Author: Ann Marie Marciarille

Bill of Health promotional post http://blogs.harvard.edu/billofhealth/2017/03/14/ann-marie-marciarille-on-the-week-in-health-law-podcast/ 

Paul Ryan asserts that more Americans would be uninsured under the House ACA replacement because enrollment numbers will always be lower in a non-coerced purchase environment. “We’re saying the government’s not going to force people to buy something that they don’t want to buy,”

The problem with this is that the best projections indicate that the "choice" to be uninsured will not be evenly distributed throughout the population.  It will, instead, likely fall disproportionalitly on older Americans, the "non-elderly" pre-Medicaid crowd. This is likely because the premium band for age rating under the House bill is likely to raise health insurance premiums for older people considerably and at an amount likely not offset by the age-related health insurance purchase subsidy program.

What do we call these people, Senator Ryan, "the old invincibles?" 

 

 

It has been noted that the House ACA replacement bill (The American Health Care Act)  has an inordinate focus on the need to rid Medicaid of the scourge of high dollar lottery winners. Roughly ten of the bill's sixty six pages ponder the need to change the categorization of lottery winnings to countable income for Medicaid eligibility purposes. As one article notes, this responds to an earlier independent push by a now retired Congressman to do this under the ACA. There would be savings, though — depending upon the size of the lottery winnings — the sojourn in the land of the over income for Medicaid might not be so very long and there are administrative costs to dis-enrollment and re-enrollment, if necessary.

Of all the topics to put at the center of the ACA repeal and replace, however, this seems the oddest of all.  Is it the fear that somewhere someone may have gotten a windfall that you did not that prioritizes such thinking?  Or, is it the knowledge that low income individuals disproportionately play the lottery?  It is worth noting, that outside the American Health Care Act, great attentiveness to the lottery winnings of low income individuals receiving various kinds of public assistance has been kicking around for a while.

This puzzles me.  Is the message that those receiving public assistance of any sort ought not play state sponsored and operated lotteries,  as if these government officials do not know full well  who keeps these state sponsored and operated lotteries afloat?

Is it that nobody knew health care could be so complicated or  that nobody would admit it?   "For every complex problem there is an answer that is clear, simple, and wrong." – H. L. Mencken

 

 

Here's to you, Kenneth Arrow, for the gift of your thinking about asymmetric information in the health care context:

Because medical knowledge is so complicated, the information possessed by the physician as to the consequences and possibilities of treatment is necessarily very much greater than that of the patient, or at least so it is believed by both parties. Further, both parties are aware of this informational inequality, and their relation is colored by this knowledge

And, as Deborah Haas-Wilson notes, the information asymmetry is also two-sided in many cases. What does the patient know that the provider doesn't?  Likelihood of medication and treatment adherence, their own medical histories, their individual preferences on trade offs  involving treatment and side effects and more.

 

 

David Slusky and Donna Ginther have a new paper out about the possible relationship between Medicaid expansion under the ACA and divorce. Dan Margolies considers it here.

This is an interesting paper.  All papers that look at what might be characterized as the "unintended consequences" of the ACA are interesting.

Of course,  the data is only "suggestive" that Medicaid expansion reduced divorce rates in expansion states,  since, as the authors point out, we can only surmise "medical divorce" in many situations where couples divorce after a major life-ending high touch care diagnosis for one (think Alzheimer's and related dementia). I suppose this is  because most people do not disclose their reasons for divorce — they are not required to under a no-fault divorce system — and  often don't disclose medical divorce at all (except in official records) because legal divorce and estate planning is still stigmatized, particularly among older people.  

Medicaid Divorce has long been an option to consider for retirement planning community spouse income and asset preservation.  Here is a pretty good article discussing why; http://www.huffingtonpost.com/rev-amy-ziettlow/is-divorce-the-best-option-for-older-americans_b_6878658.html.  I move the discussion to Medicaid Divorce because Medicaid pays for at least half of the long term care in this country. (http://publish.illinois.edu/elderlawjournal/files/2015/08/Miller.pdf).

One of the things I find most interesting is that the article actually tries to take a stab at quantifying medical divorce. There has generally been little data on how common the practice actually is, even when insiders know that it is done.  What is cool about this paper is that it gives us a number to consider. Given how little we have really known about the prevalence of the practice, even suggestive data (such as this) is quite interesting.  

American divorce rates and marriage rates have always been influenced by economic factors (https://www.washingtonpost.com/news/wonk/wp/2015/06/23/144-years-of-marriage-and-divorce-in-the-united-states-in-one-chart/?utm_term=.47c76b606994) but this is quite a reduction over quite a short time interval, even though divorce rates are in decline (https://www.nytimes.com/2014/12/02/upshot/the-divorce-surge-is-over-but-the-myth-lives-on.html) overall.

 

 

 

A murder trial unfolding in the Ozarks has all the elements of a made-for-TV-movie: strong characters; conflict over money; elaborate alleged murder plots and (yesterday) acquittal by a jury of a woman charged with crimes involving very few facts that might place her at the scene.  The theory of the case went something like this: disgruntled adult daughter learns of well-off father's plans to leave his money to some one else and arranges for a double murder or, at least, deadly assaults, after which daughter appears with father's apparently forged advance health care directive and has life support terminated.

That two lives were lost is tragic.  That this scenario might have been characterized as murder by advance care directive is also tragic, casting a shadow of potential abuse over such documents when, in fact, they can do so much good.

In light of that, you might be surprised to know that, eventually, the staff of the  hospital that took care of the father near the end of his life revealed that the (forged) advanced health care directive was not the driver of the ultimate decision to terminate life support, the daughter's position as next of kin was. This little tidbit came out when the two fraudulent witnesses to the (forged) advance care directive were able to raise evidence of the advance health care directive's irrelevance when law enforcement turned its attention to them.

There are so many astonishing facts here, it is hard to focus on only one. But I do wonder why an apparently valid advance health care directive was disregarded by the facility.  Perhaps it was not as apparently valid as it might have seemed to others. Or, could it have been that advance care directives are virtually unenforceable and it is rare to even catch wind of an action where failure to honor one has been asserted?  Indeed, mandatory waiver of certain kinds of advanced health care directives is often required by certain kinds of providers before care will even be undertaken.

President Trump's twitter response to the news of Humana's withdrawal from the exchanges reads, in part: Obamacare continues to fail. Humana to pull out in 2018. Will repeal, replace & save healthcare for ALL Americans. origin-nyi.thehill.com/policy/healthc…

The article referenced by the President is an article from The Hill reporting Humana has decided to withdraw from the exchanges because the market is too unstable.  The source of that instability is reported to relate to the pool of insured has too many sick people and not enough healthy people.

When the President tweets this, does it mean he agrees with Humana's apparent business rationale? Does that mean his focus, when he repeals, replaces, and saves healthcare for ALL Americans will focus on getting more healthy Americans into the risk pool?

Or, does it mean he doubts Humana's apparent business rationale and he will focus on discerning Humana's actual motives and how to align those with his own health care reform plans?

The President's tweets and remarks on the ACA seem to want to have it all: the ACA does too much and the ACA does too little. So, which is it?

Inquiring minds would like to know.

Kathryn Schulz has an almost unspeakably lovely essay in the Feb, 13/20 New Yorker where she writes about her two seasons of loss. She tells us of her increasing propensity to lose things while eventually discussing her biggest loss: the loss of her father. Yes, she is at a loss as she comes to terms with the fact that eventually everything and everyone will drift into the Valley of Lost Things.

"There's precious little solace for this, and zero redress; we will lose everything we love in the end.  But why should that matter so much?  By definition, we do not live in the end; we live all along the way. … Disappearance reminds us to notice, transience to cherish, fragility to defend. .. We are here to keep watch, not to keep."
 

One of the more frequent criticisms of state antitrust enforcement is that it can be too political. No doubt that antitrust enforcement decisions can be quite political, whatever level of political unit is doing the investigating.   Whether apolitical antitrust enforcement at the level of any political unit is a realistic goal is a question I cannot answer. Political concerns will be raised, after all, even if raised in an ill-advised manner by parties or opponents to a proposed merger.  I think the better question is what place larger political decisions should take in antitrust enforcement decision making.

The statements and representations from Aetna Insurance's  upper level management cited in Tuesday's Aetna-Humana  Memorandum Opinion enjoining the merger illustrate  Aetna's  desire for a larger conversation about the trade offs between possible merger challenge and the loss of Aetna exchange participation.   These documents give lie to the assertion that the review process is absolutely apolitical in all eyes and sharpen the question about how pointedly political goals ought be invoked  when discussing merger enforcement.

As you may have read this summer, when a July 5, 2017 letter from Aetna CEO's Mark  Bertolini discussing Aetna's desire for DOJ to back off in its merger investigation if the administration wanted  Aetna's continued participation in certain state exchange markets came to light, eyebrows were raised by such a blunt quid pro quo demand.

It is hard to know, however,  whether the apparent shock is over whether such demands were made or whether they were made so explicitly.  For  some time, Aetna appears to have self-identified as an, albeit somewhat cautious, booster of the ACA exchanges. One of the two largest health insurer trade associations (one of which did not lose Aetna's membership until this month) does not appear to dispute the vision of its collective role as a force in the shaping of the ACA .

Perhaps the real takeaway  is that the government ought keep political concerns at bay, when and if raised by the parties or anyone else.   Of course, memorialized statements seeking the quid pro quo of merger allowance in exchange for ACA exchange support can and will be used against you in court.

x-posted in Prawfsblawg