HHS Secretary Sebelius Sounds Tired

Ann Marie MarciarilleLeave a comment

There is a tired note to Secretary Sebelius's December 10, 2012  letter to the states on timlines and terms for exchanges and market reforms under the ACA. You can see it for yourself here: http://cciio.cms.gov/resources/files/gov-letter-faqs-12-10-2012.pdf.  It is true — as she points out–that negotiations have been underway about ACA implementation, on one issue or another, for more than two years. But I want to suggest that this will not all be resolved anytime soon. This will be a marathon and not a sprint.

Secretary Sebelius also sounds tired of negotiations over the possibility of phased-in or partial expansion of Medicaid to 133% of the federal poverty level. The latest FAQ format guidance to the states does indicate, though,  that "[i]f a state that declines to expand coverage to 133% of FPL would like to propose a demonstration that includes a partial expansion, we would consider such a proposal to the extent that it furthers the purposes of the program, subject to the regular federal matching rate." The regular FMAP varies by state, of course, but in no instance even approaches 100%. Choices will have to be made.

This means that fifty flowers can bloom, but it will cost you.

Medicaid Expansion in Missouri

Ann Marie MarciarilleLeave a comment

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.

 

Teaching Law to Dental Students

Ann Marie MarciarilleLeave a comment

Late last month, it was my privilege to spend 50 minutes talking about professional liability/dental error to an early morning crowd of senior year dental students at UMKC. I always receive far more than I give when I speak about health law to health care practitioners and learners in health care academic settings. One thing I receive is a reminder to keep it simple, keep it lively, and keep it accessible.  Another thing I receive is an opportunity to look for trends in liability and quality developments peculiar to a particular medical specialty and health care group. And, finally, I gain some insight into what is on the minds of practitioners and practioners in formation around topics as diverse as tort reform, the ACA, and the changing nature of their own practices.

What did I learn at UMKC's School of Dentistry on November 29th?  That no matter how early the hour or how tired the learner, practitioners are always interested in talking about liability. I am, in  this regard, an ambassador from the land of the law and an introduction — at best — to the legal vocabulary of standard of care, negligence, causation, etc.

Motivated students learn quickly.  Uniformly, students are intrigued to analyze a particular case history or treatment narrative in the way that lawyers and law students do. Lots of questions get asked.  The big takeaway: although it often takes a village to commit medical error, a few providers or one institutional entity is often called upon to "take the fall."  Thinking about this gives us an opportunity to think about how antiquated our tort system is, particularly in its limited capacity to conceive of system error.

I never talk about liability without also discussing quality.  The dental students/learners were quite varied in their opinions on what I call the "beyond torts" question. What, if anything, might do a better job of policing dental service quality?  Some thought the regulatory state would do no better, some thought courts should set the legal standard of care.  

My goal is to get them thinking about the alternatives.  As the fine historian Professor Bob Gross once told me: "Ann Marie, anybody can tear something down. It takes real effort to build something up."

I have attached my ppt deck for a 50 minute presentation I call "Fifty Minute Law School" [for dental students].
Download Fifty Minute Law SchoolUMKCSOD112912

Essential Health Benefits: Let Fifty Flowers Bloom

Ann Marie MarciarilleLeave a comment

Well, it is official — now that the New York Times has taken note — that there will be considerable variation among and between the states' essential health benefits in the small and individual group markets under the ACA mandated insurance exchanges.  You can see the NYT's announcement here: http://www.nytimes.com/2012/12/06/health/interest-groups-push-to-fill-margins-of-health-coverage.html?_r=0.

Of course, this continued flowering of health care federalism was foretold months ago in the announcement by the Secretary of HHS that, although the language of the ACA reserved the definition of EHB to the secretary, this definition would be developed in consultation with the states. This decision to allow, even under the ACA, for geography to be destiny in healthcare  was a weighty one and one, I would imagine, brokered under pressure from all sides.

First, it is likely those states who had relatively rich state specific insurance mandates, pre-ACA, would not want to have equalized downward to a less rich essential benefit.  This is why, I suspect,  November 26, 2012's announcement of a a notice of proposed rule making on EHBs grandfathers in state-mandated benefits enacted before December 31, 2011 as part of EHB without additional costs to the states.

Second, it is likely those states who had relatively thin state specific insurance mandates, pre-ACA, would not want to have equalized upward to a richer version of essential benefits both as a cost savings matter and as a philisophical position on the wisdom of comprehensive health insurance.  Let's call this the problem of moral hazard.

Where does this leave us?  The tailoring of state-mandated benefits to fit with EHB combined with the EHB's benchmarking rules — essentially allowing a state to select a benchmark plan from between and among certain kinds of extant health plans offered within their state — goes a long way towards ossifying or codifying some of the gaps in coverage between and among states.

I discuss some of the implications of health care federalism and the ACA in my draft paper: Let Fifty Flowers Bloom: Health Care Federalism After National Federation of Business vs. Sebelius (forthcoming UMKC L. Rev. 2012), which you can also find posted  here on SSRN: 

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2185480

if you care to read more.

Missouri Governor Jay Nixon Announces Medicaid Expansion Budget Proposal

Ann Marie MarciarilleLeave a comment

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: http://www.news-leader.com/viewart/20121129/NEWS06/311290053/Nixon-Missouri-Medicaid-expansion-governor

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

Ann Marie MarciarilleLeave a comment

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.

Considering Medicaid Expansion – Mental Health Services

Ann Marie MarciarilleLeave a comment

The Kansas City Star's November 17, 2012 editorial on the need for honest analysis before decision-making on Medicaid expansion was unusual. I was particularly struck by the illustration of potential Medicaid expansion savings by shifting much of the cost of recipients of state mental health services from the states to the federal government.

Rather than parse the entire editorial for factual accuracy, I would rather comment on its general tone.  The KC Star cannot make the case for even considering the Medicaid opt-in as a balance sheet matter without first explaining to its reading public the tremendous roll government (both federal, state, and county) already plays in funding health insurance in the United States.

Suzanne Mettler's The Submerged State is a book about the costs to democracy when the government's subsidizing hand is hidden. You can read a bit about it here: http://www.press.uchicago.edu/ucp/books/book/chicago/S/bo12244559.html  Her point is that we hide much government subsidization behind tax policy (think the mortgage interest deduction) as a way of hiding the very nature of direct subsidization and cross-subsidization itself, thereby robbing our citizenry of the vocabulary necessary to have an informed debate on much of this subsidization.

How does this apply here?  I am guessing the KC Star editorial board imagines a significant percentage of its readership would be astonished to learn that the government — both state and federal — already subsidizes some mental health care to low income and indigent individuals. They might also be surprised to learn something the Star did not point out — that a number of states have spent much effort, since 1983, perfecting cost shifting maneuvers designed to game their way out of the state share of some of these agreements. Sounds like the Star is urging Kansas and Missouri to join the crowd.

Part of the ACA's simplification of Medicaid funding to the states for those newly eligible under Medicaid expansion was to simplify the system for beneficiaries but also to simplify the system as a matter of policy — rendering it both more transparent and more debatable in the public arena.

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

Ann Marie MarciarilleLeave a comment

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.

 

 

Science in the Courtroom: Conception as Perfect Response to a Rape Charge

Ann Marie MarciarilleLeave a comment

I have been enjoying reading James Mohr's Doctors and the Law (Johns Hopkins Press, 1993) as I broaden my knowledge of the history of medical jurisprudence.  Along the way, James Mohr has also taught me some things about the 19th century conception defense to a charge of rape in both English and American courts.  

"All of the leading authorities in the field of medical jurisprudence were in agreement on this point by mid-century. Yet the old notion did not die easily, as cases during the Civil War demonstrated, and large portions of the public continued to suspect that there was some realtionship between female orgasm and conception." (Mohr, 73)

What is remarkable is the documented effort of American physicians to insist — in the civic education arena of the courtroom surrounding a rape trial — that conception could follow rape. Pregnancy, in short, was not exclusively to be considered a matter of volition. Mohr's book is genius in how it places this medical jurisprudential development in line with the earlier scientific conclusion that women's ovulation is involuntary.

"The campaign was vast, largely uncoordinated, full of ambiguities, imperfectly understood even by the participants on the front lines, and still dimly perceived a century and a half later." (Mohr, 75) 

Why Does Health Care Transparency Matter?

Ann Marie MarciarilleLeave a comment

I visited a Walgreen's Take Care Clinic this past weekend. Patient registration is completely automated and completely self-serve at the Walgreen's closest to my home in Kansas City.  At the very end of registering for a vaccination appointment, I was asked to review my potential financial exposure for the clinical encounter. 

Here, I perked up.  I am interested in health care price transparency to consumers.

What did I see on the screen?  I was shown a split screen: on the left a scrolling menu of vaccination and innoculation prices for the uninsured or those paying out of pocket and on the right a static screen advising that the clinic would provide services, bill my insurance, and then — possibly — bill me some more.

Now, a quick thinker could extract the out-of-pocket price of the relevant vaccination from the left hand scrolling menu and assume that would be the maximum exposure for any services to be submitted to commercial insurance on the right hand of the screen.  The problem with that is there were some pretty spendy items on the out-of-pocket left hand screen — the zoster vaccination was $220, for example.

A slower thinker could get out their cell phone and begin to mine their insurer's coverage documents for indications as to the likelihood of insurance coverage for the health care services sought. This, of course, could be a lengthy endeavor — the kind of lengthy endeavor that might cause you to exceed your Walgreen's Take Care Clinic appointment window.  One of those registration screens, after all, required me to acknowledge that my appointment time would be considered missed if I were more than 20 minutes late for the appointed time.

We make it hard to for insured health care consumers to gain accurate pre-treatment information on health care cost. Emergency or urgent health care consumers may not all be particularly price sensitive, but elective services and procedures leave a wide window of opportunity to provide easy-to-access simplified data on coverage and cost to consumer.

There are few services we buy this way, where the cost of an important service is hidden from us in advance. The insured are often insulated from health care cost by their insurance itself, leaving them focused only on the cost to themselves: co-pay, deductible, premium contribution, and scope of coverage. The other payer is the health insurance plan sponsor — an employer for most commercially insured Americans — and they are, once again, growing restless at the lack of price transparency in health care.  You can read about the Catalyst for Payment Reform's (and employer not-for-profit) lates price transparency initiative here: http://www.modernhealthcare.com/article/20121101/NEWS/121039998/commentary-catalyst-for-payment-reform-calls-for-price-transparency?utm_source=frontpage&utm_medium=newsitem309&utm_campaign=carousel-traffic#

Up soon: Is price transparency a panacea for health care cost inflation?