Month: March 2012

Defending the Affordable Care Act

Mar 15, 2012• 19

By Merrill Goozner

What will they do? The Supreme Court (more or less) that gave us Bush v Gore in 2000 will later this month hear arguments by states challenging the Affordable Care Act, a.k.a. health care reform. The heart of the legal challenge raised by conservative state attorneys general is whether the individual mandate is constitutional. What happens if the Supremes say no? Does the entire law fall, or just the mandate?

The issue for lawyers is called “severability.” Did Congress when passing the law believe the mandate was necessary to the smooth functioning of the rest of the law? Clearly there are large swaths of the law for which the mandate is largely irrelevant: the physician payments sunshine act (disclosure of drug company payments to doctors); the creation of the Patient Centered Outcomes Research Institute to conduct comparative effectiveness research; the numerous payment pilot projects; and more.

But on the core question of the law’s desire to expand coverage for the uninsured and set minimum insurance standards like forcing insurance companies to guarantee policies to all comers at non-discriminatory rates, the issue of the mandate’s necessity becomes murkier. The Obama administration is simultaneously arguing that it is crucial to the law’s smooth functioning, yet isn’t necessary. How can both be true? Here’s how two physicians, Samuel Y. Sessions and Allan S. Detsky, writing in the New England Journal of Medicine explain the seeming contradiction:

Arguing that the mandate is constitutional under the Commerce Clause requires taking the position that it is “essential” to the statutory scheme, whereas arguing that it is severable dictates the seemingly opposite position that the ACA is “capable of functioning without it.” Politically, making both arguments may be awkward, which may be one reason why the administration endorses partial severability. Legally, however, the positions are consistent: the mandate may be an important part of the statutory scheme, and thus constitutional, but not absolutely vital, and hence completely severable.

Continue reading…

Don’t Try This at Home: The Mathematics of HIV Testing in Low-Risk Populations

Mar 15, 2012• 2

By Harold Pollack

This post considers potential pitfalls of home HIV testing. It provides an excuse to write a slightly less nerdy column on the mathematics of screening tests.

My friend and co-author A. David Paltiel flew in from Yale to speak with my University of Chicago students. David is a national authority on medical cost-effectiveness, particularly in matters connected with HIV. For example, this beautiful New England Journal of Medicine piece showed that population HIV screening is surprisingly cost-effective, even in relatively low-risk populations. In significant measure due to this analysis, the Centers for Disease Control and Prevention modified national guidelines to promote much more aggressive HIV screening in a variety of settings. So if your primary care doctor or emergency department nurse asks you whether you’d like an HIV test–blame Paltiel.

David and I have published related work on issues surrounding home HIV tests, now under FDA review. (See a great earlier commentary by Walensky and Paltiel here.) To simplify things, the idea here is that you could go to your local Walgreen’s and buy a test kit for about $40. You swab the thing around your mouth. In about 20 minutes, with impressive “accuracy” (in a minute I’ll explain why the commonsense word “accuracy” is a slippery way to describe screening tests), the test will say whether you are HIV-infected.

One natural group of customers might be romantically-involved University of Chicago students: They go out on a date. It goes well. They buy a pair of test kits (maybe romantically sharing one) for a quick HIV test. If the tests come out well…. whatever one cares to happen can now proceed.

Is this test a good idea? In some ways, yes. This normalizes testing. Some people will get tested who would not otherwise obtain care. But there are a variety of reasons to worry. One issue concerns the ability of ordinary people not to mess the test up. A second issue concerns whether home HIV tests will lead people to avoid other medical and public health systems that could provide better counseling and (if needed) stronger post-test linkages to care.

Feds’ Power Grab Must Be Stopped

Mar 15, 2012• 28

By PAM BONDI

Florida and more than half of the states in the nation have challenged the federal government’s Affordable Care Act because it deprives Americans of their individual liberty and violates the United States Constitution. The U.S. Supreme Court will decide whether to enforce constitutional limitations on federal authority — or, conversely, whether to allow the federal government to dominate states and individuals to the point of dictating day-to-day decisions.

The court should reaffirm the basic constitutional bargain struck among the states that makes our federal government one of limited, enumerated powers.

The act’s chief problem is its individual mandate, which requires virtually everyone to obtain health insurance coverage simply as a condition of living in America. Forced conscription into a commercial market is a startling new exercise of federal power that Congress has never before attempted.

The individual mandate’s stated goal is to lower insurance costs by forcing “healthy individuals” to buy expensive policies that they do not want or need so that insurers can charge less to others. Congress’s central planning on both the supply and demand side of the insurance market exceeds its constitutional authority because the bare power to “regulate” commerce does not include the power to force Americans into commerce. If it did, there would be no end to Congress “fixing” markets with the wallets of ordinary citizens. Congress could require Americans to obtain unwanted loans to bail out failing banks, to purchase a car to reinvigorate struggling carmakers or to buy solar panels to resuscitate failed Solyndra-like investments.Continue reading…

Todd Park Was Right…Now What?

Mar 15, 2012• 9

By John Hallock

In March of 2005, I staffed an interview between Todd Park and Steve Lohr of The New York Times in the cafeteria of the old New York offices of the “Grey Lady.” At the time, Park was heading a very small web-based start-up company that was trying to convince medical groups – and on that day, a leading national technology business reporter – that web-based “cloud” technologies would become mainstream in the healthcare IT industry and were the only logical means to get the hundreds of thousands of independent U.S. doctors and their small offices to go digital.

At the time, Lohr, one of the foremost technology reporters in the country covering IT giants like Microsoft, IBM and Intel, had just started covering Health IT upon the appointment of Dr. David Brailer as the nation’s first National Health Information Coordinator (or, as many called him back then, the “Health Information Czar”). In fact, Lohr had just gotten back from attending the annual HIMSS Conference in Dallas where he met with CEOs of “legacy” healthcare IT behemoths like IDX (now GE), Siemens, Cerner, Allscripts, McKesson and Epic.

In his first article addressing Health IT adoption in the U.S., Lohr touched on what he felt was the core challenge to achieving widespread EHR adoption: getting small medical practices to adopt and actually use these systems – something that had eluded the industry and those legacy IT vendors for many years. On the topic of getting small practices to adopt EHRs and the potential harm to the industry and the Bush Administration’s efforts if they didn’t, Dr. Brailer told Lohr, “The elephant in the living room in what we’re trying to do is the small physician practices. That’s the hardest problem, and it will bring this effort to its knees if we fail.”

Last week President Obama appointed Todd Park as the new Assistant to the President and U.S. Chief Technology Officer, with the responsibility to ensure the adoption of innovative technologies to support the Administration’s priorities including affordable health care. This got me to thinking.

Since taking office, President Obama has made some strong moves to champion the adoption of EHRs through the passing of the HITECH Act. This act, combined with the existing relaxation to the existing Stark anti-kickback laws, has actually enabled a spike in adoption of EHRs due to medical groups’ efforts to qualify for Meaningful Use dollars. But it has also had some unintended consequences that Mr. Park may now find himself in a unique position to rectify if he stays true to his support of cloud computing.Continue reading…

Medicaid Providers Could Lose Billions if Supreme Court Tosses Health Overhaul Law

Mar 14, 2012• 1

By Matt Barry

On March 26, the U.S. Supreme Court will begin three days of oral arguments on the constitutionality of President Barack Obama’s health-care overhaul law which was signed into law on March 23, 2010.

Most of the attention has been focused on whether the court will reject the individual mandate, a provision that requires individuals to obtain health insurance, and less attention has been paid to the possibility that the entire law could be overturned. If the entire rule is overturned there will be consequences for Medicaid and it will affect health-care providers that do business with state Medicaid programs.

Bloomberg Government released a study today which examines the size and scope of the projected revenue that the Medicaid program will direct to companies doing business in the 27 states that have filed suit over the constitutionality of the overhaul law. It looks at the impact a ruling against the law would have on managed care plans, nursing homes and inpatient hospitals, the top recipients of Medicaid spending, over a five year period, from 2014 to 2018.

The study takes a specific look at the potential impact on health-care providers in Florida and Virginia, the two lead litigant states. The study finds:

Gingrich Adviser Urges States to Implement ObamaCare

Mar 14, 2012• 2

By Michael F. Cannon

State after state is refusing to implement ObamaCare’s health insurance Exchanges. Republican David Merritt hopes they will “grudgingly decide” to change their minds.

Merritt is a health care adviser to Newt Gingrich. He is also a senior adviser at Leavitt Partners. Leavitt Partners is a consulting firm that makes money by helping states implement ObamaCare. In the Daily Caller, Merritt tries to persuade state officials to help implement a law they oppose.

Merritt begins his pro-Exchange argument like so: “Imagine that you’re being required to buy a car.” Would you rather choose that car yourself, he asks, or would you rather the dealer choose the car? Hmm, good question. I choose Option C: wring the neck of whoever is requiring me to buy a car. Not Merritt, though. He counsels states to choose their own “car.”

There are so many problems with this analogy that it’s hard to list them all. First, as Merritt essentially admits, states would be able to choose from such a narrow range of “cars” that it scarcely makes a difference whether they pick their own or let the feds do it. Second, states would only have to pay for their “car” if they pick it out themselves; otherwise, the feds pay for it. So Merritt is literally urging states to volunteer to pay for a “car” when the feds would otherwise hand them one for free. Finally, he says states should select their own “car” even though “no one knows what a federal [car] would look like.” How can Merritt counsel states to choose Option A if he admits he doesn’t even know what Option B is? Wouldn’t the prudent course be to wait and see? Especially since the Obama administration admits it doesn’t have the money to create Exchanges itself?

Merritt’s hypotheticals don’t make his point, either:

The Nonprofit Question

Mar 14, 2012• 4

By David Dranove

I am getting caught up on the news after a couple of weeks away and two stories caught my attention. The first is the ongoing debate about the tax exempt status of Illinois nonprofit hospitals, which has received extensive coverage in the Chicago Tribune. Nonprofits avoid paying most state taxes, notably property taxes. For some nonprofit, the tax exemption could be worth tens of millions of dollars annually.

The question before the state is what they should expect of nonprofits in exchange for tax exemption. The current law requires nonprofits to provide “community benefits” commensurate with their tax savings. The state and the Illinois Hospital Association have been unable to find mutually acceptable language to replace this vague standard. The most draconian approach limits community benefits to charity care. At the other extreme, the IHA (and the Chicago Tribune) largely back a proposal by the Civic Federation that defines community benefits broadly to include losses incurred on Medicare, Medicare, bad debt, and community outreach programs.

A few years ago, I advised the state Attorney General’s office on this issue. I argued for the following conceptual approach: In exchange for tax exemption, nonprofit hospitals should be required to perform a commensurate level of “charitable acts,” which I defined as services and programs for which the hospital expects to lose money. Alternatively, charitable acts are those that investor-owned hospitals would not undertake.

Will Payers be the Business Intelligence Services of the Future?

Mar 14, 2012• 5

By JOHN HALAMKA, MD

What is a payer/insurer?

Typically, payer organizations collect premiums from employers and individuals, process claims, and engage in a variety of case management/disease management activities to encourage the appropriate use of medical resources. If they collect more premiums than claims paid, their medical loss ratio is less than 100% and they earn a profit.

In a world of accountable care organizations and healthcare reform, new reimbursement methods will include global payments to providers, which implies the risk of loss will shift from the payer to hospitals and clinicians. Payers will no longer need their large claims processing staff, nor create complex actuarial models. They’ll become very different organizations.

How different?

My prediction is that payers will become the health information exchange and analytics organizations that help hospitals and clinicians manage risk in a world of capitation.

I’ve said before that ACO=HIE+Analytics.

The payers are already making strategic acquisitions to build these new business models

Aetna acquired Medicity to gain expertise in healthcare information exchange. Aetna had already acquired Active Health to gain access to its CareEngine analytics platform.

The Effect Of Physicians’ Electronic Access To Tests: A Response To Farzad Mostashari

Mar 13, 2012• 17

By Danny McCormick, David Bor, Stephanie Woolhandler
and David Himmelstein

Our recent Health Affairs article linking increased test ordering to electronic access to results has elicited heated responses, including a blog post by Farzad Mostashari, National Coordinator for Health IT. Some of the assertions in his blog post are mistaken. Some take us to task for claims we never made, or for studying only some of the myriad issues relevant to medical computing. And many reflect wishful thinking regarding health IT; an acceptance of deeply flawed evidence of its benefit, and skepticism about solid data that leads to unwelcome conclusions.

Dr. Mostashari’s critique of our paper, will, we hope, open a fruitful dialogue. We trust that in the interest of fairness he will direct readers to our response on his agency’s site.

Our study analyzed government survey data on a nationally representative sample of 28,741 patient visits to 1187 office-based physicians. We found that electronic access to computerized imaging results (either the report or the actual image) was associated with a 40% -70% increase in imaging tests, including sharp increases in expensive tests like MRIs and CT scans; the findings for blood tests were similar. Although the survey did not collect data on payments for the tests, it’s hard to imagine how a 40% to 70% increase in testing could fail to increase imaging costs.

Dr. Mostashari’s statement that “reducing test orders is not the way that health IT is meant to reduce costs” is surprising, and contradicts statements by his predecessor as National Coordinator that electronic access to a previous CT scan helped him to avoid ordering a duplicate and “saved a whole bunch of money.” A Rand study, widely cited by health IT advocates including President Obama, estimated that health IT would save $6.6 billion annually on outpatient imaging and lab testing. Another frequently quoted estimate of HIT-based savings projected annual cost reductions of $8.3 billion on imaging and $8.1 billion on lab testing.

We focused on electronic access to results because the common understanding of how health IT might decrease test ordering is that it would facilitate retrieval of previous results, avoiding duplicate tests. Indeed, it’s clear from the extensive press coverage that our study was seen as contravening this “conventional wisdom”.

Engaging “The” Patient

Mar 13, 2012• 2

By Adrian Gropper

The digital identity of patients will come to the fore as the nationwide health information network (NwHIN) takes practical steps to support care coordination, patient engagement and quality transparency. These changes in health care delivery are the essential foundation for cost containment and arguably the essence of Meaningful Use.

Stage 2, as proposed, is a giant step toward care coordination and patient engagement. The focus on Direct and meeting the patient and doctor where they are – on the Internet – rather than where they might be (HIEs and PHRs) is both practical and empowering. But, what does “the patient” mean in a digital, networked system where patient identity is not always based on face-to-face encounters and snail-mail?

I doubt that anyone is arguing for biometric patient passports as a prerequisite for medical consultation.

The practical aspects of identifying the patient online can be seen in light of the Stage 2 mandate for Direct messaging across institutions and with the patient. Let’s imagine a paperless, NwHIN, version of today’s Release Of Information (ROI) request that enables one doctor to send records to an unaffiliated doctor under HIPAA and with informed patient consent.