Author: Ann Marie Marciarille

Here I am on KCUR talking to the razor-sharp health care reporter Elana Gordon about health care POAs — not always as straightforward as they might seem:

 

http://www.kcur.org/post/role-power-attorney-health-care-setting

 

 

 

People find me. I don't always know how they do it, but they find me. And they persist until they catch me between classes or other commitments and fire their ACA-related questions at me. For my part, I look for what the questions tell me about the zeitgeist here in Kansas City and beyond.  What is it about the ACA that confuses my fellow citizens?  What is it about the ACA that scares them?  What are the biggest urban legends about the ACA?

In the past few days, I have been asked several times about the ACA's ban on cancer treatment for Medicare patients.  You mean you haven't heard of it? Could that be because it does not exist in the ACA?

The first time I was asked about this, I wondered if it might be the product of lingering anxiety over the proposed-but-dropped Medicare benefit to fund a beneficary's doctor-patient conversation about end-of-life planning. Sometimes, anxieties can have a long fuse. And "death panels" certainly did get a fair amount of airplay.

But the second and third time I was asked about this made it clear that this concern is something different.  There is evidence circulating that, since April 1, 2013,  the sequester's cut to Medicare has had an unforseen effect on doctor-administered chemotherapy treatments under Medicare Part B.  The across-the-board two percent cut, when applied to certain kinds of cancer treatments, cuts so deeply into the physician chemotherapy drug acquistion price plus 6% overhead payment that some have determined to turn patients away. Press reports indicate that oncologists refusing treatment on these grounds are urging patients to contact federal elected officials to complain.

This may explain the "connection" to the ACA. I have noticed, among the public, an increasing propensity to attribute every hiccup in health care markets and health care finance to the ACA.  In this case, they are attributing every defect in our governing process to the ACA. That's why I'm thinking of putting together an essay on the ten biggest myths surrounding the ACA. (Please post your derby entries in the comments.)

That said, how do I respond now?  I could explain that the ACA is very modest health care reform, quite incrementalist really and that  it does not place extraordinary amounts of power in the Executive Branch to determine the scope of Medicare benefits.  The Independent Payment Advisory Board, for example,  is specifically precluded from addressing rationing. The "R" word is anathema to the drafters of the ACA.

I could also explain that some oncologists are in a better position to serve their patients at a loss for the sequestration period. It is not as if all Medicare chemotherapy patients are being turned away at the door by oncologists. This is further evidence — as if any more were needed — of how geography and income status are destiny in health care.

Finally, I could also explain that there are bills pending (including H.R. 1416) to terminate the application of sequestration to payment for certain physician-adminisered drugs under Part B of Medicare.

But I am not certain that truth is the antidote to an urban legend.

The possible sale of North Kansas City Hospital has been in the local news for some time now.  The more than 50 year old not-for-profit hospital was first rumored to be heading toward sale this past summer when the North Kansas City Council hired a New York investment bank to advise on the possible sale of the city-owned hospital. 

The press resports NKCH was built with property tax revenue and city bonds though it has neither received funding from nor provided revenue to city coffers in decades.  At present, the city's involvement with NKCH appears to be limited to appointing the board of trustees. Of course, that is a very powerful appointment power to retain — as witnessed by the current dispute over the City's attempts to add new members to the board of trustees while litigation over the authority to sell the facility is pending. A Clay County Court judge has approved the ongoing appointments while simultaneously entering an injunction to prevent the actual sale of the facility while the authority to sell litigation is pending.

This litigation is a brilliant example of all the issues exposed in hospital sales — and particularly raised in the sale of public hospitals and in the potential sale of not-for-profit facilities to for-profit entities.

Who owns this not-for-profit hospital?  Who owns any not-for-profit hospital? Those who conceived of it, built it, and nurtured it in its early years?  Those who took on its operation when the city cut the financial chord?  Those who operate it now, consistent with its mission statement on public service? The residents of North Kansas City who granted tax exempt status to shelter the founding and continued operation of the facility? What does this not-for-profit hospital owe, if anything, the community of North Kansas City?

The North Kansas City Attorney claims that the hospital is owned by the City –hence the board of trustees appointment power.  Seen from this perspective, current members of the NKCH Board are suing themselves: one part of the City attempting to sue another "like a dog chasing its own tail," to quote their legal counsel.

The analogy is apt, though perhaps not in the way the NKC Attorney meant it.  NKC is conflicted over its future plans for the hospital and over its own obligations to the citizenry who raised the hospital up. Maybe the situation is less like a dog chasing its own tail than two mother dogs squabbling over a puppy each believes is hers.

This concern with trying to track the ownership – but not necessarily legal ownership — of not-for-profit health care facilities is manifest all over our country as publicly funded hospitals decline in number. Who "owns" the return on that initial investment?  Has it been recompensed many times over by decades of service?

Maybe some of the answer to this conundrum in North Kansas City will depend on how good and generous a neighbor NKCH has been, how closely it has honored its mission statement, how carefully it can document what it has already given back to the community in exchange for a good start in life and ongoing tax exempt status.

For more than a decade the federal government have been making inquiry into these matters as they concern federal tax exempt status.   Most recently, proposed regulations under the Affordable Care Act propose to beef up the charitable care reporting requirements of not-for-profit hospitals. You may see changes the IRS has already made to 501(c)(3) entity reporting requirements here:http://www.irs.gov/Charities-&-Non-Profits/Charitable-Organizations/New-Requirements-for-501(c)(3)-Hospitals-Under-the-Affordable-Care-Act   And you may see further proposed regulations relevant to the assessment of community needs here: http://www.healthreformgps.org/resources/irs-issues-nprm-for-charitable-hospital-organizations/

On a parallel track, some states have become quite agressive in considering what it takes to justify the public sacrifice of tax dollars for a non-profit health care facility and what, if anything, is owed to the public when and if the entity changes hands. The Provena Hospital loss of tax exempt status in the State of Illinois, which you can read about here:http://www.fiercehealthcare.com/story/il-hospital-loses-high-profile-tax-case/2006-10-03, illustrates how searching the inquiry into public return on tax exempt status can be.

We are in a state of flux in defining what we expect from not-for-profit hospitals.  And those same hospitals are struggling to find a place in increasingly concentrated hospital networks, concentration that may be increased by the implementation of the ACA.

Maybe the dispute over the ownership of NKCH is so complex because both senses of "ownership" are in play — legal ownership and principled ownership of and responsibility for the mission statement of a not-for-profit hospital.

 

The Kansas City Star is reporting that Prime Healthcare has completed its purchase of hospitals in Kansas City and Leavenworth Kansas. Buying at both ends of the hospital-size continuum, Prime has closed the deals to purchase the 400-bed Providence Medical Center and the 80-bed St. John's Hospital. These appear to be the first Prime acquisitions in Kansas.

Prime is a for-profit entity that specializes in the purchase of financially-distressed properties to add to its California-based 23 acute care hospital chain. These acquisitions were no exception to the Prime business model. It is reported that the $54.3 million sale price came nowhere near the $121 million in debt the Sisters of Charity of Leavenworth Health System was carrying on the facilities.

Prime has quite a high profile in California.  You could read about their legal battles with Kaiser Permanente Health Plan over billing and transfer practices here: http://www.modernhealthcare.com/article/20120918/NEWS/309189959.   And you could read about Prime's kwashiorkor cases here:http://www.sfgate.com/health/article/Hospital-eases-billing-for-rare-malady-4141154.php. Or, you could read about Prime's patient data breach issue here: http://www.californiahealthline.org/articles/2013/1/18/prime-sued-over-alleged-patient-confidentiality-breach.aspx.  

The closing of a hospital can best be understood as the death of a civilization.  Many communities, particularly rural communities, build much of their civic life around hospitals. The pressure to find a buyer — any buyer — can be intense when a hospital is on the apparent brink of closure. 

 

CMS has just released a proposed rule on the role and place of ACA navigators or consumer aides who will help uninsured Americans apply for insurance through the Exchanges. As Missouri will not operate its own Exchange, I am particularly interested in who is going to help consumers navigate the federally facilitated Exchange here. And I would like to understand the difference between navigators and "non-navigator assistance personnel."

I suppose some of this is self-interested. I like to think I put myself out there to be helpful  but I can tell you I am utterly overwhelmed with questions about the ACA, usually along the lines of "What will the ACA mean for me?" No surprise that the answer requires a certain amount of knowledge of the ACA and a certain amount of training and experience in insurance counseling.

I sometimes joke that the first assignment of a health law professor is to explain the university's health insurance program to the faculty and staff and then to be a teacher and scholar. If my faculty and staff peers cannot get a handle on this stuff,  how will the average American, particularly in a state uninterested in explaining the law to the broader population?

So far, all of the focus has been on who a navigator or non-navigator assistance personnel may not be. By this, I mean the big quarrels have been over excluding insurance brokers from eligibility and CMS's requiring that state requirements for licensing or certifying navigators may not conflict with the ACA. Yes, the revenge of the disintermediated is a fearsome thing.

I can't help but wish, though, that more thought were being given to what would make a good navigator or non-navigator assistance personnel. Many moderate income Americans will need assistance from these people.  I would like to know who they are.  Enrollment begins in October, you know. Or, did you not know that?

 

 

 

 

I have blogged earlier about Missouri's Proposition E (passed in November by a 61.8% majority) and its implications for attempting to tie the hands of the governor on Exchange creation or Medicaid expansion.  Today I want to take a look at Proposition E's implications for tying the hands of state government civil service  employees as they attempt to comply with the parts of the ACA that require they do so — the parts not struck down by the ACA's trip to the Supreme Court.

Proposition E, you my recall, is the product of a dispute between the governor and various members of the Missouri legislature over the scope of gubernatorial administrative powers. Originally conceived of as a legislative bill, its origins appear to have been part of the plan of some Republican state senators to hault a hearing on health insurance Exchanges in September of 2011 and to keep the state Department of Insurance from accepting approximately $21 million in federal planning funds for a Missouri Exchange. Originally sponsored by Rob Schaaf in the state senate, the vaguely worded proposition made it to the ballot in November in 2012 but not without a some dispute over the ballot text, which I have also written about earlier. 

Proposition E's language prohibits the governor from using the power of executive order to implement the ACA, requiring legislative or popular approval to do so, instead. Since the Missouri authority for gubernatorial executive orders  that are designed to respond to federal programs and requirements is both constitutional and statutory, I remain confused about whether a constitutional amendment may be required to achieve this goal — what I call tying the governor's hands.

Nevertheless, neither the governor nor the state attorney general seem inclined to press the point. What interests me today is that Proposition E's expansive and vague language might also prohibit Missouri state agencies from cooperating with the federal government in federal Exchange creation.  It may have just gotten a whole lot riskier to be a state civil servant in Missouri, given that Proposition E appears to attach liability for its violation to civil servants in their individual capacity.

My best estimate is that five states have placed — or attempted to place — these kinds of restriction on further compliance with the ACA, barring legislative approval.  Whether Missouri, Montanta, New Hampshire, Utah, and Wyoming consider these restrictions to include the kind of dovetailing of pre-existing state operated Medicaid programs with the federal Exchange is an interesting question.  These dovetailing provisions, after all, survived the ACA's trip to the Supreme Court intact. 

This could get interesting. 

 

 

It is always a challenge to read the tea leaves on the implications of residency "Match Day" for graduating medical students.  Although we can spot some trends — close to 400 more students opted for a residency in internal medicine this year  than last but still almost 20% fewer than internal medicine trainees identified in 1985 — it is particularly difficult  to prognosticate future internist labor supply from Match Day numbers for a few important reasons.

First, this year only a little over 60% of all residency applicants were matched by Match Day.  This means a significant chunk of residency applicants (this includes medical school seniors as well as graduates of osteopathic and international medical schools) are now in the process of still seeking a match. Their matchmaking, however, is almost entirely demand driven.  The unmatched, in short, must compete for the slots available even, necessarily, changing their area of medical specialization in order to achieve a match.

Who sets the specialization ratios (considering internal medicine as a specialty, for these purposes)? These are set, overwhelmingly, by our nation's acute care hospitals. Whatever you think of our nation's acute care hospitals, their staffing needs are at best a rough proxy for our country's escalating need for community based care providers and specialties. This need will only increase with the roll out of the Affordable Care Act.

Second, many of the students officially matched to internal medicine will ultimately choose subspecialities like cardiology, pulmonology, oncology, and gastroenterology that — though important — are at least a step removed from primary care. The best indicator of how many internists we may hope are in the pipeline is still to monitor those who emerge from training as primary care providers.  As I have observed elsewhere, we see only a slight uptick in primary care physician production.

Third, forces that push graduating seniors to primary care may include the reality that for each of the past several years, residency matches — long considered a sure thing — have become harder to obtain.  Some of this has to do with simple math. Multiple medical schools have opened while the number of residency slots has remained unchanged.

The story of residency funding — primarily through the Medicare program — may help explain why, in an era of budgetary constraint, no new Medicare funded residency slots are on the horizon.  Although there has been discussion of corporate-funded residency slots, those proposals have fallen out of favor in an era of increased skepticism about the role of pharmaceutical companies and others in the world of continuing medical education, never mind medical residencies.

So, there we have it: a sobering need for more internists and primary care physicians of all types but a limited number of seats in which that training may take place.  Maybe the medical residency bottleneck itself needs re-invention. Maybe Medicare needs to step up to the plate to increase the residency slots available. Maybe the public needs to demand good value for the Medicare residency dollars it spends (close to $80,000 per year per slot, by one estimate). This might mean designating Medicare residency funding toward favoring the physician specialties — including primary care specialties —  most needed by those footing the bill.

I have enjoyed watching the press and public reaction to Steven Brill's tour de force on healh care pricing transparency in the February 20th issue of TIME Magazine.  Reminded of the old NEW YORKER article consisting of 10,000 words on zinc, I am astonished and pleased that so many have read at least part of  "Bitter Pill."

Today I want to consider an observation Steven Brill makes early on about the role of innovation in health care pricing." [W]hat [he asks] is so different about the medical ecosystem that causes technology advances to drive bills up instead of down?"  This question alone merits 10,000 words.

I want to suggest a few answers.  

First, we need to acknowledge how new medical and health technological advances are introduced to the U.S. market is left — to an astonishing degree– in the hands of the producers.  The government exercises very little of its buyer power to screen for efficacy and value in programs like Medicare.  Its position, as a result, is what I would describe as a defensive crouch when challenged by Medicare beneficiaries about limitations on coverage as opposed to an affirmative stance on value-based medicine.

Second, the thought that we could all implement some rules on value-based medicine if only the big bad producers would get out of our way is too simple.  We are so insulated from cost to the consumer and genuine knowledge about cost-effectiveness,  that even attempting to reach consensus on value-based medicine would be an important and necessary first step.  Then, introducing price transparency and price sensitivity into the clinical encounter could only come next. It is deemed revolutionary, after all, that Johns Hopkins School of Medicine has introduced some education into the financial costs of various diseases, treatments, and protocols into its medical school curriculum.

Finally, the prime directive in the medical health care ecosystem is not the drive to efficiency. Inefficiency has ruled the day, and continues to benefit many. If the incentives are not re-aligned to reward health care innovation that is efficient, the status quo ante of a system that rewards capture of monopoly rents is likely to continue.

I admire what Steven Brill has tried to do. But, in many ways, I admire his diagnosis more than his prognosis.

 

 

Late this past summer, I had the privilege of visiting UMKC's Tech Classroom for a demonstration of Tidebreak's Class Spot and Team Spot software. I was immediately intrigued with the idea that the venue and software might give me the tools for something I have been wanting to try in my course on Health Care Regulation: teaching regulatory research as part of teaching the substance of the Affordable Care Act. After all, the regulatory floodgates have opened. Each day brings more notices of promulgation of rules, notices of proposed rulemaking (NPRM), and notices of intended future rulemaking under the ACA than any one person could possibly assimilate.

So, this year, when I assigned an ACA regulatory comments project, I incorporated two sessions in the Tech Classroom into the project.  Instead of giving my students a regulatory comment assignment with neatly packaged leads to useful materials and instructions on how to access them, I decided to have them mimic more authentically the experience of practice, where assignments often do not come neatly pre-organized and partially digested.

In addition, I wanted to experiment with my idea that  a course on regulation should try to teach advanced legal research skills using the substance of the course to inform the legal research instruction. That means I decided to back off and give my students the NPRMs of a few proposed ACA regulations and some coaching on the collaborative project of identifying where the information useful to commenting on them may be found. I think of our time in the Tech Classroom as a sort of ACA regulatory treasure hunt.

What is different about collaboration software, and using it in UMKC's Tech Classroom, is that it is not teaching by demonstration as much as coaching my students through a collaborative exercise in learning by doing. The classroom has  a podium, a large screen, and a projector but the students bring their laptops to  four person collaborative working tables, each with its own wall screen where they may share with each other and collaborate on their regulatory research. That way, I can move from table to table and screen to screen and (with the help of the Tech Classroom) move a group's work to the main screen for the rest of the class to review, embellish, or correct.

My students —  all motivated upper level students who have chosen to study health care regulation at the much-coveted 9:00AM hour — were good natured about the few minutes it took to load the sharing software.  They seemed to enjoy the treasure hunt aspect of the assignments and the fact that, working collaboratively, meant that noone got left behind. Almost everyone in the classroom had a question. I think I heard almost every voice in class this week. They were engaged.

Of course, this was labor intensive.  I thank Paul Callister, Michael Robak, and Jeff Henderson for their generosity in training me, backing me up, and trouble shooting  problems.  I did have to invest training time and, of course, sacrifice more conventional classroom time to this project. And I am fortunate that UMKC has a Tech Classroom where I may experiment.

Now the students move on to more fully researching and then drafting their comments to various ACA NPRMs. The assignment, in its totality, has just begun.  But I would do this aspect — what I call learning to take a drink of water from a fire hydrant —  again in a heartbeat.  Only, I hope I would do it better.

 

 

Disproportionate Share Hospital Adjustment Payments ( or DSH, pronounced "DISH") are in for a serious adjustment as part of the Affordable Care Act. I think of us as on the brink of the re-invention of DSH.

The ACA's plan was to reduce DSH funds, under both Medicare DSH and Medicaid DSH, as the number of uninsured fell.  This plan, to  reduce DSH payments to the states ($11.3B total in 2011 to be cut in half by 2019), was part of the general plan to lower the number of uninsured by expanding Medicaid and the creation of the Exchanges. Medicaid DSH is over two times larger than Medicare DSH and distibuted by a different regulatory formula, but both are facing radical re-invention.

Even before the ACA's trip to the Supreme Court, however, this  was sobering.  DSH, after all, is the only Medicaid funding stream through which states are explicitly allowed to reimburse providers for care of the uninsured.  And those uninsured include the undocumented, the outsiders to the Affordable Care Act.

Recognizing that DSH allotment reductions would not be felt evenly throughout the United States, the conventional thinking was that health care reform — whatever freight of realistic and unrealistic expectations we might collectively attach to it — was not going to solve our nation's immigration problems. Privately, safety net hospitals and health care facilities were concerned, particularly in states with high numbers of undocumented residents.  That concern was amplified by the Supreme Court's determination that Medicaid expansion would be optional for the states, followed by the Secretary of HHS's insistance that this did not alter the plan to cut DSH drastically.

The line between Medicaid expansion and non-Medicaid expansion states is a work in progress, one made even blurrier by the apparent terms of Arkansas's negotiations with the federal government over Medicaid expansion this past week.  What does seem likely, is that there will be some states that do not expand in the near future.

The question of how DSH's re-invention ought to treat states that choose not to expand Medicaid haunts us, just as our own ambivalence over our immigration policy haunts us.  CMS's regulatory guidance on ACA implementation (FAQs of 12/10/12) made it clear that the Secretary was not yet ready to indicate whether HHS is planning any modification to the manner in which it will reduce DSH allotments as it relates to states that do not expand Medicaid. But people were asking.  A response was promised in the spring.

Does the HHS Secretary have the discretion to alter the distribution of DSH cuts between and among the states?  Ought she?  If states that decline to expand Medicaid simultaneously shelter themselves from some of the implications of that choice by gaining disproportionate immunization from DSH cuts, what message does that send?

I have written before about Suzanne Melter's book, The Submerged State: How Invisible Government Policies Undermine American Democracy. I wonder if the public repudiation of federal Medicaid dollars by  some states that would simultaneously welcome a disproportionate share of DSH federal dollars from a finite pool is the kind of unrecognized government benefit that needs to be brought to consciousness for how it shapes our political and fiscal lives.