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Rethinking IMS Health v. Sorrell: Privacy as a First Amendment Value

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By FRANK PASQUALE

Today the Supreme Court will hear oral arguments in IMS Health v. Sorrell. The case pits medical data giant IMS Health (and some other plaintiffs) against the state of Vermont, which restricted the distribution of certain “physician-identified” medical data if the doctors who generated the data failed to affirmatively permit its distribution.* I have contributed to an amicus brief submitted on behalf of the New England Journal of Medicine regarding the case, and I agree with the views expressed by brief co-author David Orentlicher in his excellent article Prescription Data Mining and the Protection of Patients’ Interests. I think he, Sean Flynn, and Kevin Outterson have, in various venues, made a compelling case for Vermont’s restrictions. But I think it is easy to “miss the forest for the trees” in this complex case, and want to make some points below about its stakes.**

Privacy Promotes Freedom of Expression

Privacy has repeatedly been subordinated to other, competing values. Priscilla Regan chronicles how efficiency has trumped privacy in U.S. legislative contexts. In campaign finance and citizen petition cases, democracy has trumped the right of donors and signers to keep their identities secret. Numerous tech law commentators chronicle a tension between privacy and innovation. And now Sorrell is billed as a case pitting privacy against the First Amendment.

There is an old tension between privacy and the First Amendment, best crystallized in Eugene Volokh’s effort to characterize privacy protections as the troubling right to stop others from speaking about you. Neil Richards has dissected the flaws in Volokh’s Lochneresque effort to reduce the complex societal dynamics of fair data practices to Hohfeldian trump cards held by individuals and corporations. Societies reasonably conclude that certain types of data shouldn’t influence certain types of decisions all the time. And courts have acquiesced, allowing much “of the vast universe of speech [to] remain[] untouched (and thus unprotected) by the First Amendment.”Continue reading…

Can Berwick Be Saved? Here’s One Possible Scenario

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By BOB WACHTER, MD

We’ve all had the experience of hearing someone we know well say or write something totally out of character, and wondering, “what was that about?”

Don Berwick said such a thing last week, all-but-contradicting President Obama’s support for a strengthened, independent Medicare payment board. After a little head scratching, I began to wonder whether this might have been a harbinger of some good news regarding his tenure as Medicare czar.

This is one complicated political dance, so let me explain.

Berwick, as you know, received a recess appointment to lead the Centers for Medicare & Medicaid Services (CMS) last July, after his nomination had become hopelessly entangled in a web of partisan politics. I applauded President Obama for the appointment, and predicted that Don would do a great job in this crucial role, perhaps even wooing some of the Republican legislators who hijacked his nomination process to re-litigate the fracas over healthcare reform.

Then, in early March, Senate Republicans made it clear that they would not support Berwick’s continued tenure when his recess appointment expires later this year. The reasons include lingering concerns about Berwick’s politics (particularly his embrace of the British system of universal healthcare coverage), continued anger over the Affordable Care Act (ACA), and some peevishness over the recess appointment itself. In this space last month, I promoted a letter-writing campaign to try to save the Berwick appointment, though insiders told me it was “hopeless.”Continue reading…

Fixing The Failure At Physician Compare

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By MICHAEL MILLENSON

The launch of Medicare’s Physician Compare website at year-end should have been a watershed event in the long campaign for health care transparency and patient empowerment. Instead – and it pains me to write this – Physician Compare is a case study in how the interests of the average citizen can be shunted aside by indifferent government, lazy journalists and solipsistic special interests. That remains true despite all of those involved being Good People Trying To Do The Right Thing.

In reality, the site is confusing and unfriendly to consumers, painfully slow and, worst of all, factually unreliable. Put bluntly, the agency, whose leader famously called himself a “patient-centered … extremist” in a 2009 Health Affairs article, has produced a consumer tool that practically shouts, “We couldn’t care less whether any consumer ever uses this.”

Fortunately for CMS, most of the journalists writing about the site apparently did little more than cut and paste the government press release description of it into their own stories. If I were a federal flack, I’d drink a toast to that famous Marx Brothers movie line: “Who are you going to believe, me or your own eyes?”

Continue reading…

The Rashomon of Health Care: Why the Government is Promoting and Hindering ACOs at the Same Time

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By DAVID DRANOVE

As I have previously blogged, a centerpiece of the Affordable Care Act (ACA) is the promotion of Accountable Care Organizations (ACOs). The Center for Medicare and Medicaid Services is banking on the financial incentives of ACOs (through “shared savings”), combined with over 60 pay for performance quality metrics, to promote efficient, high quality medical care. Providers are certainly taking notice. Hospitals are acquiring physician practices in numbers not seen since the 1990s and many physicians are thinking of starting their own ACOs. For the federal government to so aggressively promote the reorganization of health care delivery is unprecedented. (I am willing to debate those of you who remember the HMO Act of 1973.)

It must have quite a shock to CMS when the Federal Trade Commission announced its antitrust guidelines for ACOs. (These can be found here, especially pp. 21896-21899). I won’t dwell on the details but suffice it to say that the proposed test is likely to have a high false positive rate (challenging many ACOs that are not anticompetitive). And while the FTC lacks the resources to investigate every new ACO, the new rules certainly pose an obstacle to integration. So why is the FTC standing in the way of CMS? The answer may be found in one the masterworks of the great film director Akira Kurosawa.

In the movie Rashomon, four men witness different moments of what might or might not have been a heinous crime. Testifying at trial just three days later, the men attempt to describe the entire terrible episode from their own limited perspectives. The healthcare event whose details are in dispute occurred not three days ago, or even three years ago. And it wasn’t just one event, it was the entire decade of the 1990s. I believe that support or opposition to ACOs depends critically on how one views that lost decade.

Those who adamantly support ACOs – that includes most of my health services research colleagues, especially those still working in Washington to implement the ACA – view the 1990s as a lost opportunity. During the 1990s, hospitals merged with each other and with their medical staffs to create integrated delivery systems. IDSs were the forerunners of ACOs. They were supposed to coordinate care, accept shared financial risk, and give us greater efficiency and quality. Leading health policy analysts at the time could not wax more enthusiastic about how IDSs would change the system. And health providers were eager to jump on the bandwagon; IDS were hailed as “a new wave becoming a tidal wave.” (There were a few naysayers, including this blogger and my friends on the faculty at the Wharton school.) Unfortunately, the IDS wave crashed. Few IDSs saved money or raised quality; many lost their shirts.Continue reading…

A Rebuttal to PHR Luddites

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By VINCE KURAITIS

Unlike some of my colleagues, I’m not losing ANY sleep over whether personal health record (PHR) systems ultimately will be adopted and used by patients.

In my mind, the issue isn’t WHETHER, but WHEN.

Yes, I know that adoption has lagged and that surveys suggest 7% or less of the U.S. population has used a PHR.

Stay with me on this one for a minute. You’d have to have two underlying beliefs to conclude that PHR systems won’t eventually emerge:

  • That health record data will persist in non-electronic formats, i.e., paper
  • That people won’t have interest in accessing or using their health record data

Please think about this a moment. If you truly believe PHRs will continue to remain a non-starter, then you MUST logically believe in one or both of these assumptions.Continue reading…

National Strategy for Trusted Identities in Cyberspace

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By JOHN HALAMKA, MD

On April 15, 2011, the White House released the National Strategy for Trusted Identities in Cyberspace (NSTIC) during a launch event that included U.S. Sec. of Commerce Gary Locke, other Administration officials, and U.S. Senator Barbara Mikulski, as well as a panel discussion with private sector, consumer advocate, and government ID management experts.
What is it a trusted identity in Cyberspace?   This animation describes the scope of the effort.  It includes smartcards, biometrics, soft tokens, hard tokens, and certificate management applications.
NSTIC envisions a cyber world – the Identity Ecosystem – that improves upon the passwords currently used to access electronic resources. It includes a vibrant marketplace that allows people to choose among multiple identity providers – both private and public – that will issue trusted credentials proving identity.
Why do we need it? NSTIC provides a framework for individuals and organizations to utilize secure, efficient, easy-to-use and interoperable identity solutions to access online services in a manner that promotes confidence, privacy, choice and innovation.Continue reading…

Controlling the Medicare Budget — Time to Fast Forward to 1999?

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By ROGER COLLIER

The Congressional Budget Office estimates that the government deficit will exceed one and a half trillion dollars this year, with federal health care annual expenditures expected to hit the trillion dollar mark by 2012. The largest federal health care program is, of course, Medicare, with costs projected to be close to $600 billion in 2012, and growing at around seven percent a year thereafter, although forecast to drop to a mere six percent annual increase if and when the Accountable Care Act is fully implemented.

Republicans and Democrats have each offered proposals to reduce projected Medicare expenditures, Republicans by shifting much of the cost of the program to beneficiaries, Democrats by passing responsibility to the already hobbled and politically endangered Independent Payment Advisory Board. Neither proposal has any realistic chance of passage.

Maybe it’s time to blow the cobwebs off the 1999 proposal from the National Bipartisan Commission on the Future of Medicare.

The Commission, co-chaired by Democratic Senator John Breaux and Republican Representative Bill Thomas, was created by Congress as part of the Balanced Budget Act of 1997, back when bipartisan cooperation was still sometimes possible. The Commission spent nine months examining Medicare’s program structure and costs and alternative approaches to reform, with the two co-chairs issuing their joint recommendation in March 1999. The co-chairs’ recommendation was, however, supported by only ten of the seventeen Commission members, one short of the number required for formal adoption, with the more liberal members generally opposed to the proposal’s cost control approach. Ironically—in the light of subsequent economic events—one key reason for the failure of the co-chairs’ proposal to gain more support was the booming economy of the later Clinton years, combined with the success of already enacted program changes dictated by the Balanced Budget Act.

Despite its failure to achieve the two-thirds majority needed for adoption, the 1999 proposal includes some recommendations that together look more practicable and potentially more politically acceptable than those of either Representative Ryan’s Republican plan or President Obama’s Democratic proposal:Continue reading…

$3 Million Heritage Health Prize: Interview with Dr. Richard Merkin

I recently had a chance to interview Dr. Richard Merkin, President and CEO of Heritage Provider Network. Richard has spent the last 30 years implementing a successful business model to address the needs and challenges of affordable managed health care. In this interview, we discussed the role of prizes throughout history and the lessons Heritage has taken from it’s beginnings in rural areas to a system that now covers 700,000 lives. The conversation also dishes the details behind the $3M Heritage Health Prize and the impact Richard hopes it will have on the affordability of care across the system.

Here’s the interview

The Disappearing Family Doctor – Is It a Bad Thing?

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By DAVIS LIU, MD

The New York Times recently published an article titled the Family Can’t Give Away Solo Practice wistfully noting that doctors like Dr. Ronald Sroka and “doctors like him are increasingly being replaced by teams of rotating doctors and nurses who do not know their patients nearly as well. A centuries-old intimacy between doctor and patient is being lost, and patients who visit the doctor are often kept guessing about who will appear in the white coat…larger practices tend to be less intimate”

As a practicing family doctor of Gen X, I applaud Dr. Sroka for his many years of dedication and service.  How he can keep 4000 patients completely clear and straight in a paper-based medical system is frankly amazing.  Of course, there was a price.  His life was focused solely around medicine which was the norm of his generation.  Just because the current cohort of doctors wish to define themselves as more than their medical degree does not mean the care they provide is necessarily less personal or intimate or that the larger practices they join need to be as well.

The New York Times article and many patients typically confuse high quality care with bedside manner.  Not surprising.  In the November 2005 survey by the Employee Benefits Research Institute, 85 percent or more of the public felt that the following characteristics were important in judging the quality of care received:

The skill, experience, and training of your doctors
Your provider’s communication skills and willingness to listen and explain thoroughly
The degree of control you have in decisions made regarding your health care
The timeliness of getting care and treatments
The ease of getting care and treatments

The first three items relate to the ability of a doctor to translate knowledge, training, and expertise into the ability to listen, communicate, and partner with a patient.  This is bedside manner.  The last two items relate to whether a patient can be seen quickly and easily when care is needed.Continue reading…

A Modest Proposal: What If All Specialty Procedures Were Coded with 4 CPT Codes?

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By PAUL FISCHER, MD

In a recent Wall Street Journal article, Barbara Levy, Chairwoman of the Relative Value Scale Update Committee (RUC), commented on the American Medical Association’s (AMA’s) decision to have minimal primary care participation on the RUC, saying the committee is an “expert panel” and not meant to be representative.  Since the committee is made up of 27 specialists, one family doc, and a pediatrician, the AMA apparently believes it requires little in the way of primary care expertise but lots of experts from every minute surgical specialty.

This is, of course, reflected in the AMA’s coding system.  Most of primary care is condensed into four Evaluation and Management (E/M) codes: a “focused” encounter, an “expanded” encounter, a “detailed” encounter, and a “comprehensive” encounter (99212-99215).  It does not matter whether the problem is a cold or an acute myocardial infarction.  It does not matter if you worked with just the patient or the entire family spanning three generations.  It does not matter if the problem was simple and common (eg, essential hypertension) or rare and complex (eg, pheochromocytoma).  It does not matter whether you completed everything in a single visit or spent hours fighting with an insurance company for payment.  And it does not matter whether you dealt with a couple of well-established problems or a dozen new ones.  It is clear that the AMA has little expertise in this area.  What is amazing is that they think they have enough!

In contrast, there are 400 pages in the CPT book to help proceduralists get maximum pay for their work.  In general, procedure coding follows a scheme based on the part of the body, the number of times you repeat a procedure, how fancy the equipment is, and how many different names you can come up with to do the same work (eg, vein ablation, injection, sclerosing, ligation, interruption, excision, or stripping).  This is obviously a boon for many physicians’ income.Continue reading…

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