Author: Ann Marie Marciarille

One of the best things about the summer is that it gives me more time to study health care business trends, in particular health care provider contracting practices.  But I didn't have to work at all to find out something about the latest conflict bewteen CMA and Tenet.  CMA has publicized its June 16, 2014 letter to Tenet objecting to Tenet's reported plan to end all local provider contracting for hospital based anesthesiology, emergency department, and hospitalist based services at Tenet's 11 California facilities, replacing these providers with "multistate corporations based out of California."

This is an old dispute, in some ways, but it has been intensified  in some places by what may be behind-the-scenes negotiations about collaborative practice with nurse anesthetists and anesthesiology assistants. I have no secret information on what is going on between CMA and Tenet but I would be surprised if a move to a team practice making heavier use of less expensive nurse anesthetists and anesthesiology assistants were not part of the discussion. No less than the American Society of Anesthesiologists has noted the move to facility employed anesthesiologists. When this happens, anesthesiologists may be pressed to accept compensation below their billing or reimbursement rate. I have a feeling this may be on the table as well.

Here's an early Kaiser Shipyard solicitation for Kaiser's employer-sponsored health insurance. Note the price at fifty cents per week. Seems like, during World War II, it was your patriotic duty as a Kaiser shipyard employee to enroll. 

Lots of other cool Kaiser Shipyard health plan history and information to be gleaned at Rosie the Riveter World War II National Historical Park in Richmond, California.

The California Supreme Court has ruled, on a question certified by the 9th Circuit Court of Appeals, under California law, that "Target's common law duty of care to its customers does not include a duty to acquire and make available an AED for use in a medical emergency."  Forty nine year old Mary Ann Verdugo died of sudden cardiac arrest while shopping in a Pico Rivera, California Target in 2009 and her family is persuaded timely access to an AED by store employess or bystanders might well have saved her life.

Interestingly, this is not a ruling on a statutory requirement for big box retailers to acquire and make use of  an AED but a claim that failure to do so is a breach of common law duty of reasonable care owed to business invitees. California state case law contemplates that a business owner owes some duty of aid to a customer who suffers sudden cardiac arrest on the business property but the Court was not willing to expand this to include the acquisition and use of an AED.  In fact, the Court declined to address whether that business owner duty required anything at all beyond summoning the authorities. The part of the opinion addressing the bad fit between the argued-for duty and the big box retailers targeted is interesting in and of itself. Presumably, California's statutory requirement that health clubs have such equipment on site is on the other side of this good fit requirement although I do wonder about the data behind that.

Of course, a legislative approach is possible — indeed  identified by the  California Supreme Court as one potential route to law reform on this issue. Oregon, for example, has taken this statutory approach which targets "places of public assembly" and not only big box retailers, though the latter may be some of the most significant places of public assembly in modern American life.

The opinion also contains  a considerable discussion of liability concerns, given that California does include the use of AEDs in its Good Samaritan statute, provided there are trained users and the AED equipment is regularly maintained, among other things, that indicate the mere presence of an AED on site would not be sufficient to garner this protection.

A few articles discussing this case make much of the fact that, at least at the time of Mary Ann Verdugo's death, it was reportedly possible to buy an AED from Target online for a $1200. This tells us only that Target Corporation knows what an AED is and what its retail price may be and not that an AED was even present in the Pico Rivera Target on that day in 2009. Indeed, one was not, Target having presumably completed the kind of cost-benefit analysis the Court declined to preclude.

The Verdugo family has suffered a terrible loss but the remarkable opinion would have been if this case had gone the other way. AEDs, interestingly, are still considered too expensive, too unusual, too difficult to operate, and too unpredictable in their performance to be considered standard rescue equipment  on the list to be owned and maintained by a business owner. But, then again — if you read the Verdugo case carefully — there may be nothing on that list.

California Assembly Bill 1838 has caught my eye as evidence of one attempt to accelerate the medical eduation and training of would-be  committed primary care physicians in California. Jointly promoted by the University of California and the Medical Board of California, AB 1838 allows medical school programs of a shorter duration than four academic years or 32 months of actual instruction  to be certified as sufficient for licensing in the state.

What's driving this? UC Davis is just about to enroll its first students in its new Accelerated Competency-Based Education in Primary Care Program this summer and someone must have noticed that actual medical education duration requirements are outlined in the California Business & Professions Code. Seems like a modest fix for a modest experiment, so you won't be surprised to learn there is no opposition and all the big players are in support: UC, MBC, Kaiser Permanente (Did I mention that the new Davis program contemplates these students doing their clinical work at either a UC or KP primary care facility and accelerating right into a post-graduate program with these entities as well, side-stepping participation in the dreaded match process?).

I like it too.  Experiments in accelerated professional education in medicine have been underway for some time but have been slow to spread. Perhaps ACA-driven demand for more physicians will help to drive greater experimentation in this regard.

Still, so far as I can tell, this new program does not discuss the eventual placement of these new providers.  Primary care physician supply is not evenly distributed in California — not by a long shot. I know Davis has an interesting (but modestly sized) rural primary care physician educational program. So who is studying how to dovetail the two?

There's an old joke that although you may want to be sure to complete your own end-of-life health care planning with  some form of advance directive what you may really need to do is ask to see your doctor's advance directive. The knowing laugh that follows the joke is based on the observation that your own advance directive is only as good as anyone's willingness to implement it. And, it turns out, that your doctors may have some say in that.

For what it is worth, I know of not one reported case involving a determination of liability against a health care provider (individual or institutional) for refusal to implement an AD.  There are reported cases involving questions of under-treatment, so I can understand where the liability-sensitive feel the push to err on the side of invasive treatment.

Today, someone sent me a link to a recent study that indicates asking to see your provider's AD might not be enough. You might, in fact, want to ask what that provider's standard procedures are in certain circumstances because there is some evidence that your provider may not give you what they would ask for themselves, but end-of-life care that is more invasive.

What an odd situation: the one receiving care not wanting that level of intensity and the one providing care not wanting that level of intensity for themselves but wanting it for you. It is as if the doctor-patient relationship has no meaning except in the context of larger concerns about liability, reimbursement, and fear of failure.

Doctors are not alone as potential thwarters of ADs. Divisive families are often noted as potential derailers. I often tell people that completing the AD is not nearly as important — or difficult — as the conversations that must follow with family, friends, and providers because this is where the rubber meets the road.

The American Hospital Association has filed a mandamus complaint to force HHS to honor its statutory Medicare claim appeal deadlines.  According to the AHA, there is a current backlog of 460,000 Medicare claims appeals in the system, essentially creating gridlock for all Medicare beneficiary appeals at the fair hearing stage in front of an administrative law judge. This is concerning for any individual Medicare beneficiary claim appeals caught in this mess but certainly caught my attention vis a vis hospitals as well.

What caused the bottleneck? The AHA points to the flood of recovery audit program claims on appeal — with 192,000 RAC claim appeals filed in 2013 alone (up from 20,000 in 2007).  Of course when you consider the fact that the RAC program has only been in full flower for a few years, comparisons to 2007 data may not be the most instructive.  What everybody does agree on is that the number of ALJs handling these matters has not been significantly increased during the run up to the current backlog.

Recovery audit procedures are the part of fee for service Medicare (and, under a different program, Medicaid) programming designed to retrospectively identify Medicare overpayments and underpayments to providers as a sort of budget reconcilliation process.  Kicking around for close to a decade, recovery audit has only fairly recently been rolled out nationwide. CMS contracts out for each of the four regional RACs and compensates the RACS on a commission basis where RACs receive anywhere from 9-12.5% (as high as 17.5% for durable medical equipment).

What went wrong? Part of it may be the original plan appears to have been to monitor appeal and reversal rates in the hope that they would actually spike in the beginning and then move on a downward trajectory as both providers and RAC reviewers became more familiar with the program. Well, the monitoring has taken place but the downward trajectory in appeals, not so much. And I do have to wonder if the AHA-reported 72 percent reversal rate at the ALJ stage has something to do with this.

Most of the provider-generated appeals come from the primary targets of the RAC contractors: acute care hospitals. No wonder, then,the acute care hospitals are raising the hue and cry about appeal timelines.  Oh, and did I mention the recovery audit contractors get paid before the final resolution of the dispute (though those payments are themselves subject to a reconcilliation process of their own)?

The part that puzzles me is the AHA's implication that the RAC program is a kind of game of adminstrative "gotcha" because it uncovers inaccurate billing at a far higher rate than it does fraud. Actually, both Medicare and Medicaid have separate fraud and abuse laws for that. Even more, the kinds of billing and coding errors identified by RACs  are the meat and potatoes of Medicare overpayment. And their annual total recovery numbers are sobering.

Three acute care hospitals are also named plaintiffs in the mandamus complaint joined by the American Hospital Association.  Each of them is heavily Medicare dependent. This includes plaintiff Baxter Regional Medical Center with Medicare responsible for 65% of its gross revenue.  Putting aside the concern about the long term financial stability of a smaller hospital with this kind of payor mix and patient draw from a two state area — one of which is a non-Medicaid expansion state– it is possible to see how such a heavily Medicare dependent facility might mourn the loss of pay all askers and ask no questions Medicare.

But, whatever you think of RAC, that ship has sailed.

Last week, I participated in a lunch time panel discussing the Marlise Munoz case with Terry Rosell of Kansas City's Center for Practical Bioethics. My ppt from that panel is posted here.  So much ink and tears have been shed over Marlise Munoz that I doubted I could say anything original.

I did think it might be interesting (heck, even refreshing) to begin at the beginning — starting with the facts of the case as they are publicly known and then moving to the Texas death statute without immediately jumping to the Texas advance health care directive statute.  

The way I see it, the hospital's hesitation between the medical record notation of brain death (two days post admission)  and the official declaration of death (several weeks later and under a court order noting Marlise Munoz had, in fact, been dead for several weeks) is even more interesting than the curious case of pregnancy exclusions from medical advance care directives. And that's saying something.

The relevant Texas death statute provides what I describe as a whole lotta ways to be dead in Texas. First, it indicates you may be dead under Texas law under a conventional definition of cardiac death. Second, it indicates you may be dead under Texas law under a definition of what we know as brain death.  Third, it discusses the role of a physician in declaring death.  Then, the statute  also states, in a free standing sentence, that death occurs when the conditions of brain death are met. Period.  

Here's the language:

So, did the hospital keep Marlise Munoz legally "alive" by refusing to officially declare death in the form of a death certificate  in the interval between the hospital staff's medical chart  determination of brain death (reportedly two days afer emergency admission) and the court's order to declare her dead several weeks later?  Can you, simultaneously, be medically dead but not legally dead?  If so, for how long?

Of course, death is a cultural construct as well as a medical and legal one.  But, it is usually seen as a curious amalgam of these things and not a dispute over which triumphs.  The Texas death statute, in short, created space — with its multiple definitions of death and multiple indications of the effective occurence of death — for the Marlise Munoz dispute to even arise.

You should know that other states have similarly turgid death statutes, a legacy of the combination of historical artifact, non-uniform adoption of statutory language designed to advance a uniform definition of death, and our own ambivalence about whether death is a state of being best defined biologically or legally. 

Walgreens has been experimenting with bringing the pharmacist out in front of the counter in their stores — ostensibly for better customer access but, even more importantly, for better patient access now that pharmacies are health care delivery centers for immunizations, routine lab testing, etc. This has been going on for a few years in selected markets (New York City for one). But now we know it has reached Massachusetts because the HIPAA fur is starting to fly with union backed Change to Win initiating a complaint that the new physical layout makes personal individualized health information available to passers by in violation of HIPAA.  The new physical layout also appears to be based on a remote monitoring system whereby a pharmacist supervises pharmacy technicians who may not be in direct view, as they might have been when pharmacists worked cheek by jowl with technicians. You should know that Walgreens stores are overwhelmingly non-union.

it is reported that some state  pharmacy boards have concerns with safety issues inherent in this kind of alteration to the "direct supervision" standard.  At the very least, we can look forward to some clarification of what "direct supervision" means in this context and in this time. In a world where the delivery of health care in the acute care hospital setting is now routinely scrutinized by remote observers who then intervene when detecting error or the need for consultation, can pharmacies hope to remain immune from the changes happening around us?

Interestingly, much less is heard of the HIPAA compliance issues  –  many pharmacies reportedly having to be trained not to leave individual prescription records open to public view when organized by first initial and last name (BNA, 5/9/14).  As someone with a distinctive last name, this one hits close to home.

A friend forwarded me an article from Kaiser Health News that offers "a corrective to common misconceptions about who pays for health care."  I like the idea but I have some real problems with the execution. I was pretty uncomfortable by "misconceptions #3 and #4" on who pays for employer sponsored health insurance.

You see, the correctives to misconceptions #3 and #4 are themselves misleading. Focusing on employees' co-insurance costs and not their large contribution through reduced wages as well as the enormous contribution all taxpayers (insured and uninsured alike) make by offering tax-preferred status to the funding of employer sponsored health insuance makes me uncomfortable.

Who really pays for employer sponsored health insurance might surprise you, even if you write for Kaiser Health News, I guess.

Yesterday, it was my pleasure to offer an "ACA Update" to several hundred advance practice nurses (many of them certified nurse midwives) at their annual Women's Health Care Symposium.  Just as you might expect, I discussed access to contraceptives through preventive services for women under minimum essential benefits (the so-called "contraceptive mandate").  What you might not expect is that I also discussed access to contraceptives and reproductive services  for men under the ACA. Specifically, there has been considerable confusion about whether the ACA extends minimum essential benefits coverage for men to include vasectomies.

Vasectomies are not considered minimum essential coverage for men under the ACA. If this lack of mutuality troubles you, remember that men are not a protected class for equal protection purposes. Although the equal protection clause of the 14th Amendment is often popularly portrayed as requiring the government to treat all citizens equally, non-protected groups, such as men, have a much harder time making their case.  Not that I have found any litigation brought by men in this matter. Indeed, vasectomies are considered underutilized by those who scrutinize reproductive health.   You should also know that, before the ACA, of  health plans that offered surgical sterilization as a covered event, a full 10 percent did not offer it to men as well as women.

Why talk about vasectomies at a women's health care event? One reason to do so is because vasectomies, in general, are both safer and cheaper than surgical sterilization (think tubal ligation, etc.) for women. A second reason is to think about how focusing ACA reproductive services attention on women highlights the conflict inherent in  the modern clinical encounter's emphasis on treating only the patient before you when, in fact, the reproductive fate of a monogamous heterosexual couple — for example — may require examining the reproductive health options of both members of the couple. A third reason is to get my listeners thinking about how the way  we structure the allocation of reproductive health services both reflects and re-enforces our own cultural views on whose responsibility or concern limiting fertility really is.