An “Unknowable” Number of Bureaucrats

Perhaps I’ve just read too much Kafka for this to be a comfortable paragraph, but I’ll let you decide. From Politico, in “Health reform’s bureaucratic spawn“:

Don’t bother trying to count up the number of agencies, boards and commissions created under the new health care law. Estimating the number is “impossible,” a recent Congressional Research Service report says, and a true count “unknowable.”

The modern course of the law is administrative. In the end, the appropriate scope of the Congressional delegation of power falls to the Supreme Court’s “intelligible principle” doctrine and the acknowledged need for technical expertise in complex areas that require rules–such as Health Law and Health Law Finance. But that doesn’t make it all that much less scary.

The rest of the Politico article is worth a quick read. And if you’re an aspiring attorney, you might want to consider taking Administrative Law. And, of course, Health Law.

New Rules for Insurance Appeals Under PPACA

On July 22, the Obama Administration released interim final rules that allow patient appeals of health insurance coverage decisions as required under the Patient Protection and Affordable Care Act (”PPACA”) and Health Care and Education Reconciliation Act (”Reconciliation Act”).  Published by the departments of Health and Human Services, Treasury, and Labor, these rules create standards for the internal and external processes by which patients can appeal adverse benefits decisions.

Prior to these rules, coverage appeals were governed by contract and State law.  Forty-four States have created some form of external appeal process for insurance coverage decisions; however, their coverage is limited and the processes vary greatly.  Effective January 1, 2003, changes to the Employee Retirement Income Security Act of 1976 (”ERISA”) regulations provided standards for internal appeals processes.  However, these standards only apply to employer-sponsored group health insurance.

As stated in the Obama Administration fact sheet entitled, “Appealing Health Plan Decisions,”

Today, if your health plan tells you it won’t cover a treatment your doctor recommends, or it refuses to pay the bill for your child’s last trip to the emergency room, you may not know where to turn. Most health plans have a process that lets you appeal the decision within the plan through an “internal appeal” — but depending on your State’s laws and your type of coverage, there’s no guarantee that the process will be swift and objective. Moreover, if you lose your internal appeal, you may not be able to ask for an “external appeal” to an independent reviewer.

Internal Appeals Process

Under the rules, new health plans beginning on or after Sept. 23, 2010, must have an internal appeals process for beneficiaries to challenge “adverse benefits decisions” — a “denial, reduction, or termination of, or a failure to provide or make a payment (in whole or in part) for a benefit.”  Such adverse benefits decisions may be based on individual eligibility, benefit coverage, limitations on otherwise covered benefits (such as preexisting condition exclusions, source-of-injury exclusions, and network exclusions), and a determination that a benefit is experimental or not medically necessary.

In addition, health plans must do the following:

• Notify a claimant of a benefit determination as soon as possible;
• Provide claimants, free of charge, with the evidence relied upon and the rationale for the decision;
• Avoid conflicts of interest by making decisions regarding hiring, compensation, termination, and promotion independent of a claims adjustor or medical experts record of denial of benefits; and
• Meet additional requirements for notice, including information on internal appeals and external review processes.

However, these requirements do not pertain to so-called “grandfathered health plans” — those health plans that were in existence before March 23, 2010 when PPACA was enacted.  In the individual market, health insurance providers must meet the foregoing requirements as well as the following three:

• Applicants for individual insurance must be allowed to appeal initial eligibility determinations;
• Internal review must be limited to a single level, allowing claimants to appeal to external or judicial review immediately; and
• Insurers must maintain all claims and notices for a minimum of six years, which is already required of employer-sponsored health plans under ERISA.

External Appeals Process

If the internal appeal is denied, patients may choose to have the claim reviewed by an independent reviewer.   According to Appealing Health Plan Decisions, States are encouraged to adopt the National Association of Insurance Commissioners (NAIC) standards in “their external appeals laws to adopt these standards before July 1, 2011.”

The NAIC standards call for:

• External review of plan decisions to deny coverage for care based on medical necessity, appropriateness, health care setting, level of care, or effectiveness of a covered benefit.
• Clear information for consumers about their right to both internal and external appeals — both in the standard plan materials, and at the time the company denies a claim.
• Expedited access to external review in some cases — including emergency situations, or cases where their health plan did not follow the rules in the internal appeal.
• Health plans must pay the cost of the external appeal under State law, and States may not require consumers to pay more than a nominal fee.
• Review by an independent body assigned by the State. The State must also ensure that the reviewers meet certain standards, keep written records, and are not affected by conflicts of interest.
• Emergency processes for urgent claims, and a process for experimental or investigational treatment.
• Final decisions must be binding so, if the consumer wins, the health plan is expected to pay for the benefit that was previously denied.

If State laws don’t meet these standards, consumers in those States will be protected by comparable Federal external appeals standards.

As Kaiser Health News reported, “This is a regulation that benefits everyone — consumers get protections, business and providers get more certainty in the rules and the need for litigation to settle these issues should be dramatically minimized,” Phyllis Borzi, assistant secretary of the Department of Labor, said at a briefing for reporters Thursday.

Consumer Assistance Grants

However, procedural rights for consumers are not sufficient to ensure proper appeals.  “Not enough consumers know this is an option that they have,” said Angel Robinson, the consumer advocate in the Iowa Insurance Division, according to Kaiser Health News.

In addition to the new requirements for internal and external appeals processes under the interim final rules, the federal government is offering nearly $30 million in resources to States and Territories to strengthen and establish consumer assistance programs.  Specifically, these programs are charged with:

• Helping consumers enroll in health coverage;
• Helping consumers file complaints and appeals against health plans;
• Educating consumers about their rights and empowering them to take action; and
• Tracking consumer complaints to help identify problems and strengthen enforcement.

Image Credit: Appeal to the Great Spirit, Cyrus Edwin Dallin (1909) Photo by Toni To via Flickr

Impact of Free Preventive Healthcare

Benjamin Franklin famously once said, “an ounce of prevention is worth a pound of cure.” The statement has that ring of truth– especially when it comes to American healthcare.  Numerous studies have shown that early detection of diseases as well as interventions for bad habits (e.g. overeating and smoking) can potentially avert thousands of deaths each year.  Additionally, reported by Reuters, these preventative cares can lead to massive health care savings because preventable diseases such as heart diseases, cancer, and diabetes account for 75% of the national health care spending.

Considering the potential of prevention, just last week, the White House laid out rules requiring health insurance companies to provide many preventative medical services at no cost to the consumer.  The NY Times reports,

The rules will eliminate co-payments, deductibles and other charges for blood pressure, diabetes and cholesterol tests; many cancer screenings; routine vaccinations; prenatal care; and regular wellness visits for infants and children.

Other services that must be offered at no charge include counseling to help people stop smoking; screening and counseling for obesity; and tests for infection with the virus that causes AIDS.

The rules stipulate that no co-payments can be charged for tests and screenings recommended by the United States Preventive Services Task Force, an independent panel of scientific experts. The rules apply to new health plans that begin coverage after Sept. 23 and to existing health plans that make significant changes after that date. The administration said the requirements could increase premiums by 1.5 percent, on average.

Currently, the government reports that Americans use preventive services at about half the rate recommended by doctors and public health experts.  The Obama Administration, including many experts and consumers groups, is hoping that these new changes will eventually have a huge impact and Americans will take advantage of the free preventative care.

But, how much impact would it really have?

While costs have deterred some consumers from preventive care, others have avoided doctors’ offices for other reasons.  For example, people with unhealthy lifestyles avoid checkups, not because of cost, but out of fear.  According to the NY Times,

Recent studies have shown that people who know they have health-endangering vices (like smoking or drinking) put off appointments because they do not want a healthy-living lecture. Others do not go because they feel doomed despite medical treatment. At the other extreme are the overly optimistic who are convinced they will get better no matter what. And then there are those who are embarrassed to discuss their symptoms, such as incontinence or impotence.

The bottom line for many people is fear: fear of bad news, fear of an uncomfortable test, fear of discussing something intimate.

And other people, namely men, do not regularly see their primary care physician because men generally tend to overestimate their health.  According to a survey by the American Academy of Family Physicians:

● Almost one in five men (18%) 55 years and older have never received the recommended screening for colon cancer.

● More than half (55%) of all men surveyed have not seen their primary care physician for a physical exam within the past year.

● Four in 10 (42%) men have been diagnosed with at least one of the following chronic conditions: high blood pressure (28%), heart disease (8%), arthritis (13%), cancer (8%) or diabetes (10%).

● More than one out of four men (29%) say they wait “as long as possible” before seeking help when they feel sick or are in pain or are concerned about their health.

● Despite this, almost 8 in 10 (79%) men describe themselves as in “Excellent,” “Very Good,” or “Good” health.

The “missing” men in these statistics would seem to be among those who would benefit, arguably most, from regular  checkups and screenings; unfortunately, it would seem that free preventive care will not drive these groups running to the doctor.  While the new rules will undoubtedly increase the number of people receiving preventive care, it is uncertain how much impact it will actually have as some groups will continue to avoid doctors regardless of costs.

Why Angela Braly, CEO of WellPoint Insurance, May Not Deserve a Raise After All

Earlier this year we discussed why Angela Braly, the CEO of WellPoint Insurance, deserved a raise. WellPoint, by number insured, is the nation’s largest health insurer.  Ms. Braly had been forced to make ends meet in 2008 with total compensation which amounted to $189,311.76 per week. This of course is less than half of what Aetna’s CEO, Ronald A. Williams, made that same year ($467,309.85 per week). For those of you keeping score at home, Ms. Braly commanded $9,844,212 in 2008. Mr. Williams made $24,300,112.

Considering this disparity, we wrote

So why does Angela Braly deserve a raise? …. Because WellPoint subsidiary Anthem Blue Cross of California has found the audacity to raise individual insurance premiums in that state 39%. That’s right, 39%. This, according to Secretary of Health and Human Services Kathleen Sebelius, “as WellPoint Incorporated has seen its profits soar, earning $2.7 billion in the last quarter of 2009 alone.”

Profits “soar,” raise rates. What more could Wall Street want?

The answer to that question, apparently, is both math skills and a public relations strategy.

In April, Wellpoint was forced to withdraw its California rate hike of 39%  because of math errors in the submission. Yes, math errors.

According to the Wall Street Journal, “WellPoint’s stock fell almost 10% on April 30, the day after the company disclosed mathematical errors in its California rate filing, and it hasn’t rebounded.”

As such, Ms. Braly is said to have faced staunch criticism as of late at WellPoint’s annual shareholder’s meeting and at meetings with the company’s managers and top brokers prior. The shareholder’s meeting, described as “testy” by the Associated Press, was cut short when William H.T. Bush, the brother of former President George H. W. Bush, and a member of WellPoint’s board of directors, collapsed. Although no one is said to have collapsed at her other meetings, no one has described them as cordial either.

Wellpoint faced criticism from the Obama administration in light of its noteworthy proposed rate hikes in California, including, but not limited to, the scathing letter quoted above from Secretary of Health and Human Services Kathleen Sebelius. The level of acrimony recently escalated when, according to the Wall St. Journal

A week ago, President Obama said his administration had recently asked an insurer to stop systematically dropping coverage of women with breast cancer. The president didn’t name the insurer, but WellPoint has been fending off accusations that it targets such women.

Ms. Braly denied the allegations and shot back at Mr. Obama for spreading “false information.” Health and Human Services Secretary Kathleen Sebelius has called on states to investigate WellPoint’s pricing practices. And last Thursday, the Senate Finance Committee asked Ms. Braly for a detailed account of how the errors occurred.

Perhaps the lady doth protest too much?

Either way, Ms. Braly is said to have later offered that: “The goal is to have a positive relationship with the government at all times.”

It is good to have goals.

The Wall Street Journal notes that

Jay Nogueira, vice president at one of the company’s top 10 shareholders, T. Rowe Price, said the stock won’t bounce back until investors were convinced that there isn’t another chapter in the hostility with the government. “These guys are not dealing well with the public limelight,” said Mr. Noguiera.

First Step in the Expansion of Medicare? Feds Assist Employer Health Plans for Retirees Age 55 +

During the Health Care reform debate, one of the many plans promulgated was to expand Medicare availability to persons aged 55 and up who are not otherwise insured. The argument on behalf of the initiative was simply that Medicare works, people like it, and it would not require the reinvention of the wheel. The system is already in place, we would just need to expand what is already there. In addition, even people who rail against “socialized medicine” seem to have an ideological (if not personal) soft spot for Medicare.

The initiative did not gain sufficient traction. There is, however, more than one way to skin a cat. The White House announced the other day that it would commence in helping to pay the medical bills for early retirees (55 and up) who have medical insurance through their former employers and are not yet eligible for Medicare.

The New York Times reports:

Under the program, the federal government can reimburse employers for 80 percent of the cost of claims from $15,000 to $90,000 a year for a retired worker who is 55 or older and not eligible for Medicare.

The primary goal it seems is to incentivize private employers to continue insuring retirees.  The Times quotes Valerie Jarrett, a senior advisor to President Obama:

“In 1988,” Ms. Jarrett said, “66 percent of large firms provided health care coverage to their retirees. Twenty years later, in 2008, the percent of firms offering coverage to retirees plummeted to 31 percent.”

Obviously, if one can indirectly continue private coverage for those over 55, one need not expand Medicare coverage to do so. But of course there remains those over 55 who are not fortunate enough, at present, to be covered by an employer retiree plan.

80 per cent of up to $90,000 is a large subsidy–by anyone’s standards. But the money will go to business which, for some reason, attenuates the subsidy sufficiently for the largesse to not be “socialism.” And businesses which benefit from such subsidies are not likely to complain–having now cultivated a personal, and thus ideological, soft spot for the program. Like Medicare.

Obama Grants Gays Hospital Visitation & Care Decision Rights

Recently, President Obama submitted a memorandum to the Secretary of the Department of Health and Human Services, granting gay and lesbian partners of hospital patients visiting rights and the right to be acknowledged as persons designated to dictate care choices for patients incapable of making such decisions.  The action was said to have been spurred by the story of a lesbian woman Janice Langbehn who was denied visitation when her partner was admitted to Jackson Memorial Hospital in Miami after she suddenly collapsed.  The patient later died, and Langbehn was not by her side due to the hospital’s policy of allowing only family members visitation rights.

In his memorandum, the President took account of such personal stories and requested that the Secretary of HHS take steps towards ameliorating the issue by ensuring that all hospitals participating in Medicare and Medicaid respect the rights of patients to designate their visitors and care coordinators in the event of incapacitation.  A partner in a gay relationship, thus,  could be one specified in advance directives and health care proxies.

The President stated that visitation privileges may no longer be denied “on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, or disability.” Specifications regarding whether or not a line will be drawn between unmarried partners and non-intimate relationships were not included in the memorandum; however, it did mention that HHS would be responsible for determining the technical aspects of implementing the grant.

Interestingly,  response from conservative groups was not particularly adverse. Perhaps the spectre of refusing to allow death bed visitations between partners, such as Ms. Langbehn’s ordeal, loomed as a form of cruelty difficult to countenance. The NY Times noted that

The socially conservative Family Research Council issued a statement calling the issue of medical rights for gay men and lesbians “a complete red herring” but saying it had “no objection” to individuals conferring decision-making powers to whomever they wish.

The Obama Administration reached out to groups like Catholic Health Association before releasing the memorandum in an attempt to ensure that the grant would not face any obstacles within the religious community. The Catholic Health Association noted that the order “reaffirmed basic human rights for each person at most critical points of their lives.”  The NY Times further noted that the group’s president, Sister Carol Keehan, stated “Everybody in this country has a right to say, If I can’t speak for myself, this is the person I want to speak for me.”

Who’s the New Guy? – Obama Announces Choice for Next CMS Director

President Obama has announced his choice for the position of director of the Centers for Medicare & Medicaid Services (CMS), Dr. Donald Berwick, a pediatrician, professor, and advocate of improving patient care.  The CMS has been without a permanent administrator since 2006.  Berwick, whose appointment must be approved by the Senate before he may assume the position, certainly has the credentials for the important role the CMS director will surely play in the coming years.  Still, whether Republican Senators will be basing their confirmation decision on credentials or resentment of health care reform’s passage is yet to be seen.

Berwick is best known for founding the Institute for Health Care Improvement.  The Institute for Health Care Improvement is a non-profit think tank that is dedicated to helping hospitals improve their patient care delivery.  As attested to by the Institute’s co-founder Dr. Paul Batalden, Berwick takes incremental approaches to improving patient care that are cost-effective and do not lead to the rationing of care.  For example, Berwick finds that reducing the prevalence of hospital-acquired infections through something as small as keeping medical equipment sterile can help to bring down the rate of medical errors.

Berwick is also a proponent of utilizing medical information sharing, and is often called blunt in regard to how he finds the American health care system inefficient in delivering patient care.  Additionally, Berwick has advocated for patient rights on numerous levels, using a philosophy of patient-centered medicine.  He wants doctors to be rewarded based on the health care outcomes of their patients instead of how many procedures a doctor has performed. Having a leader interested in implementing infrstructural changes which incentivize outcomes as opposed to procedures as paydays without regard to outcome, is, many think, a step in the right direction. It is also worth noting that Berwick himself will be taking more than a 66% pay cut if he is appointed as the director of the CMS.

While Berwick may not have functioned as the head of a health care system in his career, he is not new to the world of national health policy.  In 1998, he was on President Clinton’s advisory commission that recommended ways to reduce medical mistakes and ensure consumer protection in the American health care system.  And also served at that same time as  Chair of the agency that is now known as the Agency for Healthcare Research and Quality. Berwick has also played a part in improving Britain’s National Health Service, for which he was given an honorary knighthood by Queen Elizabeth II.

Since Obama’s health care overhaul “contemplates key roles for both programs in extending insurance coverage to 32 million people at a cost of $938 billion over 10 years,” if selected to be the CMS’s director, Berwick will certainly need to bring his A-game in helping change the way our current health care system consumes Medicare and Medicaid resources.  Many also hope that good Medicare reforms will start a trend, motivating private insurance companies to also make cost-saving changes.  Before that challenge, Berwick will have to get past a Senate confirmation.  Republican Senators are likely going to make the process a rigorous one, where they will grill Berwick on how exactly he plans to effect the new health care reform legislation.

Given the importance of the CMS and the fact that it currently has no director, it would behoove the Senate to quicken the process of Berwick’s selection, considering his credentials and commitment to the rights and needs of American patients.  As the Washington Post said, “supporters and opponents of the new health-care legislation ought to be able to agree that leaving the agency without a confirmed head is not healthy.”  The job needs to be filled, and instead of using political tactics through rehashing the health care reform debate, the Senate should focus on the many qualities that Berwick has to offer.

Obama in Ohio, a Letter from Natoma Canfield

As the Health Care Reform debate winds to a frenzied conclusion, President Obama visited Ohio to reach out in favor of the bill’s passage. I’ll let the President speak for himself, but there’s a letter below this video that you should read. Natoma Canfield sent the letter to President Obama back in December; it epitomizes, I believe, the every day tragedy which is the current state of health care and health care finance. Since then, it’s gotten even worse. Facing the prospect of unaffordable increases in her insurance premiums, Ms. Canfield took, and lost, the gamble that no one wants to take. Unable to pay, she discontinued insurance coverage; she was just recently diagnosed with leukemia.

Win-Win: Obama’s Student Loan Reform Decreases Student Loan Premiums and Works towards Health Reform Passage

Student loan legislation is being twinned with the health care reform legislation proposed by the House for reconciliation.  The language contained in the House “fix it” bill would stop federal subsidies to private lenders like Sallie Mae and would instead originate all federal student loans in the Department of Education.  Such reform is estimated to save taxpayers $67 billion over ten years according to the Congressional Budget Office.  The savings would be used to fund more need-based Pell grants, which are provided to low-income students to promote access to higher education.  In the past year alone, applications for Pell grants have skyrocketed due to the fact that many people are returning to school given the difficult economy.

Because only one reconciliation bill may be passed per year, the student loan reform legislation has been included in the health care reform bill.  President Obama wants to include the loan language in the bill because of its estimated savings as well as the benefits it will offer need-based students, and he finds the inclusion a “no brainer.”  The Democrats will need at least 51 votes in the Senate to pass the bill, however, and several members from their own party, including Ben Nelson of Nebraska and Blanche Lincoln of Arkansas, have already voiced concerns about the negative impact these changes will have on the loan companies and their employees.

The House Education and Labor Committee has already tried to discredit the claims of those who want to keep the loans with private lending companies. Rachel Racusen, communications director for the Committee was quoted as saying:

Lenders’ claims about job losses have already been debunked as another scare tactic to save their sweetheart deal.  While this legislation will trim the profits of banks, it will not lead to enormous jobs losses.

Democrats in favor of the bill add that the private lending companies will still be utilized for other loan services.  Some point to the alliances created in the Senate between loan companies and Senators.

Dissenters of the loan reform are missing the bigger picture concern: the benefits reaped by society through the intellectual development and financial security for America’s students.  Senator Patty Murray of Washington said:

My own personal perception is, when we have thousands of kids on the street marching because they can’t get into our universities and don’t have the capability of pay for college, this is the best time for us to act.

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.

Next Page »