Author: Ann Marie Marciarille

Well, the jig is up on this one.  On Tuesday of this week, HHS posted notice that insurance options that don't cover both inpatient services and physician services will be considered noncompliant with the ACA. So-called "skinny plans" have apparently been a subject of interest among self-insured employers exempt from the essential health benefits requirements.  Instead, self-insured (sometimes called non-ERISA qualified plans) only have to cover 60% of potential health costs, the equivalent of an exchange-sold bronze plan.  

It was interesting while it was an option.  Now, it is no more except to linger on as an oddity in grandfathered-in programs for some brief period of time.  But, still, I want to ask what the attraction might be for employees (since they are manifestly obvious for large employers with many low wage workers moving into insured status).

First, there is always the "it is better than nothing" argument. Second, such a plan might appeal to those who are young and robust but who acknowledge they might want some value for their premiums (beyond preventive care and catastrophic insurance). A fair number of low wage workers lack commercial disability insurance, leaving it possible that they contemplate Medicaid will provide the backstop catastrophic insurance. Call it the anti-high deductible plan that gambles on Medicaid catastrophic coverage or Medicaid's relatively expansive coverage of pregnancy and childbirth.

Now, I have no idea who has been offering these plans.  Everyone seems to deny it is them. And I am not endorsing their continued operation in the wide open frontier of non-ERISA qualified plans. I'm just saying, I'd like to know if any consumers with choice chose this option.  Putting aside path dependence, if you are gong to have thin insurance, might it not make sense for some demographic groups to prefer front loaded insurance benefits?

Last week, I read Ending This Fee for All (an Op-Ed by Devin Fergus from the New York Times) about an AT&T agreement to reimburse customers for "hidden" trick-and-trap fees lurking in cellphone contracts. Devin Fergus uses "hidden" in quotes, I assume, because the charges at issue where entirely permissable under the terms of the cell phone agreement. 

All of this has me thinking again about the problem of in-network Emergency Rooms staffed by out-of- network Emergency Room doctors. This is when a conscientious health plan enrollee travels to an in-network Emergency Room (often bypassing out of network Emergency Rooms along the way) only to discover, at the time of billing, that the Emergency Room may have been in-network but the independent contractor physicians employed there were not and will be billing the patient at out-of-network rates.

Nicholas Bagley has written about the need to end these "abusive billing practices" and would have HHS invoke its authority to guarantee adequate networks to require Emergency Rooms to have a negotiated in-network contract with plans sold through the exchanges. The problem with that is that, last time I looked, only seven million Americans are insured through the exchanges. What about the rest?

Would better signage matter?  Would most Americans understand the out-of-pocket implications of a sign that said: "Be Advised: The Emergency Room Physician You See Here is Not an Employee of This Hospital"?  Given our current state of  health insurance literacy, I doubt it. For those with the resources, there is an industry of representatives who can attempt to thrash this out between you, your Emergency Room provider, and your insurer.

Of course what is really at stake here is a tremendous power struggle between Emergency Room physicians and hospitals over contract rates, each hoping to harness the consumer discontent with trick and trap in the Emergency Room to their positions at the bargaining table. Hard to say who will eventually come out the winner, though patients who may not even have access to an in-network Emergency Room contracted with an in-network Emergency Room physician in their network will be the out-of-pocket losers.

I wonder if all of this won't magnify hospital interest in acquiring more phsyician groups. And a little voice always makes we want to ask the many advocates for "patient education" if this was the kind of thing they were planning to explain to the American public? 

I recently had the privilege of hearing David Orentlicher talk on this subject.  I was particularly struck by his observation that the legal landscape on this issue has changed accompanied by no change in moral views. He asserted, in short, that this is no same sex marriage-type issue. David, distinguishes between physician aid in dying and euthanasia.

I have been wondering about his observation ever since and whether they accurately reflect popular moral reasoning and understanding.  And, today, along comes a Wall Street Journal article that contains a poll testing, in part, whether popular opinion distinguishes physician assisted dying and physician assisted suicide. You guessed it, many — but by no means all —  move away from approval of anything characterized in any way as involving suicide but support it by another name.

Now I have to wonder if this desire to re-categorize and to re-name isn't, in fact, a sign of the changing moral valence attached to certain acts.

Who else felt a shiver go up their spine when the CDC announced that any acute care facility capable of implementing strict infection control procedures should be capable of caring for an Ebola Virus case? Well, if you know anything at all about infection control success at U.S. acute care hospitals, this should have given you pause. Strict infection control in U.S. acute care facilities has not been our long suit.

When I made this observation in a talk  on health care quality at the University of Toledo School of Law's joint medical-legal conference ("Scalpel to Gavel") this past Friday, it provoked audible, if uneasy, laughter from the health care provider-heavy crowd.

The way I see it, the least well informed about health care (those who think the Ebola virus is naturally spread by airborne measures) and the best informed about health care (those who are cognizant of our astonishingly poor record on implementing infection control procedures) share a common fear.  

The Ebola Virus certainly makes for some interesting bedfellows.

Here is a remarkable interview with Peter Piot, reflecting on his role in the 1976 identification of the Ebola Virus. He tells an epidemiological story about the origins of the Yambuku Virus (Ebola Virus's working name until a group of researchers decide association with one place would be too harmful to Yambuku, then changing the working name to Ebola Virus in the mistaken belief the Ebola River was the closest river to Yambuku).

The catalyst for the virus's spread?  The Belgian-nun staffed Yambuku Maternity Clinic's consistent use of unsterilized syringes for vitamin infections given to expectant mothers appears to have provided the catalyst.  

Those in West Africa today who are distrustful of health care workers — often depicted as unsophisticated, uneducated people — may have tapped into this history.

 

 

 

 

 

 

 

I was asked to speak about international public health law to a class a few days ago. I chose the current flare-up of the Ebola Virus as my illustration.  You can see my ppt  Download International Public Health Law Test Case

This was a an international group with little public health law background so it was a great opportunjity to talk about the history of public health surveillance, reporting, and containment measures in the United States and elsewhere.  It also gave me the opportunity to discuss the not entirely glorious history of the use of quarantine and involuntary treatment. Finally, we learned about the WHO and its relatively recently revised international health regulations. Chastened by experience, the WHO has moved from an emphasis on containment and control at the border to a broadened emphasis on the adequacy of public health measures within a country or a group of countries as well as well as control at the border.

As I prepared my remarks, I came across J.V. Chamary's Ebola Outbreaks Visualized in Five Charts. Of course, we can only speculate as to why the 2014 Ebola Virus flare-up has killed so many with a virus that appears to be, relative to other flare-ups, less virulent.  

What are the socioeconomic pressures that push people to increased contact with disease-carrying animals and increased consumption of bushmeat? Jacques Pepin's The Origins of AIDS tells a compelling story about the HIV virus and colonialism, poverty and urbanization. Who will write The Origins  of Ebola? Will it be written and read before the Ebola Virus makes the jump from an episodic isolated disease flare-up to an endemic disease?

I love the phrase "shifting revenue landscape" to describe the demonstrable effects of Medicaid expansion on hospital admissions and revenue streams. Coined by Modern Healthcare, this is the industry's way of saying that Medicaid expansion is changing acute care hospital balance sheets with more Medicaid admissions and fewer uncompensated care (read: uninsured or underinsured) admissions.

A fair number of earlier anecdotal reports on the trend are now overshadowed by HHS's report on the Impact of Insurance Expansion on Hospital Uncompensated Care Costs in 2014, documenting the trend. The trend, of course, is most prounounced in Medicaid expansion states, as part of the great migration of the low income to expansion Medicaid.  

What's happening in those non-Medicaid expansion states?  Well, Medicaid hospital admissions are up as well — possibly an after effect of streamlined and de-stigmatized Medicaid enrollment — and uncompensated care delivery is down there as well, but by a much lower amount.

DISH payments will soon begin to contract in both Medicaid expansion and non-expansion states. Faciliities in non-expansion states that have long used DISH to fund the large number of uninsured at their gates, are announcing changed policies for eligibility for uncompensated care.

I imagine that is how Truman Medical Center ended up on the front page of the Kansas City Star on September 18th, after having announced that uncompensated care would no longer serve those with incomes up to 400 percent of the federal poverty level but, rather, assist only those with household incomes up to 200 percent of the federal poverty level.

"The Change was intended to motivate people to sign up for health insurance plans through the Affordable Care Act," the Star notes.  But then the article concludes without any direction as to how an individual might seek assistance with an application to purchase health insurance through  the federally facilitated exchange or, even, make an application for Medicaid.

A friend from Minnesota asks if I have heard of the "old" Medicaid rules on child support assignment being applied to  "new" Medicaid ACA-expanded  beneficiaties.  I

This, of course, is another dimension of the previous post.  New Medicaid beneficiaries may have had no reason before to be attentive to the fact that Minnesota's  Medicaid program has long dovetailed with Minnesota child support/medical support law to require a parent or caretaker applying for coverage to "cooperate" in  establishing paternity and obtaining medical support (children are not punished for the non-cooperation of the parent under these circumstances or if a "good cause" waiver is granted establishing cooperation would be against the best interests of the child).  Now they do. And they seem to be demanding  clarification of what "cooperation" means exactly under these circumstances.

Does this mean Medicaid's more draconian aspects will finally see the light of day in public debate? Will the inclusion of working poor people create a constituency for a Medicaid program that does not dovetail with child support/medical support frameworks — like that found in Minnesota — apparently premised on the idea that Medicaid beneficiaries are getting something for nothing and payback is our mission? What is it that we want Medicaid to be now that we have made it the insurer of last resort in expansion states?

As I have discussed elsewhere, we are conflicted about Medicaid so it is no surprise that the ACA is conflicted about Medicaid. Most particularly, the ACA does nothing to alter state discretion to seek state recoupment of Medicaid costs from Medicaid beneficiaries who received basic medical services through Medicaid at or after the age of 55.

No, I'm not talking about Medicaid recoupment of nursing home costs but, rather, recoupment of basic Medicaid medical costs.  This, in some states, is old hat. California, New York, Massachusetts and others have been recovering funds from the estates of 55+ Medicaid beneficiaries who received basic health services under the program for decades. But now that the reach of Medicaid in these Medicaid expansion states is broadening Medicaid eligibility to greater numbers of citizens with assets (read: the family home) the tension between Medicaid's historical status as a program where, to some extent, the benefit is returned to the government and its re-invented status as the health insurance provider of last resort for those too poor to shop throught the exchanges is made manifest.

So, which way will we have it: urge Medicaid enrollment on the newly eligible in the 55-65 age group (what AARP calls the pre-Medicare eligibility age group) as the insurer of last resort for those priced out of the commercial marketplace but only at the cost of future recoupment or leave this group increasingly detached from employer sponsored health insurance, clinging to the family home but willing to defer care until Medicare eligibility at 65?

Interestingly, not everyone likes the choice these 55-65 year olds are being put to — hence the recent kerfuffle in Oregon and the impending one in California. But few commentators note that this is simply the application of a rule that far pre-dates the ACA to the expanded population. Of course, the expanded population is, as I have also noted, far more likely to build a consitutency for Medicaid in the way its core recipients never have. So, now it is an issue.

David Orentlicher has an interesting post over at the Faculty Lounge discussing insurance studies of cities with the "riskiest drivers" sparking a meditation on medical error reduction system-design in health care.

I, too, think about analogies between driver error and medical error. First, it is useful to do so in the classroom because — simply — most of my students have driven an automobile but many fewer are licensed health care professionals. This means they are more likely to have had experience with their own near misses in the driving context and had reason to ponder poor design and proper allocation of risk and responsibility on the road. Second, it is useful to do so because it allows me to talk about how our cultural values — whether based on individual responsibility and fault or group responsibility and shame — inform our medical-legal system for dealing with medical error.  And, finally, I like to use the analogy to driving risk and responsibility to get my students thinking about how some societies have decided "less is more" in the organization of roadside warnings and guidance and how that might play out in our attempts to reduce medical error.

I like David's post, but it is in the comments that the truth about Boston driving is outed: there we have the perfect storm of a culture of agressive driving combined with congestion enhanced by an inner city road system designed before the automotive era. My days of working in downtown Boston (on Beacon Hill) were filled with remembrances of cars full of tourists usually driven by a shell-shocked driver pulling up to me as I would cross Park, or Beacon, or Tremont to ask me where they might park to walk the Freedom Trail. I would tell them: almost every street here is one-way and legal parking is unbelievably scarce, you may do as the Bostonians do and park illegally or drive back out of the center city to park at a T Stop and use mass transit to approach the central city. But, of course, it was error even to drive into the city before they backed out — incrementally adding to the congestion, pollution, and shortened life span of the stressed-out driver.

Now, what's the medical error equivalent of congestion pricing or rewarding those who don't even contribute to the near occasion of error?