Author: Ann Marie Marciarille

Missouri is the only remaining state without some form of prescription drug database used to screen for those obtaining excess prescriptions for addictive drugs.  We even made the New York Times for our intransigence in the face of pressure for Missouri to create some form of prescription drug database from elected officials in bordering states and even from the St. Louis-based manufacturer of oxycodone, Mallinckrodt Pharmaceuticals.

Missouri State Senator Rob Schaaf, a family practice physician from northwest Missouri, has been the chief opponent of legislation advanced, multiple times, to create some kind of database. Liberty and privacy interests, from his perspective, need to be advanced over all. Prescription drug addicts need to be eliminated from the gene pool.  

What is unclear to me is how fostering the operation of pill mills to serve prescription drug addicts in the four state area will do anything to improve the gene pool. Many prescription pain relievers mimc the body's natural pain-relieving functions. These natural pain-relieving functions are necessary to our survival — we need them in the gene pool. Opportunity and access play some not inconsiderable role in turning necessary survival of pain mechanisms into addiction.

Is it "addiction as choice" theory that  underlies a world view that says easy access to prescription drugs plays no socially cognizable role in increased rates of addiction? Or, is this kind of Missourian isolationism — telling all boundary neighbors they are wrong on this issue and need to revise their thinking to bring it in line with that of their free-thinking Missouri neighbors– the fullest flowering of robust federalism as well?

CMS has been struggling with the issue of whether, under the relatively new Open Payments Program, to require public disclosure of corporate sponsorships of continuing medical education programs. CME, under the original iteration of the Open Payments Program (a/k/a the Sunshine Act) was given a pass on sponsorship disclosure requirements.

After all, what's not to like about CME? Who doesn't like physician education? The CME Coalition (a trade group) likes it a lot. 

CMS, apparently, is liking non-disclosed sponsored CMS less, as witnessed by the proposal to eliminate the exclusion from the Sunshine Act. Or, maybe it is that CMS is not liking the self-disclosed attempts by the CME Coalition to stretch the list of accrediting bodies entitled to offer CME inside the Sunshine Act exemption.

I am not unsympathetic to an industry on the ropes.  The Sunshine Act is only one manifestation of a movement toward decreased drug and device-makers' financial support for CME.  This is an industry feverishly trying to re-invent itself in the face of public clamor.

Informally, I track the most common questions I am asked about health care law and regulation. Not a leader by any means, but coming on strong is: " How did my physician come to recommend the drug/device they tell me they recommend exclusively for patients like me?"

How, indeed.

WellPoint is re-branding. Or, more accurately, WellPoint hopes to re-brand pending shareholder approval. WellPoint is the behemoth of the for profit commercial health insurance market in California. Branding under WellPoint, it seems, is a better way to approach individual health insurance product consumers purchasing through the exchanges or through privately operated marketplaces. It is curious that WellPoint (37.3 million members as of June 30, 2014) has become the agressive market entrant in the ACA health insurance exchanges after having been such an agressive opponent of the ACA.

And Anthem is a brand with its own less than sterling associations — 2007 rescission problems and 2010 rate increases– both of which, unwittingly or not, served to advance the cause of the ACA in California.

And so we have it: ACA opponent and ACA architect re-inventing their brand as a consumer-oriented investor owned managed care company. And, yet, those names resonate.

Rebecca Morgan has an interesting post about a series of interactive maps illustrating the demographics of aging in the United States. These may be found on the Governing website. 

I find this kind of stuff fascinating for a whole lot of reasons (the tax implications of the great migration to states lacking personal income tax obligations, for example) but, most especially, because it illustrates that the burden of supporting aging seniors is not evenly distributed between and among the states. In fact, the age demographics of a state like Florida always make me think about the data set I can never seem to find: yes — as the Governing text points out – many northeasterners continue to retire to Florida but a marked number of the truly aged reverse migrate later on to die back at home.  And so, who really bears the services and dual eligible Medicaid burden — those states that host the active elders or those that receive the truly aged back for the most expensive end years when all the truly aged seek is to be close to  family and home?

Now, that's the paper I would like to read.

Here's to Dr. Marjorie Sirridge — a remarkable woman in every way. Her favorite quote:

The D.C. Circuit Court of Appeals has ruled today, in Sissel v. HHS, that the origination clause does not prevent Congress from lawfully designing the ACA to expand health insurance coverage and, incidentally (after NFIB v. Sebelius) also raise tax revenue. Quoting here:

The purposive approach embodied in Supreme Court
precedent necessarily leads to the conclusion that Section 5000A
of the Affordable Care Act is not a “Bill[] for raising Revenue”
under the Origination Clause. The Supreme Court’s repeated
focus on the statutory provision’s “object,” Nebeker, 167 U.S.
at 203, and “primary purpose,” Munoz-Flores, 495 U.S. at 399,
makes clear, contrary to Sissel’s position, that the purpose of a
bill is critical to the Origination Clause inquiry. And after the
Supreme Court’s decision in NFIB, it is beyond dispute that the
paramount aim of the Affordable Care Act is “to increase the
number of Americans covered by health insurance and decrease
the cost of health care,” NFIB, 132 S. Ct. at 2580, not to raise
revenue by means of the shared responsibility payment. The
Supreme Court explained: “Although the [Section 5000A]
payment will raise considerable revenue, it is plainly designed
to expand health insurance coverage.” Id. at 2596 (emphasis
added); see id. at 2596–97. 

I am glad the court has apparently nailed down the paramount aim of the ACA for the origination clause's purposiveness analysis. I can't help but wonder if this analysis might not be relevant in other ACA-related litigation.

Some of you may also have  been tracking the King v. Burwell and Halbig v. Burwell cases as they have worked their way up to the 4th Circuit and D.C. Circuit, respectively, on the question of whether government tax credits for exchange purchases should only be available to states with state established and operated insurance exchanges and not to those purchasing through the federal exchange. The IRS has interpreted Section 36B broadly to authorize the subsidy for insurance purchased under the federal exchange.

In some ways this is a dispute about administrative law (and laugh I did to see the King opinion forwarded to me first by fellow law professors under the heading "the other shoe drops" only to be followed two hours later by the Halbig opinion — anybody else hear the third shoe dropping?) and agency interpretation of Congressional intent in the face of inartful drafting. In another way, of course, this case is about trying to bring a referendum on the ACA back before the Supreme Court or, at the very least, to deny the annual renewal of previously provided government funded subsidies for approximately six or seven million Americans who purchase through the federal exchange with federal subsidies.

If you can't answer that one easily, you are not alone.  But those of us who reside in the "Show Me State" better get working on it because Missouri has just passed legislation allowing medical school gradutes who have not completed residency to treat patients in underserved parts of the state.  What do we call that? Well, one thing we call it is an "assistant physician" license that may only be exercised in collaboration with a licensed physician, sort of like the confusingly similarly named physician assistant.

What's the difference? You most definitely do not have to be a medical school graduate to be a PA, though you do to be an AP. You may not call yourself "doctor" when introducing yourself as a PA (though, this gets complicated if you are a PA with a PhD) and you may, in fact, introduce yourself as "doctor" when working as an AP.

Is it you say potato and I say potato time or is something else at stake here?

First, PAs are understandably uneasy about APs.  After all, if a practicing physician can have another "doctor" in collaborative practice with them in their office, just what was your role again?

Second, just how nuanced will the presentation of the AP doctor be or would it be reasonable to think that patients will latch onto the introduction by the term of "doctor" to indicate their quality concerns are met?

Third, so just what use is one year or so of internal medicine medical residency to someone planning to move into primary care or is one year of collaborative practice a fine substitute?

The question I really want answered is why the Missouri legislature might think there would be a good source of APs in the "unmatched" recent medical school population in and around Missouri.  What is going on with the "match" process, that there would be enough potential AP candidates to begin to resolve Missouri's rural health care crisis? The conventional wisdom is that recent medical graduates don't match because they have over-estimated their attractiveness to certain highly popular residencies (hint: internal medicine is not on that list) or over-estimated their attractiveness to certain geographic regions of the counry (hint: rural Missouri is not on that list).

So, if I have this right, the Missouri legislature has identified these perennial over-estimators as likely candidates for careers in rural primary care? I am not saying there is not an increasing population of un-matched medical students.  In fact, the numbers of the un-matched are up by all accounts. When you allow the number of medical school seats to grow but do not increase the number of federally funded training spots for those medical school graduates, this kind of thing happens.

But trolling among the disappointed most highly coveted specialist candidates for wanna-be rural primary care physicians is an interesting take on opportunistic hiring. 

Berkeley California has been agonizing for years about whether to authorize a fourth medical marijuana dispensary within city limits. The City Council's deliberations on this are always interesting, particularly involving the distinction between coops and dispensaries and the grandfathering in of certain entities. So, whatever the number and configuration of Berkeley's medical marijuana facilities, more do appear to be in the offing.

What really caught my eye was the recent decision to require the dispensaries to offer a fixed amount of charity care (free medical marijuana to individuals)  – two percent of the facility's income — to individuals below a certain income level (one half the median Berkeley income or $32,000 for an individual). Aside from the medical marijuana connection, what is really remarkable about this is the relative clarity about who the deserving poor are and what each facility's fair share is. I say this because, all of the brouhaha surrounding revised IRS Form 990 Schedule H, still leaves other medical facilities pretty much to self-determine their fair share of charity care, as each facility so defines it. California's OSHPD is interested in this data as well.

Could it be that the medical marijuana industry shall lead them?

Here's a link to a picture of the Richmond Field Hospital, circa 1942

This Kaiser Field Hospital was built to calm the fears that comprehensive health insurance would not be sustainable for Kaiser employed families under either a Kaiser employee family health plan or a proto-typical Blues plan because of the lack of necessary facilities and providers.  Those most afraid appear to have been local independent practitioners wary of the Kaiser employed physician model.

Here's the facility today (no longer in Kaiser hands but part of my "Important Health Law Sites of California" tour):