances is largely the result of the “luck of the draw” with respect to a patient pool. Thus, trying to determine which doctors provide the best care is inevitably a limited, if not fruitless, endeavor.
Additionally, a mechanism is already in place to ensure that substandard doctors are not practicing. The training to become a doctor and the required certifications to practice serves as the screening mechanism to ensure that health care providers have the requisite skill to perform their trade. So long as doctors are meeting this minimum established by their field, patients should be led to believe in the ability of those doctors to provide adequate care. Ranking doctors based on outcomes naturally leads consumers to believe that entry level standards are watered down such that doctors “at the bottom” are not competent to perform; which is simply not the case.
Finally, ranking doctors based upon efficiency or cost factors serves a valid societal purpose. Firstly, putting utility aside, such metrics are readily quantifiable, accurate, and objective. And with respect to utility, many patients want efficiency. An efficient doctor is, it would seem, much less likely to engage in “defensive medicine.” For a time pressed patient, as many of us are, reassurance that our time will not be wasted with unnecessary tests and precautions holds real value. And on a societal level, it is obvious that health care costs are out of control. I have recently been put in a position where I must acquire a policy for my family on the open market (I am leaving a secure government position with subsidized health benefits for a position as a law clerk with a small law firm, which does not extend health benefits to its clerks). My monthly contribution is currently $330 for a health plan with no deductible and $20 co-pays. It appears as though my best option on the open market is a $1200/month plan, with a $1,000 deductible. My family is young and healthy. Our annual doctor visits consist of well visits, totaling approximately $1,000 in total costs. With this in mind, if insurance companies can encourage the use of efficient providers (who have been vetted by their profession as proficient at what they do), then this practice should be encouraged. A “high efficiency” network at a reasonable cost would certainly perform well on the open market, particularly among us consumers that don’t actually anticipate using their policies. Health care is or will be a significant factor in everyone’s life at some point. However, if we can prevent it from becoming the driving financial concern among the middle class, that would appear to be a worthy cause.
Adam Peterson is a third-year evening student at Seton Hall University School of Law. He received his B.S. in Conservation Biology from the State University of New York College at Cortland in 2007. Since that time he has worked for the New York State Department of Environmental Conservation as an Environmental Analyst, reviewing development projects for compliance with New York State environmental regulations.
Image by Ludraman.
[U]nlike in other countries, sellers of health-care services in America have considerable power to set prices, and so they set them quite high. Two of the five most profitable industries in the United States — the pharmaceuticals industry and the medical device industry — sell health care. With margins of almost 20 percent, they beat out even the financial sector for sheer profitability. The players sitting across the table from them — the health insurers — are not so profitable. In 2009, their profit margins were a mere 2.2 percent. That’s a signal that the sellers have the upper hand over the buyers.
I don’t agree that insurers are being bullied as buyers. If we’re going to bring up the financial sector, a better analogy would compare pay differentials between revenue-generating traders (providers) and the back office clerical and IT workers (insurers), rather than assume some common baseline of industrial profitability. The health care providers actually (try to) improve health; the insurers (are supposed to) support that primary effort. But overall, the story Klein tells here is broadly consistent with many other explanations of high prices in US health care.
What will solve that problem? Probably not health care reform, though regulators will struggle mightily to impose some discipline via IPAB and other entities. Followers of Clayton Christensen think pure technological innovation may wildly succeed where an oft-captured regulatory system is failing. Farhad Manjoo provides some empirical support for their hopes:
As computers get better, we’ll need fewer humans across a range of specialties. Look at mammography: One of the main ways radiologists can improve their breast diagnoses is by “double reading.” When two radiologists independently examine a collection of mammograms, the number of cancers detected increases substantially. A study published in 2008, however, found that a radiologist who uses ImageChecker can skip the second reading: A computer and a human are just as good as two humans.
[T]he doctors who are the juiciest targets for automation might not be the ones you’d expect. They’re specialists . . ., the most highly trained, highly paid people in medicine. It’s precisely these factors that make them vulnerable to machines. By definition, specialists focus on narrow slices of medicine. They spend their days worrying over a single region of the body, and the most specialized doctors will dedicate themselves to just one or two types of procedures. Robots, too, are great specialists. They excel at doing one thing repeatedly, and when they focus, they can achieve near perfection. At some point—and probably faster than we expect—they won’t need any human supervision at all.
Robots and automation are already taking on prominent roles in wars, factories, and political campaigns. The type of pattern recognition common to some medial specialties may be natural to them, particularly as electronic medical records and digitization take hold. Of course, an all purpose “physician robot” would be a much harder endeavor. In the context of a discussion of rationing, one health law textbook suggests that a mapping of possible interventions “would require rigorous scientific information on each of the almost 10,000 diagnostic entries in the International Classification of Diseases (9th ed.) (known as ‘‘ICD-9’’) and for each of the 10,000 medical interventions listed in the AMA’s Common Procedural Terminology (known as ‘‘CPT’’ codes).” ICD-10 has about 7 times more codes than ICD-9. But just as chess was once considered a field impenetrable to artificial intelligence, and now has been mastered by some computers, so too might medicine itself become subject to the exponential growth in information processing characteristic of mature digitized industries. It’s becoming clear that “the variety of jobs that computers can do is multiplying as programmers teach them to deal with tone and linguistic ambiguity.”
So will technology save us from ever-increasing health care costs? I’m not optimistic, because politics and economics are a constraint on all these developments. The same patterns of patronage and tribute that make comparative effectiveness research such a hard sell in the US may well restrain technology adoption. Just as specialists dominate the RUC, they can probably find ways to slow the adoption of technological substitutes for their hard-won expertise. As Umair Haque has observed, “In a neofeudal polity, patronage replaces meritocracy. ‘Success’ for an organization, coalition, or person is to become a client of a powerful patron, pledging your services (soft and hard, informal and formal), in perpetual alignment with the patron’s interests.” We’ll see many physicians in coming years invest time and effort in technological innovation, and others devoted to deterring its spread in order to protect current income streams.
At this point, you’re probably expecting me to side decisively with the technologists as heroes. But I can’t do so. I don’t buy an economic model premised on incentivizing innovation by setting off a race among radiologists (or, more realistically, financiers) to be the first to patent the machine that can replace all the other radiologists. Rather, I think the real foundation for radically productive innovation in this and other fields is a baseline of social support and commitment to retraining for professionals who could be displaced by the technology. I’m not saying, “pay radiologists what they make now, forever.” Rather, I’m trying to articulate a variant of a “guaranteed basic income” argument for those who invest heavily in learning about science, technology, and medicine. This baseline of educated users, improvers, and evangelizers of technology is the foundation of any venturesome economy. As Amar Bhide has explained,
[T]he different forms of innovation interact in complicated ways, and it is these interconnected, multilevel advances that create economic value. . . . To state the proposition in the terminology of cyberspace, innovations that sustain modern prosperity have a variety of forms and are developed and used through a massively multiplayer, multilevel, and multiperiod game.
We may well find that in decades to come, machines can do the jobs of radiologists and pathologists much better than people can. But if that transition occurs, it’s important to recognize how much current specialists invested to attain their skills, how hard they presently work to maintain a high level of medical skill in this country, and how future innovations may well dry up if people feel that those on STEM career paths are utterly vulnerable to being “kicked to the curb” once a machine does their job slightly better. Not only is “sole inventorship” a myth; we often fail to appreciate the complex educational and service apparatus necessary for innovation to take place. As Alperovitz and Daly have shown, any system that grants 93% of its gains to 1% of the people is an ongoing instruction in the economic futility of the efforts of the vast majority of its citizens.
Here’s an abstract of my review of Gregg Bloche’s fascinating book, The Hippocratic Myth:
Not many policymakers or scholars can write with the authority of Gregg Bloche. Bloche is not only a law professor, but a physician, who knows his way around a hospital. Throughout The Hippocratic Myth, Bloche cements his authority in the mind of the reader by relating stories of his experience as a clinician. In each of these stories, his humane and insightful approach as psychiatrist shines through. These fluently-written passages strike one as the work of one of those rare practitioners who manages to care deeply about the patient at hand while simultaneously contextualizing the encounter in a larger framework. Thus The Hippocratic Myth should take its place among other well-received books by physicians with a sense of the big picture, including Atul Gawande’s The Checklist Manifesto and Better and Jerome Groopman’s How Doctors Think.
In The Hippocratic Myth, Bloche leverages this authority to advocate for a more cost sensitive health care system, where individuals frankly acknowledge that they should expect trade-offs between cost and access to certain forms of care. My concern in this review is that Bloche the caring and expert physician would have a tough time in a health care world too deeply influenced by Bloche the cost-conscious author.
Bloche’s book is one of those rare volumes that merits a careful read by scholars, classroom reading by students, and a broad popular audience.