Author: Ann Marie Marciarille

With eighteeen percent of American adults as smokers, it is difficult to miss the tobacco sale transaction. Sure, we zone out while in the checkout line while the process is delayed by someone seeking to purchase tobacco products from behind the counter. We tune it out.  Those of us old enough to remember tobacco product sampling on the streets still, occasionally, marvel at these gestures toward tobacco de-normalization. But, the line slows little because this transaction is most likley to take place in a gas station,where some 47.5% of American tobacco purchases are reported to take place. You see, the tobacco displays are in easy convenient reach of the centralized paying station in many gas stations.

From this perspective, it would be big news if gas stations announced their intention to stop selling tobacco products.  But, this month, the focus has been on the announcement by the CVS  drugstore chain (second largest, by number of outlets) to stop selling tobacco products. Since drugstores account for an estimated 3.6% of all American tobacco sales, this is not insignificant and it could be even more significant if the Riteaid and Walgreen chains follow suit.

CVS announced "Cigarettes have no place in an environment where health care is being delivered." Interestingly, I recall no such pronouncement from Target when they ceased sales in in 1986, merely indicating that tobacco sales were not profitable.  Of course, Target lacks the centralized check out/tobacco product dispensing station that is the sine qua non of both new CVS stores and American gas stations.

No, what's really driving this is CVS's desire to position itself as a health care company in alliance with providers (think the Cleveland Clinic) and insurer-endorsed retail medicine  (think minute clinics).  And some of those would be allies have reportedly been balking at CVS's sales of tobacco products.

In Missouri, our local CVS samples distilled spirits products. It stopped me in my tracks on the way to the distilled water display to walk by what was essentially a bar set up in my tiny neighborhood CVS and to hear a young man  standing in the bartender's location ask me if I would like something to drink.

Just sayin'.

"As part of an ongoing effort to empower patients to be informed partners with their health care providers,"  HHS has finally issued a rule amending the Clinical Laboratory Improvement Amendments of 1988 (CLIA) regulations "to allow laboratories to give a patient, or a person designated by the patient, his or her “personal representative,” access to the patient’s completed test reports on the patient’s or patient’s personal representative’s request. At the same time, the final rule eliminates the exception under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule to an individual’s right to access his or her protected health information when it is held by a CLIA-certified or CLIA-exempt laboratory."

This, sadly, has been too long coming. As soon as it was apparent that the CLIA regulations combined with a perverse reading of HIPAA's Privacy Rule actually restricted the open flow of patient information to the patient themselves, the changes should have been made. Indeed, there has been no shortage of outrage over the fact that an individual using a CLIA-certified or CLIA-exempt lab (most of the largest commercial labs) had no right to their own lab result health information. I count myself among the outraged even though I have been blessed with attentive and detail oriented health care providers.

And I count it no surprise that this denial of access to health-improving, and possibly life-saving, health information was denied under the rubric of HIPAA's Privacy Rule. I tell my students, more patient disempowerment has been initiated under a statute designed to empower patients to protect their privacy from others than its authors could ever have contemplated.

Those of you who pore over the Federal Register may have noted the nomenclature changes of 77 FR 29002-01 on May 16, 2012, removing the term Medicaid "Recipient" from current CMS regulations and substituting Medicaid  "Beneficiary."   It took me a little longer to catch on to it but I have been thinking about it ever since because this change means the term "Beneficiary" now refers to all individuals who are eligible for Medicare or Medicaid services.

What's up with that?

The term "Medicaid Recipient" was found to be unflattering, apparently, and the move was to standardize and de-stigmatize the nomenclature.  The Affordable Care Act, as written, actually had a number of  provisions designed to simplify Medicaid as well as to standardize and federalize it. Most of those provisions survived the ACA's trip to the Supreme Court on the now optional Medicaid expansion.

 This means a state near you, whether or not it has chosen to operate its own health insurance  exchange,  is busy completing its work on computerizing and simplifying Medicaid enrollment for its non-expansion Medicaid Beneficiary population. The dirty secret of Medicaid take up has always been its wide variability.  We may be about to see the narrowing of that spread.

Time will tell how much simplifying and de-stigmatizing Medicaid will matter to take up rates.  We have only a very little data on the previously eligible now coming forward  to claim Medicaid Beneficiary status, but it will be interesting  to watch. It is already interesting to watch a non-Medicaid expansion state like South Carolina predict a sixteen percent jump in Medicaid enrollment.

 x-posted at: http://prawfsblawg.blogs.com/

A tiny study of physician antibiotic prescribing practices, discussed in a recent issue of JAMA, has set the health blogosphere on fire. "A Simple Way to Slash Unneccessary Drug Prescriptions" trumpets Scientific American. But is it really all that simple? After all, are the forces that shape inappropriate antibiotic prescription practice all that simple?

A small control group of  health care providers from five Los Angelas community clinics agreed to make antibiotic prescriptions available only where medically indicated. They sealed the deal with what behavioral economists might call a commitment device — a signed "Dear Patient" letter outlining the commitment was posted, along with the provider's photograph, in each clinical examination room used by the control group. Lo and behold, the control group brought their antibiotic prescription practices more closely in line with both the commitment and the practice's general standard while the non-control group actually lost ground.

You need to know that inappropriate antibiotic prescription practices used to be thought the low hanging fruit of evidence based medicine, until it turned out to be very difficult to alter clinician antibiotic prescription practices through  evidence-based education and outreach. Now inappropriate antibiotic prescription practices are high hanging fruit, I suppose, enticing us with cost and health savings yet tantalizingly out of reach.  What makes them hang so high is, in part, that patients have expectations shaped by decades of prescription practice now deemed inappropriate. That is why the letter (posted in both English and Spanish) is a "Dear Patient" letter and written, as I understand it, at a ninth grade level.

What role, then, do the exam room posters play in patient education about appropriate antibiotic prescription practice? Does an advance reading of the poster by patients and their families  already begin to re-shape expectations of the clinical encounter even before it begins?

Daniella Meeker, the lead author on the JAMA study, speculates that the commitment device function of the posters made it easier for clinicians to say "no" or served as a reminder on how to respond to  patient demands or requests. But, could it also have been that patients dampen their demands when they understand the background story is that antibiotic prescription practices in a given practice are circumscribed and that certain providers endorse the evidence-based approach with enough conviction that they choose to begin the conversation with patients about it during waiting time?

In short, is this a story about just learning to say "no" and mean it ( one take on the clinician's perspective) or is it a story about learning to think before asking (one take on the patient's perspective)  or both or neither? As so often occurs when I read articles extolling health care nudges, I can't help but wonder who really got the nudge here?

 x-posted at prawfsblawg: http://prawfsblawg.blogs.com/

 

Lat week, Judge Ortrie Smith( in  St. Louis Effort For AIDS v. John Huff)  granted a preliminary injunction against  the enforcement of Missouri's Health Insurance Marketplace Innovation Act as inconsistent with the Affordable Care Act.  The HIMIA prohibits federally qualified health insurance navigators from discussing the full range of insurance products and programs available to Missourians unless these individuals also become qualified as licensed insurance brokers in the state.  Holding that "the state law obstructs the federal purpose," Judge Smith noted that HIMIA put ACA qualified navigators between a rock and a hard place, unable to comply fully with the HIMIA unless failing in compliance with the ACA and its implementing regulations.

Roughly nineteen states have taken advantage of the ACA's invitation to impose additional requirements on ACA qualified navigators but only a few have gone so far as to require insurance broker licensing, something  specifically called out as unnecessary under the statute and its implementing regulations. It is possible that the state's insurance brokers played some role in shaping of Missouri's statute. The revenge of the disintermediated can be a fearsome thing.

Tennessee has a similar statute that met a similar fate in October of last year (League of Women Voters vs. McPeak). But there are lots of other state specific navigator requirements short of full broker licensure requirements that appear to correlate with lowered insurance counseling and application assistance for the newly insured in some states.  

Sara Robsenbaum and others at GW have just released a study comparing health center outreach and enrollment activities. Categorizing states into full implementation and restrictive states and studying the range of assistance from information provision to application assistance to guidance on how to seek legal help for an appeal, it turns out that the health centers in restrictive states do less for the newly eligible as they navigate the health insurance application process and follow up less on what they do.

Why does this matter? We are, as a group, weak in health insurance literacy and the newer we are to insured status, the weaker our knowledge.  The exchanges offer products of considerable complexity. Those new to health insurance selection (and even some of those who are not) may be, for example, weak in understanding the implications of geographically limited provider networks, one of the hallmarks of exchange products. 

Those who are newly eligible from among historically uninsured populations are most likely to seek the clinical encounter at federally-qualified community health centers, precisely where the variance in degrees of health insurance application assistance and follow up  is so striking.

One of the great ironies of health law is in considering how health as well as health insurance is unevenly distributed in our society.  Now we need to add health insurance counseling to that list.

 

x-posted at Prawfsblawg: http://prawfsblawg.blogs.com/

A lot has happened in health care since 1979 but one thing has been constant: Freedom of Information Act requests to the Centers for Medicare & Medicaid Services  for individual physician identified Medicare payment data have been denied. A 1979 United States Middle District of Florida injunction prohibiting the release of Medicare data that would identify specific physicians in the name of protection of physician privacy interests  (under the Privacy Act of 1974 and in response to Florida Medical Association, Inc. v. Dep't of HEW) was lifted in May of last year by Judge Marcia Morales Howard. As the Department of Health and Human Services' (and its predecessor agencies') position had always been that the departmental policy was in response to the FMA decision, a very longstanding injunction was ripe to be lifted.

The Dow Jones Company, parent of the Wall Street Journal,  along with the Center for Public Interest had fought for this access for years  as part of a campaign to promote the use of the data to expose fraud and abuse. 

The Centers for Medicare & Medicaid Services then sought public comment on the scope of data release, receiving numerous comments.  The American Medical Association, perhaps bowing to the now inevitable, focused on the "reliable and effective use of this information." This appears to have meant that the data should not be posted on healthdata.gov along with other newly transparent health system data for for the public and the media to view via the internet.

On January 15 of this year came the news that CMS will, in a few months,  begin to respond to FOIA requests for Medicare physican payment data on an ad hoc basis using a balancing test focused on Medicare beneficiary privacy interests. Aggregated data will also begin to be made available.

Let the FOIA requests commence. We won't know what CMS has in mind until the Medicare payment data requests of long-gone journalists are renewed and the newly ad hoc responses are received.

x-posted at Prawfsblawg: http://prawfsblawg.blogs.com/

 

On January 10, 2014, the state of Maryland and the federal Centers for Medicare and Medicaid Services announced the re-invention of Maryland's all payer hospital rate-setting system. Maryland's 36 year experiment with operating our only all-payer hospital rate regulation system where third parties pay the same for hospital services is about to enter a new phase. 

Maryland is staying with  an all-payer model but it is moving from fee-for-service reimbursement to a global payment model. The biggest difference is that Maryland's hospital price setting system will continue to operate while adding a cap on all hospital spending. Hospital spending growth, linked to projected overall growth in the state economy, should not exceed 3.58 percent for the next five years.

Maryland's all payer hospital rate-setting system, as originally configured, has been a remarkable example of innovation and experimentation these last several decades. It has also been an important reminder that health care payment system innovation may actually rise from below. Robert Murray offers a good description of its origins and operation here.

But Maryland's all payer hospital rate-setting system has struggled in recent years to deliver on its cost-containment goals.  Over time, even one of the boldest examples of payment system innovation struggled with the weight of a procedurally driven health care system.  In short, there were still few incentives for keeping individuals healthy outside of the hospital and too many rewards for treating problems in the most expensive venue.  And so Maryland's hospitals begin their great migration  to wellness centers.

If this works, physician office visits and nursing homes get the treatment next.  If it fails, Maryland reverts to the default administered pricing system. If this works, we might see some version of this (combined with aspects of payment system reform from Massachusetts and Vermont) on a much larger scale.

x-posted at PrawfsBlawg: http://prawfsblawg.blogs.com/

 

On December 27, 2013, the Centers for Medicare & Medicaid Services released a proposed rule that would add emergency preparedness requirements to the conditions of participation for various program participants, particularly hospitals, long term care facilities,  and ambulatory surgical centers.

One requirement of the disaster planning described in the proposed rule particularly caught my eye: risk assessment and planning.   It sounds almost self-evident that, first, each facility should assess its risk and identify the most likely threats to operational integrity.

After Katrina, the failure of a number of health care facilities to assess the risk of a flood whose high water mark would likely render ill-situated basement emergency generators inoperable has been made manifest. In hindsight, the story of New Orleans' Memorial Medical Center's  101 page bioterrorism plan and 11 page hurricane plan is being told all over our nation via Sheri Fink's Five Days at Memorial.

Interestingly, Fink's book probed the disaster preparedness committee  at New Orleans' Memorial Medical Center about its work. From what she recounts, it seems likely they misunderstood their assignment unless, of course, they understood it all too well.  They measured present preparedness against recent past performance, apparently unconcerned with looking at the likelihood of floods at or near historic levels or, even, at or near levels outside the living memory of anyone currently on staff. Instead, they dutifully prepared for a bio-terrorism attack and checked off their self-assessed  very highest level of readiness for a major hurricane.

Fink does a reasonably good job of considering why the disaster preparedness work at Memorial and elsewhere could be both so strangely truncated and oddly self-re-enforcing. Along the way she teaches the reader a few things about hospital accreditation in the United States.

Hospitals are licensed by the government but such licensing regimes are typically an exercise in governmental deferrence to  what was then called the Joint Commission on Accreditation of Healthcare Organizations (now known simply as the Joint Commission). JCAHO's new to the time emergency standards emphasized just what the Memorial disaster preparedness committee did.

Hospital accreditation is a story of regulatory capture writ large. CMS's  current attempt to use the conditions of participation requirements to turn the tide in this one way should be interesting to watch.

Oh, and the disaster preparedness committee also indicated they were completely  ready for volcanic activity at Memorial. Good to know.

 

x-posted at Prawfsblawg:  http://prawfsblawg.blogs.com/

 

Emma G. Keller's article about Lisa Bonchek Adams' tweeting about her life with a terminal illness has prompted a firestorm of debate about privacy and dignity on the internet.  Lisa Bonchek Adams' twitter feed may be visited here: https://twitter.com/AdamsLisa/status/421005045929619456. I wish I could link to Emma G. Keller's article, but I can only share with you where it used to be posted: http://www.theguardian.com/commentisfree/2014/jan/08/lisa-adams-tweeting-cancer-ethics and direct you to her husband, Bill Keller's  gloss on the article here: http://www.nytimes.com/2014/01/13/opinion/keller-heroic-measures.html?_r=0.

Although Bill Keller's article appears to be attracting much of the heat in the blogosphere, it is Emma Keller's article that is worth the debate because I think it sheds light on who we are as a people.  She analogizes funeral selfies to terminal illness tweeting and frames the poignant question of whether a terminally ill individual is morally suspect for "dying out loud" with some 10,000 tweets generated over Lisa Adams' several year journey.

Interestingly, the terminal illness tweeting did not appear to discomfort Emma Keller until it became more persistent, more frequent, and more disturbing. Lisa Adams' recent tweets are about treatment for intractible pain for cancer that has metasticized to several of her organs and bones.

And so it is with the dying and the old in our society. We welcome — it seems to me — them as brave exemplars of the fight against age and disability but file them away under disturbing and self-involved, when disability and death gain the upper hand.

You see, so far, everyone dies. Lisa Adams is narrating a part of her life.  A brief visit to her twitter stream is scary though, interestingly, optional. Emma Keller is disturbed yet unable to turn away. And I give Emma Keller credit for caring enough to want to know the end game, even though she clearly does not want to know the details. But Lisa Adams does not want to just phone it in.

Lisa Adams is dying out loud. I suspect she has always lived out loud. Those who measure her attempts to make sense of her life and her highly medicalized dying, while she is living it, against the stoicism of others who have moved more quickly toward palliative care have abysmal timing.

Yet we are many of us tone deaf to the dying among us. We are a death denying people. Observing Lisa Adams' life journey may be worthwhile precisely because of the discomfort it brings.

X-posted at PrawfsBlog: http://prawfsblawg.blogs.com/

 

Health care price transparency may be on its way to becoming the tag line of the year. Who doesn't like health care price transparency? The answer is almost every payor and  player in our health care system is at best ambivalent about price transparency. Looking at a few recent  skirmishes in our nation's health care price transparency wars helps me understand why — first to the land of pharmacy benefit managers brokering widely diverging dispensing fees for prescription drugs distributed to the insured and uninsured and second to a group of orthopedic surgeons and residents invited to play "The Price is Right"on hip replacement hardware.

Last month, the California Supreme Court responded to an inquiry from the 9th Circuit clarifying that California Civil Code Section 2527  (requiring prescription drug claim processerors to compile, summarize, and transmit to their clients  pharmacy fee information) does not  compel speech in violation of Article 1, Section 2 of the California Constitution. You may see the full text of Associate Justice Goodwin Liu's opinion in Beeman v. Wellpoint Anthem here: http://www.courts.ca.gov/opinions/documents/S203124.PDF. 

Interestingly, the opinion notes that the opponents of the reporting requirements did not dispute the accuracy of the data collection  system or  the accuracy of the data collected,  just the relevancy of the information's distribution to pharmaceutical pricing (Beeman at 22). The irony of that is, of course, that it is precisely the relevance of the information on dispensing fees paid by various insurers to pharmacists which has made the storied history of California Civil Code Section 2527 so fraught. 

At the end of the day, the California Supreme Court advised the 9th Circuit that this kind of commercial speech designed for a public good (the theory being that transparency on pharmacist dispensing fees to insureds  would eventually raise those fees to the level of dispensing fees paid by the uninsured although why this might not work exactly the other way around is unclear to me) is not the kind of compelled speech that offends Article 1 of the California Constitution. This is interesting for several reasons, including an extension of California Supreme Court jurisprudence on commercial speech and possible fair competiton concerns, but it is  absolutely fascinating for what might still  be revealed about  prescription drug dispensing fees and pricing in California.  The battle between pharmacy benefit managers (PBMs) and pharmacists is far from over but even a tiny insight into how PBM intermediaries broker both the compensation of pharmacists and the price to consumers of certain prescription drugs is a remarkable thing.

On the provider understanding of pricing transparency front, we have a  study recently published in Health Affairs. A group of orthopedic surgeons and residents called upon to divulge the surgical acquisition price of commonly used joint implant equipment did not do well on the study's version of  "The Price is Right" (the old TV show where knowledgable shoppers compete to name the price of commonly purchased household items, which you may enjoy here: http://www.youtube.com/watch?v=sqk1-q8gXcY).  If you'd like to see Kanu Akike, et al's paper on how roughly 20 percent of orthopedic surgeons were even close to aware of the acquisition cost of their most commonly used hip repair hardware, including the hip hardware that some of them may use exclusively or near-exclusively in exchange for supplier and manufacturer compensation, you could look here: http://content.healthaffairs.org/content/33/1/103.abstract.

My favorite part of the study? Unlike "The Price is Right" participants, the study participants could not have the actual acquisition costs disclosed to them after they made their estimates — this was prohibited by the manufacturers.

Watching "The Price is Right" as a kid, I never understood why a contestant might think a box of Rice-A-Roni might cost, say, ten dollars. I grew older and came to realize that stress can do strange things to your mind.  But I do still remember those revelatory moments when Bob Barker would reveal the actual cost of the Rice-A-Roni, the hand slap to the forehead, and the murmured "of course" that accompanied the reality check.

You see, the game show contestants had some exposure to actual acquistion costs. As for the orthopedic surgeons and residents, not so much.

 X posted at http://prawfsblawg.blogs.com/