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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.

 

 

 

Health Rankings — Pinellas County and Hillsborough County

April 6, 2016 Leave a comment

The following infographic from the Suncoast Health Council compares various health factors between Pinellas and Hillsborough Counties, Florida:

 

2016 Pinellas-Hillsborugh Health Rankings

 

What is the Appropriate Scale for Delivering Health Care?

October 25, 2015 Leave a comment

In the prior post, I noted the opening of Yale Law School’s new Solomon Center for Health Policy and Law.  At the opening, there will be a conference on “The New Health Care Industry: Integration, Consolidation, Competition in the Wake of the Affordable Care Act.

Of course, the so-called “new health care industry” is anything but new. It has been evolving for years, though Obamacare has certainly accelerated it.  A better title would be “The Continuing Evolution of the Health Care Industry: Consolidation and Extinction.”

Given its title, the conference will likely focus on BigHealth — the consolidation of health systems and insurers.  We are seeing it everyday, and it is certainly important.  Unfortunately, the conference will ignore the real battles in the evolving health care industry and where they are being fought and by whom.

I am in the tenches everyday with solo and small physician group practices and other small health care providers as they try to remain independent and give quality health care services to their patients and get paid a fair price for their expertise.

I doubt that there will be any room for LittleHealth in the future, but maybe there should be.  One size does not fit all.  Who hasn’t experienced the difference between the service provided by Bank of America and that provided by the local community bank?

Nearly 40 years ago, E.F. Schumacher wrote “Small is Beautiful.”  One of the lessons he sought to teach us is that we often overlook what is the most appropriate scale for an activity.

Small may not always work, and sometimes bigger is better.  But I don’t know if anyone has really thought about it where people’s health is concerned.  I would like to see a conference focus on the question of what is the appropriate scale for health care delivery and how to get there.  If there is room for the small health care provider, we better find out before they all go the way of the dinosaurs.

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

The Week in Health Law — “Back to School” Podcast for Healthcare Lawyers

August 16, 2015 Leave a comment

Great podcast for healthcare attorneys and keeping current — The Week in Health Law.

“TWIHL presents its first Back to School Special. We asked some wonderful health lawyers what were the compelling additions to this Fall’s health law curriculum. The answers are diverse and fascinating. To hear their explanations look for episode 22 when you subscribe at iTunes, listen at Stitcher RadioTunein and Podbean, or search for The Week in Health Law in your favorite podcast app.”

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.

THE MEDICARE ACCESS AND CHIP REAUTHORIZATION ACT (a/k/a the Repeal of the SGR)

April 15, 2015 Leave a comment

There is great celebration in the healthcare community about the repeal of the Medicare Sustainable Growth Rate (“SGR”).  All the healthcare-related and other media are abuzz reporting on the jubilation:

among others.

In fact, the only comparable celebration that I can recall occurred on the death of the Wicked Witch in the Wizard of Oz. Actually, the repeal of the SGR and the witch’s death are more alike than different.

For years, the SGR has terrorized physicians.  Every December and into the following new year, physicians had to wait to see whether their reimbursement from Medicare would be reduced by some double-digit percentage.  Recently, physicians have been pawns for Democrats and Republicans trying to make points (perhaps “ping pong balls” is the better metaphor), with their livelihoods held hostage until some form of political rationality prevailed.

According to the summary/analysis of MACRA prepared by the Staffs of the House Energy and Commerce and Ways and Means Committees:

The legislation repeals the flawed Sustainable Growth Rate (SGR) formula and replaces it with the bicameral, bipartisan agreement to return stability to Medicare physician payments. The SGR formula is a cap on aggregate spending on physicians’ services where exceeding the cap resulted in punitive recoupments in subsequent years. The formula was passed into law in the Balanced Budget Act of 1997 to control physician spending, but it has failed to work. Since 2003, Congress has spent nearly $170 billion in short-term patches to avoid unsustainable cuts imposed by the flawed SGR. The most recent patch will expire on March 31st. Based on H.R. 1470, the bicameral, bipartisan unified Committee bill to replace the SGR, this policy removes the imminent threat of draconian cuts to Medicare providers and ensures a 5-year period of stable annual updates of 0.5 percent to transition to a new system. The new system moves Medicare away from a volume-based system towards one that rewards value, improving the quality of care for seniors.

The Medicare Access and CHIP Reauthorization Act, or MACRA for short, has been praised by President Obama who has  promised to sign it.  The 324-page Congressional print of MACRA does a lot of things in addition to repealing the SGR, including the following:

  • Extension of the Children’s Health Insurance Program (“CHIP”) for two years
  • Development of “alternative payment models” away from fee for service and toward quality of care
  • Strengthening of Medicare’s ability to fight fraud and build on existing program integrity policies
  • Additional $7.2 billion for community health centers
  • Increasing Medicare premiums for some seniors and elimination of Medigap policies starting in 2020 from covering Medicare deductibles for new beneficiaries
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