This post is part of the series “The Health Data Goldilocks Dilemma: Privacy? Sharing? Both?”
In our initial blog post of February 20th, “For Your Radar – Huge Implications for Healthcare in Pending Privacy Legislation,” we broadly discussed six key issues for healthcare stakeholders in the potential federal privacy and data protection legislation. We committed to future posts comparing and contrasting specific legislative proposals.
The buzz around federal privacy legislation continues, but as of yet there appear to be no proposals or bills that have emerged as the lead bills.
In the meantime, the clock is ticking. As we mentioned in our February 20th post, a significant catalyst for federal privacy legislation is the desire of companies covered by the California Consumer Privacy Act (CCPA) to have that broadly-applicable, stringent state law preempted by a more company-friendly federal law. The CCPA, which sets stringent consent and other requirements for large companies, or companies collecting or monetizing large amounts of consumer data from California residents, goes into effect January 1, 2020 – less than six months from today.
Is it possible for a legislative body to move quickly on such a controversial topic? Again, California’s experience may be instructive. The CCPA was passed into law and signed on June 28, 2018, about a week after it was introduced. Lawmakers were in a rush in order to keep a popular and even stricter consumer privacy ballot initiative from being put before the California voters. (The sponsors of the ballot initiative agreed to withdraw it if the CCPA were enacted by the June 28th deadline.).
Two years ago we wouldn’t have believed it — the U.S. Congress is considering broad privacy and data protection legislation in 2019. There is some bipartisan support and a strong possibility that legislation will be passed. Two recent articles in The Washington Post and AP News will help you get up to speed.
Federal privacy legislation would have a huge impact on all healthcare stakeholders, including patients. Here’s an overview of the ground we’ll cover in this post:
Six Key Issues for Healthcare
We are aware of at least 5 proposed Congressional bills and 16 Privacy Frameworks/Principles. These are listed in the Appendix below; please feel free to update these lists in your comments. In this post we’ll focus on providing background and describing issues. In a future post we will compare and contrast specific legislative proposals.
A number of pundits are citing the systemic failure of ACOs, after additional Pioneer ACOs announced withdrawal from the program – Where do you weigh in on the prognosis for Medicare and Commercial ACOs over the next several years?”
Peter R. Kongstvedt
Whoever thought that by themselves, ACOs would successfully address the problem(s) of [cost] [care coordination] [outcomes] [scurvy] [Sonny Crockett’s mullet in Miami Vice Season 4]? The entire history of managed health care is a long parade of innovations that were going to be “the answer” to at least the first four choices above (Vitamin C can cure #5 but sadly there is no cure for #6). Highly praised by pundits who jump in front of the parade and declare themselves to be leaders, each ends up having a place, but only a place, in addressing our problematic health system.
The reasons that each new innovative “fix” end up helping a little but not occupying the center vary, but the one thing they all have in common is that the new thing must still compete with the old thing, and the old thing is there because we want it there, or at least some of us do. The old thing in the case of ACOs is the existing payment system in Medicare and by extension, our healthcare system overall because for all the organizational requirements, ACOs are a payment methodology.
Everywhere we turn these days it seems “Big Data” is being touted as a solution for physicians and physician groups who want to participate in Accountable Care Organizations, (ACOs) and/or accountable care-like contracts with payers.
We disagree, and think the accumulated experience about what works and what doesn’t work for care management suggests that a “Small Data” approach might be good enough for many medical groups, while being more immediately implementable and a lot less costly. We’re not convinced, in other words, that the problem for ACOs is a scarcity of data or second rate analytics. Rather, the problem is that we are not taking advantage of, and using more intelligently, the data and analytics already in place, or nearly in place.
For those of you who are interested in the concept of Big Data, Steve Lohr recently wrote a good overview in his column in the New York Times, in which he said:
“Big Data is a shorthand label that typically means applying the tools of artificial intelligence, like machine learning, to vast new troves of data beyond that captured in standard databases. The new data sources include Web-browsing data trails, social network communications, sensor data and surveillance data.”
Applied to health care and ACOs, the proponents of Big Data suggest that some version of IBM’s now-famous Watson, teamed up with arrays of sensors and a very large clinical data repository containing virtually every known fact about all of the patients seen by the medical group, is a needed investment. Of course, many of these data are not currently available in structured, that is computable, format. So one of the costly requirements that Big Data may impose on us results from the need to convert large amounts of unstructured or poorly structured data to structured data. But when that is accomplished, so advocates tell us, Big Data is not only good for quality care, but is “absolutely essential” for attaining the cost efficiency needed by doctors and nurses to have a positive and money-making experience with accountable care shared-savings, gain-share, or risk contracts.
The sharing of patient information in the US is out of whack — we lean far too much toward hoarding information vs. sharing it. While care providers have an explicit duty to protect patient confidentiality and privacy, two things are missing:
the explicit recognition of a corollary duty to share patient information with other providers when doing so is the patient’s interests, and
a recognition that there is potential tension between the duty to protect patient confidentiality/privacy and the duty to share — with minimal guidance on how to resolve the tension.
In this essay we’ll discuss:
1. A recent recognition in the UK
2. The need for an explicit duty to share patient information in the US
A recent analysis of the ACO market by Oliver Wyman market suggests we’re well on our way toward being “there.”
My personal take on this report:
Provocative, fresh, thoughtful, well reasoned, expansive — albeit a bit of a stretch
However, I suspect many others will describe it as:
Speculative, harebrained, unsupported, overly extrapolative, out-to-lunch, wishful to the point of being woo woo.
So now that I hopefully have your attention, what’s this report all about? In a nutshell:
The healthcare world has only gotten serious about accountable care organizations in the past two years, but it is already clear that they are well positioned to provide a serious competitive threat to traditional fee-for-service medicine. In “The ACO Surprise,” our analysis finds that 25 to 31 million Americans already receive their care through ACOs—and roughly 45 percent of the population live in regions served by at least one ACO.
Let’s dig in to the report. In this blog post, I’ll summarize their math, surface their critical assumptions and observations, and comment on their reasoning. I’ve indented direct quotations from the report.
While I don’t agree with all of Oliver Wyman’s math and assumptions, I applaud them for the process they have gone through. Please take my commentary as “quibbling at the edges” and that overall I’m on board with their methodology and conclusions.
From reading recent headlines, one might easily get the impression that hospitals are resistant — or at least ambivalent — in their pursuit and adoption of accountable care initiatives.
Are Hospitals Dragging their Feet on Accountable Care?
Commonwealth Fund: “only 13 percent of hospital respondents reported participating in an ACO or planning to participate within a year”
KPMG Survey: “(only) 27 percent of [health system] respondents said current business models were either not very or not at all sustainable over the next five years”
Health Affairs: “Medicare’s New Hospital Value-Based Purchasing Program Is Likely To Have Only A Small Impact On Hospital Payments”
The Bigger Picture
Do hospitals today perceive their current business model on the metaphorical “burning platform” — when the status quo is no longer an alternative?
The answer from the headlines above might suggest “no”, but I believe the correct answer is “not yet, but it’s inevitable”. Hospitals are feeling the heat, but it’s just not yet hot enough to jump off the platform and abandon existing business models.
This is the dumbest idea I’ve heard since “I’m going to invest all my money in Facebook’s IPO and get rich!”
Here are six reasons why:
1) You’re too late. Health insurance was an attractive and profitable business in the 00s, but after passage of the Accountable Care Act it’s been commoditized.
First, the health plan business model of the past decade is dead. That model was — “Avoid and shed risk” — or more simply, avoid insuring people who are already sick (preexisting conditions) and get rid of people who become sick (rescissions). Under the ACA, health insurers must take all comers and they can rescind policies only for fraud or intentional misrepresentation.
Second, the ACA institutes medical loss ratio restrictions on health insurers. Depending the the type of plan, insurers now must spend at least 80-85% of premium dollars on paying medical claims; if they spend less, they must return these “excess profits” as rebates to customers. As a result, health insurance has become a highly regulated quasi public utility.
This is why you see health plan CEOs like Mark Bertolini of Aetna declaring “Health insurers face extinction”. The old health insurance model is on a burning platform, and health plans are reformulating themselves as companies involved in health IT, analytics, data mining, etc.
2) You have bigger fish to fry. Focus on developing accountable care capabilities. The AHA estimated that hospitals will need to spend $11-25 million to develop an ACO. Get going. Continue reading…
1) Hospital administrators assume that tighter physician-hospital integration (e.g., through employment of physicians) will result in ”captive referrals” by physicians back to the mother-ship hospital.
2) Medicare administrators are assuming that Medicare Shared Savings ACOs will be able to coordinate patient care even without limitations on patients’ choice to go to providers outside of the ACO provider network.
Here’s the data that challenges the validity of BOTH of these assumptions:
Particularly for provider systems where hospitals and physicians are jointly at risk for the quality and cost of patients’ care, and have worked together to coordinate and improve care, we would expect to see physicians referring to their partner hospital more often. However, for the two physician-hospital provider systems in Massachusetts with the most years of experience managing referrals for HMO/POS patients under a global payment, one health insurer’s 2009 referral data shows that only 35-45% of adult inpatient care, as measured by revenue, goes to the partner hospital. That percentage can be even lower for providers with little to no experience managing where their patients receive specialist/hospital care, or under plan designs that do not require referrals. [emphasis added]