Author: Ann Marie Marciarille

The Supreme Court's 6-3 opinion in North Carolina State Board of Dental Examiners vs. FTC is out and, as expected, it leaves important information about how state medical and dental licensing boards should be populated and operated to be determined in the future but it does, in an unexpected way, paint with a broad brush in delineating antitrust's limits on the states' powers to regulate, de-regulate, and out-source regulation to a "non-sovereign actor."

North Carolina State Dental Board, as configured,with its majority dominant practicing dentists who directly compete with those non-dentists the Board seeks to reign in on tooth whitening practices despite the lack of any statutory authorization to define tooth whitening as dentistry has ended up as a poster child for the clear articulation and active supervision standards required to determine whether an anticompetitive policy is indeed the policy of a given state and entitled to immunity from Sherman.  A nonsovereign entity controlled by active market participants must meet both the of Midcal's prongs to rest easy in immunity from the Sherman Act's reach.

North Carolina's Dental Board functioned more as a trade association with super powers granted to it by the state — apparently with an open-ended portfolio of responsibilities relating to dentistry in the state. Like it or not, the dissent argues the delegation was valid and the Sherman Act does not sit to second guess the wisdom or even fairness of the delegation.  

Whatever you think of the dissent, Justice Alito is spot on when he notes that the majority opinion is potentially quite disruptive for state medical licensing boards, entities that the dissent notes have long been under full sway of the regulated health professions themselves.  Of course, the story about how that came to be in the United States is also a story about the professionalization of medicine.  As Paul Starr has noted, "Professional medicine drew its authority in part from the changing beliefs people held about their own abilities and understanding." Professional licensing boards left in the unfettered control of providers may tap into the same transformation.

The rise to respectability as a separately licensed medical specialty of American dentistry is an amazing story.  Self-licensing, ascendent since the late 19th century, was the outcome of political compromise and not solely the seemingly inevitable result  of deference to professional authority traced in today's opinions.

It is true, however, that we have almost no tradition of genuine state regulation of doctors, dentists, and optometrists other than the North Carolina Dental Board model or something like it. If we aim to take it over it will not be a taking it back, but a taking it on — an invention out of whole cloth.

 

My favorite health law news item of last week has to have concerned Prime Healthcare's and Kaiser's announcement of mutual dismissals of reimbursement based law suits.  The lawsuits will be resolved through confidential and binding arbitration — a very Kaiserly resolution.

It gets better. Kaiser also chose to announce that it has not agreed to support Prime's acquisition of the Daughters of Charity hospitals, despite Prime's announcement to the contrary.

This tells us a few things. First, it tells us that Kaiser's endorsement of the deal was on the table. Second, it tells us that these two are not through miscommunicating, whether by accident or design.

It has, a handful of times, been my privilege to work with standardized patients (a/k/a medical actors) in programs involving medical students and law students. I have always been struck by the thoughtfulness of the  actors involved in playing the standardized patients, often lingering after class to ask me for feedback on their performance.

Now comes Leslie Jamison with the title essay of her collection "The Empathy Exams" offering insight into her work as a medical actor, her life experiences as a medical patient, and her observations of those attempting to boost their empathy quotient. "The Empathy Exams" is exquisite.

One passage, where Leslie Jamison talks about empathy as a choice has stayed with me for days:

This confession of effort chafes against the notion that empathy should always rise unbidden, that genuine means the same thing as unwilled, that intentionality is the enemy of love. But I believe in intention and I believe in work. I believe in waking up in the middle of the night and packing our bags and leaving our worst selves for our better ones.

I do too, Leslie Jamison.

Managing Our Microbial Mark: Lessons We Can Learn About Pay for Performance From Ebola's Arrival at Our Shores

 

It has been a privilege to join you here this past month. I close out my month as a guest with some thoughts from my current research on pay for performance, coming soon to my SSRN page.

If you've seen any of the data on the apparent ebbing of the Ebola virus outbreak in west Africa, you know that the news is good. The incidence of new reported cases is reduced and, unlike the low reported incidence from this past summer, public health officials seem to have more confidence in these reported numbers.

What is even more interesting is that is hard to say exactly what combination of domestic, international, and community efforts is bringing the number of new cases down but it has been observed that, in some places, habits and customs changed faster than in others.  Those able to improve health and sanitation as well as health and sanitation literacy faster were able to reduce incidence faster.

What can we, in the developed world, learn from all this? That hand washing matters in disease incidence and transfer? That communal pressure to improve things like hand hygiene can actually make a difference, even among the less aware and less motivated?  That Ebola needed to be brought out of the shadows before incidence and transfer could be fully addressed?

I have been thinking about what our brush with Ebola at our shores tells us about our health care system and our own capacity to learn these lessons from the developing world. 

Ebola’s presence, however limited, in American acute care facilities has brought to light the limitations of current infection control  procedures in American hospitals. Yet little has been done to extend lessons learned from Ebola transmission to non-Ebola infectious disease control. In this, we have more in common with west Africa than we may think, where focus on a single disease often disrupts health systems.Here, a focus on one disease allows us to focus on specialty care for that disease alone, without placing that disease’s spread in the larger context of infection control failures in America’s acute care facilities.

Persuaded, on some level, that the proliferation of hand sanitizer dispensers will immunize us, we alternately confront our own worst fears of a “super bug"  while managing to continue to participate in our communal lives, including the highly communal and congregate experiences of acute care hospitalization and nursing home residence much as we always have since the rise of these two peculiarly modern forms of health care institutions in the 20^th century. And, yet, everything is changed.

X-posted at prawfsblawg.

It is hard to believe that it was just about a year ago that I blogged here about Prime Health Care's transition from a bit player to a major player in acute care hospital ownership. A lot can  happen in twelve months, especially when you are on  an acquisition binge. 

Prime, you may recall, specializes in the acquisition and turnaround of financially troubled acute care hospitals. Prime operates 29 hospitals in California and eight other states.

I write today about Prime's proposed acquisition of six  hospitals in the Bay Area, a subject that has produced both considerable heat and light.  If California Attorney General Kamala Harris approves the Daughters of Charity acquisition, Prime will become the fifth-largest hospital company in the United States, based on revenue.

The California Attorney General's review of this transaction, as required by California Corporations Code section 5914 et seq.  continues apace. Consistent with the statute, the public hearings have begun. Consistent with California politics, the letter writing campaigns have begun. You can see the public documents here. 

I don't envy Kamala Harris. It could be that there is just no way to please everyone here. I have written another time about the strong reactions provoked by hospital ownership transfers and  closings.

The Daughters of Charity want out of their debt and do not hesitate to assert that a closed hospital — apparently their view on the likely outcome if the sale to Prime is derailed – costs lives. The interesting thing about this approach is more isn't necessarily better.  The SEIU opposes all Prime acquisitions. The problem with this is that it contemplates absolutely no place for a turnaround artist like Prime Health Care in acute care hospital markets.

It is important to remember that California is not a certificate of need state. No CON is required to enter the acute care hospital market nor to exit it. This can produce some utterly remarkable outcomes — my personal favorite has always been the acute care bed arms race that raged in and  around Redwood City a decade or so ago where the largest acute care bed players raced each other to launch their projects to build hundreds and hundreds of new acute care beds in close proximity to each other. Those familiar with the particular torture of a Redwood City to San Francisco automobile commute will appreciate that I used to observe that whoever lost the acute care bed arms raise could convert their million dollar plus per bed facilities to emergency housing for trapped commuters.

The political theater, of course, is outstanding. But do not be distracted from the exponential growth of Prime Health Care, a business model only destined to grow as health care reform's amplification of the movement of health care outside of not for profit acute care facilities continues.

x-posted at prawfsblawg

If you saw today's New York Times article on New York nursing homes seeking guardianship over residents in order to collect outstanding debt, under Article 81 of the Mental Hygiene Law, you may also have questions.

Section 81.19 of the Mental Hygiene Law specifies (emphasis added):

(e) Unless the court finds that no other person or corporation is available or willing to act
as guardian, or to provide needed services for the incapacitated person, the following persons or
corporations may not serve as guardian:
1. one whose only interest in the person alleged to be incapacitated is that of a
creditor;
2. one, other than a relative, who is a provider, or the employee of a provider, of
health care, day care, educational, or residential services to the incapacitated person, whether
direct or indirect.

If a corporate entity may petition or threaten to  obtain  guardianship over a current resident in order to resolve an outstanding disputed debt owed to the corporate entity and withdraw the petition as soon as the debt is paid in full, what can guardianship law mean in New York?

x-posted at PrawfsBlawg

When I think about calls for increased consumer activation in  health insurance selection, I think about how much I like the ideas of increased health insurance literacy, price transparency, and the promotion of competition in health care markets. 

But when I see consumers whipsawed as with the current War of the Gargantuas taking place in Northern California, I wonder if consumer activation alone will save us.

In order to have been a savvy purchaser of health insurance  through California's Exchange (or, even, outside the exchange through this fall's most recent open enrollment period for commercial insurance), you would also have to have known something about the  health insurance and health care services contracting world.  Can we reasonably expect consumers to master this, to ferret out what they really need to know?

Most Northern California employers have a fall open enrollment period. Covered California's open enrollment for 2015 runs from November 15, 2014 to February 15, 2015.

Here's what your employer (or exchange) surely didn't tell health insurance shoppers  in Northern California this past fall:

1. Blue Shield of California is a huge insurance company, with about three million covered lives in Califonria. 

2. Sutter Health is a huge health care provider with, for example, over 4300 licensed acute care beds in California. 

3. They bargain fiercely right through and past the open enrollment deadline over the next year's contract rates. 

4. Even a behemoth such as Blue Shield of California has, historically, been unable to bring Sutter to heel. Sutter's tremendous market power in Sacramento and the Bay Area is one of the drivers of high health care costs in those areas.  

4. Decisions that are made after the close of your open enrollment period — such as their contractual terms or, as announced this year, their decision  to maybe not  contract at all, may be  announced once  open enrollment is closed or very near to its closure.

5. The decision by a major provider to exit an established health plan after the close of the open enrollment period is apparently not deemed a qualifying life event allowing for special enrollment under Covered California.  California's largest employers have been conspicuously silent on whether such an announcment is a qualifying event for out of open enrollment insurance plan change.

So the chat boards are lighting up.  Can it be that a change in a health plan's coverage options in a highly concentrated market  such as Sacramento or the East Bay is not a a trigger for special enrollment rights ?    You mean you didn't know all this already?

Watch out where Gargantua steps.

x-posted at prawfsblawg

 

Should acute care hospitals be prohibited from attempting to collect health insurance co-pays and other forms of co-insurance bedside in the emergency room?  

There isn't actually that much to garner a laugh in Steven Brill's new book America's Bitter Pill, but his description of how medical debt collector Accretive Health sells its services to its acute care hospital customers brought a smile to my lips. First, this was because the "Accretive Secret Sauce" is bedside Emergency Room collection and second, because Steven Brill had apparently never heard of this practice until researching this book.

Just where has he been making visits to the ER with his children? It is reported that at least half of acute care hospitals nationwide have been charging upfront ER fees.  We are on the cusp of an era of changing constraints on hospital debt collection practices, including a change to the rules about bedside debt collection in the Emergency Room.  Most of the new rules focus on those who likely would ultimately be eligible for free or reduced care and how they are to treated pending that determination. But what about the Bruce Folkens of the world– the ones who most likely will not be eligible for free or reduced fee care? Will upfront fees in the ER remain the rule for them? 

After all, could it be that New York Presbyterian, whose expertise in resolving aortic  aneurisms such as the one Steven Brill suffered and describes as the  narrative framework for much of his book, does not engage in this practice? If not, is it because their post-Emergency Room discharge collection numbers are stronger than those of Fairview Ridges Hospital in Burnsville, Minnesota?

We'll never know because, like a great many important topics in Steven Brill's book, we only know the anecdotal, the one off event. So, let's pause and do justice to Steven Brill's account of Bruce Folken's several hour visit to Fairview Ridges Hospital in Burnsville, Minnesota for chest pain where, yes, a hospital employee asked him about his plans to pay the remaining $493 left on his annual deductible.

Bruce Folken's experience at Fairview Ridges Hospital was not unusual in several ways. First, chest pain is one of the most common reported symptoms that drives Emergency Room visits in the U.S. and Bruce Folken's outcome (a diagnosis of indigestion) is also not atypical. Second,  it is further not unusual that ruling out a significant cardiac event does not come cheap for reasons that the rest of Steven Brill's book struggles to explain.

So, once Brucke Folken (described as half way through  his visit and resting in bed with an IV) was ruled-out as an emergency cardiac patient, why the rush to obtain payment? Could it have been that the hospital has been monitoring its collection rate and noted that Emergency Room bad debt is a disproportionate share of acute care hospital bad debt? Of course, the fine line here is between bedside debt collection from those using the ER for genuinely emergent care and those using it for urgent or even routine care and Accretive has, more than once, found itself on the wrong side of that line.  Bruce Folken's situation is right on the line — perhaps genuinely emergent at the beginning but morphing into urgent by the time bedside debt collection was undertaken.  

If this offends, perhaps it is because of the retrospective determination of  the validity of use of emergent care under the prudent layperson standard or some other standard found in Bruce Folken's policy, but surely not in having a substantial co-pay outstanding at the time of an ER visit.

You see, this is a scenario that will only increase in frequency.  More and more of us are enrolled in high deductible plans and the trendline points upward. So, of course there are now and will be many more Bruce Folkens among those of us with unmet high deductibles and Emergency Room needs. 

Don't forget your wallet.

 X-posted at PrawfsBlawg

The numbers are in and it is official: deaths from heroin overdoses in much of the United States have doubled in the past two years. Whether the heroin was injected or smoked ("chasing the dragon"), there is some evidence that, in many places, heroin has increased in both availability and purity in the same time period.

How to explain this?

One school of thought — I'll call it the opiate demand substitutability school of analysis — tracks the increase in heroin's popularity to the increased difficulty addicts are reported to be having in accessing oxycodone ("OX") in light of state and federal efforts to reduce prescription drug abuse. The street value of OX has increased (at least the street value of original formulation OX has increased, while the street value of OX in the resistant to crushing and snorting format has actually gone done) and there is anecdotal evidence from treatment centers for injectable drug users that the migration from OX to heroin is well underway.

Another school of thought — I'll call it the progression of addiction through the population school of analysis — is that prescription drug abuse, particularly in the 18-25 age group, is still rampant but the increase in heroin overdose fatalities demonstrates a cohort of aging opiate addicts moving through the progression of addiction, seeking an ever cheaper and more powerful high.  This might explain the high demand for heroin of a purity previously not well known in the United States.

Whichever theory you ascribe to — and some thoughtful addiction specialists subscribe to both— the increased death rate from opiate overdose is data playing out as the back story to our ongoing debate over the wisdom and utility of providing naloxone (the antidote for heroin overdose) for emergency use. Some states have now approved the training of and distribution to  first responders and lay people of naloxone for just this use.

But we are conflicted. Is naloxone a step toward condoning use? If the overdose death rate is lower where heroin is both safe and accessible, is naloxone's arrival just a further expression of our own ambivalence about treatment for addiction?

 x-posted at PrawfsBlawg

Perhaps you saw the recent New York Times Arts Section review of the vaccination promotion campaign sponsored by the Bill and Melinda Gates Foundation. The campaign, as part of an international effort to raise funds to inoculate millions, has commissioned artists to interpret the "Vaccines Work" tag line.

The article was accompanied by the reproduction of three of the remarkable commissioned pieces, but it was Alexia Sinclair's tableau of a 18th century vaccination that caught my eye. A young boy is clearly receiving the innoculation from a bewigged doctor while the mother — detached and yet attached — sits apart and looking away from the tableau while also reaching out to reinforce the doctor's acts with an almost yearning reach of her hand. All of them sit in a fine 18th century sitting room, yet the carpet of grass and blossoms — we are told of the artist's vision — was meant to symbolize the virulence of smallpox. "It brings a fashion-y aesthetic to a virulent disease" the New York Times notes.

Smallpox is not pretty. But the asethetic of the Sinclair tableau is not exactly beautiful, more profoundly eerie. I wonder if it doesn't also tap into our modern anxieties about vaccination. It is, after all, an act of faith to vaccinate, then as now. If you visit "The Art of Saving a Life" website you find Alexia Sinclair's tableau titled "Edward Jenner's Smallpox Discovery."

Edward Jenner, sometimes known as the father of immunization, did not discover the smallpox vaccination, however. He was, rather, the first person to confer scientific status on the procedure and to pursue its scientific validation. Vaccinated against smallpox himself as a young boy, he spent some of his prodigious talents attempting to validate the mikmaids' truism that exposure to cowpox meant immunity to smallpox. Seem from this perspective, eight year old James Phipps (Edward Jenner's first human subject) and Sarah Nelms (the milkmaid donor of cow pox for transfer to James Phipps) ought be in the Alexia Sinclair of Edward Jenner's smallpox discovery.    

x-posted at ProfsBlawg