Two Courts Interpret Regulations to Expand Medicare Coverage

As first reported by the New York Times, two Federal District Courts have rendered decisions within the past six weeks that expand Medicare coverage for skilled nursing care (”SNC”).  According to the rulings, Medicare beneficiaries are entitled to such coverage without, as the government contends, proof that their condition will improve as a result of treatment.

In both cases, Medicare beneficiaries appealed final decisions of the Secretary of the Department of Health and Human Services (”Secretary”) denying Medicare coverage under, individually, Part A and Part C (a Medicare Advantage plan) of the Medicare Program.  Since Medicare Part A and Medicare Advantage plans are required to cover the same medical services under 42 C.F.R. § 422.101, the courts’ frameworks of analysis should be the same.  However, each court relied on various administrative provisions to support of the principle that Medicare beneficiaries are entitled to SNC to maintain stable health and prevent deterioration of capabilities.

Papciak v. Sebelius, 2010 U.S. Dist. LEXIS 102801

In Papciak, the eighty-one-year-old Plaintiff received seventeen days of inpatient SNC shortly after hip replacement surgery.  Medicare denied coverage for the last ten days of care, on the ground that she “had been determined to have met her maximum potential” after the first seven days, and therefore, only qualified for “custodial care” for the rest of her inpatient stay.

The US District Court for the Western District of Pennsylvania agreed with the plaintiff that the administrative decisions had failed to consider whether the plaintiff needed SNC to maintain her level of functioning.  The Medicare Skilled Nursing Facility Manual Chapter 2 §214.3 states that skilled nursing care “must be provided with the expectation that… [1] the condition of the patient will improve materially in a reasonable and generally predictable period of time, or [2] the services must be necessary for the establishment of a safe and effective maintenance program.”  Furthermore,

The Secretary’s regulations state that “[t]he restoration potential of a patient is not the deciding factor in determining whether skilled services are needed. Even if full recovery or medical improvement is not possible, a patient may need skilled services to prevent further deterioration or preserve current capabilities.” 42 C.F.R § 409.32(c) (emphasis added).

In light of the foregoing, the Court reversed the Secretary’s decision.  Because the Secretary had failed to consider the alternative reason for rehabilitative SNC, the decision could not be affirmed as a matter of law.

Anderson v. Sebelius, 2010 U.S. Dist. LEXIS 113550

In Anderson, the sixty-year-old Plaintiff required 24-hour supervision to remain safe in her home after a second stroke rendered her incontinent, cognitively impaired, and immobile.  Her physician certified six times that Anderson needed SNC for a 60-day period; however, she was denied coverage after the first of six physician-certified periods.  The US District Court for the District of Vermont held that the ALJ had incorrectly concluded that SNC is “not covered when a patient’s condition is stable and unlikely to change.”

To the contrary, “a patient’s chronic or stable condition does not provide a basis for automatically denying coverage for skilled services.”  The court cited the Medicare Benefit Policy Manual, which states:

The determination of whether a patient needs skilled nursing care should be based solely upon the patient’s unique condition and individual needs, without regard to whether the illness or injury is acute, chronic, terminal, or expected to extend over a long period of time. In addition, skilled care may, depending on the unique condition of the patient, continue to be necessary for patients whose condition is stable. § 40.1.1 (emphasis added).

Furthermore, a physician’s decision as to whether SNC was reasonable and necessary is to “be viewed from the perspective of the condition of the patient when the services were ordered and what was, at that time, reasonably expected to be appropriate treatment for the illness or injury throughout the certification period.”  § 40.1.2.1.  The Court held that the ALJ’s hindsight determination that the patient remained stable and did not improve during the certification period was inappropriate.  “The fact that skilled care has stabilized a claimant’s health does not render that level of care unnecessary. An elderly claimant need not risk a deterioration of her fragile health to validate the continuing requirement for skilled care.” (quoting Folland ex rel. Smith v. Sullivan).

Looking Ahead…

These rulings will likely benefit those with chronic conditions and disabilities.  Representative Joe Courtney, Democrat of Connecticut, led a group of seventeen House Democrats in objecting to the administration’s interpretation of the law.  According to their letter:

Beneficiaries are frequently told that Medicare will not cover skilled services if their underlying condition will not improve. For example, as people with multiple sclerosis are often not likely to improve, skilled services such as physical, occupational and speech therapies that are necessary to slow the progression of the disease, or maintain current function, are denied. As a result, these individuals’ conditions deteriorate — frequently leading to more intense, more expensive services, hospital or nursing home care.

The government has not announced whether it will challenge the decision.

The Ethics of Modern Drugs and Clinical Trials

A recent article in the New York Times raised an interesting question: are traditional, randomized, controlled trials of new genetically targeted cancer drugs unethical?

The piece recounts the story of two cousins, both diagnosed with melanoma.  After enrolling in the last phase of clinical study, the computer lottery selected one cousin to receive PLX4032, experimental “superpills.” The second cousin, now deceased, was relegated to a “notoriously ineffective” course of chemotherapy.

Randomized, controlled trials have become the gold standard in clinical research, comparing competing treatments to determine which extends life most.  The structure of the trial, with an experimental group and control group, is premised on the idea that the comparative effectiveness of the experimental treatment is unknown.  Therefore, one half of the participants in the clinical trial receive a believed to be less effective therapy for a greater good: researchers come to know definitively which treatment is more effective and future patients benefit from that knowledge.

Critics point out that these new drugs are so much more effective than prior treatments that time-consuming clinical trials are futile: the Phase III trial for PLX4032 would cost $100 million and take at least two years before possibly receiving F.D.A. approval.  That is a huge cost, in terms of lives and money, to “prove” what has already been demonstrated in early clinical testing.  Physicians are forced to forego an opportunity “to give patients symptomatic relief, even if the drug turned out not to prolong life.”

Dr. Paul B. Chapman of Sloan-Kettering, a medical oncologist at Memorial Sloan-Kettering Cancer Center and leader of the trial states in the article:

My goal is to find out as quickly as possible in as few patients as possible whether this works.  If we never know, then we’re never going to be able to build on anything.

Making patients’ tumors go away is gratifying.  But that’s not the businss I’m in.  I’m in the business of making people live longer.  That’s what I want to do.

In contrast, Dr. David E. Fisher, a leading melanoma biologist at Massachusetts General  said of the controlled trial:

My personal view is it’s nuts.  I don’t know anyone who hasn’t shuddered at the concept that we can’t let patients on the control arm cross over because we need them to die earlier to prove a point.

The trend towards more targeted and effective drugs changes the framework for evaluating the ethics of clinical trials.  Promising new treatments however, have sometimes been proven to be less effective.  Therefore, the question remains for medical researchers and the F.D.A.: when will early clinical results be so persuasive that a traditional, controlled trial is unnecessary?

Health Care and Disparity in a “Post-Racial” Era

Seton Hall Law School recently hosted the Third National People of Color Conference, which was convened to “address critical national and global issues through the lens of legal scholarship that explicitly and implicitly examines contemporary racial context.”

The conference brought together over 400 judges, law professors, lawyers and students to our campus over the course of  four days and featured panels and speeches by people such as the Reverend Jesse Jackson; the Honorable Cory Booker, Mayor of Newark, New Jersey; Professor Derek Bell, Visiting Professor at New York University School of Law; Kathleen Martinez, Assistant Secretary of Labor for Disability Employment; The Honorable Joseph A. Greenaway, U.S. Court of Appeals, Third Circuit; Gay McDougall, United Nations Independent Expert on Minority Issues; Keith Harper, former Appellate Justice of the Mashantucket Pequot Tribal Nation; and just too many other smart and interesting people to list here. (A good account of the Conference in Diverse Magazine can be found here).

Involved in some of the on site prep work, I was unable to attend nearly as much as I would have liked. But I did have the opportunity to listen to a number of thought provoking presentations, including speeches by Jesse Jackson, Mayor Booker, Keith Harper and Katleen Martinez.

In considering the theme of the conference, “Our Country, Our World in a ‘Post-Racial’ Era,” it was made clear time and time again that despite the rhetoric that has bounced about our nation since President Obama took office, when looking at numerical indicators for well being in the United States racial identity, ethnicity, gender, sexual identity, and disability status matter.

I realize that I am saying nothing new here–nor am I saying it as well as I heard it. But I think it also bears repeating.

It is also worth noting, when looking at the disparity in health care access, utilization, and quality of received care, that here in New Jersey as a response to a budget crisis, the state recently summarily stripped over 12,000 legal immigrants of their right to health care through Medicaid. Our Center for Social Justice here at Seton Hall Law has sued the State of New Jersey for doing so as a violation of both the state and federal constitutions as a matter of, among other things, equal protection. Such actions by the state assuredly do not bode well for the health care variance numbers below; and maybe, when considering the disparities in health care, “equal protection,” in the largest sense of the word, is the appropriate lens through which to view this.

But it is also, within the context of anyone’s verbal meanderings about a supposed “post-racial” society, important to note that news of the suit was featured in the Wall Street Journal, Star Ledger, Asbury Park Press, The Record, The Daily Record, The Courier Post, Home News & Tribune, The Jersey Journal, MSNBC, PolitickerNJ, Newsday, Immigration Prof Blog and other media throughout New Jersey, New York, Pennsylvania, and Connecticut.

Reader’s comments were decidedly not kind. Having done a great deal of work with and for immigrant communities, the urban disenfranchised, Guantanamo Detainees, and others unpopular and unjustly treated, we’re used to it here at Seton Hall Law. But I invite anyone entertaining delusions about a “post-racial” era to take a look at the comments. Or, for that matter, the comments on almost any newspaper article that deals with immigration– or race.

Having said that, I also invite you to take a look at the following numbers and study results from HHS’ Agency for Healthcare Research and Quality. Below that, you’ll find a really interesting lecture from a Health Care Disparities Class at Case Western Reserve University from Professor Insoo Hyun. The video is courtesy of the Case Center for Reducing Health Disparities and their well produced blog and resource center.

As for the studies and numbers, though just a small sampling, I’ll let them speak for themselves:

Identifying Disparities in Care

Access to Primary Care

Primary care is the underpinning of the health care system, and research studies have shown that having a usual source of care raises the chance that people receive adequate preventive care and other important health services. Data from AHRQ’s Medical Expenditure Panel Survey (MEPS) reveal that:

• About 30 percent of Hispanic and 20 percent of black Americans lack a usual source of health care compared with less than 16 percent of whites.
• Hispanic children are nearly three times as likely as non-Hispanic white children to have no usual source of health care.
• African Americans and Hispanic Americans are far more likely to rely on hospitals or clinics for their usual source of care than are white Americans (16 and 13 percent, respectively, v. 8 percent).

Diagnosis and Treatment

Race and ethnicity influence a patient’s chance of receiving many specific procedures and treatments. Of nine hospital procedures investigated in one study, five were significantly less common among African American patients than among white patients; three of those five were also less common among Hispanics, and two were less common among Asian Americans. Other AHRQ-supported studies have revealed additional disparities in patient care for various conditions and care settings including:

• Heart disease. African Americans are 13 percent less likely to undergo coronary angioplasty and one-third less likely to undergo bypass surgery than are whites.
• Asthma. Among preschool children hospitalized for asthma, only 7 percent of black and 2 percent of Hispanic children, compared with 21 percent of white children, are prescribed routine medications to prevent future asthma-related hospitalizations.
• Breast cancer. The length of time between an abnormal screening mammogram and the followup diagnostic test to determine whether a woman has breast cancer is more than twice as long in Asian American, black, and Hispanic women as in white women.
• Human immunodeficiency virus (HIV) infection. African Americans with HIV infection are less likely to be on antiretroviral therapy, less likely to receive prophylaxis for Pneumocystis pneumonia, and less likely to be receiving protease inhibitors than other persons with HIV. An HIV infection data coordinating center, now under development, will allow researchers to compare contemporary data on HIV care to examine whether disparities in care among groups are being addressed and to identify any new patterns in treatment that arise.
• Nursing home care. Asian American, Hispanic, and African American residents of nursing homes are all far less likely than white residents to have sensory and communication aids, such as glasses and hearing aids. A new study of nursing home care is developing measures of disparities in this care setting and their relationship to quality of care.

Looking Beyond Income and Insurance

Disparities in health care are often ascribed to differences in income and access to insurance. Research has shown these to be important, but by no means the only factors. For instance, the proportion of Hispanic Americans with a usual source of care has declined substantially over the past decade (from 80 percent in 1986 to 70 percent in 1996). Insurance coverage has also declined, and the lack of insurance in some groups is dramatic (among Hispanic men, for instance, 37 percent have no health insurance). Nonetheless, declines in insurance coverage explained only one-fifth of the change in access to a usual source of care.

In another recent study, AHRQ-funded researchers in Boston examined the quality of care provided to hospital patients with congestive heart failure or pneumonia. Quality of care was measured both by physician review and by adherence to standards of care. The researchers found no difference in quality of care for patients from poor communities compared with other patients, after adjusting for other factors. They did find, however, that African American patients received a lower quality of care than white patients.

Physician Decisionmaking

A small study of physicians’ decisions about whether to refer patients for cardiac catheterization, a diagnostic procedure for heart disease, provides supportive evidence that factors other than insurance and income can influence the quality of care people get. This study, which used actors portraying similar economic backgrounds, found that black women were significantly less likely than white men to be recommended for referral, despite reporting the same symptoms. (Differences between other groups studied were not statistically significant.)

Hospital Characteristics

In the Boston study of the quality of care, quality for African American patients was lower in nonteaching than in teaching hospitals. In another study, white patients were more likely than Hispanic and African American patients to receive invasive cardiac procedures in hospitals performing a high volume of such procedures, a factor strongly associated with the quality of cardiac care.

The Ultimate Ends of Health Care

“I don’t want to achieve immortality through my work,’ Woody Allen said, “I want to achieve it through not dying.” The “Singularity University” is attracting Silicon Valley glitterati who think along the same lines:

[T]he Singularity — a time, possibly just a couple decades from now, when a superior intelligence will dominate and life will take on an altered form that we can’t predict or comprehend in our current, limited state . . . [will lead to a world where] human beings and machines . . . so effortlessly and elegantly merge that poor health, the ravages of old age and even death itself will all be things of the past.

Some of Silicon Valley’s smartest and wealthiest people have embraced the Singularity. They believe that technology may be the only way to solve the world’s ills, while also allowing people to seize control of the evolutionary process. For those who haven’t noticed, the Valley’s most-celebrated company — Google — works daily on building a giant brain that harnesses the thinking power of humans in order to surpass the thinking power of humans.

Ezra Klein skewers the techno-utopianism, toying with the idea that we may well be robotized before we get electronic medical records:

Right now, one of the top stories on the New York Times site is about how human beings are going to become people-computer hybrids and live forever and that vision actually seems semi-plausible until you realize that all the information about the operation to download your memories into a Macintosh will probably be kept in a manila folder in a large filing cabinet, and then it doesn’t seem so likely.

But Klein neglects the trends toward tiering in the medical system, which may well continue forking into “upper decks” where anything is possible and nether realms of penury. As Andrew Orlowski comments, “The Singularity is . . . . rich people building a lifeboat and getting off the ship.” I think that progress in bioethics depends on a rejection of that kind of thinking in favor of a more solidaristic orientation toward the needs of the worst off. As I stated in 2002,

We are all disturbed by hypothetical dystopias like Huxley’s Brave New World. But their most important flaws - the inequality, degradation, and moral irresponsibility of their inhabitants - are already apparent in [some aspects of life in the] world’s wealthiest nations[, which] spend hundreds of millions of dollars on elaborate technologies of life-extension, while contributing much less to efforts to assure basic medical care to the poorest. Public debate on regenerative medicine must acknowledge this inequality. Societies and individuals can invest in it in good conscience only if they are seriously committed to extending extant medicine to all.

If “Singularity University” turns out to be a prime philanthropic initiative of the Google guys, while the Bill and Melinda Gates Foundation sticks to “progress in fighting hunger and poverty,” I know which tech company I’ll be rooting for.

Too Much Transparency?

Interesting article in the Wall St. Journal Health blog regarding prospective legislation which would require full pricing disclosure by providers:

Yesterday, a House subcommittee held a hearing on three bills - two sponsored by Republicans, and one by a Democrat - aiming to pull back the veil on prices, the Hill reports. Provisions vary by bill, but include price transparency for hospitals, ambulatory surgical centers, pharmacies and vendors; more complete disclosure by insurance plans and more information on quality.

Here at Health Reform Watch we have written a number of posts calling for transparency, and perhaps most notably the Center for Health & Pharmaceutical Law & Policy has issued two White Papers in the last year calling for such in different aspects of medical relationships. The first White Paper called for broad reforms in the marketing of drugs and devices. Entitled, Drug and Device Promotion: Charting a Course for Policy Reform, the Center proposed legal and policy changes to address conflicts of interest in the relationship of medicine and industry. The Center’s recommendations included “making payments by drug and device companies to doctors transparent, with public disclosure by industry and physicians of their financial relationships.”

In its second White Paper, entitled Conflicts of Interest in Clinical Trial Recruitment & Enrollment: A Call for Increased Oversight, “the Center proposed legal and policy changes to address conflicts of interest in the relationships between industry and doctors that can create unwarranted risks to trial participants and to the scientific integrity of research.” Obviously, transparency here too plays a large role in rooting out such conflicts and apprising potential research subjects of what may amount to vested interests in those who wish to recruit them for such studies.

In a sense, “Transparency” has become somewhat of a mantra. And rightfully so. The prospect of clandestine arrangements in medical care has a nefarious overtone that is well deserved. The ultimate nature of the doctor patient relationship is premised on trust. The doctor, by virtue of his education and profession, is privy to information the vast majority of us do not hold. In a sense, every diagnosis and prescription accepted is an article of faith. It is important to know that the doctor’s information has not been skewed by improprieties in research, and that the doctor’s ultimate diagnosis and prescription has not been skewed by a vested interest.

Generally speaking, except in cases of dire and/or unconscious emergency, the patient must assent to treatment. And assent must be premised on informed consent. A failure of assent, legally speaking, amounts to battery.  Arguably, a failure to disclose vested interests in a particular course of action or procedure can diminish, if not negate, the “informed” aspect of informed consent. Transparency is important.

But the WSJ article raises an issue worth considering as it regards Transparency and pricing: provider competitors in concentrated markets may, in seeing the exact numbers, find the opportunity to raise prices.

What struck us, though, was the concern voiced by Frank Pallone, chairman of the Energy and Commerce health subcommittee. “The concern I guess is about the unintended consequences of too much transparency,” he said, according to the Hill. How could more info on pricing and costs be a problem?

Pallone refers to a 2008 Congressional Budget Office brief on this very issue. It covers the benefits of transparency, but also the chief potential disadvantage: in concentrated markets, providers might look at their competitors’ prices and raise their own to match them. Here’s an excerpt from the prepared remarks of then-CBO Director Peter Orszag (now director of the Office of Management and Budget), discussing the findings before a Senate committee’s health reform summit:

On the consumer side, more than 80 percent of the population is covered by some form of health insurance, which insulates people from the full price of their health care, limiting their incentive to compare prices. Doctors and other health professionals often direct the decisions about what services to buy from whom, as patients may have little information on the care they need or the quality or value of that care. Moreover, for insured and uninsured people alike, awareness of prices will make little difference in emergencies or in the relatively small number of cases that account for a disproportionate share of overall health care spending.

On the provider side, more transparency would make information about the prices that hospitals, physicians, and drug companies charge insurers more visible, but whether such disclosure would lead to higher or lower prices for consumers on average is unclear and depends on the nature of competition in the relevant market. The markets for some health care services are highly concentrated, so increasing transparency in such markets could lead to higher, rather than lower, prices because higher prices are easier to maintain when the prices charged by each provider involved can be observed by all of the others. However, aggregated information or information on average prices would make it more difficult for providers to coordinate higher prices because individual providers’ prices would not be obvious. Whatever the effect on average prices, more transparent prices would probably reduce the range of prices.

In tact as the mantra of Transparency may be in regard to medical relationships, in a marketplace unfettered by fee regulation, Orszag’s  analysis and Frank Pallone’s concern regarding Transparency and pricing gives weight to the counter-intuitive prospect of “Too much Transparency.” We fail to consider such at our own peril.

Entrepreneurs, Rejoice!

Among the many jeremiads on the moderate-to-conservative health reform legislation just passed, David Brooks’s lamentation stands out. Brooks describes the legislation as one more drain on America’s entrepreneurial energies:

The essence of America is energy — the vibrancy of the market, the mobility of the people and the disruptive creativity of the entrepreneurs. . . . Today, America’s vigor is challenged on . . . [and] the country is becoming geriatric.

With the word security engraved on its heart, the Democratic Party is just not structured to cut spending that would enhance health and safety. The party nurtures; it does not say, “No more.”

But the legislation, in the long run, cuts the deficit. And people just starting out in the workforce–including many entrepreneurs–will find that the legislation greatly increases their flexibility. Just try out this calculator to see. As I noted three years ago, entrepreneurs have a lot to gain from a steady source of insurance.

The Health Reform Battle: From Procedure to Policy

Many bloggers have highlighted bits and pieces of the legislation just passed by the House of Representatives. But how do we best understand the bill as a whole? The Obama Administration recently recruited Edward Tufte to visualize the ARRA (which, amazingly enough, many Americans think went entirely to Wall Street). Some savvy media outlets have already explained health reform in accessible formats.

Farhana Hossain at the NYT summarizes the language of the Senate Bill, and how it will change in the coming week(s) if Senate Democrats follow through on their promises and pass the House’s Reconciliation Bill. For example, in the Senate Bill:

Within six months, insurers would be prohibited from denying coverage to children based on pre-existing medical conditions, from placing lifetime dollar limits on coverage and from rescinding coverage when a person becomes sick or disabled. The ban on exclusion based on pre-existing conditions would be extended to every one when the exchanges are operational in 2014.

But the reconciliation bill “would extend the ban on lifetime limits and rescission of coverage to all existing health plans within six months.” Mike Madden of Salon also does a good job summarizing “Ten Things You Need to Know About the Health Care Bill.” For example, “children would be allowed to stay on their parents’ insurance until they turn 26.”

I’m sure there are many more great resources out there; I’m happy to host them in the comments. I don’t want to clutter a post on simple guides to the health care bill with too many leads. But for now, let me just congratulate two of the top journalists of the health care debate, Timothy Noah of Slate, and Ezra Klein of the Washington Post, for their tireless attention to the real policy issues. And congratulations to Timothy S. Jost, one of the law professors who has most exhaustively described (and frequently defended) the bill just passed by Congress. His article “Health Care Reform Requires Law Reform” is a helpful look at the many issues likely to arise as reform is implemented.

X-Posted: http://www.concurringopinions.com/archives/2010/03/the-health-reform-battle-from-procedure-to-policy.html.

Medicaid Cuts: Where’s the Outrage?

If Medicare services or provider rates were cut, or threatened to be cut to balance the budget, the firestorm would be epic.  Republicans would accuse Democrats suggesting such cuts of stealing from the elderly.  Democrats would accuse Republicans suggesting such cuts of trying to abolish Medicare.  AARP would express outrage, and if it didn’t do so loudly enough tea partiers would urge seniors to burn their AARP cards in an incongruous support of a government health care program.  So where’s the outrage when states faced with budget cuts look first to cut Medicare’s sister program, Medicaid?

A front page story in the New York Times on Tuesday describes cuts in Michigan’s Medicaid budget, resulting in the elimination of some services and reductions in provider fees.  As Medicaid fees were already absurdly low in Michigan, as in many states, the predictable response was that the pool of doctors available to Medicaid beneficiaries shrank even further.  Those lucky enough to find a doctor willing to take the low Medicaid reimbursement must be willing to travel long distances, and give up days of work to get necessary care for their sick children.  The Times described one such case:

Medicaid enrollees in Michigan’s midsection have grown accustomed to long journeys for care. This month, Shannon M. Brown of Winn skipped work to drive her 8-year-old son more than two hours for a five-minute consultation with Dr. Mukkamala. Her pediatrician could not find a specialist any closer who would take Medicaid, she said.

Later this month, she will take the predawn drive again so Dr. Mukkamala can remove her son’s tonsils and adenoids. “He’s going to have to sit in the car for three hours after his surgery,” Mrs. Brown said. “I’m not looking forward to that one.”

Those who can’t locate a participating physician either do without or wait for the condition to become emergent, at which time they seek more expensive hospital care.  How can this program be so dysfunctional?   The Kaiser Family Foundation, in a report posted last month, described the countercyclical nature of Medicaid’s finance structure:

During an economic downturn, unemployment rises and puts upward pressure on Medicaid. As individuals lose employer sponsored insurance and incomes decline, Medicaid enrollment and therefore spending increase. At the same time, revenue losses make it more difficult for states to pay their share of Medicaid spending increases. Specifically, a 1 percentage point increase in the national unemployment rate is estimated to result in 1 million more Medicaid and CHIP enrollees and an additional 1.1 million uninsured at the same time as state revenues are projected to fall by 3 to 4%.

So, states need to increase funding for Medicaid just when they are losing tax revenues and are facing pressures in other public service settings.  As KFF describes in the report, the problem this year was lessened somewhat by the addition of federal stimulus funding; the funding was apparently not enough to support the program in Michigan, and in any event will not persist nearly as long as states’ projected budget problems.

This is not a new problem.  It has often been noted that a health care system for poor people is a poor health system.  The reasons are, unfortunately, quite clear.  Medicare serves (mostly) the elderly of all income groups.  This is a politically powerful bloc: its members vote, and enough of them are financially and socially powerful to protect their turf.  Medicaid covers low-income people, including our lowest wage-earners, poor children, and people with permanent disabilities.  They have little social clout, by definition little money, and not much in the way of a lobby.  So, when times get hard, their programs are on the line.

That brings us to health reform.  The current bills rely heavily on Medicaid to bring coverage to the uninsured.  That is, as the above discussion makes clear, a risky proposition.  In its several forms, current reform bills have promised some increases, often temporary, to the federal share of states’ Medicaid costs.  And in a letter to Congressional leaders following a summit earlier this month, the President acknowledged the precariousness of the network of providers on whom we’ll rely to render that expansion more than a charade:

At the meeting, Senator Grassley raised a concern, shared by many Democrats, that Medicaid reimbursements to doctors are inadequate in many states, and that if Medicaid is expanded to cover more people, we should consider increasing doctor reimbursement. I’m open to exploring ways to address this issue in a fiscally responsible manner.

That would be a good step.  So would increasing the federal share of Medicaid’s costs.  If the current fiscal crisis has shown us anything about our federalist system, it is that the federal government, with its ability to borrow,  is much better at responding to emergencies than are the states, with their obligations to balance budgets annually.  But ultimately, a program for poor people will always have political, and therefore fiscal problems.

For reform to stick, for expansion of coverage to the poor and near-poor to genuinely serve their health needs over time, we have to tend structurally to our funding system.  The achievement of expansion to near-universal coverage would be a statement of solidarity, proclaiming that we’re all in this together.  To make that stick, we have to be in our health care financing system together.  There will be a list of clean-up work and next steps if and when reform passes.  High on that list should be the repair of Medicaid’s shaky fiscal foundation, integrating the interests of Americans across class and income levels.  When they’re considering reductions in access to health care, legislators should be just as cautious about harming kids in Flint as they are about harming elders in Scarsdale.

A Win/Win: Health Reform Passes, Limbaugh Leaves

If you weren’t committed to Health Care Reform before… perhaps on the fence about a few aspects of the bill or the process? How about this as a pot sweetener: if the Health Care Reform bill passes, Rush Limbaugh says he’ll leave the country.

As David Knowles over at AOL News points out, on Limbaugh’s radio show a “caller asked Limbaugh where he would go for health care if Congress were to enact reform.

‘I don’t know,’ Limbaugh responded. ‘I’ll just tell you this, if this passes and it’s five years from now and all that stuff gets implemented, I am leaving the country. I’ll go to Costa Rica.’”

One can hope.

Interestingly enough, as Knowles points out, Costa Rica has universal health care.

Of Summits, Nadirs & Reconciliation

There are any number of places to find recaps and summations of the Health Care Reform Summit. This article from AP’s Erica Werner, “Obama, GOP agree on some health areas,“ outlines the commonalities and differences; this article from AP’s Charles Babington, “Obama, GOP fail to reach accord on health bill,“ focuses more on the apparent failure of the process. Perhaps the two articles display a glass half-full/ half- empty rift within A.P. as well.

Seemingly, the one aspect of the health care and the health care finance system Democrats and Republicans agreed most strongly on is that the glass is, euphemistically stated, half- empty. The fundamental disparities between the two groups, however, become apparent as soon as the discussion moves towards how to fill that glass. Notably, the Republicans have strongly espoused that the year’s worth of work represented by the House and Senate bills be “scrapped,” or, in the words of Senate Republican leader Mitch McConnell of Kentucky, “start over with a blank piece of paper.” The Senate bill runs 2400 pages.

But perhaps the most significant thing which happened today at the summit is what was not said. When Republicans repeatedly asked for reassurances that Democrats would not circumvent the parliamentary procedure of the filibuster with the parliamentary procedure of reconciliation, the Democrats, including President Obama, declined. In doing so, the Democrats reserved for themselves the ability to pass a bill with a simple majority in the Senate (51 votes) instead of the 60 votes it would require to overcome a filibuster.

As WaPo’s E.J. Dionne put it:

Obama sent a very strong signal toward the end of the summit: He wants a bill even if the only way to get it is through the reconciliation route. “I don’t think that the American people are interested in the process inside the Senate,” Obama replied in response to Sen. John McCain’s criticism of the idea that the Senate might try to pass a bill with fewer than 60 Senate votes. Most Americans, Obama said, believe in “majority rule.” So they do.

I have already written about my own constitution based questions and misgivings regarding the filibuster as practiced in modernity–wherein Senators need not go through the arduous task of actually holding the floor with non-stop speech. Where arguably, the day-in and day-out de facto supermajority requirement for the Senate to pass legislation begs the question: Yes, “Each House may determine the Rules of its Proceedings….” but what happens when the rule of procedure swallows the law?

Ezra Klein writes:

According to UCLA political scientist Barbara Sinclair, about 8 percent of major bills faced a filibuster in the 1960s. This decade, that jumped to 70 percent. The problem with the minority party continually making the majority party fail, of course, is that it means neither party can ever successfully govern the country.

But perhaps this can all be reconciled.

Reform Rodeo

1. Principle or Posturing (or both)? –Kaiser Health News discusses the sudden plea from certain Senators for a reintroduction of the public plan into the Senate’s bill.

2. Starting From Scratch? — The Hill highlights polling indicating that many Americans favor scrapping the health bill and starting over, an option that President Obama has repeatedly said is not an option.

2a. Presidential Preemption? — Interestingly, the New York Times details the possibility of Obama posting his own health reform bill on the Internet ahead of the much-hyped health care summit. Could Obama use his “new” bill as evidence of a “fresh start” to appease Republicans?

3. Back to Basics — Maggie Mahar details the longstanding debate about whether health insurance actually saves lives.

4. Scoop on Standards — Dr. John Halamka, a physician who serves as CIO of Beth Israel Hospital and Chairman of the Health Information Technology Standards Panel (HITSP) at the ANSI, shares his thoughts on the vocabulary standards that will come to be the Esperanto of HIT.

5. HIT Funding — On Febuary 12th, the first $1 billion of federal funding for HIT promised under the HITECH Act was made available, with $10.6 million going to Massachusetts for the creation of a health information exchange.

6. Health Reform “Casualty”: The New York Times reported that former Congressman-turned head of PhRMA Billy Tauzin is resigning.  Betting on the passage of health reform, Tauzin offered billions in concessions to the White House in exchange for, among other things, favorable patent exclusivity periods for pricey biologics.

7. Health 2.0 — The Health Care Blog reports on the purchase of online pain management company ReliefInSite.com by PatientsLikeMe.com–the popular patient web site which claims to be the  “leading online community for patients with life-changing diseases.” Don’t be to surprised to see further growth of similar “Health 2.0″ websites that seek to take advantage of the increasing digitization of health care delivery and research.

8. The Science Behind Reform — Stephen Novella at Science-Based Medicine revisits the question of the effectiveness of colonoscopies.

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.

Medical Marijuana Act Signed Into Law: Some Chronically Ill New Jerseyans Rejoice While Others Continue to Wait

As expected, on January 18, 2010, Governor Jon Corzine signed the New Jersey Compassionate Use Medical Marijuana Act into law, making New Jersey the 14^th state to legalize marijuana for medical use.  Seton Hall Law’s Center for Health & Pharmaceutical Law & Policy endorsed the Act in a position paper distributed to key lawmakers in June 2009.

The Act’s backers celebrated its passage with “hugs and tears,” while its opponents expressed continued concerns, including that the for-profit “alternative treatment centers” that the Act will allow to grow and distribute marijuana will have negative effects on the neighborhoods where they are established.  An interesting abcnews.com article by Susan Donaldson James highlights a third constituency: New Jerseyans with chronic illnesses that are responsive to treatment with marijuana but who are not considered to have debilitating medical conditions under the Act.

The article profiles Jack O’Brien of Laurel Lake, New Jersey who was born without fingers and toes and suffers from “crushing neuropathic pain.”  He wakes up to shooting pain in his arms and legs and can only walk short distances on his deformed feet.  According to O’Brien, smoking marijuana is “like having a valve on the forearm, turning it and having the coolness of relief through my extremities. … I try to walk on these feet and I can go four or five blocks, with my wife. With marijuana, I can go forever.”  State Assemblyman Reed Gusciora, who was a prime sponsor of the Act, explained that while he had empathy for O’Brien and others in his position, the legislature “had to do a measured approach,” citing fears that New Jersey could become another California, where medical marijuana “seemed to be spiraling out of control.”   Assemblyman Gusciora promised that in two years the legislature would “revisit the issue and add ailments.”

Addendum:

While Jack O’Brien’s case provides only anecdotal evidence of marijuana’s efficacy against neuropathic pain, as the Center noted in its position paper, “in the past two years, three placebo-controlled, randomized, double-blind clinical trials published in the medical literature have demonstrated that smoked marijuana is effective against neuropathic pain, including for patients who have tried the available conventional treatments and are still in pain.”   The existence of this evidence is remarkable because, as recent articles in the New York Times and Wall Street Journal explain, researchers must surmount formidable hurdles to study marijuana’s potential medical uses.

For those who are curious, under the compromise version of the Act which was signed into law January 18^th, “debilitating medical condition” is defined to include the following:

• Seizure disorder, including epilepsy, if resistant to conventional medical therapy;
• Intractable skeletal muscular spasticity, if resistant to conventional medical therapy;
• Glaucoma, if resistant to conventional medical therapy;
• HIV or the treatment of HIV, if it causes severe or chronic pain, severe nausea or vomiting, cachexia, or wasting syndrome;
• AIDS or the treatment of AIDS, if it causes severe or chronic pain, severe nausea or vomiting, cachexia, or wasting syndrome;
• Cancer or the treatment of cancer, if it causes severe or chronic pain, severe nausea or vomiting, cachexia, or wasting syndrome;
• Amyotrophic lateral sclerosis;
• Multiple sclerosis;
• Terminal cancer;
• Muscular dystrophy;
• Inflammatory bowel disease, including Crohn’s disease; and
• Terminal illness, if the physician has determined a prognosis of less than 12 months of life.

Brown Wins Kennedy’s Senate Seat, Health Reform Plot Thickens

This just in from the Washington Post:

Massachusetts state Sen. Scott Brown was elected to the U.S. Senate on Tuesday, winning a special election over two opponents, the Associated Press projected. Brown — the first Republican senator from the Bay State in 31 years — willgive the GOP 41 seats in the Senate, enhancing the party’s ability to demand changes in legislation.

“Enhancing the party’s ability to demand changes in legislation.” That is certainly one way of saying it. As we live under the yoke of the Senate’s filibuster rule, and the stated aim of soon-to-be (or maybe not so soon) U.S. Senator Brown is to put a halt to the health reform legislation currently poised for informal reconciliation between the two houses of Congress, it is dizzying to think that the life’s work of Senator Ted Kennedy may well be torn asunder by the man who’ll take his seat. It is a biting irony of classical greek proportions.

And I find myself wondering, honestly, “What would Ted Kennedy do?” A consummate politician and a superb tactician, I doubt, considering the stakes, he would be adverse to the Massachusetts Secretary of State’s position:

Secretary of State William F. Galvin, citing state law, says city and town clerks must wait at least 10 days for absentee ballots to arrive before they certify the results of the Jan. 19 election. They then have five more days to file the returns with his office.

Galvin bypassed the provision in 2007 so his fellow Democrats could gain a House vote they needed to override a veto of then-Republican President George W. Bush, but the secretary says U.S. Senate rules would preclude a similar rush today.

Ah! The Senate Rules. As that yoke of the modern filibuster draws nearer round the throat of health care reform, and the phrase “in the nick of time” begins to hang in the air like a concrete goal, these words to the opponents of health care reform seem apt:  Live by the sword….

Intersecting Issues: Immigration Reform and Health Care Reform

The LA Times reported this past week that the pending health care reform would negatively affect rather than improve the health of California’s citizens.  Why would this be the case?  Nearly thirty percent of the state’s population consists of immigrants.  In L.A. County itself, there are more uninsured residents than any other U.S. county; as the L.A. Times calculates, the majority of that uninsured population are likely immigrants:

It’s a safe bet that the majority of those people are immigrants, because health officials say that 40% of all the patients treated at county hospitals are undocumented. In recognition of that fact and of the hospitals’ legal and ethical responsibilities to treat the uninsured ill and injured — regardless of their immigration status — Washington currently subsidizes their care at facilities, like L.A. County’s, with “disproportionate” numbers of such patients.

The House bill for health care reform would reduce the funding for such subsidies modestly, while the Senate bill would significantly decrease payments towards the subsidies.  Whatever the outcome of the compromise bill, L.A. County will be left worse off.

As we know, neither the House nor the Senate bill would cover undocumented immigrants, or allow them to receive subsidies or tax credits for purchasing insurance.  However, even if the country will not be paying for the health coverage of such immigrants, it will be and already is paying for the high costs of having immigrants treated in emergency rooms, since many hospitals, such as those mentioned in the L.A. Times piece above, treat patients regardless of their immigration status.  Hospitals that provide emergency services and participate in Medicare are required to treat all who come to them for emergency services by the Emergency Medical Treatment and Active Labor Act; some of the costs for the emergency care are covered through Medicaid, while others result in expenditures that the hospitals incur as debt.  The effects of the debt can result in higher hospital fees for other patients.  But greater hospital charge rates for the uninsured are a matter of contention, and tend to obscure the actual value of services rendered and unpaid for. Having said that, it is not unimaginable to think that provisions in the health care bills may actually drive up medical expenses for some segments of the population–and that such increased expenses will have significant adverse affect upon the whole.

Again, the House bill does a better job than the Senate version does at addressing the issue of immigrant health, as the House would allow for undocumented immigrants to participate in the health insurance exchange by permitting them to purchase insurance policies. While the House bill would require immigrants to pay for the policies entirely, the Senate bill does not allow for immigrants to participate whatsoever.  It is worth considering that the immigrant community consists largely of young, healthy individuals; the impact upon the risk pool of their inclusion is no small thing.

Some health care advocates believe that resolution lies in immigration reform, so that immigrants can become citizens of the United States.  An LA Times story about a UCLA study released this last week is also worth considering:

The report said that legalization, along with a program that allows for future immigration based on the labor market, would create jobs, increase wages and generate more tax revenue. Comprehensive immigration reform would add an estimated $1.5 trillion to the U.S. gross domestic product over 10 years, according to the report.

Though many Americans seem to feel that immigrants are taking jobs away from unemployed American citizens, CNN writer Ruben Navarrette, Jr. points out that much of the labor immigrants participate in is in areas of work that Americans themselves have shunned.

Behind the politics of both health and immigration reforms lies the compelling stories of immigrants who have labored in our county and who are in desperate need of health care.  While data and numbers can show the cost-benefits of allowing immigrants to participate in health care, the issue of treating ill humans seems an ethical one– not something to be justified by statistics alone.  But at the heart of this is the simple question, is healthcare a  human right? Or is it a luxury–a “treat,” if you will,  to be dispensed according to the rules of carrots and sticks? and not just a luxury.

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