Category: Uncategorized

Arizona Governor Jan Brewer has decided to endorse Medicaid expansion
under the Affordable Care Act. Since this decision requires state
legislative approval in Arizona, I am still puzzled as to why press
coverage implies this is also Arizona's decision. Her decision was to
stake out the governor's position. What the State of Arizona will do
remains to be seen.

Still, it is an amazing thing — a show stopper really — to see the
governor of the last state to participate in original Medicaid come out
in favor of Medicaid expansion. Governor Jan Brewer — she who
bolstered her political reputation by publicly wagging her finger at
President Obama on the tarmac — is all in on Medicaid expansion.
Whether this marks the triumph of mathematical calculation over ideology
will never be known.

The most important constellation of issues surrounding the NFIB v.
Sebelius decision, however, is not whether states will ultimately
opt-in to the Medicaid expansion. The Medicaid opt-in is, like original
Medicaid, not so much the federal government making the states an offer
that they cannot refuse as making the states an offer that they
desperately want to find a reason to accept. Even Arizona, after all,
ultimately opted-in to original Medicaid, in 1982, with the creation of
its Arizona Health Care Cost Containment System ("AHCCS"), still
advanced as "Arizona's single state Medicaid agency" under the authority
of a negotiated 1115 Medicaid waiver in place to this day.

What I really want to consider is what concessions will states
bargaining in the shadow of NFIB v Sebelius be able to exact from the
federal government in exchange for participation in the Medicaid
expansion? And how big will the federal government allow the states to
dream? Arizona's original AHCCS waiver, for example, was to include
all state employees in its program — a daring proposal that has not
survived implementation. At least six states have expressed some
interest in bartering block-grant authorization of Medicaid for their
state’s participation in the Medicaid expansion.

Medicaid is and has always been a heavily negotiated program,
particularly as it applies to “optional populations”. Now that
individuals at between the federal poverty level and 138% of the federal
poverty level are “optional populations”, the negotiations seem likely
to increase in intensity. There are currently 426 active Medicaid
waivers. This is not uncharted territory. It is merely, for the ACA, an
unexpected voyage.

The history of Medicaid reveals the existence of enormous state power
to demand unique degrees of buy-in to Medicaid expansion. That is the
lesson of the state-by-state brokered buy-in for original Medicaid.
That is also the lesson taught by the historic use of the Health and
Human Services (“HHS”) Secretary’s Section 1115 waiver authority to
allow an extraordinary range of state-level experimentation. Section
1115 strongly suggests that the HHS Secretary may offer states
individual bespoke Medicaid programs. But whether states can demand them
is a harder question.

Excerpted from "Let Fifty Flowers Bloom: Health Care Federalism After
NFIB v. Sebelius" (forthcoming, draft available on SSRN) and a follow
up work in progress: "The Medicaid Gamble."

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

 

If you saw the recent Wall Street Journal article on the development
of Smartphone apps to detect skin cancer, you may already be wondering
about specialty physician over-supply. 

The University of Pittsburgh Medical Center study discussed in that
article did not particularly endorse the three apps studied that used
algorithms to analyze moles — quite the opposite.  They need work.

Though the study did not like the fourth app as well — the one with
the astonishingly accurate results that used a system that forwarded
data and images to board-certified dermatologists for remote review at a
cost of $5 per mole — you could tell Christopher Weaver at the Wall
Street Journal was intrigued. I am as well.

Teledermatology is not particularly well developed in the United
States but is fairly advanced in Australia, another large country with a
significant rural population and a chronic problem with various kinds
of skin cancers.   Australia's teledermatologists have fractured the
traditional dermatology appointment, much like the app, reserving
specialized visual work for the dermatologogist and leaving lab sampling
to hands-on primary care providers.  This means that dermatological
care for some Australians is provided, in part, remotely.

There are many other health care related apps out there but not as
many as you might think.  In fact, health care apps are widely discussed
as under-developed in the United States. ( If you have one in mind,
here's a forum for you to seek fame and
fortune: http://rwjf.org/en/about-rwjf/newsroom/newsroom-content/2012/12/foundation-announces–200-000-developer-challenge.html?cid=Xtw_qualequal.
 No worries if you miss today's deadline, this is an ongoing series of
competitions.)

If one remotely-located dermatologist is able to  perform these
dermatological readings for many primary care providers, it is not
difficult to imagine a trend line on dermatology: fewer dermatologists
practicing remotely in ever larger specialized practice settings.
Indeed, this is something we can already notice in some parts of
radiology.

Interestingly, as in radiology, the specialization of the visual
exam reader may also improve accuracy — both in screening function and
in elimination of expensive-in-every-way (financially, clinically,
emotionally) false positives.  I think of this as the paradox of
learning to have clinical confidence in the doctor you never meet, the
super specialized mammogram reader, for example,  you hope you never meet.

Even if this raises interesting questions about specialty physician
supply, what about the primary care physician shortage? This one you see
everywhere because, after all, how are the many millions of newly
insured Americans going to access health care without a primary care
physician come January 1, 2014? Even the example above contemplates
additional responsibilities for primary care providers coordinating with
remote dermatologists.

I recently had the privilege of teaching in a UMKC Business School
program for physicians–medical directors in particular. I always take
away more than I give from such encounters.  This group was genuinely
concerned about finding the providers — and the needed number of
primary care physicians — to implement the Affordable Care Act.

They have everything to be afraid of in a medical educational system
where fewer than 20 percent of medical students end up working in
primary care. Looked at from another angle, however, times of shortage
may in fact be times of great opportunity. Despite decades of discussion
about re-inventing medical school education (broadly construed to
include post-graduate education), we see only a slight uptick in primary
care physician supply.  

If we re-invented primary care to be oriented toward a team approach
with each team member rewarded for serving to the limits of their
licensed authority and training, we might not need a huge infusion of
primary care physicians.  We might need a huge infusion of advance
practice nurses or health educators or any number of associated health
professionals who might offer primary care services in a team format.
 Rushika Fernandpulle has written in Health Affairs about "The Big
Shortage" along these lines. And, like him, I wonder  do we even have a
physician shortage at all?

Riddle: How many doctors will it take to implement one Affordable Care Act?

Answer: Fewer than you might think.

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

Pediatric dental services are included in the essential health
benefits standard of the Affordable Care Act. This means the ACA
requires  individual and small-group plans sold in the exchanges and
outside the exchanges to offer pediatric dental services, as of January
of 2014  – just less than a year from now.   And dental services
already are part of the benefit package for children who are enrolled in
Medicaid. 

Demand for pediatric dental services is about to increase.  But no one knows by how much.

One thing we do know is that the Centers for Disease Control estimate
over two thirds of Americans age 16 to 19 have decay in their permanent
teeth. The CDC also estimates one quarter of children start school with
tooth decay.  How many of these people will step forward for dental
care is unclear. But the school aged population may be screened more
consistently for dental problems now that dental problems have been
identified as a marker for lost school days and because of increased
pediatric dental insurance coverage.

Our Medicaid eligible population is about to boom. Just to give you
some sense of scale, you should know that California estimates a further
900,000 pediatric Medicaid enrollees will soon join Medi-Cal,
California's version of Medicaid.

Another thing we do know is that about half of all currently Medicaid
eligible children have not seen a dentist within the past year. Whether
bringing their parents into Medicaid eligibility as part of what is
sometimes called a "culture of coverage" will increase pediatric dental
demand in the population of Medicaid enrollees is also unclear. This is
especially tricky to forecast since Medicaid dental coverage for adults
— an optional program — is increasingly rare.

One final thing we do know is that some subset of Medicaid enrollees
who have tried to access pediatric dental services but failed, did so
because of an inability to find a dental provider who would accept
Medicaid reimbursement.   This number is hard to quantify but is most
often extrapolated from looking at the percentage of licensed practicing
dentists in a given service area who accept Medicaid reimbursement.
 HHS estimates that twenty percent of the nation's 179,000 practicing
dentists accept Medicaid and notes that the licensed dentist pool has
not kept up with population growth.  Interestingly, the labor supply of
other oral health proffessionals (dental hygenists, etc.) has kept up
with population growth while dentistry has gone grey.

Medicaid dental reimbursements are low. Though they vary from state
to state, they can be as low as 25% of market rates.  The National
Academy for Health Policy did an interesting study in 2008 comparing
Medicaid dental reimbursement rates and the effects of targeted
reimbursement increases as well as reduced administrative paperwork.
Sure enough, raising the reimbursement rate and lowering the
administrative burden increased the number of Medicaid participating
dentists dramatically.

Rate thresholds matter, it turns out, but only if a state has the
funds to raise Medicaid pediatric dental rate thresholds. Some of those
who do not have begun to talk about using dental therapists for some
aspects of oral care.  Known as "mid-level providers" for the place they
take between dental hygenists and general dentists, dental therapists
 are an interesting group. Dental therapists typically have two to three
years of training beyond high school. 

Minnesota is the first state to have established a licensing system
for dental therapists and advanced dental therapists.  Dental
therapists, under either general or indirect supervision, may perform
many of the services we now associate with dentistry: charting,
cleaning, even some work on cavities and more advanced services.
 Minnesota's Board of Dentistry appears to have made at least a
temporary peace with what I call dentistry's scope of practice wars —
the rules and regulations regarding supervisory ratios, services that
may be offered by dental therapists, and the education and training of
dental therapists.

Minnesota's licensing scheme is new. Since 2011, there have been only
a  small numbers of graduates. But we do have substantial experience in
using dental therapists with under-served rural populations in Alaska.
Alaska's Dental Therapist Health Aides ("DHAT") experiment has been
moving forward since 2005 under the auspices of the Alaskan Native
Tribal Health Consortium. The first DHAT trainee cohort was trained in
New Zealand but DHAT's dental therapists are no longer trained overseas,
though it is private foundation money that has done much to launch  and
extend this experiment.

The results for consumers are good, even very good. Care is available
in remote or hard to reach places and is provided in a community
context. Quality measures have been quite high.

Now, remote Alaskan locations  are one thing and rural underserved
populations in Minnesota are another, but I am pretty certain the dental
therapist  scope of practice wars have only just begun. Organized
dentistry is concerned about quality standards, educational standards,
and the  liability concerns of dental therapist supervisors. Organized
dentistry is also worried about oral health care provider competition.

I will watch this story unfold.  California's Children's
Partnership's  recent call for the licensing of dental therapists — in a
state with some of the most restrictive scope of practice rules in the
United States — should be worth following.

I tell my students that,  in health care,  innovation often starts in
the arena of government funded health insurance and spreads to the
world of commercial insurance only later. If Medicaid leads the way in
championing  the use of dental therapists as lower cost providers to
fulfill its promise of pediatric dental services, I assure you
commercial insurance providers both inside and outside of the exchanges
will take note.

So, whoever you are,  just open your mouth wide and say "dental therapist."  

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

 

This expression appeared in a Wall Street Journal editorial of 19 January 2011:

“President Obama took to these pages yesterday to announce a new executive order to restore “balance” to federal regulation and root out rules that impede job creation and economic growth. If he means it, this will be one of the great policy walkbacks in American history. The rest of us should stay in a Missouri state of mind.”

http://transnotes.blogspot.com/2011/01/translation-trivia-missouri-state-of.html

 

I am an  Associate Professor of Law at the University of Missouri–Kansas City. After seventeen years as a student of California’s health care system, I am intrigued to be reaching to Missouri for my examples. The past several months, in preparation for my move to UMKC and teaching Health Law there, has been a crash course in health law and health care — Missouri style.  I started this blog to share what I learned and to intitiate a broader conversation about what it will take for the Affordable Care Act to work in Missouri.

I am a graduate of Amherst College and Harvard Law School who has spent much of the past twenty five years as a health law attorney and ten of those years working on health care related matters for the office of the California Attorney General.

I have taught Health Law, Elder Law, Disability Law, Health Law Policy, and Health Care Finance at Pacific McGeorge School of Law, Berkeley Law School/Boalt Hall, and the University of California – Hastings College of the Law.

My SSRN link is found at: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1651739

My cv is at: AnnMarieMarciarille_CV_9_2_2014

My biography is at: Marciarille_revisedbio_5_7_14-2