Archive for the ‘Hot Topics’ Category

Does Lying Make Healthcare Simpler?

July 1, 2017 Leave a comment

Earlier this year, the President admitted that healthcare and healthcare reform are complicated.

The House of Representatives passed the American Health Care Act in May as its repeal and replace Obamacare offering to America. The Congressional print of the Affordable Care Act when finally passed as amended was over 900 pages; the AHCA came in at 130 pages — certainly, an attempt at a simpler healthcare environment.  The President described the AHCA as a “mean” and “cold-hearted” “son of a bitch.”

The Senate GOP leadership then proposed in June its Better Care Reconciliation Act of 2017.  If the number of pages makes a difference, the Senate’s bill, at 145 pages, is a little less simple than the House’s AHCA, but still much simpler than Obamacare.  The additional pages used in the Senate proposal, unfortunately, did not make the Better Care Act less mean — actually, the consensus is that the Better Care Act is “meaner” than the AHCA. The national negative reaction, along with a number of GOP Senators being unable to vote for the bill, resulted in the vote being postponed until later in July.

After the Senate vote was delayed, the President met with the GOP Senators at the White House for a pep talk of sorts, telling them that “This will be great if we get it done and if we don’t get it done it’s going to be something that we’re not going to like and that’s OK and I can understand that.” According to the President, “We have given ourselves a little bit more time to make it perfect.”

Then, in the hours that followed, the President forgot about healthcare’s complexity and focused his efforts on misinformation and misdirection.  When congratulating the Cubs  on their World Series victory, the President told reporters that “We’re going to have a big surprise. … We’re going to have a great, great surprise.”  The next day the President posted the following Tweet at 3:37 a.m., which I suppose was the surprise: “If Republican Senators are unable to pass what they are working on now, they should immediately REPEAL, and then REPLACE at a later date!”

Repealing Obamacare is extraordinarily complicated and would hurt many people — is the Senate, whose GOP members can’t muster 50 votes to pass an arguably harsh repeal and replace bill, able to get enough votes to pass a much harsher repeal bill?  Will Senators agree to repeal all protections for people with pre-existing conditions, and take away the right of adult children to stay on their parents’ insurance until they are 26, and terminate accountable care organizations, and rollback all Medicaid expansion and marketplace health plans, and stop all subsidies to people, and on and on?  Yes, repeal would attract the more conservative Senators, like Paul and Cruz, who want Obamacare and its regulations repealed, but would be opposed by many moderate Senators, like Collins, Capito, and Heller, who remain concerned about the negative impact on their states if Obamacare is drastically changed.

Statements by the President and GOP Senators and House members about the death of Obamacare, its imminent collapse and implosion, are the lies that have fueled the rush to repeal and replace.  These lies have been debunked by the CBO.  The challenges faced by Obamacare are largely because the GOP has refused to help fix the problems because  it and its members’ supporters (i.e., the insurance companies and the pharmaceutical industry) would rather go back to the ways things were by repealing Obamacare.

It is lie is that Obamacare is bad and must be repealed because of the collapsing insurance markets and the increasing premium costs.  Despite its flaws, Obamacare extended coverage, made sure that the sickest segments of our population would still be able to get affordable insurance, forced the insurance companies to actually spend their premium dollars on the health of their insureds, and required that all policies provide certaIn basic benefits so that the insureds actually had coverage after paying premiums.  If Obamacare had been allowed to work the way it was supposed, the individual and employer mandates would have made the pool of insureds bigger and reduced the rate of increase of premium costs.

It is a lie that the insurance markets are collapsing.  Insurers are dropping out of the markets because of their losses (i.e., reduced profits).  For years insurers have enjoyed artificially inflated profits by unilaterally reducing payments to physicians, hospitals, and other healthcare providers, by shifting the risk of insurance to the providers, and by denying benefits to insureds.  Obamacare required these insurers for the first time in a long to actually provide insurance, pay claims, and accept the risk of covering their sick insureds whose money they took for so long.  Insurers should never have been allowed to withdraw from the markets or a public option should have been provided — in any event, the struggle of the markets was orchestrated by insurance companies themselves, aided and abetted by the a GOP who refused to make necessary changes to Obamacare to address these problems.

A related lie is that things will be fine once we allow capitalism and the free market to work.  Who believes this?  Obamacare was the result of an out of control insurance industry abusing its customers in the manner described above.

The Wall Street Journal supports the Senate bill. In an editorial last week, the WSJ said “Repairing the failing individual insurance market, putting Medicaid on budget for the first time in the entitlement’s history, and passing an enormous pro-growth tax cut are historic opportunities.”  Do not ignore the fact that “putting Medicaid on a budget” means less or no care for people getting healthcare now or who will need it in the future.  If rationing healthcare is the goal, then state it plainly and let Americans decide if they ate prepared to have someone decide whose child goes without vaccines, whose grandmother is thrown out of the nursing home, and whose spouse with breast cancer goes untreated.  And this is the underpinning of another lie — the GOP has been telling us that its repeal and replace bills will improve healthcare for Americans.  However, the bills have nothing to do with healthcare other than to reduce its availability and affordability.

The biggest lie of the President and the GOP is that their proposals are what the people want and what they promised when they ran for election.  The great unpopularity of the GOP’s bills demonstrates that those bills are not what people who need health insurance want.  More important, the disconnect between the popular election rhetoric of repeal and replace and the dissatisfaction that voters express when presented with the effects of the GOP’s efforts at repealing and replacing shows that most Americans’ knowledge of Obamacare is still based on the 8 years of lies that the GOP has been telling about it — and continues to tell.

So, even though all of us know that healthcare is complicated, the President appears  convinced that lying will make it simpler and make it easier to tell the Trump core that another promise has been kept.  Making healthcare better should be about more than checking boxes on a list.




Advice to Law Students

October 25, 2015 Leave a comment

When I graduated law school in 1981, health law was pretty much nonexistent.  Now, to be relevant, most law schools offer some health law courses.

Because?  Health law is hot.  It was hot before Obamacare, and it will remain hot.

Harvard Law School has its health blog, Bill of Health.  Yale Law School is opening its new Solomon Center for Health Policy and Law next month. U.S. News ranks the country’s top health law programs.

Getting healthy and staying that way is a passion for most Americans. Obamacare has changed the way the country thinks about dispensing health care.  But there will always be sick people. New drugs will be invented, and new procedures adopted.  All to make us healthier or to make us more comfortable in our sickness.  Health care is big business, and, by necessity, will remain heavily regulated.   After all, there will always be patients and providers who will try to game the system.

So, law students, if you don’t know what path to follow, you could do a lot worse than health law

Interpreting Fiorina’s Comments on Vaccination Law

August 16, 2015 Leave a comment

OIG Fraud Alert on Physician Compensation — Why Is No One Listening?

July 11, 2015 1 comment

A few weeks ago, the OIG published another one of its fraud alerts.  This one was entitled, “Physician Compensation Arrangements May Result in Significant Liability.”

Everyone knows (don’t they?) that business arrangements in healthcare have to meet several legal requirements, including: (1) it cannot be based on the value or volume of referrals, (2) it must be at arms’ length, and (3) it must be commercially reasonable.  When a healthcare provider enters into a transaction that violates any of these three requirements, he may have violated the anti-kickback statute or physician self-referral/Stark law or both, and any claim arising from the transaction that is submitted to the federal government for payment may be a false claim.  Healthcare lawyers have long been warning their clients to be cautious about how they pay (and recruit) physician employees and contractors in order to avoid violations of the kickback, self-referral, and false claims laws. Violations carry stiff penalties and in some cases criminal sanctions.

There is nothing new in this recent Fraud Alert.  Many similar fraud alerts and OIG advisory opinions and actual court cases have passed on the same message.  And there is nothing surprising other than that the facts described in this Fraud Alert so obviously violate these healthcare laws that you have to ask, why is no one listening?

I have a three explanations:

  • The false claims act was passed during the Civil War and was aimed at stopping corruption in how defense contractors were paid.  The law made sense.  There was a direct relationship between the defense contractor and the government dollars received.  However, the false claims act makes no sense in healthcare — treating a patient is so separated from payment; the provider at the time of care may not know who is paying — government, commercial, the patient, or no one.
  • The healthcare laws are so contrary to the economic rules that apply to other businesses and so counter-intuitive as to make them offensively ridiculous and begging to be ignored (which they are).
  • As we move to a pay for performance, quality-based healthcare reimbursement system, these laws become even more irrelevant.  Case in point — Accountable Care Organizations — a critical foundation for healthcare reform under the Accountable Care Act.  ACOs could not operate unless waivers to these healthcare laws were implemented.  Every healthcare provider is not in an ACO, but many are developing clinically integrated networks and other arrangements to oversee quality and utilization in order to compete more effectively with large healthcare systems and negotiate with payors in keeping with the goals of healthcare reform.  They are forced to act as if the waivers applied to them also.  In fact many consultants advise that the waivers DO apply to non-ACO networks.

It is time for a thoughtful review (and repeal) of these antiquated and economically debilitating laws in how they apply to healthcare providers.  It is time to stop calling business sensible healthcare transactions fraudulent and punishing the participants.

These laws allow regulators to be lazy and stupid. Anyone can enforce laws based an strict liability or ones that have lines so faint that crossing them is unavoidable.

Seriously, who cares if someone pays a fee for referring a patient for care?  Liability should be based on the quality and necessity of the care.  Providing care not needed or charging for care not given — those actions should be punished.  But that’s harder for regulators, so we continue to vilify healthcare providers and impose burdens on them that are far tougher than the benefits derived.

ICYMI: Last 2 Weeks’ Hot Stories in Health Law

October 3, 2014 Leave a comment

In the roller coaster world of health law, there are always a lot of hot stories — many more than what I list.  And my list will be different from yours.

In any event, here are 20 stories from the last 2 weeks that you would not want to have missed (in no particular order) (why 2 weeks?  because I got so busy dealing with my own hot stories in health law that I missed last week) :

  1. HHS issues guidance on same sex spouses and HIPAA — “The HIPAA Privacy Rule contains several provisions that recognize the integral role that family members, such as spouses, often play in a patient’s health care. …   The term marriage includes both same-sex and opposite-sex marriages, and family member includes dependents of those marriages.”  The bureaucracy churns along in an objective, nonjudgmental manner to give practical meaning to the Supreme Court’s decision in United States v. Windsor (which held DOMA unconstitutional).
  2. Think Further — I have read about the The Fred Alger Management Team’s Think Further project.  Recently, they have asked what innovative changes would be expected that the medical and healthcare industry will be going through over the next 50 years.  A number of bloggers are talking about the results.  I think you will them interesting also.
  3. Medicaid expansion gain momentum in initially reluctant states — As Reuters says “money talks” and Medicaid expansion has meant big federal subsidies.  The bottom line, of course, even for the jaded Republican flatworlders, is to reduce the uninsured and somehow move from sick care to health care.  In addition, the New York Times reports more insurers are expected to enter the exchanges , and Health News Florida reports that four new insurers have entered the Florida marketplace.  Alabama gubernatorial candidate Parker Griffith has expressed his desire to expand Medicaid — by taking advantage of the funds available from the Affordable Care Act.  (OK — expanding healthcare has always been the goal, and that’s a good thing.  But the funds have always been there, so why the 4-year delay?)
  4. Four more hospital systems recently have dropped out of the Pioneer Accountable Care Organization program — “Three years after the Centers For Medicare & Medicaid Services selected 32 groups to participate in the Pioneer Accountable Care Organization Model program, they are down to 19 players. Officials say that navigating the program’s rules has proved challenging.”  Frankly, ACOs work best with physicians who try to control costs by reducing unnecessary, expensive hospital procedures and admissions, so hospitals dropping out of ACOs should not surprise anyone.  And, as an aside, hospitals have been engaging in full-scale war against physicians for some time — they have the time, the money, and the manpower to marginalize the independent role of physicians in healthcare, and that would be an unfortunate outcome for America.
  5. Obamacare reduces hospitals’ uncompensated care costs — The Washington Post’s Wonkblog reports  “The Obama administration is projecting that hospitals will face $5.7 billion less in uncompensated care costs than they otherwise would have in the first full year of the Affordable Care Act’s coverage expansion.  It is no surprise that the reduction has been larger in those which have expanded Medicaid.
  6. ACO “experiment” rewards better health care at lower costs — The major goal of Obamacare was to incentivize patients and healthcare providers to care about health care rather than sick care.  ACOs were an important component of that goal.  It seems that they may be working.
  7. Involving patients in their care can result in better, more efficient health care outcomes — According to the Health Affairs Blog,   “There is growing evidence that patients, once engaged, take better care of themselves. They’re more likely to monitor their own health, take their medicines, and communicate more thoroughly with their care providers. They have a better understanding of the treatment strategy. And they are more likely to participate in clinical studies or other research to find better, more efficient treatments.”
  8. 7th Circuit Court of Appeals rejects physician lawsuit challenging the delay of Obamacare’s employer mandate — The Association of American Physicians and Surgeons, which brought the lawsuit, argued that the delay could hurt doctors financially.  The physicians’ case is similar to the one that House Republicans plan to file against the President.  The appeals court’s opinion was the equivalent of asking the plaintiffs, “seriously?”
  9. Gynecologists continue to employ morcellators after FDA warning — WSJ reports that “[d]octors nationwide are still using a gynecological tool [morcellators] months after the U.S. Food and Drug Administration warned that it can spread undetected cancer…”  Morcellators are used to remove common benign uterine growths known as fibroids, often in minimally invasive hysterectomies.  The FDA warned that the tool can spread undetected cancer.
  10. Consumer Group Sues 2 More Calif. Plans Over Narrow Networks — Kaiser Health News reports about two lawsuits filed in Los Angeles by a consumer advocacy group, Consumer Watchdog, against insurers Cigna and Blue Shield of California because they “misled consumers about the size of their networks of doctors and hospitals, leaving enrollees frustrated and owing large bills.”  One of the ways insurers are controlling costs (and the cynical say fighting Obamacare) is to reduce their network size.
  11. Debut of the “Open Payments” Website — CMS launched its national databank containing information on the financial relationships between physicians (which includes dentists, chiropractors, and other physician specialties) and teaching hospitals, applicable manufacturers, and group purchasing organizations as required by the Physician Payments Sunshine Act.  I have previously blogged about Open Payments and transparency.
  12. Oklahoma District Court Rules Against Subsidies for Federal Exchanges — This is another case in the controversy (previously commented on) of whether consumers in states that refused to set up their own insurance exchanges are entitled to federal subsidies when they purchase health insurance from the federally run exchange.  These cases will likely put Obamacare in the crosshairs of the U.S. Supreme Court again.
  13. OIG Proposes Revisions to Anti-Kickback Safe Harbors and Civil Monetary Penalties — OIG states that its goal in proposing the revisions “is to protect beneficial arrangements that enhance the efficient and effective delivery of health care and promote the best interests of patients, while also protecting the Federal health care programs and beneficiaries from undue risk of harm associated with referral payments.”  The proposed rules also contain a revised definition of “remuneration.”
  14. Medicare Fraud, Abuse, and Waste — Apparently a number of folks have not gotten the message that cheating the government and billing and collecting for services not performed will cost you a lot of money and may also land you in jail.  Not surprisingly, home health seems to be the fraudulent activity of choice.  Here are a few examples from last week:  (a) Two Detroit-area residents were arrested today on charges related to a Medicare fraud scheme in which they are alleged to have referred Medicare beneficiaries to home health care agencies in exchange for kickbacks. (b) The owner of a Miami home health care agency was arrested in connection with an $8 million health care fraud scheme involving Acclaim Home Healthcare Inc.  (c) Six South Florida residents were indicted for their alleged participation in a $6.2 million Medicare fraud scheme involving defunct home health care company Professional Medical Home Health LLC.   (d) Caremark L.L.C., a pharmacy benefit management company agreed to pay the United States $6 million to settle allegations that it knowingly failed to reimburse Medicaid for prescription drug costs paid on behalf of Medicaid beneficiaries who also were eligible for drug benefits under Caremark-administered private health plans.
  15. Canceled Health Plans — Kaiser Health News reports that “Thousands of consumers who were granted a reprieve to keep insurance plans that don’t meet the federal health law’s standards are now learning those plans will be discontinued at year’s end, and they’ll have to choose a new policy, which may cost more.”
  16. 13 Of 20 Texas Abortion Clinics Likely To Close After 5th Circuit Court of Appeals Ruling — Last August, a U.S. District Judge ruled that the purpose of part of a 2013 Texas law requiring abortion clinics to implement hospital-level upgrades at great cost was to make access to abortion difficult, and he suspended the upgrades requirement.  On October 2, the 5th Circuit Court of Appeals allowed Texas to immediately begin enforcing the required upgrades, which is expected to lead to the closure 13 out of 20 abortion facilities.
  17. Medicare Fines 2,610 Hospitals for Excessive Readmissions — Pursuant to the provisions of the Affordable Care Act, Medicare will be penalizing 2,610 hospitals for having too many patient readmissions.  This is the third year such penalties have been imposed.
  18. CMS Releases Report on FY2013 Results of RAC Audits — The purpose of the Recovery Audit Program “is to identify and correct Medicare and Medicaid improper payments through the efficient detection and collection of overpayments made on claims for health care services provided to Medicare and Medicaid beneficiaries, and the identification of underpayments to providers so that [CMS] and States can implement actions that will prevent future improper payments.”  For fiscal year 2013, “the Recovery Auditors identified and corrected $3.75 billion in improper payments. There were $3.65 billion collected in overpayments and $102.4 million in identified underpayments paid back to providers.”
  19. GAO Report to Congress:  Largest Issuers of Health Coverage Participated in Most Exchanges, and Number of Plans Available Varied — On September 29, the GAO released it Report to Congress examining “the number and types of issuers participating in both the individual and small-business exchanges beginning in 2014, as well as how this compared with issuer participation in the individual and small-group markets prior to the exchanges.”  The Report stated that “Most of the largest issuers of health coverage from 2012 participated in the exchanges that the Affordable Care Act required be established in all states in 2014. Previously, in 2012, while a large number of issuers participated in state individual and small-group markets, a small number of these participating issuers held a majority of the market share in terms of enrollment.”  The Report also found that the participating issuers represented a mix of larger, smaller, and new issuers.
  20. Philly immigrant group joins in discrimination complaint against HHS over language hurdle — This lawsuit was filed by Southeast Mutual Assistance Associations Coalition, Inc., a Philadelphia group that has helped immigrants sign up for health coverage on the federal exchange, for the purpose of blocking HHS from canceling the coverage as a result of issues from “data matching.”  According to CMS,  “A citizenship or immigration data matching issue can happen when the information reported in a consumer’s application, such as a Social Security or Permanent Resident Card number, is incomplete or different than the information the government has on file.”  Similar suits have been filed by the National Immigration Law Center and the Chicago-based Illinois Coalition for Immigrant and Refugee Rights.
Categories: Hot Topics

CMS launches database of manufacturer and GPO payments to physicians

October 3, 2014 Leave a comment

The following post will also be published today on the Akerman Health Rx blog.

The Affordable Care Act contains a provision known as the Physician Payments Sunshine Act, which requires the Centers for Medicare and Medicaid Services (“CMS”) to establish a national databank containing information on the financial relationships between physicians (which includes dentists, chiropractors, and other physician specialties) and teaching hospitals, applicable manufacturers, and group purchasing organizations (“GPOs”).  CMS launched its Open Payments website on September 30, 2014 , making its database available to the public.

The database is populated by information reported to CMS by applicable manufacturers and GPOs regarding their payments or other transfers of value to physicians and teaching hospitals.  It is important to note that this reported information specifically includes any ownership or investment interest that physicians (and their immediate family members) have in the manufacturers and GPOs.

CMS encourages physicians and teaching hospitals to register with the Open Payments website.  While registration is voluntary, the reported information is made available to registrants before being made public, and registrants are given an opportunity to dispute any reported information.  In fact, there is a mobile app (and other resources) that allows physicians, teaching hospitals, manufacturers, and GPOs to track provider and industry contact details, share information, and track payments and other transfers of value.

According to CMS and as reported, 4.4 Million payments valued at nearly $3.5 billion were made to 546,000 individual physicians and 1,360 teaching hospitals in the last five months of 2013.  The website will provide future reports on an annual basis.  Beginning in June 2015, it is expected to report twelve full months of data.

We know that the public, and in particular the press, will access the Open Payments database, and there will likely be a high level of misunderstanding and misinformation.  One cannot forget the feeding frenzy that arose when CMS released physician Medicare billing data  earlier this year.  Any physician who receives payments from a manufacturer or GPO would presumably want advance notice of any disclosure regarding payments to that physician.   Accordingly, any physician who does receive such payments should register on the Open Payments website and check the accuracy of all information reported about them, and be prepared to answer questions they may be asked.

Last Week’s Hot Topics in Health Law

September 20, 2014 Leave a comment

The days speed by and so much happens, that it’s good to regroup over the weekend and, while enjoying a cup of coffee, see what you may have missed.  In no particular order, here are some items to be aware of:

  1. AMA Calls for Design Overhaul of Electronic Health Records to Improve Usability — The AMA, with the help of the RAND Corporation, has figured out that physicians are struggling with their EHR systems.
  2. Despite Progress, Problems—New And Old—Pop Up In Florida’s Medicaid Managed Care Program — Problems challenge Florida’s new Medicaid Managed Care system.  In other news about the struggles with Medicaid, Kaiser Health News reported on ways states game the Medicaid system.
  3. Healthcare costs in South Florida and the Nation are often Shrouded in Secrecy — The Miami Herald and WLRN-Miami Herald News have been exploring secrecy in healthcare pricing.  Interestingly, some states, e.g., New Hampshire, have better healthcare pricing transparency.
  4. USF Medical School extends deal with Tampa General — USF med students and faculty continue their relationship with TGH.  In related news, USF severed its relations with The Villages Health.
  5. OIG Issues Special Advisory Bulletin, Report on Manufacturer Copayment Coupons — Pharmaceutical manufacturers do not have adequate safeguards in place to prevent their copayment coupons from being used to fund copayments for drugs paid for by Medicare Part D.
  6. Florida Home Health Care Company and its Owners Agree to Resolve False Claims Act Allegations for $1.65 Million — A Plus Home Health Care, Inc. located in Ft. Lauderdale and its owners settle allegations against them that they hired spouses of referring physicians in a kickback scheme.   In another healthcare fraud case, Dr. Farid Fata, a Detroit-area cancer specialist, pleaded guilty to putting some of his patients through unnecessary chemotherapy treatments and then billing insurers.
  7. CMS Says ACOs Have Saved Medicare Millions and Improved Care — In a press release, CMS issued quality and financial performance results showing that Medicare ACOs “have improved patient care and produced hundreds of millions of dollars in savings for the program.”
  8. Health care still big in midterms — Healthcare issues continue to burn up the political campaign airwaves.  The Tampa Bay Times reported on some of the facts and fictions used in campaign rhetoric.
  9. 7.3 Million Who Picked Exchange Plans Paid Their Premiums — The New York Times, Bloomberg, and other news sources reported that 7.3 million people who had signed up for health insurance had paid their premiums and remained covered.
  10. More Doctors Optimistic About Future Of Medicine — More doctors are optimistic about their profession even if they remain skeptical of healthcare reform efforts.

Of course, the feeds on the right always provide a handy resource of what’s happening in health law.

Categories: Hot Topics
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