Author: Ann Marie Marciarille

On April 17, 2014, the New York Times bleated the alarm that “some of the most influential medical groups in the nation are recommending that doctors weight the costs, not just the effectiveness of treatments, as they make decisions about  patient care.”

This is important, but is this news?

Wasn’t it the very same New York Times that, only several days earlier on April 9, 2014, trumpeted the release of the Medicare Billing Data Set providing “an unprecedented look at the practice of medicine across the country, shedding fresh light on the treatment decisions physicians and other practitioners make every day”?

 Here we have two perspectives on the same issue. First, the April 9^th article focused on health care provider reimbursement (influencing treatment decisions) and then the  April 17^th article focused on society wide costs of treating without an eye to cost (now coming to influence treatment decisions).  Either way, though, “Cost of Treatment May Influence Doctors.”

The increase in treatment cost price sensitivity could be a good thing, in an era of shared decision making in the clinical encounter.   The April 9^th version of physician reimbursement cost sensitivity appears to be documented by certain identifiable health care providers doing very well indeed on the Medicare prescription drug markup. This kind of price sensitivity — now revealed — might generate a useful conversation on the idea of capping or titrating the Medicare  provider-delivered prescription drug markup. Perhaps a more accurate headline would read: "Cost of Treatment/Reimbursement Rate to Providers May Have Already Influenced Doctors." Better to discuss than to feign ignorance. 

The April 17^th version of health care cost sensitivity  focused on a cost-benefit analysis of a particular treatment option, and looks behind the curtain of insurance to discuss the role price-inconsiderate treatment recommendations play in health care cost inflation. This kind of cost sensitivity conversation might generate a much needed conversation about the total health care spend reaching all the way back to medical school education where there is a  growing recognition of the need to include basic training in health care costs and health insurance in the curriculum.  Some schools, after all, have already begun.

Cost has always mattered.  Reimbursement to providers has always mattered.  Is it news because the New York Times says it is or because we are ready to hear it?

 

 

Posted here, apparently without trademark infringement, is MoveOn.org's satirical riff on Louisiana Lieutenant Governor's tourism campaign: Lou!is!ana: Pick Your Passion!

Putting aside the dizziness I feel from spelling Louisiana with exclamation points, how do I know this satire is legally permissible under trademark law?  Because U.S. District Court Judge Shelly Dick, as part of denying a motion for a preliminary injunction,  had to explain that the First Amendment permits such satirical riffs (so long as there is not undue confusion between the original message and satirical riff) despite Lieutenant Governor Jay Dardenne's concern that Louisiana residents would confuse the satirical billboard with a statement of his own sentiments. As the court noted: "In other words, is a motorist viewing the billboard likely to conclude that the State of Louisiana is criticizing Governor Jindal. The Court thinks not."

But you be the judge.

Although various versions of New Hampshire SB 413 have been circulating for some time, it was not until this month that a deal really seemed to come together: that Medicaid expansion under the ACA would take a stepped approach and that some measure of bi-partisan support for SB 413 would make it real. This has been tremendously interesting to observe.

First, we see the New Hampshire-style decision to expand Medicaid under the ACA as soon as possible under the Bridge to Marketplace Premium Assistance Program. Essentially buying in to ACA Medicaid expansion as outlined in the ACA (extending eligibility to adults with incomes up to 138% of the federal poverty level) but sunsetting the expansion on either June 30, 2015 or December 31, 2015 while the state seeks the federal waiver necessary to establish a premium assistance program.

Second, we see the outlines of a Marketplace Premium Assistance Program designed to drive this same population to insurance coverage in the Federally Facilitated Exchange between January 1, 2016 and December 31, 2016.

Finally, we see the requirement that any continuation of the ACA Medicaid Expansion after December 31, 2016 would require further legislative authorization.

I have been reluctant to conglomerate all the of the Medicaid privatization proposals together, because they are, in fact, quite diverse. I think of Medicaid Premium Assistance Plans as an umbrella term, as a result, with the Arkansas Option as a description of a privatized approach, in general, but with mechanics peculiar to Arkansas. These mechanics are well described in Sidney Watson’s recent paper on Medicaid, Marketplaces, and Premium Assistance: What is at Stake in Arkansas?

What interests me about the New Hampshire solution is its act now and sunset later approach.  This is an approach that may have purchase in other states.  Rather than let the ACA Medicaid expansion 100% FMAP slip away, other states may seize the opportunity while also, like New Hampshire, reserving the opportunity to conduct an experiment of privatized expansion that would likely inform the ongoing debate likely to take place around December 31, 2016.

Lawrence Jacobs and Timothy Callaghan have a recent paper on Why States Expand Medicaid: Party, Resources, and History that considers whether the past is prologue on Medicaid expansion, as I have argued elsewhere. They test whether certain political contexts promote Medicaid expansion (they do) and whether something they call “State Medicaid Policy Path and Medicaid Implementation” matters (it does).  The former is no real surprise; political dominance creates a self-reinforcing position on Medicaid expansion.  But the latter is most intriguing.  Jacobs and Callaghan note  that a state’s Medicaid policy path may evolve over time, as voting and activism constituencies grow, producing politically engaged beneficiaries as a by-product of wider access.

When I talk about Medicaid expansion, I sometimes talk about building a constituency for Medicaid (often alluding to the same transformative voting patterns for seniors before and after the establishment of Social Security, during its early precarious years). I have argued, in my forthcoming paper, The Medicaid Gamble, that this constituency building function of Medicaid may have been the biggest gamble of all. I would suggest that, if it can be done, it may begin in a state like New Hampshire with the New Hampshire Solution.

x-ported at: http://lawprofessors.typepad.com/healthlawprof_blog/

 

 

A purchasing alliance among hospitals interested in quality improvement is reported [1] to have developed a “waste index” for participating facilities, designed to give them information to eliminate waste while maintaining a high level of care.  Articles that sound a little like press releases do not usually get that much of my attention, but I read on because the lead example of savings from the application of the “waste index” nearly took my breath away.

At four Adventist Midwest Health hospitals, for instance, patients with asthma and other respiratory conditions were often treated with prepackaged metered-dose inhalers. By switching some to equivalent generic drugs delivered via a nebulizer that turns medications into a fine mist for inhalation, Adventist shaved $100,000 in costs last year. [2]

What’s not to like? Opposing the elimination of waste – at least in theory — seems almost un-American. What gives me pause, however, is considering the relationship of this “waste” example and the two fold goal of hospital-based asthma treatment: symptom relief and training the patient in better disease-management. Symptom relief, in an emergent or urgent situation, quite reasonably takes first place. But once symptom relief is underway, health care providers should be reverse engineering the circumstances that brought an individual to a hospital emergency department with an asthma attack, for example, because emergency department visits for asthma attacks ought to be but are not the low-hanging fruit of preventable emergency department use.

Asthmatics typically use maintenance inhalers on long-term predictable daily dosage/utilization rates. Rescue inhalers, by contrast, represent a study in contrasts where utilization rates vary widely from multiple times a week to single times a month for each user.  Rescue inhalers are not predictably scheduled prescription refills. Their efficient use requires an element of self-care by the user and requires a level of pharmaceutical savvy, for rescue inhalers appear to be working when they are not [3] and do not, typically, have built-in dose counters. [4] One study  [5]reportedly surveyed identified asthmatics where nearly half reported having an empty rescue inhaler in hand during an asthma attack.

Here we have the two-sided problem of less expensive, generic rescue inhalers lacking built-in dose counters that are favored by most health insurers prevailing in formulary design over the more expensive branded rescue inhalers with built-in dose counters. This is a problem long in search of a solution. [6] The FDA, in fact, requires new rescue inhalers to have dose counters but grandfathers in existing products while asthma deaths continue to rise and astonishing data emerges about the percentage of asthmatics using empty rescue inhalers in an emergency. Here we also have the problems of sophisticated consumers responding through organized waste by discarding half empty inhalers. Our problem, in search of a nudge or series of nudges, is one both of underuse of rescue inhalers  by certain segments of the population and of overuse or waste by others.

And all of this is now, apparently, to be complicated by emergency departments that focus on cheaper symptom relief supplies at the cost of failing to stock the best, most effective, and arguably cheaper to the entire health care system metered dose with built-in dose counter rescue inhalers. The former are cheaper to the hospitals in their symptom relief function but more expensive to the patient as an inadequate device to use to train better asthma management.

I have written elsewhere about the almost irresistible compulsion to cost-shift within our badly integrated health care system. [7] I do have to wonder whose waste we are monitoring here.

 

x-posted at http://lawprofessors.typepad.com/healthlawprof_blog/

 

Well, that is how the Wall Street Journal described the March 3, 2014 grant of certiorari in North Carolina Board of Dental Examiners vs. Federal Trade Commission, anyway.  And it is a case about teeth-whitening services in North Carolina, in particular, but it is also a case about whether the North Carolina Board of Dental Examiners violated federal antitrust law by banning non-dentists from offering teeth-whitening services in the state.

The question the case raises is one that haunts all health care provider dominated medical boards. Poised at the intersection of our long tradition of state deference to medical provider self-regulation and the realities of increasing competition, in the dental arena, for lesser credentialed or non-credentialed providers of cosmetic dental services, this case is one to watch.

Teeth-whitening products and services have a long history. Though modern bleach based products are not without their controversy they are also big business. Do-it-yourself teeth-whitening, launched by Crest White Strips at the turn of the century, has grown into an industry that still contains a strong do-it-yourself component as well as a dental office-based component as well as a freestanding cosmetic teeth whitening center component. You might say this case is at the intersection of all three of these.

Traditionally, each state’s statutory licensing system defines dental services for itself. You may not be surprised to learn that teeth whitening, bleaching, and stain removal are particularly called out as dental services in some states while others remain silent. In what one author calls “license creep” the state by state addition of teeth whitening services to the medical dental portfolio has been a marvel to behold. You may also not be surprised to learn that freestanding cosmetic teeth whitening centers in some jurisdictions are fighting for their livelihood.

It is estimated that 85 million Americans lack dental insurance. Most dental insurance plans do not extend coverage to cosmetic teeth-whitening, but lack of dental insurance across a wide swath of American society has trained us to be astute shoppers for dental services of all kinds. No wonder, then, that people of all demographic profiles are interested in obtaining dental services (cosmetic and medical alike) in a low price venue.

There are lessons to be learned here on price sensitivity in other aspects of health insurance but knowing this about dental services (cosmetic and medical alike) will help you to understand how cosmetic dental services may be the cash cow that keeps some dental clinics afloat.  Not unlike the dearth of dermatologists available for speedy removal of a suspicious mole as compared to the number available to offer “med-spa” cosmetic services, teeth-whitening may be the tail wagging the proverbial dog in dental practice management.

What can we anticipate from the Supreme Court? First, it is time for some badly needed clarification on the application of the California Liquor Dealers v. Midcal Aluminum test for state action immunity to health care provider governed licensing entities. Second, look for some interesting language on the nature of health care provider self-regulation. Finally, know that this is not the only example of health care “license creep” at hand. Whichever way it breaks, this case will have resonance.

x posted at http://lawprofessors.typepad.com/healthlawprof_blog/

 

I tip my hat today to emerging scholar and student Jaime Whitt at K.U. for her student-authored post at the Wolters-Kluwer Winter 2013 Law School Legal Scholar program blog.  She gets it just right when she concludes that what Medicare is reluctant to reimburse for is the conversation we most need to encourage.

My all time favorite observation on Medicare end of life health care planning is the resourcefulness of providers who provided the unreimbursed service and reported privately that they billed it to marital counseling.

I commend to you Amy Ziettlow's Seniors in CasinoLand:Tough Luck for Older Americans.

I have wondered about the attractions of casinos for the 70-80 year old crowd. That's the crowd she finds in the several Casino Lands she visits, where folks go to get out of the house once they are old enough to need to have significant accomodations made for them as they attempt to carve out a  social life outside of their homes.

Amy Ziettlow got interested in seniors in Casino Land  because she was urged to by someone who offered insight on where the young-old spend their days,  but you can't spend much time in Kansas City before you think about who must be visiting KCMO's casinos mid-day on weekdays. And you can't spend much time in Oakland and the East Bay before thinking about all the billboards for free buses for seniors to Casino Land directly from Chinatown and other neighborhoods. I suppose you could say her eyes were opened and now she wants to open ours. Some of us have had our eyes open for a while, but are still trying to understand what we are seeing.

Ziettlow's piece implies seniors are there because they have few other places to be and that slot-machine playing is a solitary, isolating activity serving as a metaphor for their lives. They are in Casino Land, in short, because it welcomes them and then anesthetizes them from thinking about how much of their lives are dedicated to killing time. The much-discussed suspension of time in casinos may be particularly attractive to a group both acutely aware of the passage of time and simultaneously disturbed to have so much free time. She is astonished at how many amenities and services catering to older age and infirmity are offered by casinos.

Her piece ends abruptly, however. I wish she had said more. In fairness, the Institute for American Values may be planning follow up work. But I have to wonder if Ziettlow's astonishment at the accomodations offered seniors in Casino Land are remarkable only because we  offer surprisingly little accomodation to those aging into infirmity in other settings. I also have to wonder if she has fully explored the Casino Land experience when she focuses only on the experience inside the Casinos, disregarding the camaraderie of the bus trip and the lunch break. Many seniors are hungry for the communual experience of "the outing" as they call it. Why are these not available in more venues?

Finally, I would like to hear more about other venues that serve as "senior day care."  I wish she would explore the alternative roles played by many of our public and private  spaces in a society lacking communal care for many groups. For instance, if you've visitied a public library or public gym lately you are probably aware of the day care or day programming for middle school students , the formerly institutionalized, and even seniors that take place there. Is this a good thing? Is it a bad thing?

I commend to all of you Jagadeesh Gokhale's policy brief "Should Kansas Expand Medicaid Under the Affordable Care Act? A Perspective on Weighing the Costs and Benefits."  The most interesting part of his paper is where he compares current and projected Kansas adult Medicaid enrollment for what he calls old-law eligibles and the newly eligible.  Along the way, he notes that "[e]stimates for the number of currently eligible but not Medicaid-enrolled individuals range from 20,000 to 162,000 [citations omitted]" — a number that could actually exceed the estimates for potential new Kansas Medicaid enrollment from Medicaid expansion.  

The astonishing fact is that  currently Medicaid eligible adults in Kansas have a take up rate of roughly 50-60 percent. Once you compare that with Medicaid take up rates that exceed 70 or 80 percent in a state like Massachusetts, you have to ask the hard question about just how hard a state like Kansas has been working to enroll the currently eligible in Medicaid or, alternatively, how hard a state like Kansas may have been working to keep its Medicaid take up rate for elgibile adults at current levels.

As Sommers et al have noted in studying adult Medicaid take up rates, the more generous the coverage, the higher the enrollment rate. Beyond that, the use of asset tests is associated with lower take up just as the use of a common family application is associated with higher. Generosity matters. Hassle matters. But there is more to it than that.

Most interesting of all is the fact that Medicaid take up increased dramatically in Massachusetts after the implementation of state specific health care reform — not because some Massachusetts citizens were required to enroll in Medicaid. They were not. No, the fact that some thought they were obligated combined with the fact that others became educated about their eligibility to produce record high Medicaid take up rates for adults in Massachusetts.

So, when I read a report, like that authored by Jagadeesh Gokhale, indicating that the budgetary goal of keeping currently elgibile adult Medicaid take up from increasing, I wonder just what game is being played. Is it ACA sponsored Medicaid expansion that is, arguably, fiscally irresponsible or is it the ACA's Medicaid outreach to the currently eligible that is so troubling? And if developing a culture of coverage is fiscally inadvisable, why not just say that?

Seniors are on notice that they, or their caretakers, must be vigilant in attempting to determine their hospital admission or non-admission status at the Emergency Department. I have written elsewhere about what hangs in the balance but, now, with the promulgation (but delayed implementation)  of the "two-midnights" Medicare acute care reimbursement rule, observation-only admissions are likely to skyrocket.

This only re-enforces that Emergency Departments are no place to navigate alone. If you are not well, who will question providers closely about your admissions status? Who, indeed, will help you read New York's new administrative notification about the difference between admitted status (Cinderella) or observation status (pumpkin)? After all,  the ED is an excellent venue in which to exercise consumer choice, say when you are experiencing chest pain.

Friends don't let friends go to the ED alone.