Hospital Admissions Mayhem

For some time, courts have been weighing in on HHS's decision to tie a Medicare beneficiary's hospital admission status to their formal hospital admission.  Formal hospital admission usually requires a written order of admission by a physician with the authority to do so and that written order is subject to retroactive audit by Medicare.  This all seems pretty straightforward. Now enter the concepts of "observation status" and revokable admissions and it all gets more complicated.

I have been marveling over the recent opinion of a federal district court in Connecticut  in Bagnall v. Sebelius (3:11-cv-0173-MPS).  Here we see the first principle — allowing the Secretary discretion to define "inpatient" for Medicare purposes — come up against the increasingly common use of observation status, either anticipatorily or retrospectively.

Let me be clear: it is possible for a Medicare beneficiary to be admitted to an acute care hospital, treated as an admitted patient in an acute care hospital for several days, discharged from that acute care hospital to a rehab facility (having met Medicare Part A's  requirement that such a discharge follow a three day acute care hospitalization to achieve maximum coverage) only to be advised  as much as two weeks later that they were in fact not admitted and that their hospital admission was revoked, leaving them with coverage only under less generous Medicare Part B with co-pays and deductibles for that now identified as  out-patient hospital care and for the rehab admission under Medicare Part B that may amount to thousands of dollars.

Now, when commercial health insurance companies make their nut by retroactively rescinding eligibility for health insurance we get so worked up about it that nothing less than the ACA itself tries to take this practice on by clarifying and narrowing the standard for retroactive rescissions.   From the perspective of the Medicare beneficiary, these retroactive determinations of non-admission are very similar indeed and the practice grows ever yet more common.

I understand very well the push and shove between Medicare and acute care hospitals over unwarranted admissions and the particular skepticism that attaches to one night admissions. But when we have put Medicare beneficiaries who, in good faith reliance, have acted on a hospital "admission" in the middle of this dispute, I am at a loss to know who we think we are hurting and who we think we are helping.

Disclosure is the default option of policy makers lacking the will to make a difference.  What might a Medicare patient's admission form now say:

Sign below to indicate you understand you are being admitted to Pleasantview Hospital, unless of course you aren't — something you can only know for certain several weeks from now, and that you accept full responsibility for all charges not covered by your insurer, unless of course they are not — something you can only know for certain several weeks from now….

In one of my favorite teaching cases from health law, a Georgia hospital argued that an incomprehensible liability clause was rendered enforceable by the addition of bold type to its presentation, so let's not omit the clarity bold type would surely add to the above clause.

Missouri House Committee Moves Forward on Medicaid Expansion

The Columbia Missourian tells us that the House Interim Committee on Medicaid Transformation decided to begin drafting a Missouri Medicaid expansion proposal this week.  The article is unclear on what exactly a waiver would look like that could "give the state access to federal funds on its own terms." But I can't fault The Columbia Missourian for being unclear on the limits of state discretion under a waiver, because it isn't clear to anyone yet.  All of the study models for the Missouri Committee (Iowa, Indiana, and Arkansas) are still in a state of flux.

And isn't that the real question: how far will HHS bend to entice buy-in now that it may not be coerced? How far will the Medicaid statute itself as well as the ACA allow HHS to bend?

In the meantime, Paul Rand's election year proposal to block grant Medicaid is also apparently under study in Missouri.  Other states have used the 1115 waiver process to substantially block grant Medicaid (think Rhode Island) but that is a negotiated process — just as, I suspect, the ACA Medicaid expansion waiver process will be. 

The Private Option for Medicaid Expansion

I appreciate that the Missouri version of Arkansas-style Medicaid Expansion is being circulated without name as "Rough Draft No. One."  The shoe fits.  As far as I can tell, the proposal mimics in essentials Arakansas' 1115 waiver application.  You can see that here: and, whatever you think of it, it is no rough draft.  Its drafters have given considerable  thought to "leveraging the efficiencies of the private market to improve continuity, access, and quality for Private Option beneficiaries."  

I think the "rationale" section of the Arkansas 1115 waiver application is the most interesting. "Arkansas Medicaid provides rates of reimbursement lower than Medicare or commercial payers, causing some providers to forego participation in the program and others to "cross subsidize" their Medicaid patients by charging more to private insurers. The Demonstration will rationalize provider reimbursement across payers, expanding provider access and eliminating the need for providers to cross-subsidize."

Now, that's a pretty tall order because cross-subsidization and perverse cross-subsidization is at least as present between and among commercial insurance products as between government funded health insurance and commercial insurance.  It is also an interesting take on the problem of low Medicaid participant provider reimbursement rates in Arkansas.  After all, states establish their own Medicaid provider payment rates within federal requirements and Arkansas has not chosen to be at the top of the permissible range.  "Indeed, there are 23 states with higher Medicaid reimbursement rates (relative to Medicare's)" (Avik Roy in Forbes on March of 2013).

What is the message: we need the commercial insurance market to save Medicaid from ourselves?

Am I My Patient’s Keeper?

I gave a presentation last night to a group of HIV/AIDS pharmacists who have been considering issues at the intersection of patient-pharmacist relationship and public health law.  Pharmacists involved in the care of persons who are HIV positive often are part of a health care team (doctor, nurse, social worker, case manager, pastoral care).  The work is highly specialized and often involves working exclusively with an HIV positive population.  These folks see a lot.

Most of their questions circled around the tension between their obligations to their group's patients and their larger ethical obligations to others (think sexual partners and needle sharers) who may be at undisclosed risk in these relationships.  Missouri law is convoluted, essentially permitting but not requiring non-consensual disclosure of HIV positive status and risk to a spouse or sexual partner. We compare this with New York's relatively new public law requiring such disclosure and the conversation took off from there.

They were a good group. They struggled with the need and desire to build an alliance with their group's patients and their sense that a single-minded focus on only the non-disclosing individual might leave others at risk.

Criminalization of non-disclosed status of HIV conduct was also discussed. Missouri goes one step further and crimnalizes the failure to disclose HIV positive status to a sexual partner. Some of the parmacists were easy with inviting the state in to police the sexual encounter. Others seemed to think that these statutory provisions would drive us further away from a culture of HIV testing, treatment, and even disclosure.

It has been said that we can either criminalize HIV positive status or lower its incidence, but not both.

Missouri’s Stealth Health Insurance Exchange

Glad the NY Times has spotted it.  That Missouri federally facilitated health insurance exchange is a tricky one. You can rarely spot it.  But you can read about it here:

Based, anecdotally, on the number of questions I receive via email as well as the number of speaking engagement requests I receive, I imagine that  most of Missouri's citizens are not only woefully underinformed about the ACA but also woefully underinformed about the choices the state has made that will shape the Missouri ACA experience.

In June, I suggested in remarks at a conference of health law professors, that we were in the midst of the largest health insurance counseling challenge of our lifetimes.  Missouri's stealth exchange may make ours particularly acute.

Missouri Medicaid Expansion: Potential Rural Impact

There's an interesting new report on what Medicaid expansion would mean for Missouri put out by Wash. U., SLU, and the MIssouri Budget Project. You can see it here:

All parts of the state would benefit, but poorer rural areas the most.

Medicaid Expansion in Missouri

Governor Jay Nixon has reiterated his support for expanding Medicaid in Missouri under the ACA to provide health care to an estimated 300,000 Missouri citizens. He has announced his intention to submit a budget for the next fiscal year to the legislature to do just that. Missouri House Speaker Tim Jones fired back pretty quickly with the observation that "My first question to the Governor is this — where is the money to pay for ths once the federal aid goes away?" Speaker Jones further urged the prioritization of job creation over "expanding welfare."

This sums it up pretty well, actually, these dueling press statements. Is it better to take 100% federally funded Medicaid expansion from 2014-2016, increasing to 10% state funded Medicaid expansion by 2020 or to sit back and watch and wait? Speaker Jones' concern that the rich federal expanded Medicaid matching percentage may wither quickly after 2020 — paradoxically — would seem to militate just as much in favor of grabbing that time limited offer now as it would support passing on it.


Missouri Governor Jay Nixon Announces Medicaid Expansion Budget Proposal

On November 19, 2012, Missouri Governor Jay Nixon announced his intent to forward a Medicaid expansion budget to the Missouri legislature.  Describing the move as both the right and the smart thing to do, Governor Nixon made his announcement locally at Truman Medical Center — one of  Kansas City's safety net hospitals.

Based on the governor's remarks, Medicaid expansion is right because it is smart economically. Expanded Medicaid's value is both in expanded health insurance coverage and in job creation as well as tax revenue. You can read excerpts of his announcement here:

The value of Medicaid as an economic engine for job growth is rarely discussed.  Governor Nixon has it about right: the role of Medicaid in state and local economies is an under-discussed subject. Medicaid spending, particularly through the infusion of federal Medicaid dollars into state and local economies, generates activity around jobs and state  and local tax revenue. And the extremely favorable FMAP for ACA Medicaid expansion (100% of total state contribution, eventually modulating to 90% of total state contribution) means the multiplier effect for the ACA Medicaid expansion would be particularly pronounced. The thought of spending 333 million dollars to  bring over eight billion dollars over a seven year period into Missouri's economy might help to explain the Missouri Chamber of Commerce's position on Medicaid expansion.

If the debate about ACA Medicaid expansion in Missouri is to focus on fiscal responsibility, acknowledging the role of Medicaid in our state economy — and factoring in the economic growth as well as economic cost implications of Medicaid expansion — is a good place to start.

Kansas City Quality Improvement Consortium’s Participation in the Rollout of the ACA’s Availability of Medicare Data for Performance Measurement Program

On November 21st, CMS announced the three health care quality organizations chosen to be the first participants in a new ACA-created Medicare fee for service claims data transparency program. The Kansas City Quality Improvement Consortium is on the list.  Surely this is one of those prizes where it is a prize to be chosen but also a significant challenge.

For the first time, the Medicare fee for service data set will be mined for provider-specific quality reports for access by someone other than the providers and CMS itself.  The goal of the program is to improve provider performance by integrating information from the Medicare fee for service data set with information available from private insurers as well as public data to produce comprehensive reports on provider performance.

Given that provider specific performance data from the fee for service Medicare data set is the holy grail of individual provider assessment, KCQIC (and the two other organizations chosen) have their work cut out for them — responding to consumer clamor for more and more openly detailed data on provider quality on the one hand and responding to provider clamor for more and better systems for data privacy, security, and error correction on the other.

Why was KCQIC tapped? They've been threading this needle for several years already — in a more modest way — as grantees of the Robet Wood Johnson Foundation's Aligning Forces for Quality Project. Clearly, they relish a challenge.

Missouri Ballot Measure on Exchange Formation – Tying the Governor’s Hands

Missouri voters have apparently approved a ballot measure prohibiting the governor from using an executive order to authorize the creation of a Missouri health insurance exchange under the Affordable Care Act.  Mindful that the vast majority of the eighteen states that have begun health insurance exchange formation have done so under legislative authorization but that three states are proceeding under executive order, the ballot measure is apparently designed to foreclose the latter option in Missouri.

I cannot help but be intrigued by the question of whether a ballot measure can tie the executive powers of a Constitutionally elected official in this way (Art. III, Section 51 of the Missouri Constitution does specify that a ballot measure may not be used to advance an unconsitutional purpose)  but today's post is more along the lines of, "Say, how's that going to work?"

This makes it likely Missouri will be part of the federal health insurance exchange.  What do we know about what that will mean? We know (from press reports on the content of the draft statement of work used in the federal government exchange building  bidding process) that federal exchange development proceeds and that at least one major contract has been awared to build a federal data services hub to help run the federal exchange.  We know that the contractor will handle technical and systems requirements to develop and deliver plan management services, including certifying and decertifying of health plans offered on the federal exchange.  We know (from an HHS bulletin in May) that the federal exchange will allow all qualified plans to offer coverage in the exchange, contemplating a wide open health insurance market.

What does Missouri gain or lose from passing on the opportunity to structure and operate its own health insurance exchange?  It looks like Missouri loses or lessens the power to influence the choice of  the state benchmark plan for the exchange, a choice that could be more or less sensitive to the health insurance needs and preferences of Missouri  citizens and Missouri health insurance markets. It also looks like Missouri loses any authority over certifying or de-certifying participants in the health insurance exchange that will serve its citizens. Without a look at forthcoming federal exchange operations regulations, it is difficult to say more.

Health insurance regulation is an area traditionally reserved to the states.  This is why we have state health insurance commissioners.  How the traditional state authority to regulate health insurance on the state level — which will continue undisturbed for health insurance products sold outside the health insurance exchange that will serve Missouri– will dovetail with the federalization of health insurance exchange operation in Missouri promises to be interesting to watch.

All of these developments at least raise the spectre of a multi-layered regulatory structure of health insurance in Missouri.  And those who purchase in the federal exchange that will serve Missouri may benefit from richer benefits and a more consumer-protective health insurance regulatory framework. Time will tell.