Reform Rodeo
1. NPR has a story about the Obama Administration’s move to accept a bipartisan proposal that will allow states to opt-out of some of the ACA regulations if they can provide a suitable alternative.
2. Respectful Insolence has a detailed story about Bruesewitz v. Wyeth — a SCOTUS decision that recently upheld the federal law that preempts design defect suits against vaccine manufacturers, instead channeling the complaints into a Vaccine Court that awards damages from an industry-sponsored fund.
3. The Healthcare Economist has a review of a Robert Wood Johnson article on the ACA’s various Value-Based Purchasing provisions.
4. Bradley Herring at the NEJM has a an economic perspective on the individual mandate’s severability from the ACA.
5. The Wall Street Journal has a piece about governors’ struggle with Medicaid budgets, and the strategies they are implementing to deal with ballooning costs.
Reform Rodeo
1. Medicaid in Arizona: Kevin Sack of the New York Times discusses Arizona’s planned removal of a quarter of a million Medicaid patients from their rolls; Secretary Sebelius has signed off.
2. Essential Benefits: Ian Spatz at the Health Affairs Blog continues the discussion of the controversial determination of essential benefits under the health reform statute.
3. Integration and Prices: Maggie Mahar at Health Beat has a piece on the concern about price increases due to integration by accountable care organizations and other similar entities.
4. Clinical Practice Guidelines: David Williams at KevinMD.com details a recent survey which appeared to find more public support for arguments against treatment guidelines as opposed to arguments in favor of the guidelines.
5. Individual Mandate: Bob Laszewski at Health Care Policy and Marketplace Review posits alternatives to the individual mandate.
Medicaid Targeted as States Cut Budgets
On January 21, Arizona passed legislation allowing the state to submit a Medicaid-waiver request to cut 280,000 people from the program next year. When filed, it became the first official request to suspend PPACA’s “maintenance-of-effort” provision. The mandate requires states to maintain early 2010 Medicaid eligibility levels until the 2014 nationwide expansion of eligibility. Arizona could lose its entire federal Medicaid contribution, approximately $3 billion, if it fails to meet the maintenance-of-effort provision.
The Associated Press reports that most Arizonans who lose coverage are “non-pregnant, non-disabled, childless adults and also parents with incomes above 50 percent of the federal poverty level.” According to the Arizona Republic, however:
Though the cuts have been billed as affecting only childless adults, about 30,000 of those who would lose coverage are parents and another 11,000 are children.
Jonathan Blum, CMS Deputy Adminstrator, Speaks on ACOs
Filed under: Accountable Care Organization, Medicaid, State Initiatives
We’re waiting for the Department of Health and Human Services to release proposed regulations on Accountable Care Organizations. This site has previously discussed the potential good and bad of ACOS (see here, here, and here). I attended a conference last week at which an innovative model of “Medicaid ACO” was discussed. The Medicaid ACO would be authorized in New Jersey under a bill pending before the NJ Legislature. It is an exciting idea that will attempt to reach the poor and vulnerable who often lose out in health reform programs. The godfather of the Medicaid ACO project is Jeff Brenner, about whom Atu Gawande recently wrote in the New Yorker. (subscription required) I’ll be blogging about the New Jersey bill in a future post. The conference was funded by the Nicholson Foundation and presented by the Health Care Quality Institute.
Speaking at the conference was Jonathan Blum, Deputy Administrator and Director of the Center for Medicare at CMS. In discussing “Accountable Care Organizations and the Affordable Care Act,” Blum was in the difficult position of speaking about a topic of great interest, while not being able to discuss the contents of draft regulations that are no doubt nearing completion. Nevertheless, he made some interesting points that I’ll pass along.
Blum’s talk focused on policy positions that are driving HHS as it drafts the regulations. The overriding policy positions he described included:
- The ACO regulations will not be “one size fits all.” He emphasized that CMS will be looking for innovative models, with different payment systems, and with different “on ramps” to formation and approval. He emphasized that CMS is interested in models that serve “safety net populations,” as CMS wants to ensure that the poor and underserved get the same opportunities as “suburban” folks. The primacy (at least in order of presentation) was welcomed by the NJ folks, whose model is directed to Medicaid recipients.
- The orientation, consistent with much of the ACO literature, is “patient first.” He distinguished this orientation from one that would see ACOs as a means for powerful interests to gain market share. That tension is, of course, evident in the ACA’s ACO provisions, as has been pointed out most eloquently by Tim Greaney. Blum described CMS as being focused on care systems’ sensitivity to patient and family concerns, and with payment programs oriented to health care “journeys” and not episodes.
- Clinical quality is key. CMS will focus on outcomes measurements “much more” than in the past. It will be interested in particular in quality measurements and patient experience.
- He spent a fair amount of time emphasizing that CMS does not regard the ACO program as static. CMS will constantly review payment and quality issues, with an eye toward updating oversight and program requirements. It will use payment incentives to drive quality improvements. He indicated that there is some tension between CMS’s interest in having quality be data-driven in ACOs with its insistence on protecting patient confidentiality and privacy issues. CMS is interested in encouraging patient advocacy efforts to support continued emphasis on patient privacy and confidentiality.
- In response to a question, Blum recognized the substantial tension between the ACO model’s emphasis on improving quality and reducing cost through organization of care on one hand, and the ACA’s continued embrace of patient choice of provider on the other. He indicated that this tension might best be addressed by ACOs and their constituent providers creating a sufficiently attractive delivery model that patients will want to be involved — exclusively. (Reaching this goal would clearly require unprecedented patient education efforts.)
The Q & A following Blum’s presentation was predictably frustrating on both sides, as could be anticipated in connection with a talk about not-yet-finalized regulations. He recognized several outstanding issues that he was not at liberty to discuss, but which had been occupying those drafting the regulations, including:
- Will physicians be able to join more than one ACO? CMS is apparently considering different rules for primary care physicians and specialists, although Blum acknowledged that such overlapping provider networks will make the computation of “gain” difficult when gainsharing is implemented.
- Blum, although asked, would not bite on the question of “who will lead” (physicians or hospitals). He anticipates a variety of models, but stressed that no ACO would flourish without physician buy-in.
- The question of geographic exclusivity for ACOs engendered a similarly noncommittal response. Blum acknowledged the conceptual difficulties presented by such overlap, but also pointed to the negative implications of exclusivity on the robustness of competition.
So, it was an interesting discussion of general principles, whetting our appetites to see how HHS will “square the circle” — or circles — in the upcoming regulations.
Donate a Kidney and Get Out of Jail
Filed under: Medicare & Medicaid, State Initiatives
I can’t read another paean to Mississippi Gov. Haley Barbour for granting a release from imprisonment to Gladys Scott on condition that she “donate” a kidney to her sister.
The Scott sisters were sentenced to life 16 years ago for an armed robbery that yielded them $11. The women will be eligible for parole in 2014.
Civil rights advocates have sought the two women’s release for some years, arguing that their sentences were excessive.
Barbour’s decision has been hailed by the NAACP President and CEO as “a shining example of the way a governor should use the power of clemency.” A primary reason cited by Barbour for his decision is that sister Jamie’s dialysis is costing the state a lot of money. According to Gladys Scott’s attorney, the idea that she donate a kidney to her sister was her own, which is why he included it in the petition for release.
While available reports do not provide sufficient facts for robust legal-moral analysis, this story raises issues that should give us pause.
First and foremost, I am concerned on Gladys Scott’s behalf that a kidney donation is in neither her short- or long-term best interests - I can only wonder whether her own health makes her an ideal donor after serving a 16-year prison sentence.
We don’t know what led to Jamie’s end-stage renal disease, but it is crucial that Gladys know what her own risk for the disease is before she gives up a healthy kidney. Will her physicians feel comfortable recommending against the surgery if her long-term prognosis is poor - would such a decision result in the revocation of the prison release, or is the release contingent upon a medical “OK” for the procedure?
Compromise
To what extent will the transplant physicians be required to compromise their own ethical duties to the health of these women to accommodate their desire for freedom?
Hopefully, Barbour’s release decision depends upon Gladys’ willingness to be considered as an organ donor, as opposed to her having to actually go through with it.
While I believe it possible that Gladys wishes to donate her kidney to save her sister’s life, the conditions under which she has made this decision are hardly ideal to voluntariness, which our law normally dictates is a necessary condition precedent to organ donation.
These women have been incarcerated their entire adult lives, and have likely made very few decisions on their own behalf, much less life-and-death ones.
Other doubts haunt this scenario. If indeed the Scott sisters merited a suspension of their sentences because they are excessive, then the governor should have made his decision for that reason, thereby enabling the women to resolve how to proceed in addressing Jamie’s kidney failure in the context of their private lives, without state compulsion and outside the glare of the media.
I hope they have significant and stable support upon their release - in addition to undergoing a significant medical procedure, they may not be well-prepared for successful reentry even in the best of circumstances.
Barbour cites the opportunity to save the state health costs by releasing the sisters to pursue the transplant. If the transplant is both a cost-effective and humane alternative to dialysis (which I believe it is) why wasn’t it allowed during the sisters’ incarceration?
While the state may be expecting to save money for the sisters’ health care, it is presumably Medicare that will be covering the cost of the transplant and the extremely expensive post-surgical anti-rejection drugs that Jamie will require (although Jamie’s eligibility for Medicare will likely be fraught with hurdles).
Thus, a large part of the state’s motivation here seems to be the chance to shift Scott from the state’s Medicaid roll to the federal government’s Medicare program.
A fragmented system
While this might work out in the end for the Scott sisters, it represents yet another perversity of our fragmented health care system.
The Scott sisters must be wonderfully excited about their imminent release, and the possibility of saving Jamie’s life, and I am pleased for them.
I am less excited, however, about Barbour’s decision becoming a precedent for other governors.
This article originally appeared in The Record, New Jersey’s most awarded newspaper.
Obama Signs Provision Contrary to Fraud Enforcement Trend
Filed under: Fraud & Abuse, Health Reform, Medicare & Medicaid
Photo by felinebird via Flickr
On December 15, 2010, President Obama signed the Medicare and Medicaid Extenders Act of 2010 (the Medicare Physician Pay Fix Bill). In addition to its one-year delay of a 25% cut in Medicare reimbursements to physicians, the act repeals § 6502 of the Patient Protection and Affordable Care Act which would have become effective on January 1, 2011. This move stands in stark contrast to a recent trend toward increased individual liability, specifically the increased exclusion of individuals from federal healthcare programs for fraud and abuse violations.
Enforcement Trends
The federal government, through the Department of Health & Human Services Office of the Inspector General (OIG), has increased its focus on individuals, with exclusions for fraud and abuse violations. As previously reported, OIG released an internal advisory document on October 20, 2010, setting out nonbinding factors for permissive exclusions under § 1128(b)(15) of the Social Security Act. The new Guidance changed the permissive exclusion standard to a quasi-mandatory standard, by creating a presumption in favor of exclusion when an individual exercises ownership, operational or managerial control over a sanctioned entity and there is evidence that such individual knew or should have known of the prohibited conduct.
OIG swiftly acted on the new Guidance by excluding Marc S. Hermelin, Chairman of the board and majority shareholder of K-V Pharmaceutical. As a result, K-V announced on November 17, 2010 that Hermelin had resigned and agreed to divest himself of all K-V stock. On December 7, 2010, Gregory E. Demske, Assistant Inspector General, announced that the exclusion of Hermelin was “preview of things to come.”
Further, on November 9, 2010, former GlaxoSmithKline Vice President and Associate General Counsel Lauren Stevens was charged with obstruction of justice and making a false statement in response to a Food and Drug inquiry. Michael W. Peregrine, with McDermott Will & Emery LLP, told BNA that, “the Stevens prosecution is a piece of a broader puzzle based in part on the responsible corporate officer doctrine and reflects the government’s heightened interest in fostering individual accountability and that is consistent with other recent attempts by prosecutors to target individuals they believe are responsible for corporate misconduct.”
Section 6502
Section 6502, which was repealed on December 15, would have continued the trend toward increased individual liability. It would have mandated state Medicaid agencies to exclude an individual or entity that “owns, controls, or manages” a Medicaid-participating entity that:
- Has delinquent, unpaid Medicaid overpayments
- Is suspended or excluded from participation in Medicaid, or
- Is affiliated with an individual or entity that has been suspended or excluded from participation in Medicaid
The Medicaid exclusion authority of § 6502 is different than § 1128(b)(15) of the Social Security Act. Unlike § 1128(b)(15), which provides for permissive exclusion from all federal health care programs, § 6502 would have provided for mandatory derivative exclusion from Medicaid only. Laurence Freedman, an attorney with Patton Boggs told BNA that “this mandatory Medicaid exclusion needed to be repealed to avoid a broad, and I believe, unintended impact. It would have reached former executives or board members of excluded subsidiaries, for example.”
Health Affairs: Innovations Across the Nation in Health Care Delivery
Health Affairs recently convened a day-long conference entitled “Innovations Across the Nation in Health Care Delivery.” Dr. Richard Gilfillan, the acting director of the Center for Medicare and Medicaid Innovation, keynoted the event as one of a number of stops on his recent “listening tour” across the states in an effort to garner input for the Center’s quest to eliminate waste and to create “a sustainable system” in health care.
The Center’s mandate under the law is “to test innovative payment and service delivery models to reduce program expenditures while preserving or enhancing the quality of care furnished.” But as Dr. Gilfillan mentioned, perhaps the most interesting aspect of the law is that if the Center can show that it has found a way to fulfill its mandate– demonstrating such and proving it to the CMS actuaries, then the Secretary can sign into effect new regulations to effectuate new payment models for CMS.
An underlying guidance, if not a mantra, for Dr. Gilfillan is the notion that, as contained in an Institute of Medicine study, there is 30% waste in medical services. Much of this, he believes, is attributable to our fragmented health care system; thus, the emphasis going forward should be on implementing “seamless coordinated care.” An interesting example of something that works, is a chronic care “hotline.” Dr. Gilfillan described the innovation–where a chronic disease patient, suffering from both COPD and diabetes, cold call a particular nurse, Mary, to express concerns she might have about some aspect of her health– be it weight gain, increased shortness of breath, or anything else. The patient’s daughter could Mary as well. They did. The patient’s hospitalizations are down– and the patient attributes to the program the fact that she’s still alive.
According to Health Affairs, “The program also featured several panels of CEOs and program leaders from institutions that have innovated at the patient care level; in the creation of more highly coordinated patient care systems; and at the population level, in terms of improving population health.”
It’s an interesting conference. You can find the panel videos, including Dr. Richard Gilfillan’s address here.
Reform Rodeo
1. Medicaid Madness: Kaiser Health News details the debate over whether Medicaid recipients could purchase subsidized insurance on the ACA-mandated exchanges
2. On Republican Repeal: Ezra Klein discusses a piece by Peter Suderman of Reason Magazine that outlines the the dilemma that Republicans may face in their efforts to repeal the ACA.
3. Unemployment and Health Care: The Health Care Blog has a nice piece detailing the effect that rising unemployment could have on the the financial viability of hospitals.
4. Berwick Bashing: Donald Berwick will be testifying on Capital Hill this week. Politico spoke with members on the Hill about how they expect to grill Berwick.
5. Loko: Time Magazine has a piece on the FDA’s expected decision on whether to ban the highly alcoholic and caffeinated Four Loko drink that has been implicated in serious illness and death.
Update: Four Loko has decided to voluntarily remove caffeine from their alcoholic beverages.
CRS Issues Medicare Reform Summary and Timeline
The Congressional Research Service (”CRS”) released a November 3, 2010 report entitled Medicare Provisions in the Patient Protection and Affordable Care Act (PPACA): Summary and Timeline. It outlines and summarizes the significant changes made to the Medicare program by the Patient Protection and Affordable Care Act (”PPACA”; P.L. 111-148), as amended by the Health Care and Education Affordability Reconciliation Act of 2010 (”the Reconciliation Act”; P.L. 111-152).
Prior to the enactment of PPACA and the Reconciliation Act (”the Reform Acts”), the Congressional Budget Office predicted that total mandatory annual expenditures would increase “from $501 billion in 2009 to $943 billion in 2019.” Under these health reform measures, the average annual rate of spending growth will reduce from 8 - 6%, resulting in approximately $390 billion in savings over the next ten years.
Medicare Changes by Provider Type and Program
The Reform Acts will have three primary affects on Medicare Part A coverage. It will: 1) constrain payment increases, 2) restructure payments, and 3) reduce payments to disproportionate share hospitals by $22.1 billion from FY2015 to FY2019.
The Reform Acts are expected to directly and indirectly change the way Part B Providers organize, practice, and deliver care. Medicare Physician Quality and Reporting Initiative (PQRI) incentive payments will be extended through 2014 and “an incentive (penalty) for providers who do not report quality measures” will be implemented in 2015. The Reform Acts create other programs, including the National Pilot Program on Payment Bundling, the shared savings program (including the accountable care organization, or ACO, model), or the value-based payment modifier under the physician fee schedule. Additionally, the Reform Acts will save approximately $196.3 billion over 10 years by constraining annual payment increases for certain non-physician providers.
The Reform acts will save $135.6 billion over 10 years by changing Medicare Advantage (Medicare Part C) plan payments. PPACA will decrease many benchmark amounts by tying them to the per capita fee-for-service Medicare spending amounts. At the same time, PPACA will increase benchmarks for certain high quality plans. By 2011, coding intensity adjustments will be applied to plan payments.
PPACA will improve coverage under the Medicare prescription drug program (Medicare Part D) by closing the coverage gap between $2,830 in total covered drug spending and the catastrophic threshold of $6,440 (the “doughnut hole”). “Enrollees will receive a 50% discount off the price of brand-name drugs during the coverage gap starting in 2011, and the coverage gap will be phased out by 2020.” Access to and availability of low-income subsidies will be improved through increased funding.
Efficiency and Quality of Health Care Services
To increase the efficiency and quality of Medicare services PPACA requires “the establishment of a national, voluntary pilot program that will bundle payments for physician, hospital, and post-acute care services with the goal of improving patient care and reducing spending.” This shared savings program is expected to save $4.9 billion over ten years. Another provision establishing payment adjustment to hospitals for “readmissions related to certain potentially preventable conditions,” will likely save $7.1 billion over the next ten years. Approximately $1.4 billion should also be saved through the institution of a payment penalty for certain common, high-cost hospital-acquired health conditions.
Finally, the creation of a Center for Medicare and Medicaid Innovation within CMS is expected to save $1.3 billion over the next 10 years. Its purpose will be “to research, develop, test, and expand innovative payment and delivery arrangements to improve the quality and reduce the cost of care provided to patients.”
Medicare Sustainability
To address financing challenges, the Reform Acts have established several revenue producing mechanisms. First, a new Hospital Insurance tax of 0.9% on high-wage earners (”over $200,000 for single filers and $250,000 for joint filers effective for taxable years after December 31, 2012″) and a new Medicare tax on net investment income will together raise $210 billion between 2013 and 2019.
Second, Part B and Part D beneficiaries will face increased premiums. Part D premium increases will save approximately $11 billion over 10 years and adjustments to the high-income threshold for Part B premiums will save $25 billion over 10 years.
Finally, to reduce spending growth, PPACA establishes an Independent Payment Advisory Board empowered to adjust payment rates. This Board is expected to save $15.5 billion between 2015 and 2019.
Fraud, Waste and Abuse
The amount of money lost to fraud is estimated to be between 3-10% of all health care expenditures. To combat this problem, the Reform Acts allocate $260 million in increased funding for anti-fraud activities over the next ten years.
In Conclusion
Despite the projected savings resulting from PPACA and the Reconciliation Act, “the rising cost of health care, the impact of the aging baby boomer generation, and declining revenues in a weakened economy” will continue to challenge the quality and sustainability of the Medicare Program. The report cautions that savings estimates are based on questionable assumptions. Furthermore, such savings can either be used to defer solvency issues or expand health insurance coverage, not both. Meanwhile, the practice of medicine is expected to undergo significant changes.
Despite the uncertainty in coming years, the CRS report will serve as a helpful guide and benchmark. The appendices provide detailed tables of spending adjustments by provider and by year, against which continuing surveillance of spending growth can be monitored.
OIG Issues Guidance on Individual Permissive Exclusions
Filed under: Fraud & Abuse, Medicare & Medicaid
On October 20, the Department of Health & Human Services Office of the Inspector General, (”OIG”) released, Guidance for Implementing Permissive Exclusion Authority Under Section 1128(b)(15) of the Social Security Act (”Guidance”). The Guidance provides owners, officers, and managing employees an opportunity to better evaluate their exposure and limit any liability resulting from their control over an entity subject to OIG enforcement action.
Section 1128(b)(15) of the Social Security Act provides the Secretary of HHS the authority to exclude owners, officers, and managing employees “of an entity that has been excluded or has been convicted of certain offenses.” OIG, having been delegated this authority by the Secretary, has published this internal advisory document setting out nonbinding factors to be considered in deciding whether to impose an individual permissive exclusion, under § 1128(b)(15).
Historically, OIG has not often exercised its permissive authority to exclude individuals from participation in federal health programs. According to OIG’s “List of Excluded Individuals,” 28 individuals controlling an excluded or convicted entity have themselves been excluded pursuant to § 1128(b)(15), including 16 owners or operators, 7 officers and 5 practitioners. The Guidance may indicate a new enforcement direction for OIG.
According to DLA Piper, the Guidance “is further evidence that OIG is serious about its recent focus on individual accountability and that it intends to exclude officers and managing employees, even without evidence that those individuals knew or should have known about the conduct giving rise to the entity’s criminal liability or exclusion.” Skadden takes a similar position, stating:
This guidance finds OIG asserting the breadth of its authority by creating a presumption in favor of exclusion in certain cases and endorsing a new strict liability exclusion standard in other cases. These enforcement positions appear likely to accelerate the government’s recent efforts to hold individuals accountable for corporate wrongdoing.
HHS OIG Notifies Drug Manufacturers of New Enforcement Initiative for Price Reporting Requirements
Filed under: Drug Pricing, Pharma, Prescription Drugs
On September 28, the Office of the Inspector General (”OIG”) released a Special Advisory Bulletin regarding a new enforcement initiative regarding the timely submission of certain pharmaceutical data. Manufacturers will face civil money penalties (CMP) for failing to comply with reporting requirements.
The Center for Medicare & Medicaid Services (”CMS”) relies on the timely reporting of average manufacturer prices (”AMPs”) and average sales prices (”ASPs”) for the implementation of four different programs: the Medicaid Drug Rebate Program, the 340B Drug Pricing Program (340B Program), the Federal Upper Limit (FUL) Program, and the Medicare Part B outpatient prescription drug benefit.
Under the Medicaid Drug Rebate Program, CMS uses AMPs to calculate the rebates owed to state Medicaid programs. The 340B Program, which requires manufacturers to sell their prescription drugs to certain safety net health care providers at or below specified prices, also uses AMPs to establish price ceilings. Medicaid’s FUL Program uses AMPs to act as a prudent buyer of multiple-source drugs. Finally, the Medicare Part B outpatient drug benefit relies on ASPs to establish Part-B covered drug and biologic payment amounts.
Timely and accurate price reporting is important to the effective and efficient administration of the Medicaid Drug Rebate Program, the 340B Program, the FUL Program, and the Medicare Part B drug benefit. Manufactures are required to report and certify timely and accurate drug pricing information, including AMPs on a monthly and quarterly basis and ASPs on a quarterly basis.
However, multiple reviews of historical reporting by OIG have demonstrated that voluntary compliance has not been fully effective. For instance:
- The February 2008 report, “Average Sales Prices: Manufacturer Reporting and CMS Oversight,” found that, “between 41 and 52 percent of manufacturers provided ASPs after the statutorily defined due date.”
- The OIG report, “Drug Manufacturers’ Noncompliance With Average Manufacturer Price Reporting Requirements,” released the same day as the Special Advisory Bulletin, determined that during 2008:
- 53 percent of the 592 manufacturers that were required to submit quarterly AMP reports failed to provide pricing data by the statutorily defined due date.
- 78 percent of the 579 manufacturers that were required to submit monthly AMP reports failed to provide pricing data by the statutorily defined due date.
Moving forward, OIG will work with CMS to “identify and penalize noncompliant manufacturers through the CMP process.” Upon a report from CMS that a manufacturer has not submitted a timely report of product pricing information, OIG will exert its authority to impose CMPs of $10,000 per day upon the manufacturer in an effort to improve compliance.
A Doctor Speaks About Healthcare, Big Business and Justice
Filed under: Health Reform, Medicaid, Private Insurance
[Ed. Note: We received today's post from Timothy Shaw, M.D. F.A.C.S. as a comment in response to a post, "Health Care and Disparity in a 'Post-Racial' Era."]
Photo by Eva the Weaver
Twenty years ago, upon entering private medical practice for the first time it took me about a month to realize that the United States needed “Health Care Reform.” After serving the previous fifteen years in the US Army Medical Corps, I started my first civilian medical job. I was asked to come to a hospital by another surgeon to perform an ear operation on a 3 year old boy at the same time as he would be performing an eye operation. This would save the child from two anesthetics on two different days. Since I had never worked at that hospital, and apparently in order to set me straight from the start, one of the head doctors at this hospital, came up to me in the preoperative holding area, and boldly shoved the child’s chart in my face, pointed to the child’s insurance (Medicaid (Welfare)) and shamelessly told me, “if all you are going to do, is to bring this “****” in here, then we don’t need you to come here.” The poor little guy sitting in the corner with his Mom, was smiling at us with his cute partially toothless grin, and coke-bottle glasses. He didn’t realize what one of his doctors called him because of his health insurance coverage.
Again, several months later I was called to a different hospital (one that I normally did not work at either) in the same city by an operating nurse who asked if I took Medicaid “welfare patients.” She asked me if I would come to their operating room to take a coin out of a 2 year old child’s esophagus. She informed me that their hospital doctors in my specialty did not take welfare patients and they were looking for someone to do the operation as the child had choked on a coin. “Apparently someone forgot to screen this child’s insurance before he came to the operating room.” I canceled my clinic patients and drove across town, performed an esophagoscopy and removed the coin.
Obviously, the doctors in these above scenarios did not support “the Public Option” (Medicaid).
What had happened to our Health Care System? What had changed? Where was the honor that we had in the Army Medical Corps? We treated everyone from Generals to Privates and their families with the same respect. In accordance with Geneva Conventions, we even treated enemy soldiers during the Iraq War in our Combat Support Hospitals with the same care that we treated our own.
In a significant measure the United States Private Health System had changed into “Big Business.” In some measure the humanitarian emphasis had eroded.
Although spurning the pharmaceutical industry as “conflict of interest” entities, not suitable for proper patient care, surprisingly, doctors saw no apparent conflict of interest in merging with the Health Insurance Industry. Doctors and the Health Insurance Business became so closely aligned that their DNA intertwined to form a new species. This powerful new combined-arms team became the forme fruste of our new United States Health Care Industry. Doctors armed with new found business tactics, and the Health Insurance Industry armed with the legitimacy of the Doctor’s legal authority to limit health care to patients became the de facto United States Health Care System.
The business meeting replaced the medical conference to discuss “patient care” issues. To cope with the ever burgeoning bureaucracy, more and more doctors went into administration. More doctors have their MBA’s then carry black bags and make house calls. Mergers, Acquisitions, Expansions, Contracts, Covered Lives, Marketing Strategy, Demographics, Competition Threat Forecasts, Actuarial Science, and Health Insurance became the focus of many doctors. Time was spent on avoiding insurance business risk, trying to avoid the high risk patients, finding the better payer groups, etc. Hospitals became less hospitable. Doctor’s began to discharge patients so rapidly, that in the mid 1980’s the majority of States passed consumer protection laws (”Drive By Delivery Laws”) to protect mothers/newborns from being discharged from the hospital too soon.
Currently, the U.S. health care system is outrageously expensive, yet inadequate. Despite spending more than twice as much as the rest of the industrialized nations ($7,129 per capita), the United States performs poorly in comparison on major health indicators such as life expectancy, infant mortality and immunization rates. Read more
Reform Rodeo
Photo by David Monniaux
[Ed. Note: HRW welcomes back Jordan Cohen from his work in Washington at HHS this summer-- the place just wasn't the same without him]
Waste: The New York Times provides an overview of a new study detailing health care wastefulness — which the Times reports as being the first study to quantify the problem.
Berwick’s Pilots: Newly appointed Medicare director Donald Berwick is pushing for hundreds of new pilot programs that would seek to innovate the delivery of health care.
Prognostication: The Health Care Blog’s David Kibbe and Brian Klepper look beyond meaningful use and distill five future trends of patient health data and clinical health information technology.
Meaningful Use FAQs: For those with questions on meaningful use, John Halamka has created FAQs.
PPACA and Employees: Researchers at RAND have published a study predicting PPACA’s effect on workers’ health insurance coverage.
Medicaid Outside the Box: Health Affairs’ Michael O’Grady and Jennifer Baxendell Young have published a post that discusses new ideas for Medicaid financing.
NEW JERSEY SUED FOR CONSTITUTIONAL VIOLATIONS IN DENYING IMMIGRANT PARENTS ACCESS TO STATE-FUNDED MEDICAID
Filed under: Medicaid, State Initiatives, The Uninsured
Class Action Seeks Relief for 12,000 Lawful Permanent Residents Affected by Immigration-Based Medicaid Cuts
NEWARK, NJ - Seton Hall Law School’s Center for Social Justice and Gibbons, P.C., filed a class action complaint today in New Jersey, alleging that the State’s Department of Human Services (”Agency”) is violating permanent residents’ equal protection rights under the United States and New Jersey Constitutions by denying them State-funded Medicaid because of their alienage and immigration status. The Plaintiffs, many of whom work at low-wage jobs, are lawful-permanent-resident parents in New Jersey, who because of their low-income were deemed eligible to receive and, until recently, did receive State-funded Medicaid known as New Jersey FamilyCare (”NJFC”). Citing the State’s financial crisis, however, in April and July of this year, the Agency terminated Plaintiffs’ Medicaid coverage, stating that Plaintiffs were no longer eligible for NJFC because they have not been lawful permanent residents for at least five years.
The complaint describes the harm experienced by the nearly 12,000 low-income, lawful permanent residents affected by those cuts: without NJFC assistance, Plaintiffs can no longer afford regular checkups, preventive care, and treatment for serious illness. One of the named plaintiffs, a single mother with two small children, had surgery to remove a kidney in 2007. She is now unable to afford monitoring of her kidney problems or medical care in the event of future illness. Two other plaintiffs-working parents from Haiti and Ecuador-required emergency medical care last month, but after being terminated from State-funded Medicaid, were unable to pay for such treatment. Several of the Plaintiffs have family histories of heart disease, high cholesterol and diabetes and worry that without regular check-ups and preventive care, they will be unable to prevent irreversible damage to their health.
The complaint alleges that by singling out this group of immigrants for termination of their healthcare coverage, the Agency is discriminating against plaintiffs on the basis of their alienage and immigration status in violation of the equal protection guarantees of the Federal and State Constitutions.
“Not only is it unconstitutional to distinguish between New Jersey residents on the basis of their alienage and immigration status when dispensing critical health care assistance-it is counterproductive,” said attorney Jenny-Brooke Condon, an Associate Professor at Seton Hall’s Center for Social Justice. “Many of the 12,000 lawful permanent residents affected by these State-Medicaid cuts are hard-working residents of the State, who pay taxes and support their families by working inlow-wage jobs. Ensuring that the working poor receive essential, preventive healthcare and treatment for illness keeps New Jersey residents healthy, which, in turn, keeps them working.”
Many of the Class Representatives named in the lawsuit expressed outrage at being singled out for healthcare cuts on the basis of their immigration status. “I work hard, pay taxes, and play by the rules; I am a lawful resident of this State,” said Class Representative Nadia Chery, a native of Haiti who works as a home healthcare aide. “So when the government said it was cutting my benefits because of my immigration status, it was as if I had done something wrong because I am an immigrant. I felt that I was being discriminated against.”
Class Representative Manual Guaman, a native of Ecuador who works as a cook to support his wife and three small children, described the anguish he felt when he suffered a severe allergic reaction in July after losing his NJFC assistance. “I didn’t know what to do. Should I get treatment at a hospital, knowing I will not be able to afford the bill, or should I take my chances that I will get better?” said Guaman. “I decided to go to the hospital, thinking that if I became sicker I might not be able to keep working and support my family. Being healthy for my family is my first priority.” But Guaman added that not being able to pay the hospital bill he received after his July emergency room visit has discouraged him from seeking follow-up care and additional medical assistance.
In addition to asserting equal protection claims, the complaint alleges that in denying Class Members NJFC assistance, the Agency has also violated a New Jersey statute governing the State Medicaid program. That statute provides that both citizens and lawful permanent residents are eligible for State-funded Medicaid. The complaint filed today amends a complaint filed by Plaintiffs on June 29, 2010, and newly challenges the Agency’s July 6, 2010 regulation, which the Agency published only after it had already terminated most Class Members’ NJFC assistance. Plaintiffs seek a declaration from the court that the agency’s actions and regulation violate the Federal and State Constitutions and the NJFC statute, and also seek injunctive relief restoring Class Members’ NJFC assistance.
A copy of the complaint can be found at http://law.shu.edu/ProgramsCenters/PublicIntGovServ/CSJ/upload/Guaman_Amended_Complaint.pdf
Seton Hall University School of Law, New Jersey’s only private law school and a leading law school in the New York metropolitan area, is dedicated to preparing students for the practice of law through excellence in scholarship and teaching with a strong focus on clinical education. The Center for Social Justice, a core of Seton Hall Law School’s Catholic mission, provides clinical education and volunteeropportunities to students and engages in various forms of advocacy, scholarship and direct legal services in an effort to secure equality, civil rights and legal protection for individuals and communities in need. Seton Hall Law School is located in Newark. For more information visit, http://law.shu.edu/.
The law firm Gibbons P.C. sponsors the John J. Gibbons Fellowship in Public Interest & Constitutional Law under the guidance of John J. Gibbons, former Chief Judge of the United States Court of Appeals, Third Circuit, and Lawrence S. Lustberg, Director of the Gibbons Fellowship Program. The Gibbons Fellowship, supported by the broader resources of the firm as a whole, undertakes public interest and constitutional law projects and litigation. Working with a broad cross-section of public interest groups, the Fellowship Program has become widely known in New Jersey and nationally as a voice for the poor and underrepresented. The Fellowship has been and remains involved in the most significant and controversial issues that confront the Federal and State courts today. For more information visit http://www.gibbonslaw.com/about/index.php?view_page=3
An “Unknowable” Number of Bureaucrats
Filed under: Health Law, Health Reform, Obama Administration
Franz Kafka (1883-1924)
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.
Posts from Health Reform Watch have been cited by media sources throughout the country, including The New York Times, Washington Post, L.A. Times, Kaiser Health News, The Health Care Blog, NPR's Planet Money Blog, Duke Univ. Med. Center News, American Health Line Alerts, BusinessWeek.com, Concurring Opinions, Balkinization, The New England Journal of Medicine, Harvard's Nieman Foundation for Journalism, Las Vegas Sun, Maggie Mahar, Ezra Klein, Tom Geoghegan, and the official homepage of the Office of the Democratic Majority Leader of the House of Representatives, Steny Hoyer.
