Obama, Health Reform, Plan B

Interesting article in the Washington Post worth taking a quick view. According to WaPo:

Increasingly, the White House appears to favor having the House pass a version of the measure that cleared the Senate with 60 votes in December. The Senate would then pass changes to the bill to satisfy some demands of House Democrats. That Senate vote would take place under a parliamentary procedure known as reconciliation, which requires 51 votes rather than 60.

It remains unclear whether Democrats have enough votes within their ranks for this strategy to work. At the same time, it is only “one option” the president is considering, a senior White House official said Sunday.

In addition, the Washington Post points out that White House adviser Nancy-Ann DeParle “said on Sunday she thinks Democrats will secure enough ayes on the measure and signaled that the administration could be moving toward trying to pass it along party lines.”

The Wall St. Journal’s Health Blog points out, however, that there may be some difficulty in implementing such a plan:

But the process of keeping enough Democrats in line for even a simple majority is tricky: House members in particular still like their bill better than the Senate version and the changes they seek from the Senate also aren’t a sure thing before the House votes.

The President is expected to unveil his strategy later in the week.

Obama’s Plan for a Health Care Summit and the Unenthusiastic Response

Last week, President Obama announced plans to hold a bipartisan health care summit to push forward on health care reform and to give both sides an opportunity to discuss ideas for health reform legislation that will be able to garner enough votes for passage.  While President Obama and Democratic Congressional leaders want to use the health care proposals that have already passed in the House and in the Senate, Republicans say that they are unlikely to vote for a bill unless the current proposals are scrapped and the process is started afresh.  It seems like Americans, once again, may be left watching the theatrics of the health care reform debate without actually being the focal point of it.

Some conservative Congress members have already responded to the President’s invitation publicly to make their steadfast positions known.  Representative Eric Cantor (R-Va.) said this past week that he was not willing to discuss a “health reform package that spends money we don’t have.”  He added that “House Republicans have offered the only plan that will lower health care costs.”  If that is true, it is likely attributable to the fact that the House Republican bill would cover only 3 million uninsured Americans, compared to the Democratic House bill which would  insure an additional 36 million Americans.

On Monday night, House Minority Leader John A. Boehner (R-Oh.) joined Cantor in submitting a letter to White House Chief of Staff, Rahm Emanuel, which said that the Republicans were not willing to come to the table unless certain prerequisite questions were answered.  You can see the whole letter here.  In the letter, Cantor and Boehner express their non-support for reform that the American people themselves are not supporting; the basis for such being the recent Republican Senate win in Massachusetts.

Exactly what are the citizens of American thinking about health care reform anyway?  CNN reported on Tuesday that nearly two-thirds of Americans want Congress to persist in passing health care reform legislation.  The poll, an ABC News/Washington Post survey, also indicates that Americans blame both Democrats and Republicans on their unwillingness to compromise.  HHS Secretary Kathleen Sebelius herself is quoted as saying, “When people look up close at the personal activities of Congress they are confused and disgusted with the whole process and too afraid that whatever is going on can’t possibly be good for them or their families.”

Many believe that the idea for the health care summit was to address the back-door processes that led to American distrust and to make it all more transparent.  Still, there appear to be more differences between the conservative version of reform and the liberal version than points of reconciliation.  Though the prolonged tug-of-war between both sides does not seem like one that might be resolved in a day of convening, the summit is, perhaps, at least a start.

And, while the political contenders decide what to do about the summit, the health reform stalemate has presently-occurring repercussions. Many hospitals, which were holding on to the hope of reform, are now at the point where downsizing their health systems is thought to be the only step left.  Hospitals all around the country have been seeing more and more uninsured patients, and with no one to cover the full cost of services, the hospitals providing unreimbursed care are said to be further sinking into debt– and must therefore cut staff as well as services.  On the individual level, Americans are also finding it difficult to  keep up with the costs of health care, and while many forgo insurance, those that cannot due to chronic illness or necessity of care are finding the cost further prohibitive.

It would make sense, then, that Americans do want reform.  Andrew Rubin, Vice President for Medical Center Clinical Affairs for NYU Langone Medical Center and radio show host for HealthCare Connect, says that one of the underlying reasons why Americans are reluctant to give support for legislation is their lack of understanding of what is happening, not because they do not want to see change.  Let’s hope that the proposed health care summit will be used to clarify issues for Americans who do need and want health care, instead of for just another political brouhaha.

Taking the Fraud Out of Medicare Expansion

One of the ways the Obama administration hopes to pay for health care reform is through policing Medicare fraud.  It is estimated that the Centers for Medicaid and Medicare Services (CMS) spends $60 billion a year on fraudulent claims.  According to Senator Grassley of Iowa, the federal agency received warnings of fraud by watchdog organizations, but did not respond to most of them; these warnings fell upon the CMS’s shoulders under the Bush Administration.

A report by the Department of Health and Human Services finds that much of the fraud in the Medicare Prescription Benefit program could have been avoided through better management of the companies that were hired by the federal government in 2006 to investigate and monitor the fraud.  Grassley notes that the companies, called Medicare drug integrity contractors or Medics, were essentially a waste of money because they were never given the proper information to perform the audits.  The New York Times reports that the Bush Administration did not allow for the audits by Medics to proceed until its final few months in office.

Under the current model, scams to get Medicare reimbursement for non-existent services are easier than one might think.  Just this past July, a couple who owned a medical business was indicted for submitting false reimbursement bills to the CMS for power wheelchairs that they claimed had been lost or destroyed during Hurricane Katrina.  Other scams include medical suppliers billing Medicare for equipment that was never given to patients, creation of fake medical supply companies, and acceptance of illegal kickbacks for referring Medicare patients to unneeded services.

Solutions to fraud, however, are not as clear-cut as one might wish.  For example, there is a worry that over-policing the CMS will lead to valid claims being denied at greater rates. Also, enforcement and punishment are issues.  Some health care companies have been able to escape criminal prosecution by paying restitution amounts for the fraudulent claims.  Finding restitution to be an insufficient deterrent to would-be fraudsters,  Senator Arlen Specter of Pennsylvania wants to see scammers put behind bars. But there is also something to be said for the realization that the “Arthur Anderson solution” is really no solution at all.

Another interesting aspect to consider here is that the CMS finds that provisions of the House bill intended to reduce Medicare fraud will not save all that much money.  In spite of this (or perhaps because of it) many of our leaders have demanded that some action be taken to reduce Medicare fraud– even Sarah Palin says fraud is an issue.  One hopes that the Obama administration will learn from its predecessor’s mistakes (if in fact they be such) when it comes to creating watchdogs such as Medics, but then muzzling and not feeding them.

Another Call for Women’s Action on Health Care Reform

Just a little over a month ago, Michelle Obama called upon women to take action to make sure their representatives would vote for health care reform.  This past week, Michelle made another request for women to respond to the national health reform debate during a breast cancer event at the White House.  As the debate seemingly winds towards a conclusion of reform, still, women are unsure that health care reform will actually accomplish that which really needs to be done to help women access better, more comprehensive health care.  While mom’s of America are saying the current health care reform proposals do not include their needs, the National Women’s Law Center exclaims “I am not a preexisting condition.”

The National Women’s Law Center released a second report this month on the affect of gender bias and discrimination in health insurance on women’s lives.  Their report includes an analysis of the discrepancies in health care access between men and women as well as an updated state-by-state comparative chart of states that still allow gender-rating and pre-existing condition discrimination in their health care plans.  Another interesting aspect of the report is the information on states that have, as of late,  reformed their health care systems to be more inclusive of women’s access to health care. One might wonder if the reformation was spurred or enabled in part as a result of the initial report’s publicity.

If you’re wondering about how your state fares in relation to women’s health care issues, be sure to check the most recent NWLC Report as well as Kaiser’s www.statehealthfacts.org.  Also, the Commonwealth Fund has just released a new report comparing the various Congressional health reform bills of 2009.  The report shows that the proposals which seem to pay most (though not enough) attention to women’s health care needs are that of the Senate Health, Labor, and Pensions Committee and the House of Representatives Tri-Committee, which both hope to establish an Office of Women’s Health.  All of these online resources are a great way to get more information and find out where holes in the health reform bills still need to be filled.

To be able to voice direct concerns, the organization Women of Color United for Health Care Reform is hosting a call-in day on Tuesday, October 27^th that will directly connect women to their respective Senators and Representatives.  The calls will be a chance for women to tell their Congress members what they want from health care reform and why allowance of pre-existing conditions denials and gender-rating are not acceptable.  Such calls worked well earlier this month in an event organized by Organizing for America, which enabled callers to tell Congress that they wanted health care reform– with many saying they that really wanted a public option.

Action needs to be taken– and the Obama Administration is asking for exactly that from women.  Though women are most often the health care decision makers in the family unit, men are also needed to voice their concerns:  why their mothers, daughters, wives, and sisters deserve a health care plan that serves their needs.  Call in on Tuesday, the 27^th and let Congress know what’s on your mind.

Because She Said So: Michelle Obama Wants Women to Stand Up for Health Care Reform

Last Friday, First Lady Michelle Obama addressed the nation’s women, asking them to mobilize in support for health care reform.  Similar to the sentiments expressed in my post last week, Obama presented health care as a woman’s issue– further stating that health care is most important to what she called the “sandwich generation,” those who have the responsibilities to care for the elderly in their family as well as the children.  Obama calls the current health care system “unacceptable,” and one that needs reform to “ensure women have opportunities that they deserve.”  Included in such opportunities for women, as the First Lady said, is the freedom and ability to care for their families.

Further complicating the situation, many women find themselves earning more than is allowed to be eligible for public insurance yet not enough to purchase private insurance.  Women are also less likely than men to secure employer-based insurance, which can be attributed to the fact that women are more likely to work part-time and have lower incomes.  Employment equality issues ring a bell?  Check out this New York Times web tool, which gives a comparative analysis on how different individuals are affected by health care reform.  It is interesting in that it shows that for women, especially those who are unmarried, the current system leaves them largely to fend for themselves in the individual market; it also shows the potential benefits of a public plan option.  As I detailed last week, the individual market in health insurance, not subject to a host of anti-discriminatory legislation and regulation, poses significant problems to women when it comes to supplying affordable and reliable insurance.

One of the biggest issues Michelle Obama seemed to have with the current system was gender rating; it continues to force women to pay much higher premiums than men in private insurance plans.  The actuarial argument, that women’s health care needs require regular preventive care (which in reality, women and men alike should be getting) is significantly undermined by the research which shows the ultimate cost benefits of preventive care–for both women and men. It seems both ironic and counter-productive that this justification is used to punish with higher premiums those who embark upon the proactive health maintenance which so many agree is both the key to ultimate health care cost control and one of the primary goals of health care reform. Hopefully, Obama’s optimism that such gender rating will be removed through the current reform process will prove true.

With so many challenges aligned against women, it is apparent that, as stated by the Congressional Joint Economic Committee, “The status-quo health insurance system is serving women poorly.” Perhaps this is why the Obama administration, in its drive to convince Americans that the issue of health care can no longer be pushed aside, is turning to women.  A smart choice, whichever way you look at it, since women as a whole are one of the groups most strongly supporting health care reform.

So what can women do to get active in the health care reform movement, as Michelle Obama asks of us?  For now, make sure you stay on top of what the language of health reform bills says about health care for women and families.  The National Women’s Law Center is a great organization to get connected to for updates and summaries of the effects of new legislation on women’s access to health.   Through the National Women’s Law Center, you can also contact your Members of Congress to let them know that you support health care reform that addresses women’s needs.  Spread the word to your mothers, daughters, sisters, and friends; tell them Michelle Obama needs our help.

The Call for Medical Malpractice Reform as Health Care Reform: Sound and Fury? (Redux & Remix)

In Obama’s speech before Congress, he mentioned (to booming and overwhelmingly Republican applause) the prospect of medical malpractice reform– particularly as it relates to “defensive medicine” and patient safety:

Now, finally, many in this chamber — particularly on the Republican side of the aisle — have long insisted that reforming our medical malpractice laws can help bring down the cost of health care. (Applause.) Now — there you go. There you go. Now, I don’t believe malpractice reform is a silver bullet, but I’ve talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs. (Applause.) So I’m proposing that we move forward on a range of ideas about how to put patient safety first and let doctors focus on practicing medicine. (Applause.) I know that the Bush administration considered authorizing demonstration projects in individual states to test these ideas. I think it’s a good idea, and I’m directing my Secretary of Health and Human Services to move forward on this initiative today. (Applause.)

A few months back we covered the issue of malpractice reform and “defensive medicine” here on HRW.  Not much has changed since then (see below), but as we speak of those things which can make patients safer– including the prospect of doctors and hospitals being subject to suit– this article from the NY Times’ Prescriptions, “A Hospital Hand-Washing Project to Save Lives and Money,” is worth considering. In it, we are told of a study undertaken, for the chief hospital accrediting agency (the Joint Commission), by eight prominent hospitals to ascertain whether or not hospital staff were washing their hands  in accord with the central standards of the World Health Organization and the Centers for Disease Control and Prevention. They were not. Egregiously not. NY Times’ Prescriptions reports:

Hand-washing is considered vital in health care settings to prevent the spread of potentially-infectious pathogens, like Methicillin-resistant Staphylococus aureus. And close attention to such basic hygiene could be a way of reducing the nation’s hospital health care bill by billions of dollars.

To create a baseline, each hospital agreed last spring to carefully measure its current compliance, using trained unidentified observers. To the surprise of many administrators, the hospitals found that caregivers on average washed their hands fewer than half the times they entered or exited a patient’s room.

and that

The low compliance rates, which ranged from about 30 percent to 70 percent at individual hospitals, “are hallmarks of processes that are not in control,” said Dr. Mark R. Chassin, the Joint Commission’s president.

Findings of shockingly poor hand-washing compliance are not new in hospitals. Other studies have produced comparable figures, and the stories of fatal consequences have become tragically routine.

The disease control agency estimates there are 1.7 million infection cases a year in hospitals and that 99,000 patients die after contracting them (although infection may not be the sole cause). It projects the cost of treating those patients at $20 billion a year.

As I say in the post below, “Seemingly, one would define “defensive medicine” as that which a doctor [or hospital] does, which he or she would not do, if solely exercising his or her [or its] discretion without the fear of being sued. Therefore, might I suggest that “defensive medicine” is only excessive if the doctor’s [or hospital's] best estimation of the situation is correct.”

Apparently, contrary to the Joint Commission, the World Health Organization, and the Center for Disease Control and Prevention, the best estimation of a great many hospital staff is that they need not wash their hands.

REDUX, June 09. In case you missed it.

“THE FIRST THING WE DO,  LET’S KILL ALL THE LAWYERS.”
–Wm. Shakespeare, King Henry VI, Part II, (Act IV), Scene 2

[Today's post comes from a Bloomberg.com article I found via Kevin Giordano at http://twitter.com/SHHealthcareLaw -- a great source for Health Law news.]

The familiar refrain of “medical malpractice reform” has once again begun to echo through the popular landscape. It is being proffered as a means of achieving health care reform. But recent studies seem to show, as Bloomberg reports, that we might be better served to look elsewhere:

Protecting doctors from lawsuits may do more to gain political cover for President Barack Obama’s health-care overhaul than to rein in medical costs.

While Obama vowed to address physicians’ malpractice worries in a speech yesterday, annual jury awards and legal settlements involving doctors amounts to “a drop in the bucket” in a country that spends $2.3 trillion annually on health care, said Amitabh Chandra, a Harvard University economist. Chandra estimated the cost at $12 per person in the U.S., or about $3.6 billion, in a 2005 study. Insurer WellPoint Inc. said last month that liability wasn’t driving premiums….

“Medical malpractice dollars are a red herring,” Chandra said in a telephone interview. “No serious economist thinks that saving money in med mal is the way to improve productivity in the system. There’s so many other sources of inefficiency.”

The relative cost figures regarding the costs associated with malpractice are worth noting –as reported by Bloomberg:

About 10 percent of the cost of medical services is linked to malpractice lawsuits and more intensive diagnostic testing due to defensive medicine, according to a January 2006 report prepared by PricewaterhouseCoopers LLP for the insurers’ group America’s Health Insurance Plans.

2 Percent of Spending

The figures were taken from a March 2003 study by the U.S. Department of Health and Human Services that estimated the direct cost of medical malpractice was 2 percent of the nation’s health-care spending and said defensive medical practices accounted for 5 percent to 9 percent of the overall expense.

A 2004 report by the Congressional Budget Office also pegged medical malpractice costs at 2 percent of U.S. health spending and “even significant reductions” would do little to reduce the growth of health-care expenses.

Defensive Medicine

As is, I believe, readily apparent, defensive medicine comprises a great deal of that estimated expense associated with malpractice. It may benefit us to consider for a moment just what defensive medicine is. Seemingly, one would define “defensive medicine” as that which a doctor does, which he or she would not do, if solely exercising his or her discretion without the fear of being sued. Therefore, might I suggest that “defensive medicine” is only excessive if the doctor’s best estimation of the situation is correct.

Bloomberg reports that “The U.S. Institute of Medicine found a decade ago that medical errors kill 98,000 Americans a year” according to Les Weisbrod, president of the Washington-based trial lawyers’ group, the American Association of Justice.

According to Medical News Today, the medical error fatality figures above were supported by “Dr. Chunliu Zhan and Dr. Marlene R. Miller in a research study published in the Journal of the American Medical Association (JAMA) in October of 2003. The Zhan and Miller study supported the Institute of Medicine’s (IOM) 1999 report conclusion, which found that medical errors caused up to 98,000 deaths annually and should be considered a national epidemic.

A study by HealthGrades found more than twice that number in “potentially preventable deaths.”

In a post entitled Surgical Checklist Said to Save Lives & Money, we noted the following:

The use of a basic checklist was shown to be associated with a substantial decrease in surgical deaths and complications. In what the A.P. referred to as a “a large international study of how to avoid blatant operating room mistakes,” researchers found a 47 per cent decrease in death and a more than one third decrease in complications-from 11% to 7%- concomitant with the use of a 19 point checklist designed by the World Health Organization.

A.P reports that regarding the elements on the list (many of which concern matters such as verifying the patient’s identification, marking the area to be incised with a magic marker, discussing patient allergies and surgical team member responsibilities, and accounting for all needles, sponges and instruments after the surgery) U.S. hospitals have been required since 2004 to take some of these precautions. But the 19-item checklist used in the study was far more detailed than what is required or what many institutions do.

The researchers estimated that implementing the longer checklist in all U.S. operating rooms would save at least $15 billion a year. The study, which was conducted in both “wealthy” and “poor” nations in eight city hospitals across the world (including Seattle, Washington), was published in the New England Journal of Medicine; its results were said to have “startled the researchers.”

Finally, it should be noted that as someone with a J.D. after his name who has read more malpractice cases than I care to remember, I don’t claim to be unfettered by professional bias. And to make the case for fact-based reflection upon a subject is not to dismiss the underlying concerns of the subject as unwarranted– it is merely a call for appropriate perspective: given the number of yearly fatalities due to error (not to mention injuries due to the same), I am not prepared to categorize what doctors refer to as “defensive medicine” as a wholly unfounded expense.

As for the Shakespeare quote, “First thing we do, let’s kill all the lawyers,” I’ll leave that in the more than capable hands of Attorney Howard L. Nations:

Those who use this phrase pejoratively against lawyers are as miserably misguided about their Shakespeare as they are about the judicial system which they disdain so freely.

Even a cursory reading of the context in which the lawyer killing statement is made in King Henry VI, Part II, (Act IV), Scene 2, reveals that Shakespeare was paying great and deserved homage to our venerable profession as the front line defenders of democracy.

The accolade is spoken by Dick the Butcher, a follower of anarchist Jack Cade, whom Shakespeare depicts as “the head of an army of rabble and a demagogue pandering to the ignorant,” who sought to overthrow the government.  Shakespeare’s acknowledgment that the first thing any potential tyrant must do to eliminate freedom is to “kill all the lawyers” is, indeed, a classic and well-deserved compliment to our distinguished profession.

Immigrants, Health Reform, and “Lies”

In a much-anticipated prime time address to Congress, President Obama made the case for health care reform.  One ostensible goal of the speech was to correct misinformation about the bills proposed by Congress.  As a scholar who studies both health care and immigration (and sometimes the intersection between the two), I’ve grown increasingly frustrated with the misconceptions surrounding this issue — and I very much hoped the President would deflate the myth that health reform would provide federal benefits to undocumented immigrants.

Of course, when President Obama made this very point (”The reforms I’m proposing would not apply to those who are here illegally”), he was greeted with a heckle from South Carolina Representative Joe Wilson, who shouted “You lie!”  Although Rep. Wilson later apologized for his “lack of civility,” he didn’t recant the basic factual assertion, making clear that he still disagreed with the President’s statement that health reform doesn’t cover undocumented immigrants.  Of course, the media has jumped on this story, but perhaps unsurprisingly, few bothered to clarify the underlying factual dispute.

Neither bill published by the House or Senate covers undocumented immigrants.  In fact, both bills state in pretty plain terms that they don’t do it.  The House bill, titled America’s Affordable Health Choices Act of 2009, states in Section 242 that those not lawfully present in the United States are not eligible for insurance subsidies or tax credits.  To make it even more clear, Section 246 is titled “No Federal Payment for Undocumented Aliens,” and states “Nothing in this subtitle shall allow Federal payments for affordability credits on behalf of individuals who are not lawfully present in the United States.”

Likewise, the Senate Health, Education, Labor, and Pension Committee’s bill, titled the Affordable Health Choices Act, states in Section 3111(h) that “Nothing in this Act shall allow Federal payments for individuals who are not lawfully present in the United States.”  The Senate Finance Committee has yet to release its bill, but it’s a good bet that undocumented immigrants similarly will be excluded.

Although nothing in the bills apparently would prohibit undocumented immigrants from purchasing health insurance in the new national marketplace (called an “exchange” and a “gateway” in the House and Senate bills), it’s not clear why anyone would take issue with immigrants purchasing insurance on their own, without federal subsidies.  Moreover, although nothing in the bills seems to alter federal funding for emergency care provided to immigrants, nothing creates such a benefit either — thus undercutting Rep. Wilson’s contention with the President.

This controversy should remind us that immigrants remain in a sort of health care purgatory, caught in our two most dysfunctional systems — immigration and health care.  In the mid-1990s, Congress severely limited immigrant access to programs like Medicaid as part of welfare reform, making it difficult for even lawful immigrants to enroll.  In fact, even lawful immigrants aren’t eligible for Medicaid for five years after entering the United States — and various peculiarities of immigration law often push this waiting period to ten years.  At the same time, immigrants do receive indirect federal funding for health care through the Emergency Medical Treatment and Active Labor Act (EMTALA), which requires hospitals with emergency departments to screen and at least stabilize patients presenting with emergent conditions.  Thus, hospitals must provide emergency care regardless of the patient’s immigration status.

Unfortunately, most immigrants are ineligible for means-tested public insurance programs like Medicaid.  This regulatory framework has led to “medical repatriation,” in which hospitals effectively deport immigrant patients to unload expensive long-term care burdens.  Of course, hospitals — most of which are run by state and local governments — complain about unfunded federal mandates like EMTALA.  Hospitals can be “stuck” treating immigrants whose medical needs have shifted from acute to long-term (as with the car accident victim who needs neurological rehabilitation and nursing care).  As Prof. Boozang discussed, a growing number have begun “repatriating” immigrant patients by sending them back to their country of origin — without consulting immigration officials — sometimes by purchasing commercial plane tickets or even hiring air ambulances.

Certainly, there are more humane ways to handle health care for immigrants.  California, for example, legalized cross-border health insurance, thus allowing immigrants living in the state to purchase insurance with lower premiums and deductibles that covers care provided in Mexico.  Arizona and Texas have considered similar legislation, to no avail.  Recently, UCLA researchers estimated that over 950,000 people travel from California to Mexico for medical care every year.  For a population being left out of health care reform, traveling to Mexico for care may be the future — whether voluntary or not.

Obama’s Speech on Health Care Reform, In its Entirety

In case you missed it, courtesy of MSNBC

Republican Rebuttal, Obama Health Care Reform Speech

In cased you missed it: Louisiana Rep. & Doctor Charles Boustany. (4 minutes, 33 seconds) Courtesy of MSNBC

Amusing Ourselves to Death, Health Care Edition

As health insurance reform hopes entered a downward spiral in August, a squad of Monday morning quarterbacks blamed Democrats for mismanaging the debate. Turning his attention from the finance to the insurance industry, Matt Taibbi is particularly withering:

There [are] now so many competing ideas about how to pay for the plan and what kind of mandates to include that even after the five bills are completed, Congress will not be much closer to reform than it was at the beginning. “The president has got to go in there and give it coherence,” [former Labor Secretary Robert] Reich concluded.

But Reich’s comment assumes that Obama wants to give the bill coherence. In many ways, the lily-livered method that Obama chose to push health care into being is a crystal-clear example of how the Democratic Party likes to act — showering a real problem with a blizzard of ineffectual decisions and verbose nonsense, then stepping aside at the last minute to reveal the true plan that all along was being forged off-camera in the furnace of moneyed interests and insider inertia.

There are some aspects of the Senate HELP Bill that bear out Taibbi’s cynicism, and I expect more in the Gang of Six’s handiwork. But Taibbi misses the forest of reform for the trees of venal interest group grabs that are embedded in any modern legislative process. (Can he really say that even Baucus’s bill, the worst proposed so far, is so bad that it’s worse than the status quo?)

And can we please back up a bit and consider how industry giveaways develop “off-camera?” Professor Timothy Jost, one of the most authoritative, knowledgeable, and diplomatic voices in the health reform debate, has this to say about the media coverage of health insurance this summer:

I have explained how the bill works at a number of public meetings in recent days and have uniformly met the same response, “no one has laid this out for us before”. The media has done a terrible, an abysmal, an inexcusable, an unethical job of covering reform. They have completely abdicated their job of informing the public in favor of becoming an entertainment industry. The media have attended only to the politics, the controversy, the nuts, and the absurd, and have done almost nothing to let the public know what is at stake and what the legislation does. Consequently, the American people uniformly confess to being confused.

What could bring clarity? Paul Krugman, indispensable in so many other areas of contemporary political debate, offers this frame. He proposes Obama say the following:

“We’re going to make sure that every American has access to the same insurance deals big employers get. We’re going make sure that no American can be denied coverage at a reasonable rate because of previous medical history. And for those Americans who find it hard to afford essential insurance, we’ll provide financial aid.”

“Now, there are a few things we’ll need to do to make this work. We’ll have to require that all large employers either offer coverage to their workers or pay into a fund that helps them get their own insurance. We’ll sign people up for insurance now, even if they’re healthy, because it’s not fair to others if you wait until you’re sick to join the system. And we’ll keep the insurance companies honest by offering people the choice of buying their insurance directly from a public plan.”

“Let me be honest: this won’t come free. But this plan will give Americans the fundamental security of knowing that for the rest of their lives they and their families will have the health insurance they need, insurance that they can’t lose.”

Krugman also addresses the thorny issue of the public option, arguing that it’s crucial to balance an individual mandate to have health insurance with an option to join a public plan. It should be easy for America’s “vast middle class” to see the benefits here, if Obama can break through the carnival of death panel-talk that the media has seized on this summer.

“You’re not being Bipartisan.” “No, You’re not being Bipartisan.”

The Obama administration and the gang of six’s Republican Senators Charles Grassley and Mike Enzi continue to trade barbs about who is “not being bipartisan.”

The latest response comes from Senator Grassley responding to David Axlerod who had responded to statements Senators Grassley and Enzi had made over the summer recess.

Mr. Axlerod had the temerity on Monday to accuse the Senators of “negotiating in bad faith,” offering that the Senators actions suggested “that they don’t want to participate” in bipartisan talks. Mr. Axlerod further stated:

“If you’re sitting at a table negotiating in good faith, then you probably don’t send out mailers saying, ‘Help me stop Obama-care.’ That’s just common sense.”

According to A.P.,

Enzi, in a radio address Saturday, said Democratic proposals would restrict medical choices and make the country’s “finances sicker without saving you money.”

In an August fundraising letter, Grassley asked for “support in helping me defeat Obama-care.” He said Democratic-drafted bills would be “a pathway to a government takeover of the health care system.”

Far be it from me to define “bipartisan cooperation,” but I must admit “Help me defeat Obama-care” doesn’t really seem to capture the essence of that spirit.

Jill Kozeny, a spokeswoman for Senator Grassley defended the statement saying, according to A.P., that “Grassley was simply restating his well-known opposition to a government-run health insurance plan.”

In addition, Ms. Kozeny in turn responded to Mr. Axlerod’s  accusation as follows:

“Attacks by political operatives in the White House undermine bipartisan efforts and drive senators away from the table,” but added that “the so-called “Group of Six” senators would continue to work for a compromise despite his comments.”

Having been in a schoolyard tussle or two in my time, I can’t help but feel the similarity as each side accuses the other of failing to be “bipartisan.” As a kid growing up in the late sixties and seventies in working class New Jersey, schoolboys everywhere labored under the same admonition from our fathers: “Don’t you start a fight–but if anyone hits you first–or says something about your Mother–you can hit him.” Except for the truly spontaneous outbreaks, most fights (or putative fights) began with ten or twenty minutes of some form of verbal interchange designed to try to get the other guy to throw the first punch, followed by shoving, and then–if no one broke it up–a fight.

And I’m not entirely sure which category “You’re not bipartisan.” “No, you’re not bipartisan” fits (though I suppose there’s no question as to where all that talk about “pulling the plug on grandma” belongs) –but as I’ve said, the similarity to schoolboys trying to engage in a tussle without blame is keen–far too keen. It would be funny–if it weren’t for all those sick people and the fact that we somehow manage to spend considerably more for health care and get considerably less than most everyone in the world.

Obama is said to be scheduled to address Congress about Health Care Reform on prime-time television come the Wednesday after Labor Day. Maybe he can break it up. If not, it might be time to start shoving– or at least twisting some arms– LBJ style.

Obama to Republicans: With or Without You

The Washington Post reports that  President Obama has openly considered health reform legislation without Republican support:

“Sometime in September we’re going to have to make an assessment” about whether to keep trying to negotiate with Republicans, he told MSNBC.

Obama said he “would prefer Republicans working with us” but that getting his main priorities for a health care overhaul are more important. It represents a marked change from the emphasis Obama placed on bipartisanship when he launched his campaign for a health care overhaul at a White House summit in March.

Referring to the gang of six, Wapo reported that Obama

…said he is encouraged that a small group of three Democratic and three Republican senators on the Finance Committee continue to negotiate, but signaled impatience with protracted talks that haven’t yet produced legislation.

As a few have noted on this blog, the gang of six represent less than 3% of this country’s population.

With the addition of Al Franken to the Senate, we’ve done the math here, and the calculus of governance in a previous post:

Which is to say that given a unified Democratic Senate, under Rule XXII,  the threat of a Republican filibuster would now only be the threat of a thirty hour delay.

That, for Democrats, it would seem, is a commanding position.

In Chapter XXII of Niccolo Machiavelli’s “Discourses on the First Ten Books of Titus Livius,” 1531, he has this to say about such positions

And here we may note that he who wishes to be obeyed must know how to command; and those give proof of knowing this who properly estimate their own strength with reference to that of those who have to obey, and who commands only when he finds them to bear a proper proportion to each other, and who abstains from commanding when that proportion is wanting.

Of course, Democratic unity is not a given. But I suppose either is Republican unity. Perhaps either could be had. Supreme Court Justice William Brennan, idealist pragmatic that he was, is said to have asked his new clerks assembled each term the following:

“What is the most important Rule of Law?”

And the clerks, new to Mt. Olympus, would invariably cite to ex post facto, the rule against perpetuities, the First, or one, or any number of the Amendments, until Justice Brennan would just shake his head “no,” and raise one outstretched hand and say “Five.”

“The most important rule of law is the rule of five–that’s how many Justices you need for a majority.”

The rest is just history and dissent. There was, after all, opposition to the New Deal– the benefits of which have long outlived any of the dissent.

Earlier in the day, before a crowd in Indiana, President Obama stated: “I promise you, we will pass reform by the end of this year because the American people need it.” As the summer wears on, and the gang of six plays on, the calculus of both Justice Brennan and Machiavelli seem more and more pertinent.

Early last month, when Senator Chuck Schumer met with Senator Grassley on Face the Nation, we posted the following:

However, faced with strident opposition to the Public Option from Senator Grassley, the realization of Democratic Party power was evident in Senator Schumer’s response.  Schumer cited the “strong public option” contained within the current proposals from both the House and the Senate’s HELP Committee and stated that in “the Finance Committee, we’re trying to come to some form of compromise. But make no mistake about it, the President’s for this strongly and there will be a public option in the final bill.”

Perhaps it is time for Democrats, internally, to make sure that the math works– and then, like Obama and Schumer, to speak in public and at the table as though they have simply done the math.

Turning Up the Heat on Fraud and Abuse–Part of the Solution to Health Reform?

[Ed. note: As noted in the post above, we are very pleased to welcome the Executive Director of the Center for Health & Pharmaceutical Law & Policy, Tracy E. Miller, J.D., to Health Reform Watch today.]

As the search for new sources to fund health care reform intensifies, it seems more certain that increased enforcement of fraud and abuse will be part of the equation.  Both the House and Senate have incorporated increased enforcement as part of health care reform legislation. The health care reform bill released by House Democrats on July 14, 2009, included an additional $100 million to combat fraud and abuse as well as increased mandates for regulatory oversight and provider compliance programs.  The reform bill adopted by the Senate Health, Education, Labor and Pensions Committee on July 15 also embraced new enforcement measures, creating senior level positions at HHS and DOJ to coordinate oversight activities.  The bills follow on the heels of an announcement in May by the Obama Administration that it had created an interagency task force to coordinate fraud and abuse enforcement.

These new enforcement initiatives and proposals add to an already burgeoning increase in enforcement initiatives at the state and national levels, raising the question of whether additional programs can actually have a substantial impact beyond those already underway to combat fraud and abuse in the  health care sector.

The Deficit Reduction Act (DRA) of 2005 provided states with an incentive to enact False Claims Act statutes similar to the Federal False Claims Act, allowing states to retain 10% of any funds collected under such acts. The impact of the laws adopted in the wake of the DRA is unfolding now in many states and will no doubt lead to a significant jump in qui tam actions.  After a hiatus caused by litigation challenging the program, CMS has continued to roll out the Recovery Audit Contractors Program (RAC) which retains contractors paid on a contingency basis to identify fraud and abuse in the Medicare program.  With funding and a mandate from Congress, CMS also established the Medicaid Integrity Program. The program authorizes CMS contractors to use data mining and analysis techniques that combine health care quality indicators, billing practices, and Medicaid reimbursement rules to predict aberrant billing practices in order to identify providers for audit.

At the state level, Attorneys General as well as state Medicaid fraud offices are also turning to data mining and analysis, enhancing their capacity to identify fraud and target their investigations.[1] State Attorneys General have increased their cooperation nationally, heightening the effectiveness of investigations and actions against corporations that conduct business in multiple states.

Whether increased enforcement funds and cooperation among federal agencies will actually produce significant dollars for health reform remains to be seen. But without question, the combined effect of mounting federal and state enforcement efforts has substantially increased the stakes for health care providers in undertaking a proactive approach to compliance.  Indeed, growing use by federal and state enforcement agencies on data mining and analysis challenges providers to determine how they can use their own internal data to identify compliance problems and address them in advance of government action.[2]

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[1] Using Data to Advance Compliance: Emerging Practices in Industry and Government
June 4, 2008

Seton Hall Law’s Center for Health & Pharmaceutical Law & Policy program focused on best practices by industry to use data for compliance, and government use of data mining and analysis to enhance oversight. Lori Queisser, Senior Vice President, Global Compliance & Business Practices of Schering Plough and Eileen Erdos, Principal of Ernst and Young, provided insight about how industry can use data to inform internal compliance programs. James Sheehan, New York State Medicaid Inspector General and John Krayniak, Assistant Attorney General, New Jersey Medicaid Fraud Control Unit, spoke about government initiatives to use data to target and pursue enforcement. The program, by invitation only, afforded industry counsel the opportunity to have a dialogue with the region’s two leading state prosecutors. The point being, that the success of enforcement initiatives is not only measured in prosecutions, but also in industry tailoring its behavior to be in compliance.

[2] Using Data to Advance Compliance
On March 16, 2009, the Center for Health and Pharmaceutical Law & Policy co-sponsored a program with KPMG on Using Data to Advance Compliance.  The program, held in New York City for an audience comprised primarily of hospital leaders in compliance, finance, and in-house legal services, featured a presentation by James Sheehan, Medicaid Inspector General for New York State, who discussed how the Office of Medicaid Inspector General is using data to target and pursue investigations.  Experts from KPMG presented practical, concrete strategies for how facilities can use data to advance internal compliance efforts. Ed Kornreich, a partner at Proskauer Rose, examined the implications of data mining for Board fiduciary duties.

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Politicized Prognostication at CBO

Back in 2007, wise wonks were already warning that the Congressional Budget Office could torpedo health reform. The CBO dealt Clintoncare a heavy blow by saddling it with huge cost projections — and failing to take into account the savings the program would realize for individual citizens and the private sector. Current CBO director Doug Elmendorf has been riding a wave of notoriety as an objective “referee” in an increasingly bitter reform battle. But as his office’s one-sided estimates enervate reform, it’s beginning to risk its reputation for impartiality. Consider the following observations about CBO’s work:

Bruce Vladeck: “The CBO’s track record in predicting the effects of health legislation is abysmal. Over the last two decades, the CBO has routinely overestimated the costs of expanded government health care benefits and underestimated the savings from program changes designed to reduce expenditures. Most recently, it overestimated the five-year cost of Medicare Part D — the prescription drug benefit — by more than 35%. Even more dramatically, the CBO’s estimates of the Medicare savings from the Balanced Budget Act of 1997 underestimated the impact, on average, by a full 100%. That’s right: In the BBA’s first three years, Medicare spending fell fully twice as fast as the CBO had projected.”

Timothy Stoltzfus Jost: “[A] moment’s reflection would lead one to realize that the CBO’s guess that [a reform proposal] would save [only] $2 billion is about as worthless as an estimate that a loaf of bread will cost $5.65 in 2019, or a gallon of gasoline $4.73. Indeed, the CBO admits as much, stating that it actually believed the proposal would save nothing, but “there is also a chance that substantial savings might be realized.” . . .[T]he media needs to stop reporting CBO reports as though they reflect the real costs of reform.“

Maggie Mahar: “When I read Elmendorf’s testimony suggesting that the [House] bill wouldn’t bend the trajectory of federal health spending, I couldn’t help but wonder: Did he understand how the proposals in the 1,018 page bill dove-tailed with the excellent recommendations that the Medicare Payment Advisory Commission (MedPac) has made in recent years? Has Elmendorf read the lengthy MedPac reports?”

When respected experts like Maggie Mahar are wondering if Elmendorf has understood key literature in the area, something’s gone wrong at CBO. The media’s uncritical acceptance of his figures can only last as long as it fails to report the true complexity and uncertainty involved in both substantive reform and the do-nothing option that CBO’s handiwork is unintentionally advancing.

Read more

Substance: Obama names Regina Benjamin, MD, MBA, to Surgeon General Post

In a week that has us considering personal experience as it relates to job performance as regards a seat on the Nation’s Highest Bench, I’ve found myself considering the well worn aphorism of Oliver Wendell Holmes: “The life of the law has not been logic: it has been experience….The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”

And it has occurred to me that perhaps Holmes’ rubric lends something to a consideration of health care reform and President Obama’s pick for Surgeon General, Regina Benjamin, MD, MBA.

Although much in healthcare (and healthcare reform) can be (and perhaps must be) the complex and dismal mathematics of zero sum, gored oxen and have and have not—as Holmes reminds us: the math is not all. Yesterday, in a post by Professor Kathleen M. Boozang, we looked at health reform through the lens of Catholic social doctrine: a proposition leading to the conclusion that

We must pursue a system in which each of us has access to health care, which necessarily requires that, in solidarity for our fellow being, those of greater fortune accept the responsibility for those who do not, giving the gift of an opportunity for the basic good of health.

In a recent post considering Atul Gawande’s article on McAllen, Texas, which lamented Medicine performed as a sheer business proposition (McAllen is “one of the most expensive health-care markets in the country” and suffers from what Gawande sees as an all too prevalent, treat the patient as though they were an ATM mentality), we came face to face with Immanuel Kant’s Categorical Imperative:  “Act in such a way that you treat humanity, whether in your own person or in the person of any other, always at the same time as an end and never merely as a means to an end.”

We noted then that we found it “passing strange to find ourselves, in the midst of such daunting medical, technical, and financial data contained within the  proposed solutions and counter-solutions to arrive at this–a simple (but difficult) age old moral truth.”

And that it had “struck me while reading that what Gawande finds is essentially a medical culture functioning, and incentivized, contrary to Kant’s categorical imperative (see above): the simple moral admonition that one must not merely “use” others.”

And then there’s Dr. Benjamin.

She is the founder and CEO of the Bayou La Batre Rural Health Clinic in Bayou La Batre, Alabama (if the name of the town sounds vaguely familiar, think Forrest Gump, shrimping boat). Emily P. Walker, Washington Correspondent, MedPage Today reports:

A major supplier of charity care, Dr. Benjamin has provided medical care to patients in the Gulf Coast regardless of insurance status.

“I decided I would treat patients regardless of their ability to pay,” she said when she accepted the president’s nomination in the Rose Garden on Monday. “It should not be this hard for doctors and other providers to provide care for their patients.”

Dr. Benjamin’s practice was destroyed several times by hurricanes, and once by a fire, but she always rebuilt, sometimes by refinancing her home and maxing out her personal credit cards, President Obama said Monday.” (emphasis added).

She is also said to have “had to moonlight in an emergency department and nursing homes to keep her practice open.”

It is notable that while Congress argues over where the money will come from to fund health care reform, when faced with the need to rebuild the clinic she herself had started– which offers care regardless of ability to pay–Dr. Benjamin, despite the MBA which follows her name, maxed out her credit cards, mortgaged her house and took a part-time job.

Extraordinary and beyond the call. Perhaps beyond Kant, and certainly beyond the math. According to the NY Times, “Dr. Benjamin is a devout Roman Catholic.”

By no means am I advocating this degree of personal risk and sacrifice as a paradigm for health care reform. It is much too much to ask or expect–as it seems Dr. Benjamin herself well understands: “It should not be this hard for doctors and other providers to provide care for their patients.” Agreed.

As noted in the post,  “Why McAllen Texas Kant be the Answer to Health Reform,”

Pragmatically, as one looks upon the current system of health care and health care finance,  it is well worth quoting Harold Luft from today’s Washington Times: “A redesigned system must create new incentives for those entities so their self-interested behavior leads to a better societal outcome.” Gawande offers examples of systems which provide an infrastructure conducive to Mr. Kant’s imperative.

Dr. Benjamin offers an example of personal commitment despite extraordinary disincentives. The Huffington Post reports

She said she would combat preventable diseases. Her father died with diabetes and high blood pressure, her only brother of HIV. Her mother died of lung cancer because as a girl “she wanted to smoke just like her twin brother,” an uncle now on oxygen.

“I cannot change my family’s past. I can be a voice in the movement to improve our nation’s health care and our nation’s health,” Benjamin said. “I want to be sure that no one falls through the cracks as we improve our health care system.”

Sounds like the voice of experience.

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