Author: Ann Marie Marciarille

On July 30, 1965, at the signing of the Medicare amendments to the Social Security Act in Independence Missouri, LBJ said this about Harry Truman and a few others:

Many men can make many proposals. Many men can draft many laws. But few have the piercing and humane eye, which can see beyond the words to the people that they touch. Few can see past the speeches and the political battles … And fewer still have the courage to stake reputation, and position, and the effort of a lifetime upon such a cause when there are so few that share it. 

 

If it is true that the Trump Administration intends to let the ACA collapse of its own weight, then it is time — while attempting to breathe life again into the moribund BCRA — to preview for the American Public what that brave new world would look like.

Time to stop making month by month, day by day, minute by minute cliff hanger decisions on whether to continue to fund payments to stabilize insurance insurance markets while pretending doing things  exactly this way does not, in fact, drive insurers out of the exchanges. Turns out insurers don't plan exchange and market participation on a day by day basis. This makes it possible to undermine the exchanges while claiming not to have done anything.

Of course, this would not be letting the ACA fail out of whole cloth, it would be affirmatively taking action to undermine it further in a crucial way. So, show your hand and explain why you think this is good for the American people if you believe it is.  If you take the position that Congress has the discretion to fund these payments, please explain the choice to continue to fund these payments at the ACA level rather than at the BCRA (differing versions) levels.  In short, explain yourself. 

The quality of the public discourse on the latest iteration of the BCRA would be increased by a bit more candor as to machinations already underway behind the scenes in insurance markets. And, sadly, it might be improved, by increased public understanding of just how tenuous a grasp many millions of Americans have on exchange purchase subsidy payments.

 

Here's a little information from Johns Hopkins dated 7/2017 that I found publicly posted online:

$45,077 (hospital charges only)(non-trauma)

Click to access jhh_charges.pdf

Of course, hospital charges are often funny money, based less on cost accounting than on reimbursement formulas. but that Johns Hopkins attempts to even offer a document ball parking costs tells  you something both brave and sad about how little Americans know about health care reimbursement.

 

 

 

 

I don't follow Marco Rubio on Twitter. Full disclosure: I follow very few people on Twitter.  But, occasionally I see a Twitter post that seems so self-serving that it makes me want to know more.  

Marco Rubio's July 12, 2017 tweet on how he was doing right by Floridians by working on amendments to the BCRA that would add flexibility to Medicaid caps in the case of a public health emergency such as Zika caught my eye. These different versions of the BCRA are coming so fast that it is understandable that much analysis takes things at face value but I have to disagree that the recently added BCRA language that adds a five year window capped fund for retroactively granted per capita cap relief for certain declared public health emergencies if they are both declared on the state level and recognized as such on the federal level is going to help Florida one bit with the kind of massive public health emergency something like Zika could bring.

Actually, Sara Rosenbaum has taken a careful look at the public health emergency exemption language and it is all too clear that it is a particularly bad fit for the kind of  public health emergency manifested by Zika. It is the tail of the expense of Zika exposure that is the real expense, anyway,  and though disabled children may receive some favorable Medicaid treatment under this latest version of BCRA there is little evidence that five years of authorization for Florida to advance fund extra efforts in Zika transmission suppression will do a great deal to actually suppress Zika.

Floridians should be nervous about this, given past experience with the politics of shaking federal funds lose to combat Zika's spread in their state.

 

I am as mesmerized as anyone else by the repeated iterations of the Better Care Reconciliation Act of 2017 in circulation and now in the latest discussion draft, breathlessly awaiting CBO scoring, the New York Times astonishingly sports page-like coverage scoring of winners and losers for each version, and tales of back room sweeteners  ("Klondike Kickback" being my personal favorite coinage so far).

But none of this — not one bit of it — distracts me from the fact that it is all about persuading elected officials and the American public that what they have in hand (the Affordable Care Act) would be better surrendered for one of these myriad other offerings. And the offers do keep coming.

These alternatives are arriving with such frequency but with such slight variation from each other that I can't help but wonder about that variation on the old Monty Hall Probability Problem  where, if the host is not required to make the offer to switch yet repeatedly does so, the player has to suspect malice and wonder if, in fact, the player has already chosen the car and that the host is merely trying to shake them loose from that choice.

Turns out the correct next move, then, turns on some assumptions about the host's behavior.

When I teach my students about the concept of guaranteed issue in health insurance I always make it clear that without some constraints on individual underwriting it  can mean very little.  In short, there is more than one way to say "no" to an applicant for health insurance.  A health insurance company could decline to issue a policy or it could offer coverage at such an incredibly high cost that the answer might as well be no.  The latter has the virtue of being nominally non-exclusionary because the only problem is affordability but if that problem is not remedied by some kind of subsidy or discount it is the problem that can end all access. Senator Cruz's subsidies proposal max's out subsidies at the $42,000 in annual income level, much much lower than the ACA, leaving a significant coverage and affordability gap to only widen. 

All of this is pretty much what is at stake with Ted Cruz's market segmenting proposal to fix the Senate GOP health care reform proposal. Insurers, under it, may sell non-ACA conforming products so long as they sell one ACA conforming product. There are no limits to what the non-ACA conforming insurance products may look like so think back to such  pre-ACA health insurance marvels  as policies lacking hospitalization coverage, maternity coverage, mental health coverage, prescription drug coverage, and so on. Yes, the one sheet manifesto describing these policies as consumer demanded describes these policies as the flavors of freedom — must be why the data tells us so many thinly insured  Americans used to  feel free to just stay home and celebrate freedom when policies with those limitations maxed out and not crush into the nation's  already highly stressed  government funded free clinics.

The New York Times had quite an interesting article today on cancer biopsy laboratory error rates. A few studies have been kicking around for several years giving some sense of the problem and today's article sums up the research nicely. There is nothing in the studies discussed that indicates that the two kinds of error: transposition error (where one sample is mistakenly substituted for another entirely and a person with a clean biopsy may end up with treatment for cancer and a person with cancer may end up with no treatment) and contamination error (where the results may be similarly confused because of the co-mingling of cells from one of more other cancer biopsy samples) are linked to particular kinds of cells being biopsied.  There is, interestingly, a difference in error rate between large independent labs and smaller institutionally affiliated ones. 

But, despite a lack of any evidence I can find that the problem is prostate cancer biopsy specific, a prostate cancer specific bill has been introduced for the past few years in Congress and once again in May of this year to require Medicare to reimburse for the DNA linked biopsy system for certain prostate cancer biopsies only.  Now, I get it that prostate cancer biopsies are reasonably common among the male Medicare population. Yet, there is no reason to believe that the error rate is linked to the kind of tissue involved in the  biopsy. The problem may, in fact, be lab procedural.

It takes a kind of cruel calculus to think that a cervical, uterine, or breast biopsy that might lead to either unnecessary cancer treatment or failure in treatment of such cancer is less concerning to the individual involved than a similar experience with prostate cancer.  I also have to wonder, if the  prostate cancer biopsy bill were to pass, whether it would lead the way to better cancer biopsy lab practices for all or if it might well relieve pressure to address the  concerns of all about cancer biopsy laboratory error rates.

 

 

Last week, it was my pleasure to hear Tim Hall discuss some work he is doing on the doctrine of necessities and medical debt collection from spouses. Although coverture, the doctrine that a married woman's legal rights and obligations are subsumed by those of her husband, has been universally abolished in the United States, spawn of coverture, also known as the doctrine of necessities, lives on in some jurisdictions.

Tim's data indicates it has, where it survives, become a health care debt collection doctrine.  The doctrine of necessities has, then, travelled some way from its roots as a safety valve for coverture's restrictions on a married woman's contract rights by allowing her to arrange with a merchant to bind her husband for the expense of the material necessities of daily life. The doctrine did not allow her to contract with the merchant but, rather, for the merchant to impliedly contract with her husband for the necessities.

The states are all over the place on whether the doctrine of necessities ought survive coverture's demise and live on as a health care debt collection device. Tim Hall reports twelve states have abolished the doctrine, twelve states have modified it (often rendering it gender neutral, also far from its coverture roots); and twenty six states retain it in its classic gendered form.  Tim reports that he has located no reported case involving the parties to a same sex marriage but, surely, that will change soon enough.

Could health care really be one of the legally recognized necessities of modern daily life, though often predominantly a service and not always or exclusively involving a tangible good? Why, after all, treat health care (defined inclusively to include long term care services) as a life necessity when health care is not  recognized as such elsewhere in American law? Or, is the fear of moral hazard too great if they are not recognized as such? Is the health and well being of your spouse a marital asset, after all?

 

 

 

 

Listening to Nicole Huberfeld at ASLME so eloquently place Medicaid's latest vicissitudes in historical context was a tonic.  Yes, Medicaid's precursor, the Kerr-Mills Act, has some resonance with Medicaid as it might look after the passage of the AHCA combined with some of the pending Section 1115 waivers requested by the states.  Think of every eligibility requirement and condition borrowed from TANF and you will have some sense of the scope of what some states would like to attach as conditions to Medicaid enrollment. All of these new eligibility screens merit  discussion as to whether they fulfill the purpose of the Medicaid Act itself and work  to promote access to Medicaid treatment.  Congress may, in fact, change the purposes of the Medicaid Act as it sees fit, however. The House version of the AHCA does, indeed, propose to add a work requirement to the statutory purposes of the Medicaid Act.

But what really caught my attention from Nicole Huberfeld's laundry list was Wisconsin's  proposal to require drug testing as a condition for Medicaid eligibility. For a moment I paused: positive test to prioritize Medicaid eligibility or positive test to exclude Medicaid eligibility?  The latter of course, though with our nationwide drug induced death epidemic, I hope you will excuse my moment of hopeful confusion.