HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Thursday, February 14, 2008

Happy Valentine's Day Privacy Rights - Love From the Fifth Circuit

What terrific timing!  The 5th Circuit Court of Appeals overturns the Texas ban on sex toys just in time for Valentine's Day!  I am sure that this will make some people's day really special! 

Even more fun could be in store for the courts on this privacy issue and how broadly to interpret the Supreme Court's decision in Lawrence v. Texas.  Yesterday's Fifth Circuit decision creates a conflict with an Eleventh Circuit decision from last Valentine's Day which upheld Alabama's sex toy ban.  For more details, see How Appealing  and

February 14, 2008 | Permalink | Comments (0) | TrackBack (0)

Health Insurers in the Spotlight

The LA Times reports on the recent investigations of health insurers.  Lisa Girion writes,

With medical costs rising, record numbers of people losing their coverage and healthcare at the top of the domestic agenda, health insurers found themselves Wednesday in the cross-hairs of regulators, elected officials and law enforcement in California and across the nation.

New York Atty. Gen. Andrew Cuomo said the nation's largest health insurers have rigged rates they pay for physician visits, leaving patients with higher medical bills.  In Los Angeles, City Atty. Rocky Delgadillo has assembled a team of investigators and prosecutors to probe industry practices such as canceling patients' coverage after they get sick. Today he is set to unveil a first-of-its-kind website to solicit information about insurance cancellations and delays and denials of treatment.

The announcements follow a yearlong string of fines and citations against insurers in California. Just last month, amid widening state probes, state Insurance Commissioner Steve Poizner decided to seek as much as $1.3 billion in penalties from Cypress-based PacifiCare as a result of widespread claim problems. . . .

Insurers defend their business practices, saying one of their top goals is to keep health insurance affordable for all. In fact, they say, many of the practices in the spotlight actually are good examples of their value in holding down healthcare costs.  "At a time when the costs of medical services soar above inflation every year, health insurance plans' tools and techniques are mitigating the damage done to consumers and employers," said Karen Ignagni, president of America's Health Insurance Plans, a Washington-based trade group, speaking about the Cuomo announcement. . . .

Cuomo alleged in a news conference Wednesday that a company called Ingenix helped its parent, UnitedHealth Group, and other insurers low-ball payments to physicians who provided care to patients outside their healthcare networks.  The company sells data to insurers who decide how much they will reimburse patients for out-of-network visits. If insurers pay less, physicians may bill patients for the difference.  For example, he said, a market survey showed physicians typically charge $200 for a routine visit. But the insurers, using Ingenix data, claimed to their members that the typical rate was $77. Applying the 80% reimbursement rate, they covered $62, leaving the patient to pay $138 out of pocket.

"Getting insurance companies to keep their promises and cover medical costs can be hard enough as it is," Cuomo said in a news conference. "But when insurers like United create convoluted and dishonest systems for determining the rate of reimbursement, real people get stuck with excessive bills and are less likely to seek the care they need."  Cuomo said Ingenix data are used by the nation's five largest insurers, including UnitedHealth, which purchased California's PacifiCare two years ago. Cuomo added that the alleged scheme could affect 70% of Americans with health coverage. His office issued subpoenas for information to several big health insurers, including Health Net Inc., Aetna Inc. and Cigna Corp.

The insurers pledged to cooperate with the investigation. United defended the integrity of Ingenix data, saying it was "rigorously developed, geographically specific, comprehensive and organized using a transparent methodology that is very common in the healthcare industry." . . . .

Insurance trade groups said the use of data to standardize medical reimbursements shows the value insurers bring to healthcare.  "It's unfortunate that today's media event ignored these facts and failed to address the appropriateness of charging out-of-network patients $200 for 'simple doctor visits' lasting '15 minutes' -- which equates to a billing rate of at least $800 an hour," said Ignagni of America's Health Insurance Plans. "As medical costs continue to soar, this is the discussion that public policy leaders need to have."

Working for several months, the Los Angeles city attorney's task force is focused on industry practices that affect patients financially as well as medically.  The website to be launched today -- "> -- invites patients, physicians and hospitals, as well as current and former insurance employees, to provide information on problems they've had with insurers.

"At a patient's most vulnerable moment, the insurance company won't pay for care or will cancel the policy altogether," Delgadillo said. "Industry schemes to maximize profits at the expense of patients are unfair and unlawful, and must be stopped." . . .

The city attorney could seek restitution for victims -- such as restoration of insurance coverage -- as well as civil penalties and other remedies. The task force was initially focusing on insurers' widely disputed practice of canceling patients with individual policies after they submitted claims for medical care.

Here is some further information on the New York reimbursement suits.

February 14, 2008 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 13, 2008

Prescription Drug Errors

Just when you thought it was safe to start taking drugs again (I mean - we will be getting a new President soon and hopefully he or she will want to increase the funding and re-think the staffing for the FDA), we learn that it isn't just the drugs themselves that can be harmful, but the people who fill those drugs can make mistakes - quite a few of mistakes actually. From the Wall Street Journal's Health Blog's Jacob Goldstein,

A Florida roofer died a few years back from a methadone overdose, 36 hours after a pharmacy technician mistakenly typed prescription instructions that said the pills should be taken “as needed.” The instructions were supposed to say four tablets, twice daily.

The roofer’s story lands in today’s USA Today as part of a series the paper is rolling out on pharmacy errors. The pharmacy industry says it’s spent lots of money on high-tech systems to drive the rate of such errors well below 1%. But even a very low rate can mean lots of cases.

An Auburn University pharmacy study in 2003 projected the odds of getting a prescription with a serious, health-threatening error at about 1 in 1,000, USA Today reported yesterday. That could amount to 3.7 million such errors a year, based on 2006 national prescription volume, according to the paper. . . . .

Bonus Pills: Read our post on drug errors that can occur when pharmacy employees or doctors confuse one drug name with another.

February 13, 2008 | Permalink | Comments (0) | TrackBack (0)

Ezra Klein on Insurers

Ezra Klein has a great post today on why insurance companies pose a problem for the provision of health care in our country and ways to solve this problem.  He writes,

Lets start from a basic proposition: In the current system, insurance companies add negative value, which is to say, they make health care worse, not better. Conservatives often complain that health insurance is not "insurance" in any real sense, it is not protection against unexpected costs, but insulation from largely predictable costs. We know we will need to purchase health care. We contract out with health insurers to smooth those expenditures -- render them predictable and manageable over the course of years, rather than unexpected and crushing in the course of months. That's why we pay insurance premiums so we can one day get chemotherapy, rather than simply paying for chemotherapy.

But "we" here is misleading. Not all of us make this deal with insurers. And among those of us who do make this deal, we make it in different ways, purchasing different levels of insulation, on different time periods. So the insurers, quite naturally, turn their attention to making deals with the most profitable among us, and avoiding deals, or finding ways to break contracts, with the least profitable. They are very innovative in their attempts to do this. But there's nothing good about those attempts. Competition among drug dealers does not aid the neighborhood, and currently, competition among insurers does not aid the ill. Indeed, their inattention to actual care is startling. America, for all its technological advancement, has among the lowest adoption of cost-saving, care-improving, electronic records in the world. That is the fault, in part, of our insurers. . . .

Given those incentives, insurers cannot compete to offer better care, because if they offered better care, all that would happen is they would attract worse deals. Which is why, in the current system, insurers make things worse. Tyler Cowen has a vision for how insurers could, in a more perfect world, compete to our benefit. And I don't necessarily disagree with it. But let's be clear on what's necessary:

  1. Universality: Insurers cannot compete effectively unless everyone is in the pool. If the healthy can leave, insurers cannot compete to offer better care. They'll have to compete to attract the healthiest, which means offering the lowest costs, which means insuring the fewest sick people. The system has to be universal.
  2. Community Rating: Insurers cannot be allowed, before offering insurance, to use demographic subslicing to cherrypick the market. That means no more preexisting histories, no complex formulas around age and income and race and region. They offer insurance to anyone who wants it for the exact same price. No exceptions.
  3. Risk Adjustment: Merely having everyone in the system won't be enough, and nor will forcing insurers to do away with their most delicate cherrypicking tools. Insurers will just become sophisticated at advertising on G4 Tech TV, and in snowboarding magazines, and in urban centers -- in places, in other words, where the young and the healthy gather. So atop the universal system, atop the community rating, you need risk adjustment, which means either that insurers are reimbursed more for taking on sicker patients, or, my preferred method (and the one used in Germany), insurers with particularly healthy pools pay into a central fund that redistributes to insurers with less healthy pools. At the end of the day, it has to be as profitable for an insurer to insure a sick person as a healthy one.
  4. Information Transparency: It needs to be easy for individuals to compare insurers on plan comprehensiveness, price, outcomes, etc. That means we need a marketplace where folks can go to shop for insurers, and they need to have standardized comparisons, or non-partisan rating authorities, providing information they can use.
  5. One Market: This is contained in the last point, but there needs to be a singular place, or set of them, where individuals can shop around for insurance. This is hard stuff to find, and harder yet to understand, and real effort needs to go into constructing an easily accessible marketplace that customers can effectively navigate.

There are probably more, but those are the major ones. It's not impossible to imagine a scenario in which insurers actually compete to offer better service, in which the marketplace really does work to the consumer's benefit. That could take a million different forms, from personalized care coordinators to electronic records to online access to your health information to negotiated discounts on gym memberships to a million things I haven't thought of. But none of them happen with any sort of frequency now because insurers operate in a perverse market in which their incentives are to make the system, and our care, worse.

February 13, 2008 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 12, 2008

Doctors and Insurance Companies and Confidentiality of Your Health Information

The LA Times reports on doctors in California refusing to comply with a request from Blue Cross of California that they provide information on a patient's pre-existing condition. Lisa Girion writes,

The state's largest for-profit health insurer is asking


physicians to look for conditions it can use to cancel their new patients' medical coverage.  Blue Cross of California is sending physicians copies of health insurance applications filled out by new patients, along with a letter advising them that the company has a right to drop members who fail to disclose "material medical history," including "pre-existing pregnancies."   

Any condition not listed on the application that is discovered to be pre-existing should be reported to Blue Cross immediately," the letters say. The Times obtained a copy of a letter that was aimed at physicians in large medical groups.   

The letter wasn't going down well with physicians. "We're outraged that they are asking doctors to violate the sacred trust of patients to rat them out for medical information that patients would expect their doctors to handle with the utmost secrecy and confidentiality," said Dr. Richard Frankenstein, president of the California Medical Assn. 

Patients "will stop telling their doctors anything they think might be a problem for their insurance and they don't think matters for their current health situation," he said. "But they didn't go to medical school, and there are all kinds of obscure things that could be very helpful to a doctor." 

WellPoint Inc., the Indianapolis-based company that operates Blue Cross of California, said Monday that it was sending out the letters in an effort to hold down costs. "Enrolling an applicant who did not disclose their true condition (and the condition is chronic or acute), will quickly drive increased utilization of services, which drives up costs for all members," WellPoint spokeswoman Shannon Troughton said in an e-mail. . . .

The California Medical Assn. sent a letter to state regulators Friday urging them to order Blue Cross to stop asking doctors for the patient information, saying it was "deeply disturbing, unlawful, and interferes with the physician-patient relationship." . . .

Lynne Randolph, a spokeswoman for the state Department of Managed Health Care, said the agency would review the letter. Blue Cross is fighting a $1-million fine the department imposed in March over alleged systemic problems the agency identified in the way the company rescinds coverage.  A spokesman for state Insurance Commissioner Steve Poizner said the Insurance Department had not received any complaints about Blue Cross' letter. But because the medical association had sent a copy of its complaint to the department, the letter is "on our radar now," spokesman Byron Tucker said.

The letter is "extremely troubling on several fronts," Tucker said. "It really obliterates the line between underwriting and medical care. It is the insurer's job to underwrite their policies, not the doctors'. Doctors deliver medical care. Their job is not to underwrite policies for insurers."

Anthony Wright

, executive director of HealthAccess California, a healthcare advocacy organization, said the letter had put physicians in the "disturbing" position of having to weigh their patients' interests against a directive from the company that, in many cases, pays most of their bills.

"They are playing a game of 'gotcha' where they are trying to use their doctors against their patients' health interests," Wright said. "That's about as ugly as it gets."

February 12, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, February 11, 2008

Flu Pandemic Preparation for Hospitals

DailyKos has a great article by DemFromCt on the preparation or lack of preparation that hospitals have undertaken for the next flu pandemic - complete with lots of helpful charts and graphs.  The article is an eyeopening read on how much strain such emergencies would put on our health care system.  DemFromCt writes,

Problems like pandemics, surge capacity and disaster preparation do not go away by ignoring them. Hopefully, by putting some of these issues in perspective, we can better appreciate the time, dollars and energy spent on mitigating that which cannot be stopped. At the same time, we can appreciate the efforts being made by your public health people which, if invisible, are still none the less remarkable. And finally, we can appreciate how strained the current health system is... it would not take much these days to push things over the edge, despite the remarkable resilience the health system has shown.


The Washington Post had an interesting story last week about the challenges hospitals face in preparing for the next flu pandemic:

The federal government's voluminous plans for dealing with pandemic flu do not adequately account for the overwhelming strain an outbreak would place on hospitals and public health systems trying to cope with millions of seriously ill Americans, some public health experts and local health officials say.

The Bush administration's plans, which run more than 1,000 pages, contemplate the nightmare medical scenarios that many experts fear, but critics say federal officials have left too much of the responsibility and the cost of preparing to a health-care system that even in normal times is stretched to the breaking point and leaves millions of people without adequate access to care.

"The amount going into actually being prepared at a community level is not enough," said Patrick Libbey, executive director of the National Association of County and City Health Officials. "We are still talking about rearranging with little additional resources the assets of a system that are built on such a thin margin now that you have significant amounts of people without access to care, and hospitals that are periodically shutting down their ERs and the like."

These concerns aren't just reflected in news stories quoting public health officials. At a recent emergency management conference I attended, I heard the same concerns expressed by hospital representatives from all over the country. There's a reason for this... despite the great work by creative people trying to figure out how best to cope, there's just not enough of the three components that make up what's called surge capacity, the ability to flex up hospital care quickly to meet the needs of the population it serves (.pdf link). Those components can be thought of as "staff" (nurses and other health care workers and caregivers, "stuff" (from intravenous medicines to bedsheets to actual beds) and "space" (everything needs to be housed somewhere). California alone is spending hundreds of millions of dollars on this (good that they are), and given the efforts on the one hand and the concerns on the other, it's worth spending a Sunday essay reviewing what the big deal is. It's your tax dollars, and (for one disaster or another), your community (click this link).

Dr Eric Toner (from the University of Pittsburgh Medical Center's Center for Biosecurity) has been working on these issues for some years. Two of his slides illustrate the problem that an influenza pandemic would cause. In the first, the total US hospital beds availability is presented, and contrasted with what would be needed for both a mild moderate (similar to the 1968 pandemic) and a severe (based on 1918) pandemic. SNS is the strategic national stockpile, set aside for grave emergencies and under the control of HHS and DHS.

The second slide represents the same numbers looked at in terms of projected demand, and what would be required from hospitals to cope.

Using FluSurge 2.0 and inputting variables from the HHS planning assumptions results in projections that indicate that hospitals would be severely stressed in the best case scenario and completely overwhelmed in the case of a severe pandemic

What Hospitals Should Do to Prepare for an Influenza Pandemic
Eric Toner and Richard Waldhorn . . . . .

February 11, 2008 | Permalink | Comments (0) | TrackBack (0)

The Canadian Health Care MythBuster

Here is a great link to a website that discusses the Canadian Health Care system and de-bunks some of the myths surrounding it.  Here is just a brief sample:

1. Canada's health care system is "socialized medicine."
False. In socialized medical systems, the doctors work directly for the state. In Canada (and many other countries with universal care), doctors run their own private practices, just like they do in the US. The only difference is that every doctor deals with one insurer, instead of 150. And that insurer is the provincial government, which is accountable to the legislature and the voters if the quality of coverage is allowed to slide.

The proper term for this is "single-payer insurance." In talking to Americans about it, the better phrase is "Medicare for all."

2. Doctors are hurt financially by single-payer health care.
True and False. Doctors in Canada do make less than their US counterparts. But they also have lower overhead, and usually much better working conditions. A few reasons for this:

First, as noted, they don't have to charge higher fees to cover the salary of a full-time staffer to deal with over a hundred different insurers, all of whom are bent on denying care whenever possible. In fact, most Canadian doctors get by quite nicely with just one assistant, who cheerfully handles the phones, mail, scheduling, patient reception, stocking, filing, and billing all by herself in the course of a standard workday.

Second, they don't have to spend several hours every day on the phone cajoling insurance company bean counters into doing the right thing by their patients. My doctor in California worked a 70-hour week: 35 hours seeing patients, and another 35 hours on the phone arguing with insurance companies. My Canadian doctor, on the other hand, works a 35-hour week, period. She files her invoices online, and the vast majority are simply paid -- quietly, quickly, and without hassle. There is no runaround. There are no fights. Appointments aren't interrupted by vexing phone calls. Care is seldom denied (because everybody knows the rules). She gets her checks on time, sees her patients on schedule, takes Thursdays off, and gets home in time for dinner.

One unsurprising side effect of all this is that the doctors I see here are, to a person, more focused, more relaxed, more generous with their time, more up-to-date in their specialties, and overall much less distracted from the real work of doctoring. You don't realize how much stress the American doctor-insurer fights put on the day-to-day quality of care until you see doctors who don't operate under that stress, because they never have to fight those battles at all. Amazingly: they seem to enjoy their jobs.

Third: The average American medical student graduates $140,000 in hock. The average Canadian doctor's debt is roughly half that.

Finally, Canadian doctors pay lower malpractice insurance fees. When paying for health care constitutes a one of a family's major expenses, expectations tend to run very high. A doctor's mistake not only damages the body; it may very well throw a middle-class family permanently into the ranks of the working poor, and render the victim uninsurable for life. With so much at stake, it's no wonder people are quick to rush to court for redress.

Canadians are far less likely to sue in the first place, since they're not having to absorb devastating financial losses in addition to any physical losses when something goes awry. The cost of the damaging treatment will be covered. So will the cost of fixing it. And, no matter what happens, the victim will remain insured for life. When lawsuits do occur, the awards don't have to include coverage for future medical costs, which reduces the insurance company's liability. . . .

February 11, 2008 | Permalink | Comments (0) | TrackBack (0)