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The Irrelevance of the Supreme Court Decision on Obamacare

When I’m not writing pieces here, my “day job” is working with healthcare providers recognized as Disruptive Innovators who are reinventing healthcare and slaying the healthcare cost beast as a byproduct. In some cases, these are entrepreneurs. In others, they are pioneers within existing healthcare providers.

Even though this is the month that the Supreme Court is supposed to rule on the constitutionality of Obamacare, it is striking this fact rarely that ever comes up in discussions with healthcare providers.

Philip Betbeze described this in a HealthLeaders Media piece entitled “Disruptive Healthcare Innovations Trump SCOTUS Worries“   when he asked senior executives about their perspective regarding upcoming the Supreme Court decision.

But when you ask one question, you might get an interesting answer about something else entirely. That’s the way my sources for this off-the-record conversation surprised me. They agreed they are much more concerned about disruptive innovation than what nine people in black robes are going to say at an indeterminate date sometime this month.

The roundtables, set up for me by the good folks at Premier Inc., which is holding its annual “Breakthroughs” conference here in Nashville this week, revealed that these leaders fear less what the government may do in response to whatever decision the Court makes, and more what nontraditional competitors may do to their resource and capital-heavy healthcare delivery systems.

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Awaiting the Court’s Decision on Healthcare

The Supreme Court has already decided the fate of the health reform law, and in a few short weeks the rest of us will know whether it is upheld, struck down entirely, or badly damaged. Of the possible decisions, four are the most likely and each would have significant ramifications.

1)  The Court could uphold the law. Prior to oral arguments, this was the conventional wisdom. Justice Anthony Kennedy’s stinging questions led many to change this view, but he has surprised Court watchers before.

If he springs another surprise and supports the individual mandate, the law’s implementation would continue unabated. States that have waited for the Court’s decision would start moving on exchanges and essential benefits.

HHS would issue more regulations: on subsidies, employer penalties, insurance requirements, and others. However, it is common knowledge that many of the more controversial rules are being slow walked until after November 6th so as to not complicate President Obama’s reelection chances.

Upholding the law would certainly raise the stakes of the November elections. Should Democrats hold the Senate and/or President Obama win reelection, it’s likely the law would be permanently ensconced. On the other hand, should Republicans control the House and Senate and Governor Romney win the presidency, they will try to repeal the law or gut it through budget reconciliation before major provisions take effect in 2014.

But based on the “train wreck” of oral arguments, it seems unlikely that the law will escape the Court unscathed. It is more likely that the law will be damaged.  The question is, to what extent?

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Get Funding For Your Next Startup! In D.C.

If you’re looking for a little extra cash to bootstrap your next startup, you’ve come to the right place! Health 2.0’s Washington DC HD&IW Code-a-thon is giving away a total of $10,000 in cash prizes to winning teams who come up with the best ideas to tackle one of our nation’s biggest problems: rising rates of obesity.

The D.C. Code-a-thon, taking place June 2 -3, is competition designed around using Big-Data to build exciting new applications and tools to improve health care and prevent obesity. Health 2.0 and Kaiser Permanente are hosting the event as part of Washington DC Health Data & Innovation Week, a series of events surrounding The Health Data Initiative Forum III: Health Datapaloza, a public-private collaboration that encourages innovators to utilize health data to develop applications that raise awareness of health system performance and spark community action to improve health.

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Is Prostate Cancer Screening Truly Harmful?

Dr. Timothy Wilt, a member of the United States Preventive Services Task Force, stood in front of the American Urological Association audience and explained why the task force could not recommend that men undergo routine PSA screening. At most, he explained, the test had been shown to benefit one out of 1000 men. Meanwhile, the test would cause hundreds of men to experience anxiety, and scores of them to experience impotence and incontinence from unnecessary treatments.

Twenty minutes later, I stood behind the same podium and asked the audience members to raise their hands if they disagreed with the task force’s conclusion. Ninety percent expressed their skepticism. What happened in the time between Wilt’s presentation and mine reveals a great deal about why experts cannot agree whether screening tests, like the PSA in middle-age men or mammograms in 40-year-old women, bring more benefit than harm, and about what psychological forces impede our ability, as a society, to figure out what basic bundle of healthcare services all insurance companies ought to pay for.

Wilt’s presentation was a model of scientific clarity. He explained that only two randomized clinical trials were conducted with enough scientific rigor to provide useful estimates of whether the PSA test saves lives. One trial showed no benefit and the other revealed the one in 1000 number which the task force took as the best case scenario. Wilt was followed on stage by Ruth Etzioni, a biostatistician at the Fred Hutchinson Cancer Research Center in Seattle.  Etzioni presented a statistical model suggesting that the PSA test benefited many more than one in 1000 men.

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The President’s Health Care Law is Hurting Our Economy, and Must Be Fully Repealed

It’s no secret that our nation’s economy is struggling, and the president’s health care law, enacted in 2010, is making things worse — raising health costs and making it harder for small businesses to hire workers.  The only way to change this is by repealing ObamaCare in its entirety.

There has been much renewed media focus on the president’s health care law in recent months because the U.S. Supreme Court is expected to rule in June on the question of whether the law is constitutional.  But the American people have never lost their focus on it.  They didn’t like the law when it was rammed through Congress by President Obama and a Democratic majority in 2010, and according to most public opinion surveys, they like it even less now.

It’s not difficult to understand why most Americans remain opposed to ObamaCare.  Many question its constitutionality; I’m certainly one of them.  But the law’s negative impact on Americans’ daily lives is what I hear about the most.

Americans are dealing every day with the tough realities of life in the Obama economy.  They’re facing rising prices for food, gas, college tuition and health care.  Many are out of work.  And among those fortunate enough to have jobs, many are struggling to keep them.  Couple this with the ever-present specter of higher taxes — which are constantly being threatened by the president and his advisors — and the possibility of another downgrade in our nation’s credit rating as a consequence of the national debt that has exploded under the president’s spending policies, and it’s a pretty grim picture.  If you’re reading this, you know exactly what I mean.

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Health Care and Constitutional Chaos

The Supreme Court’s decision on the constitutionality of the Affordable Care Act (ACA) will likely be handed down on the last day of this year’s term. If the Court finds that the ACA—either in whole or in part—violates the Constitution, the health care industry will be shaken to its core. And, no matter what legal justification the Court uses to invalidate the ACA, the structure of constitutional law will be severely undercut. The resulting medical and legal chaos will be expensive, divisive, and completely unnecessary. Nothing in the text, history or structure of the Constitution warrants the Court overturning Congress’s effort to address our national health care problems.

For the health care industry, a decision striking down the entire ACA would be an absolute disaster. Physicians, hospitals, and private companies have been shifting how they practice medicine in anticipation of the ACA’s implementation. They’ve been creating accountable care organizations,[1] envisioning a significant reduction in uncompensated care, and enjoying increased Medicare and Medicaid reimbursement in primary care settings.[2] That will all vanish if the ACA is struck down. Moreover, seniors will pay more for prescription drugs and young adults will be taken off their parents’ insurance. The private insurance industry, which has seen its market shrink significantly over the last decade,[3] will see a real chance to reverse that trend disappear. According to one estimate, if the ACA is overturned, insurers may lose over $1 trillion in revenues between 2013 and 2020.[4]

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Healthcare Needs a Quaking Aspen

For the majority of my career I have been obsessed with creating technologies to modernize our largely dysfunctional U.S. healthcare system.  To me, it is very clear that the emergence of cloud computing has finally created the opportunity to truly address this daunting problem. Cloud-based solutions are the only viable option for effectively getting providers, patients and other key stakeholders online so that the necessary efficiencies find their way into the system.

To the rest of healthcare IT, however, it is not so clear, as witnessed by the lack of truly cloud-based companies in the marketplace.

Most of the large, established players in this industry continue to rely on the outdated client/server or older technologies, such as MUMPS.  Some of these companies’ products trace their roots as far back as 1969.  These companies and their software were built before the world wide web, before Facebook, the iPhone and iPad, salesforce.com – and even email, for God’s sake!  There also exists a tremendous amount of confusion related to the morass of small, bootstrapped EMR companies, which number in the hundreds.  People do not understand the difference between buying a monolithic single-purpose app to utilizing a robust, cloud-based platform approach.

This lack of understanding has made me realize that we need a better way to explain what the cloud has the power to do, and what true cloud-based technology even is. Easier said than done!

I was recently afforded a breakthrough, though unfortunately at the expense of an ancient treasure.  Allow me to explain:

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Innovation as a Cliché

For the last six years, I’ve written this blog under the title “Medinnovation” with the tag line, “Where Innovation, Health Reform, and Physician Practices Meet.”

The novelty of use of word “innovation” is wearing thin.  And for good reasons.

Sad to say,  as a piece in the Wall Street Journal says. “Companies love to say they innovate, but the term has begun to lose its meaning.” Companies are touting chief innovation officers, innovation teams, innovation strategies, and even innovation days.

  • Companies last year mentioned “innovation” 33,552 times in their annual and quarterly reports.
  • Publishers issued 255 books in the last 90 days with “innovation” in their titles.
  • 43% of 260 companies  said they have appointed chief “innovation” officers.
  • 28% of business schools use the word “innovation” in their mission statements.

So what is “innovation”?

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Have Management Papers Ever Changed Practice in Healthcare?

Sir Muir Gray, of evidence-based medicine fame, is a man who speaks his mind – often in 140 characters or fewer. “Show me a paper by a management academic,” he Tweeted, “that has changed the way we deliver health services” [and, implicitly, improved patient outcomes].

Part of me agreed with him, but I’m married to a management academic (“Oops sorry, better man than me,” Muir backpedalled), who helped me rise to Muir’s challenge.

We kicked off with a paper almost every clinician has heard of:

Kaplan and Norton’s ‘balanced scorecard’, published in Harvard Business Review in 1992 and cited over 8000 times since [1]. The scorecard was aimed at company directors who wanted some quick (and, one is tempted to suggest, dirty) metrics to monitor what their customers thought of them and where they should direct their efforts for the future. It has certainly changed practice (many healthcare organisations use it), but we were not overly sold on its transferability to the healthcare setting.

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Moments of Failure

There was a night when I was in training that all the decisions, disasters and chaos, which are the practice of medicine, caught up to me.  In those dark hours, I felt practically despondent.  What I had seen left me in tears and overwhelmed by the tasks in front of me.

At that moment a wise attending physician took a moment to sit with me.  Rather than tell me how wonderful a doctor I might someday become or brush away my errors, he validated my feelings.  He said the best doctors cared, worked hard and sacrificed. However, that the basic driving force is fear and guilt.  Fear for the mistakes you might make. Guilt for the mistakes you already had.  How I handled those feelings would determine how good a doctor I became.

I have reflected on those words over the years and tried to use that sage advice to learn and grow.  Focused properly, guilt gives one the incentive to re-evaluate patient care that has not been ideal.  It drives the study and the dissection of past decisions.  Nonetheless, excessive guilt can cause a doctor to avoid completely certain types of cases and refuse even the discussion of those medical issues.

Fear of error drives compulsive and exact care.  It helps doctors study and constantly improve.   Taken too far it can result in over testing, avoidance and over treatment.  The art of medicine requires the practitioner to open his heart to criticism and be strong enough to build from failure.

Some years ago, I saw a patient who had leukemia.  I concluded that the patient’s low blood count was because of this blood cancer.  This was correct.   I missed that in addition to the leukemia she was bleeding from a stomach ulcer.  By the time another doctor spotted the ulcer, the patient was sicker than she might have been, had I made that diagnosis earlier.

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