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The Healthcare Marketplace — There is No Invisible Hand (until when consumers start paying)
The Tampa Bay Times included on its front page this morning an article entitled: “Big swings in medical prices make for a wild market, but savvy patients can benefit”
“It is a chaotic landscape, which is why it is so difficult for consumers and employers to navigate,” said Castlight vice president Kristin Torres Mowat.
So what gives?
For one, the market for health care doesn’t behave like most other markets. Consumers usually don’t know how much a procedure costs until after they’ve had it, and it can be challenging to compare prices beforehand. That means providers can set their rates somewhat independently of normal market forces — the forces that keep prices consistent at neighboring gas stations.
Bruce Vogel, an associate professor of health policy at the University of Florida (and a dorm mate at UF many years ago) was quoted in the Tampa Bay Times article — “It’s hard to find a market that deviates more from the perfectly competitive structure.”
Even Florida Gov. Rick Scott, a staunch conservative who opposes most government regulation, has expressed concern over the healthcare marketplace, focusing on the transparency of hospital pricing. In the September 29 online edition of Florida Politics, Gov. Scott was quoted:
“This is all about patients and empowering patients,” he told reporters after a Florida Cabinet meeting. “They should know what (a procedure) costs and be able to get as much information as they can.”
You can read the Governor’s official statement regarding hospital price transparency and supportive comments from members of the Commission on Healthcare and Hospital Funding here.
Gov. Scott is a smart guy – an M&A attorney, who founded Columbia Hospital Corporation which merged into the Hospital Corporation of America to become Columbia/HCA, of which he was CEO for a number of years (during which time Medicare fraud issues arose). It is not like he does not know how healthcare providers in general, and hospitals in particular, price their services.
Since the advent of third-party payers, healthcare has always been an artificial market. Vendors of healthcare and consumers of healthcare (those with health insurance) have rarely negotiated prices. The insurance companies negotiated with providers over what they would pay and with the insureds (or their employers) what their premiums would be. Add Medicare to the mix which set an artificial payment standard of some negotiated percentage of the Medicare rate, and pricing for healthcare services became almost completely independent of typical economic forces like supply and demand. Don’t even try to analyze pricing in rural or underserved markets.
So what is happening nowadays, when everyone is supposed to be insured, that makes healthcare pricing and bargaining with hospitals and other healthcare providers such a hot topic? I think it is because of high deductible plans. Health insurance has basically become insurance only for catastrophic claims. When the family deductible may be $5,000 or more, the cost for “unreimbursed” services becomes a matter of personal economics — even if the provider is charging the rate previously negotiated with the healthcare insurer.
Unfortunately, the negotiating for healthcare services is far more complicated than the negotiating over the price of a car. Transparency in healthcare pricing is important, but transparency in healthcare quality is critical. Quality of care will soon be the dominant factor as we move away from procedure based payment for healthcare services to preventive care services (paid 100%) and bundled/global payments focused on the episode of care.
Adam Smith never had a chance in healthcare.
What is the Appropriate Scale for Delivering Health Care?
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.
OIG Fraud Alert on Physician Compensation — Why Is No One Listening?
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)
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:
- MGMA
- AAFP
- Becker’s Hospital CFO Report
- Health Leaders Media
- Modern Healthcare
- Kaiser Health News
- Reuters
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
Do we need the Stark and Anti-Kickback Laws? Yes, unfortunately. Here’s another reason why.
Thank goodness that most of us do not have to scrutinize every business deal we do to make sure that it is fully compliant with self-referral and kickback prohibitions. In the healthcare arena, compliance with these counter-intuitive and overly punitive restrictions adds much unreimbursable administrative costs to the delivery of healthcare. Hopefully, shifting payment from procedures to quality of care will reduce the artificial inducements to violate these restrictions.
And while I advocate the repeal of these outdated self-referral and kickback laws which have unfairly burdened physicians in this country for decades, there is always another example of why the laws are still needed.
Benchmark Reporter has this story today:
2 U.S. organizations have been fined with a whopping $48.5 million in charges of conducting unnecessary medical tests linked with doctors who are responsible for referring patients to them for commission. These scamming corporations are Health Diagnostics Laboratory (HDL) and Singulex, both are well-known cardiovascular disease screening labs.
The Benchmark story is based on the Thursday announcement from the Department of Justice. According to the DOJ announcement, this is what the Labs did:
As alleged in the lawsuits, HDL, Singulex and Berkeley induced physicians to refer patients to them for blood tests by paying them processing and handling fees of between $10 and $17 per referral and by routinely waiving patient co-pays and deductibles. In addition, HDL and Singulex allegedly conspired with BlueWave to offer these inducements on behalf of HDL and Singulex. As a result, physicians allegedly referred patients to HDL, Singulex and Berkeley for medically unnecessary tests, which were then billed to federal health care programs, including Medicare.
And a reminder of why kickbacks are bad (some people apparently need to be reminded):
“When health care companies pursue profits by paying kickbacks to doctors, they undermine a patient’s ability to trust that medical decisions are being made for scientific reasons, not financial ones,” said Acting U.S. Attorney Vincent H. Cohen Jr. of the District of Columbia. “Those kickbacks also harm the taxpayer because they drive up the cost of federal health care programs with medically unnecessary tests. This significant settlement shows our determination to work with whistleblowers and our federal partners to defend the integrity of the health care system from illegal agreements that hurt patients and taxpayers.”
If this were a blog about the Seven Deadly Sins, the key words might be Greed, Pride, Envy, and Sloth.
There is no easy way for physicians to make more money. Working hard is not enough. And the current state of financial health of physicians in this country is appalling.
Nevertheless, there are physicians who are good providers, who are devoted to their patients, and who follow the law. I know this because I represent many of them. They resist the temptation from these Labs and others like them. They spend a lot of money on attorneys and consultants to do things the right way. When they see their colleagues benefit through illegal behavior, it is good that they also see them caught and punished.
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Joseph Rugg's Health Law Blog 