Author: Ann Marie Marciarille

The funniest moment of last week's ASLME Conference panel on ACA Repeal & Replace: Implications and Issues to Watch was when Frank Pasquale responded to a question about whether the received political wisdom that a social welfare program once in place could never really be successfully rescinded is about to be tested.  Frank noted that the House version of the AHCA could be edited into a Senate version that might be seen more as a hollowing out of the ACA and, in that sense, rescission might be possible.

In a bravura performance reminiscent of Nathan Lane's/Max Bialystock's summary of almost the entire first act of The Producers at tobacco auction speed, Frank explained that the "how this might hurt you" conversation with a fellow American would depend on several variables related to state of residence, age, health status, income, gender, and a host of other things, so that by the time you could be through saying, "so, you see, this might not be so good for you" you might well have lost your fellow American, never mind yourself.

Yes, it was funny. No accident, after all, that our health care systems are so absurdly complex. 

Blue Cross of Kansas City has announced its withdrawal from Missouri's exchange, a decision that will leave an estimated 19,000 residents in Western Missouri with no coverage option and diminishing the number of exchange based coverage options for a wider group of Kansas City area residents.  Business Insider has been calling this "the worst case scenario."

Blue KC's rationale is two fold: business losses sustained since 2014 and insurance market uncertainty. 

The Kansas City Star's article about the blame game attempts, I think, to be even handed. "Death spiral" announces Kansas Governor Brownback. The "death by a thousand cuts position" is  also discussed, though carefully anonymized when presented.

Make no mistake that it is Missouri and Kansas's decision not to expand Medicaid combined with a continued refusal to fully fund risk corridor payments that has done much to bring us to this impasse.

Senator Roy Blunt's connection of Blue KC's 2018 exchange withdrawal on President Obama's failure to guarantee people could keep the health providers they like is particularly interesting.   And those who hadn't had health care  providers before the ACA because they were uninsured? Well, Obamacare is apparently taking their access as well.

The blame game is unlikely to end anytime soon, even if the Missouri and Kansas insurance commissioners were inclined and able to persuade another insurer to enter their marketplaces.

But Truman Medical Center knows what this could mean, whatever the point counter-point rhetoric.  As the area's safety net hospital whose uncompensated care burden dropped from $134 million to $100 million under the ACA, they know exactly who is behind the eight ball if all those newly uninsured come flooding back.

Assisting a parent or loved one in seeking skilled nursing facility admission is no joke,  which is part of the reason it may be so liberating to laugh about what the snf admissions process may ask of adult sons and daughters of potential patients. Oh, the machinations for admission in an industry where admittance is not guaranteed and where trying to put your best foot forward (easy family to deal with; uncomplicated patient; commercially insured and so on) can bear some resemblance to a fraternity or sorority rush -  with all the frantic pleas to "please like me!" 

I have never seen this depicted more accurately and more achingly than in the 2007 movie "The Savages." Laugh-out-loud funny scenes where the adult brother and sister, played by Philip Seymour Hoffman and Laura Linney, try to work the system to get their Dad admitted to a badly needed snf bed are worth your viewing.  Aware, on some primitive level, that the snf holds all the cards, the two actors provide a tour de force performance painfully illustrating all the little ways they try to gain Dad's snf admission. My personal favorite is when they are coaching him on the mental status exam from behind the back of a snf admissions director. Desperation knows no bounds.

You laugh, of course,  because otherwise you might cry to see decent people brought so low by the desperation of their father's need for care.  Oh, and I especially like the scene where the brother and sister fight in one facility's parking lot on whether they are presenting their father in the most advantageous light. Now that I think of it, it really reminds me more of the fawning parents in children's beauty pageants who mouth the talent routine's song words and execute the talent routine's dance steps from the rear of the auditorium while their child is on stage or maybe something more like college admissions parental  drama in the tony suburbs.

In light of all of this painful and oddly hilarious information, why be taken back that many if not most snfs include a clause in their nursing home admission agreements requiring the signing party (capacitant older individual or responsible family member) to waive the right to a jury trial on many possible future claims against the snf and to agree to be bound, instead, by binding (often secret) arbitration.  These are  pre-dispute arbitration agreements and their scope extends to bar jury trial on claims of substandard care, as in the Kindred Nursing Centers opinion issued today by the Supreme Court.

Enforcement of contractual waiver of pre-dispute arbitration agreements is strongly favored under the Federal Arbitration Act.   Those of you  given pause by the negotiation of such a clause in a health care contract often entered into under incredibly time-pressed conditions just aren't getting out enough.  A few of those contractual waivers of jury trial rights in the snf contracts reached the Supreme Court this term. Of course the backstory of long-building industry use and acceptance, the pre-election federal government regulatory attempt to ban these agreements in snf contracts, the now published Trump Administration regulatory effort to roll back prohibitions on the use of these agreements at snf admissions may help explain why the opinion was published today, so late in the Supreme Court's term, but did nothing to alter the outcome. 

We can sleep well tonight knowing that snfs may enforce pre-dispute arbitration agreements signed by adult children of snf applicants under general power of attorney authority without any specific language authorizing jury trial waiver provisions. It would after all, make it "trivially easy" for a state like Kentucky to require under state law  a clear statement of such authority as a way to undermine the FAA.

And there you have it.  All contracts, including those often  made in extremis in the face of overwhelming health care need, are just contracts after all.

Strike the language you say? Refuse to sign off on that pre-dispute arbitration clause for Mom or Dad's snf? Ah, but the clause is essential for admission, as is the POA itself for many facilities. You, as adult child of an individual needing speedy admission to a snf, are the supplicant here. And don't forget it.

I have had some stormy times as President and have engaged in some vigorous controversies. Democracy thrives on debate and political difference. But I had no patience with the reactionary selfish people and politicians who fought year after year every proposal we made to improve the people's health. I have had some bitter disappointments as President, but the one that has troubled me the most, in a personal way, has been the failure to defeat the organized opposition to a national compulsory health insurance program. But this opposition has only delayed and cannot stop the adoption of an indispensable federal health insurance plan.

                                                                                                                    — Harry S. Truman (Memoirs, Volume Two)

                            

I actually thought this would come to a head much sooner than 100 days, this tension between the trust and loyalty President Trump requires of his staff and supporters and the actual lived experience of his staff and supporters.  I did think it would happen, when it did happen,  in the area of  Affordable Care Act repeal, replace, or modify because all kinds of people have substantial, if partial, knowledge of how health insurance does and doesn't work in the United States, based on lived experience.

I have done a great deal of public speaking on the ACA in Missouri and I have yet to speak at an event — large or small — where someone listening has not advanced themselves, a loved one, or as a friend of someone with a pre-existing health condition that has, in essence, rendered them uninsurable, COBRA and high risk pools notwithstanding.  It is interesting how vocal those who resist insurance mandates for individuals can be equally vocal in support of insurance company mandates requiring guaranteed issue without pre-existing condition exclusions.

Yet, the entire 100 day dance around the ACA has circled this tension between a communitarian view of insurance equity and an individually underwritten view of insurance equity, without explicitly naming it  I find it fascinating that the same public that cries along with Jimmy Kimmel at the serious heart disease of his new born son also appears relatively undisturbed that, before the ACA's passage, many insurance policies excluded maternity coverage entirely.  Yes, Medicaid funds over 50 percent of  births in a number of states but anyone too rich for Medicaid and  also driven to an individual market health insurance product excluding maternity coverage entirely, might not be lucky enough to choose to have a baby at all.

You may say that newborns represent the ultimate blameless among us and the difference is something that may be hardwired in as we turn a hard heart to those who would merely like to re-produce without bankruptcy as distinguished from those who already have reproduced  and plead on behalf of a quite ill newborn.  It's the old rescue preference for those at risk that we can see in another guise, perhaps.

But now we've gone one step further with the President insisting protections against pre-existing condition exclusions are in the latest MacArthur Amendment to the American Health Care Act of 2017 proposal when they are not.  What will you trust or who will you trust, your senses or your President?  It does, after all, require some thought and analysis to consider why high risk pools were a failure before the ACA and to consider whether the MacArthur Amendment would do anything to change that.   It turns out it is difficult to graduate from high risk status and pools of high risk individuals are inherently unattractive in a  commercial health insurance system where every claim paid is a loss to the insurance company.

Is this the ultimate President Trump loyalty test? Will you trust my representations over your own  lived experience?

Morton Deutsch noted that ""trust" involves the notion of motivational relevance as well as the notion of predictability." Even then, there is individual trust, societal trust, and relationship trust. What kind of trust is implicated in the call for supporters of the McArthur Amendment to  the  AHCA? Is it relationship trust when you suspend your own disbelief in order to embrace an assertion contrary to your own lived experience? Or, is this really just a matter of figuring out what people want to hear and finding a shrewd way to tell them just that? As Marina Korokova has noted:  "[Con artists] will tell me the story that I want to hear. They’re not going to tell me the story they told someone else. It’s not like they have, you know, a story book that they read out of. They’re going to profile me and sell me the things I’m not going to question."

Interestingly, many of us can spot a con when it is being perpetuated on someone else ("that is too good to be true") but are vulnerable to the same cons being perpetuated on ourselves. Why? We're special. Things may not seem as they appear because of how special we are. It is about emotions, not logic.  The laws of commercial health insurance underwriting must not apply to us, only to those other folks. 

Brad and I have received word that we have been re-certified as part of the University's health insurance benefit eligibility audit.   Now, why we had to be re-certified to begin with when the University already holds a certified copy of our marriage certificate and both marriage and divorce records are public raises interesting questions.

Still, we hare happy to be re-certified and wondering about the legal effect of this language from the re-certification letter (emphasis added):

Ineligible Family Members Voluntarily De-enrolled from UC-sponsored coverage:
If during this process you requested that your ineligible family member(s) be removed from your UC-sponsored
plan coverage, you do not need to take further action to de-enroll your family member(s)
from medical, dental, vision, and legal plan coverage. However, you must de-enroll ineligible
family member(s) from dependent life insurance and Accidental Death & Dismemberment
(AD&D) coverage, if they are enrolled in these plans. This is an important step because any
future claim filed on behalf of an ineligible family member will not be payable and any premiums you
have paid will not be refunded to you.
After the benefits coverage has ended, your ineligible family member(s) will not be eligible to
continue health plan coverage through COBRA. However, UC’s COBRA administrator offers a
website called health compare.com which might provide a starting point for you if you need to
purchase medical coverage. UC has not evaluated and does not endorse this website; there are
numerous other similar resources from which you can purchase individual coverage. Your medical
plan will send a HIPAA Certificate of Creditable Coverage which you may need to obtain health
coverage for your family member(s) elsewhere.

Really?  If you continue to pay health insurance premiums for an ineligible family member, the University doesn't just spit them right back?  It takes them and you are now on notice that it takes them with no intention of providing health insurance coverage and with no intention of kicking the premiums back?

What is this, some kind of liquidated damages clause?  Or, is it a "don't even think about" warning to employees desperate to obtain affordable health insurance coverage for ineligible family members (that child who just turned 26; the former spouse without coverage of their own; and so on)? Or, is this the policy of Secova, Inc. the health benefits auditor firm selected as UC's contract vendor for this coverage?

Employers don't discuss health insurance eligibility audits in public very much, but the eligibility audit industry talks.  Ironically, the ACA's extension of eligible dependent coverage to age 26 has made the hunt for older, sicker, and more expensive enrolled ineligibles even more heated. It is the older people who feel the pressure to try to remain covered and to not be forced to the exchange or commercial insurance market. Young people, after all, are generally quite inexpensive. So we see it, embrace the young cheats, if you can, and ferret out the older ones.

Every time I consider health insurance benefit eligibility audits I consider the absurdity of claiming all Americans want to be free to be uninsured when so many are, apparently, trying to get inside the affordable health insurance tent that a whole industry has grown up around efforts to try to keep them out.

 

The UMKC Law Review is pleased to announce a call for papers relating to the executive branch’s scope of power and its impact on administrative law and the lives of real people.  Selected papers will be published in the Special Topics Symposium Winter 2018 edition of the UMKC Law Review.

This symposium invites proposals for papers exploring legal and administrative issues around the authority vested in the President of the United States.  The constitutional limits on executive action, ethics and accountability in government, the separation of powers, the far-reaching economic and social effects of proposed or anticipated administrative reforms, and other considerations relating to the intersection of executive and administrative authority are all topics under the umbrella of this symposium.  We also welcome analysis of the interaction between the executive branch and areas of administrative concern and impact, such as the environment, healthcare, consumer protection, banking regulation, and other areas dependent on agency oversight.  The recent proliferation of executive orders and new structural rules, such as the one-in, two-out regulatory policy and possible changes for the organization of the Executive Branch, make the use of executive orders another topic of interest.

Proposals are due May 26, 2017. You can read more here.

The New York Times has an interesting article synthesizing some of Thaddeus Pope's research on a growing body of case law awarding damages for institutional or individual disregard of an advance directive for health care. 

The Georgia Supreme Court's July, 2016 opinion in the matter concerning the last two weeks of  the  late Bucilla  Stephenson's life and, in particular, the decision of Doctors Hospital of Augusta and Ms. Stephenson's ICU physician, to disregard her advance directive for health care and to intubate her first and ask questions later is worth a careful read.  The ICU doctor saw the decision as one that could be easily reversed and decided to err on the side of life continuation.  The family saw the decision as one not easily reversed — distinguishing between a scenario where Bucilla Stephenson would be allowed to die and another (affirmatively acting to remove the intubation, as was eventually done) involving causing her to die.

My students are often inexperienced with life and death decision making. Many of them struggle to understand the philosophical and ethical distinction some others draw between action and inaction in end of life matters.  This is, however, a very old distinction.

Ms. Stephenson and her family may be caught between two world views: those that draw the action/omission line and those who see reversible action as a kind of benign buying of decision making time. I will note that Doctors Hospital of Augusta ICU doctors did themselves no favor by both intubating without the specified consultation with Ms. Stephenson's advance directive for health care decision making power holder and then not contacting that granddaughter to notify her of what they had done, leaving the granddaughter and her husband to discover the intubation and ventilator use at an ordinary family visit four hours later.

 

 

Proposals to block grant Medicaid are the hot topic in health care policy circles.  This Kaiser Family Foundation overview gives a pretty good picture of the different ways Medicaid might be block granted, though it is hard to know much without more information on how it would all work. We are, in short, more in love with the idea of block grants than we are advanced in planning how they would actually work.

Justice in Aging has some good work on what various forms of Medicaid block granting could mean for low income older individuals.

Thank you, Justice in Aging, for speaking out for low income older individuals for 45 years. It is a privilege and honor to serve on your Board of Directors at this time when a strong voice for low income older individuals is so very much appreciated.

The New York Times has an important article on the evolution of Medicaid partly illustrated by last week's turning point when, as part of criticizing the American Health Care Act of 2017,  voices were raised in defense of Medicaid from within the Medicaid population itself. As I have noted elsewhere, the true genius of the Affordable Care Act may have been in expanding Medicaid enough to help it obtain something it has always needed — a constituency. And, as I have also noted elsewhere, it is significant that they are Medicaid beneficiaries now and not merely Medicaid recipients.

Recipients recede into the shadows, beneficiaries form a constituency.