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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.

A headline announcing that CalPERS plans an 85% rate hike for long-term-care insurance would be hard to miss.  If you did miss it, you may see it here: http://articles.latimes.com/2013/feb/21/business/la-fi-calpers-longterm-care-20130222.  I missed it until a friend brought it to my attention.  In an era of double digit health insurance premium increases, a number like 85% still has the power to shock.

What's the story?  First, the premium hikes are  not scheduled to take effect until 2015.  Second, they target perhaps 110,000 people who purchased CalPERS LTC insurance in its early days, from 1995-2004. Third, these 110,000 people purchased lifetime policies.

If LTC insurance is the most difficult to price, lifetime LTC insurance is the king of kings.  Forecasting twenty years into the future on the likely longevity of a population living ever longer into age and disability is, it turns out, very difficult. The same article reports that stroke and dementia have been the leading causes of claims, accounting for 44% of all payouts.

Dementia, in particular, can be hard to track on a disease path. Whether it is because we diagnose dementia earlier or because dementia is more prevalent in an increasingly aging population or even — because of the confluence of these two trends — we live ever longer under the diagnosis of dementia. We are awash in seniors with a dementia diagnosis and in need of long-term care in a variety of settings. Add to this that older women — caregivers of us all– are the most likely sub-population to be diagnosed with dementia and you will understand why the CalPERS spokesperson in the article more or less concedes that the take up rate for this insurance was too high for its business model and the renewal rate for this insurance was too high for its business model. That is how you get to an 85% premium hike.

My students are often astonished to learn that LTC insurance is considered part of health insurance in some other countries.  Seen from a different angle, of course it is beyond strange to realize that we segregate the care of those most likely to need long term care insurance into a distinct product marketed only to older people and likely to appeal only to the old and the farsighted near old. By farsighted I mean those who recall that — so far — everyone dies and that the more common path to death in modern America is one of slow decline from chronic illness and not sudden death.

All of this is playing out in front of a larger scenario where LTC insurance is cast as an optional health care benefit. Perhaps this is because an estimated 90% of all long term care is family-provided and overwhelmingly the work of women.

When I think about LTC insurance market failures I think about younger and middle aged woman stretched to the limit taking care of older women.  If there ever were a recipe for invisibility in public policy circles, this would be it.

But why 85% at once as a premium hike?  I wonder if it correlates with the demise of the ACA's CLASS Act.  Now that the government will not ramp up a LTC insurance program fueled by payroll-deduction designed default enrollment of every age and demographic group, LTC insurance is back as a product for the well off.  The vast majority of Americans could not afford these CalPERS premiums. Anyway, we Americans mistakenly believe Medicare offers LTC coverage.  It is, of course, Medicaid that offers LTC coverage but only at the cost of considerable impoverishment.

And the shibboleth that huge numbers of American seniors voluntarily impoverish themselves to supp at the banquet of Medicaid-funded nursing home care is just that.  It is statistically inaccurate, yet evocative to consider that more attention is spent advancing this scenario than in considering that nursing home occupancy rates are down. Elders are voting with their feet, sometimes at terrible risk to themselves and often at terrible risk to the health and finances of their senior themselves family caregivers.

Who — as one of my friends aasks — could possibly believe that gaming the system to obtain a Medicaid funded nursing home bed was some kind of victory?  Could such a theorist ever actually have visited a nursing home that accepts Medicaid reimbursement? 

 

I tell my health law students that the role of self-insurance in employer-sponsored health insurance is a riddle wrapped in a mystery inside an enigma.  By this, I mean that the explosive growth in self-insurance by employer sponsored health insurance plans is an under-discussed phenomenon.

Today, the New York Times took it on.

First, the NYT explains that an estimated 59% of private sector workers with health coverage are enrolled in self-insured plans (up from 41% in 1998).  Always popular with the very largest employers, the growth of self-insurance for small to mid-size employers is tremendously important for those trying to understand the role of state health insurance regulation. Self-insured plans, in short, are exempt from much state health insurance regulation.

Second, explaining that the exemption of self-insured plan from state health insurance regulation is not premised on any genuine absence from all  insurance markets, the article explains about self-insured plans' participation in the stop-loss insurance market.  Stop-loss is secondary insurance and designed to protect against some of the risks of self-insurance.

Finally, explaining the transformation of the stop-loss health insurance market as small to mid-size employers flood the market seeking cost savings from ACA-initiated additional insurance regulation, the NYT connects the dots. The stop-loss market responds by cherry picking among the new refugees on the basis of — you guessed it — health status of the employee group, reintroducing underwriting by small group to places where it had been eliminated for individuals by the Affordable Care Act. 

The moral of the story? Wherever and whenever we have competing insurance products whose profitability is determined  by calculating every health care payout as a loss, the insurance markets will respond accordingly — ever inventing more methods, even if once or twice removed, to screen those who need health insurance out of the health insurance marketplace.  

Lots of people ask me what a health insurance exchange will look like.  I've been telling them that they may visit the Massachusetts connector for one example and that California's site will be up soon.  Now I have to amend that: Covered California may be visited here: http://www.coveredca.com/

Now the harder question still remains unanswered: what will it be like to actually use the health insurance exchange to try to acquire health insurance? The conventional response seems to be that the exchanges will be modeled on Travelocity.

I guess it all depends on your most recent experience with Travelocity and whether you think the kind of sophisticated value-driven computer-savvy consumers that use a site like Travelocity were the ones I am most worried about in the Exchanges.

 

 

Anyone interested in bringing American low wage workers into health insured status ends up having to take a look at Wal-Mart. Wal-Mart employs an estimated 1% of American workers, though it does not insure 1% of American workers.  No one outside Wal-Mart's confidence knows exactly what percentage of its total employees it does insure with commercial insurance.  But this is part of what makes looking at Wal-Mart interesting — Wal-Mart is a brilliant illustration of our larger ambivalence over employer- sponsored health insurance, an ambivalence not entirely resolved by the Affordable Care Act.

Wal-Mart gained notariety for its own ambivalence over providing employer-sponsored health insurance in the public arena in 2005 with the release of internal documents discussing the need to drive down employee health care costs — among other employee benefit costs– by strategizing the hire of younger presumably healthier and perhaps childless individuals.  In a company where only 46% of then current employees received company-sponsored health insurance and 5% of employees were enrolled in Medicaid, the documents were an embarassment for their candor but not for their accuracy.  

In fact, Wal-Mart and every large employer of low-wage and low-skilled employees had  and has every incentive to seek the employment turnover necessary to keep health care costs low and demand for employer-sponsored health insurance lower, particularly for sometimes expensive family coverage.  The origins of employer-sponsored health insurance were, in fact, to reward higher wage skilled workers to remain with their employers in the labor shortage World War II production era.

Looked at from a pragmatic perspective, Wal-Mart's interest (as outlined in the 2005 documents) in advance screening job applicants for better health status by requiring lifting, carrying, and walking in every job description could be lost by accepting the possibly not-so-robust spouses of new employees  screened in this way.  Absent requiring the spouse of a potential Wal-Mart employee to demonstrate the capacity to lift, carry, and walk, Wal-Mart knew it would be difficult to forecast costs.

There have many twists and turns in the Wal-Mart employer-sponsored health insurance story since that time. I cannot do justice to them here beyond noting Wal-Mart expanded the generosity of its employer-sponsored coverage.  

Just recently, presumably in anticipation of the ACA's expansion of Medicaid, Wal-Mart announced a plan to exclude newly hired employees who work fewer than 30 hours a week from employer-sponsored coverage.  The low wage earners among them will have to look to subsidized purchase in the exchanges or to Medicaid. States that do not embrace the optional Medicaid expansion under the ACA are likely to have substantial numbers of low wage workers too poor for subsidized purchase in the exchanges but too rich for Medicaid.

In the same time frame, Wal-Mart has announced plans to expand and strengthen their Centers of Excellence Program where, beginning in a small way in 1996, Wal-Mart has been experimenting with direct contracting for certain procedurally based care with some of the highest quality and lowest cost providers in the country.  And Wal-Mart — master of distribution chain logistics — will transport its eligible employees and their caregiver companions to these centers.  

This is a powerful move towards quality and better outcomes for Wal-Mart employees who are fortunate enough to be covered under Wal-Mart's employer-sponsored insurance.  And we will all benefit, whether or not we are Wal-Mart employees or even Wal-Mart shoppers.  We all benefit because the very largest employers to directly contract in this way (in this Wal-Mart is joined by PepsiCo and Lowe's Companies, Kohl's and others) send a strong signal to the market for commercial insurance that cost-effective quality care will be sought even if health insurance intermediaries lack the interest or incentives to organize health care provider contracting in this way. Sometimes called "steering" in the world of health insurance, we can see that direct contracting steering whatever number of lives Wal-Mart currently controls will make other employers — large and small – consider steering in this way as well.

So, there we have it.  A history of employer-sponsored health insurance designed to serve the interests of higher-wage and skilled employees and their employers struggling to find a place in time and history where the low-wage unskilled want in to the employer-sponsored health insurance tent. And an incipient revolution in  health care service contracting for those lucky enough to be inside the employer-sponsored health insurance tent designed to make the care delivered there higher quality and more affordable.

Here we see further tracings of a three tier health care system: commercially insured, government-funded insured, and uninsured all illustrated and amplified in the employee group of one large American employer.

 

 

 

My month long guest blogging stint here at Prawfsblawg is over. Thank you all for your kindnesses and for the opportunity.

Even with 31 days to work with, I never got to blog here on many of the topics on my dream list: Health Care Price Transparency — Transparent to Whom? 
Scope of Practice Wars Meet the Contraception Wars: Advance Practice Nurses Independently Prescribing Contraceptives in California 
A Nation of Liars and Cheats: How Our Health Insurance System Both Shows Us Who 
We Are and Who We Might Be

I will pick up the thread on my own blog, Missouri State of Mind, at: https://marciarille.com/

It is an amazing moment to be a health law scholar, teacher, and student.