HealthLawProf Blog

Editor: Katharine Van Tassel
Creighton University School of Law

Saturday, May 2, 2009

New Medicare Secondary Payer Obligations

The Legal Update from the law firm of Littler Mendelson reports on the new Medical Secondary Payer obligations of employers and insurance companies: 

Beginning July 1, 2009, many employers and insurance companies will be required to report claims for workers' compensation claimants that are also Medicare beneficiaries to the Centers for Medicare and Medicaid Services (CMS) and become subject to a $1,000 per day per claimant penalty for failure to comply with this mandatory reporting requirement.

At a time where Medicare is massively under-funded, a new reporting requirement set to take effect on July 1, 2009, will significantly increase Medicare's ability to identify situations in which Medicare is paying for medical expenses that should be borne by so-called "primary payers," including workers' compensation plans.1 By statute, Medicare is a "secondary payer" with respect to medical expenses associated with workplace injuries. As such, if Medicare pays medical expenses on behalf of a Medicare beneficiary who is injured in a work-related accident, Medicare is entitled to reimbursement from the responsible party or insurance carrier for that expenditure. When Medicare makes such payments, the payments are considered to be conditionally paid expenses subject to recovery.

In order to both reduce the amount of medical expenses paid on behalf of Medicare beneficiaries who are properly payable by an employer or insurance carrier and to more completely recapture conditionally paid expenses via the statutory subrogation claim process, Congress amended the Medicare laws to impose a mandatory reporting obligation on workers' compensation plans. The amendments leave the procedure for pursuing subrogation claims unchanged. . . .

May 2, 2009 | Permalink | Comments (0) | TrackBack (0)

Friday, May 1, 2009

Early Warning of Flu Missed . . . .

McClatchy News reports that one biosurveillance firm noticed an uptick in respiratory illness in Mexico and tried to alert various health authorities but without results.  Les Blumenthal writes,

A Washington state biosurveillance firm raised the first warning about a possible outbreak of swine flu in Mexico more than two weeks before the World Health Organization offered its initial alert about a public health emergency of international concern.   Both federal and international health officials had access to the warning from Veratect Corp. Later e-mails calling attention to the company's subsequent report that the disease was possibly spreading in Mexico were sent to 10 officials of the Centers for Disease Control and Prevention, said Robert Hart, the company's chief executive.  Hart said he wasn't sure why health officials didn't act sooner.  "They have a lot of other responsibilities," Hart said on Thursday. "But every day makes a difference."

CDC officials in Atlanta said they were aware of Veratect's claims and hadn't been working with the company.  "We have nothing to add about their claims," said CDC spokesman Llelwyn Grant, adding that the CDC and other public health agencies had plans in place to deal with a flu pandemic and responded rapidly once they became aware of the Mexican outbreak.

Veratect, based in Kirkland, Wash., uses a technique known as "data mining" to automatically search tens of thousands of Web sites daily for early signs of looming medical problems or civil unrest anywhere in the world. Anything of interest is turned over to a team of 35 analysts to determine its significance and to post on the company's Web site. The company markets access to its Web site to government agencies, businesses and others and has tried unsuccessfully to sell its service to the CDC, the World Health Organization and the Department of Homeland Security. . . .

On April 6, 18 days before the WHO issued its alert, Veratect reported on its Web site a strange outbreak of respiratory disease in La Gloria, Mexico, noting that local residents thought the outbreak was linked to contamination from pig breeding farms nearby.

Hart said the information was available to the CDC and many state and local health authorities. The company's server showed an epidemiologist at the Pan American Health Organization, which is part of the World Health Organization, looked at the message about the La Gloria outbreak twice, on April 10 and 11, Hart said. . . .

Hart said he wasn't critical of the CDC or other health organizations, adding that what was needed was an effective global health monitoring system that Veratect should be a part of.  "Hindsight is great and it's hard to say whether (the delay) altered anything," he said. "The only way to stop anything like this is to break the cycle."  Others, however, cautioned that the use of data mining to track a possible disease outbreak was untested and said a number of questions about its effectiveness remained unanswered.  "This approach is not yet vetted," said Dr. Marguerite Neill, an infectious disease specialist at Brown University and a spokeswoman for the Infectious Disease Society of America. "It is an interesting idea, but we haven't used it before."

Neill said the problem with using information picked up through data mining was determining whether it was just an indication of a routine disease outbreak or something much more serious.  "It needs to be put in a clinical or epidemiological context," she said. "I'm not sure Veratect can do that."

May 1, 2009 | Permalink | Comments (0) | TrackBack (0)

Health Reform and Pandemics

Matthew Yglesias points out the need for health reform that this swine flu outbreak has reinforced.  He writes,

The CDC’s “Swine Flu and You” page offers the following under the heading of “what should I do if I get sick”:

If you live in areas where swine influenza cases have been identified and become ill with influenza-like symptoms, including fever, body aches, runny nose, sore throat, nausea, or vomiting or diarrhea, you may want to contact their health care provider, particularly if you are worried about your symptoms. Your health care provider will determine whether influenza testing or treatment is needed.

Of course as Igor Volsky points out:

But for the millions of Americans who can’t afford to purchase health insurance, a visit to a “health care provider” is an expensive proposition. . . .   According to the latest Kaiser Poll, 60 percent of Americans say that “they or a member of their household have delayed or skipped health care in the past year” and many are “substituting home remedies or over the counter drugs for doctors visits.” . . . .

More broadly, the epidemic serves a reminder that the health care system is in many ways a public function. Free markets work very well for ordinary consumption goods, but Tamiflu is not an ordinary consumption good. . . . .

May 1, 2009 | Permalink | Comments (0) | TrackBack (0)

Doctor v. Patient Decisions

Ezra Klein points out an interesting difference between the left and right on the issue of who should be making the decisions on a variety of health care issues:

If you look at the health care policies favored by liberals and the health care policies favored by conservatives, here's the general difference: Conservatives believe the decision-maker in health care is the consumer. Liberals believe it's the doctor. And so conservative policies try to change consumer behavior. Liberal policies try to change doctor behavior.

That's why conservative policies tend to focus on how individuals pay for care: High deductible health care plans, for instance, make consumers spend more out of pocket, and so they're more price sensitive, and in theory, more careful. Single payer health care and other versions of the "global budget" theory change the way providers are compensated (overprescription means underpayments), and so, in theory, change the behavior of doctors. . . . .

This, I think, gets back to the need to change the behavior of doctors rather than consumers. Patients mainly know to ask for what their doctors tells them to ask for. That's a bit less true in the age of WebMD. But their underlying tendency is to want everything done, no matter the cost, no matter the evidence. A conservative would say that that's because they don't feel the cost. If they did, they'd be quicker to demand the evidence. A liberal would say that people don't worry about cost when they're dealing with their daughter's life. They largely offload decision-making to the doctor, and so the key is that the doctor has appropriate incentives and evidence to help them make wise decisions rather than to enable desperation. . . . .

May 1, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, April 30, 2009

Tracking the Flu

Here it is - if you like your data in charts, the Swine Flu Tracker will not disappoint.

April 30, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 29, 2009

First Swine Flu Death in US

Reuters reports on the first swine flu death in the United States and states,

A 23-month-old child has died in Texas from the new H1N1 swine flu, becoming the first death in the United States from the virus, a U.S. Centers for Disease Control and Prevention official said on Wednesday.  A Houston health official said the child was a Mexican who traveled to the city for medical treatment. . . .     She said she did not know which part of Mexico the child came from. . . .

Besser of the CDC had predicted that as they searched for cases, CDC experts would find severe infections and deaths in the United States, even though most of the patients had mild illness.  "As we look, we're going to find more cases. We're going to find more severe cases and I expect that we'll continue to see additional deaths," Besser told NBC's "Today" show.   He said additional details would be released by Texas authorities. . . .

April 29, 2009 | Permalink | Comments (0) | TrackBack (0)

Sebelius Confirmed, Sworn In, Busy at Work

Mark Silva describes the whirlwind confirmation and more of the new HHS Secretary.  He writes,

After the Senate confirmed the last of President Barack Obama's Cabinet appointees today, the president immediately swore in Health and Human Services Secretary Kathleen Sebelius in the Oval Office this evening.  Then he sent her to work: At a Situation Room meeting on the swine flu outbreak.

The White House had maintained that none of the administration's work on the flu outbreak was hampered by the lack of a confirmed HHS secretary -- that Homeland Security Secretary Janet Napolitano has been running point on the problem, and she in turn has said that communications with career service officers has been fine, including the acting Centers for Disease Control director, who works for HHS.

But Obama suggested there was no time to waste tonight, with 64 confirmed cases of the flu -- up from 20 Monday morning when he stepped out to say that the flu situation is cause for concern but not alarm -- and the disease spreading to six states.

The president interrupted a closed-door Blue Room reception for his other Cabinet members tonight to swear in the final one, Sebelius, the governor of Kansas who had drawn some controversy for her stances on abortion rights. The Senate had confirmed her hours before, she resigned as governor and flew to Washington. . . .

April 29, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 28, 2009

The Daily Show and Snoutbreak '09


Just to keep things slightly on the lighter side, here is the Daily Show take on the cable news coverage of the swine flu.  He does a great job demonstrating how they speak out of both sides of their mouth.  Click here for the links to the video.

April 28, 2009 | Permalink | Comments (0) | TrackBack (0)

WHO Phase 4 Described

DemFromCt has a helpful overview (including charts) of the WHO's recent decision to raise the pandemic alert to phase four.  Here is a brief excerpt:

. . .   There's a confirmed human outbreak overseas (several, actually - US, Canada, Spain and Mexico). And to clarify things further, WHO has redefined what their phases mean:

Phase 4 is characterized by verified human-to-human transmission of an animal or human-animal influenza reassortant virus able to cause "community-level outbreaks." The ability to cause sustained disease outbreaks in a community marks a significant upwards shift in the risk for a pandemic. Any country that suspects or has verified such an event should urgently consult with WHO so that the situation can be jointly assessed and a decision made by the affected country if implementation of a rapid pandemic containment operation is warranted. Phase 4 indicates a significant increase in risk of a pandemic but does not necessarily mean that a pandemic is a forgone conclusion. [my bold]

The Wall Street Journal also has some helpful discussion of the situation here.

April 28, 2009 | Permalink | Comments (0) | TrackBack (0)

Sebelius Confirmation VoteToday

Today, the Senate will consider Governor Kathleen Sebelius' nomination for Secretary of HHS.  You would think with the swine flu issue still causing concern that this would be a time for quickly confirming the President's choice for this position.  You would be slightly wrong.  Greg Sargent writes,

So Kathleen Sebelius will get her confirmation vote as Health and Human Services secretary tomorrow in the Senate — but even with the flu outbreak, her confirmation will still have to clear a big hurdle, requiring 60 votes.  So says the office of GOP Senate leader Mitch McConnell, anyway.

As you know, Senate Republicans have been filibustering Sebelius over lingering questions about her views on late-term abortions and some campaign contributions she received from an abortion doctor. Late last week, the Senate Dem leadership announced that in the face of GOP opposition, they had agreed with Republicans to bring Sebelius’ confirmation to the floor for a vote tomorrow that would indeed require the 60 votes.

The outbreak of the flu epidemic had led some Dems to hope that the GOP would drop their filibuster, which would mean the 60 vote threshold would no longer apply. And even GOP Senator Susan Collins called for the Senate to expedite her confirmation today.

But McConnell spokesperson Don Stewart tells me she’ll still have to clear the 60 vote threshold. The question is, Whose fault is this? . . .

Bottom line: The filibuster over an abortion controversy is still throwing a hurdle in the way of this nomination, despite the flu epidemic.

April 28, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, April 27, 2009

Domestic Cow Genome

The St. Louis Post-Dispatch reports on the completion of the cow genome.  The article provides,

The cow is the first livestock mammal to have its genetic blueprint sequenced and analyzed. The research was unveiled Thursday in the journal Science.  “The cattle industry is extremely important for U.S. agriculture with more than 94 million cattle in the United States valued at $49 billion,” said U.S Agriculture Secretary Tom Vilsack. “Understanding the cattle genome and having the sequence will allow researchers to understand the genetic basis for disease in domestic cattle and could result in healthier production of meat and milk while reducing producers’ dependence on antibiotics.” . . .

Blogbioethics has some further thoughts here and expresses hope for the quick development of a healthy milkshake. 

April 27, 2009 | Permalink | Comments (0) | TrackBack (0)

Swine Flu Update

The New York Times reports on the public health emergency declared by the US in response to the spread of the swine flu from Mexico to other countries, including the US.  The article provides,

Responding to what some health officials feared could be the leading edge of a global pandemic emerging from Mexico, American health officials declared a public health emergency on Sunday as 20 cases of swine fluwere confirmed in this country, including eight in New York City.  Other nations imposed travel bans or made plans to quarantine air travelers as confirmed cases also appeared in Mexico and Canada and suspect cases emerged elsewhere.

Top global fluexperts struggled to predict how dangerous the new A (H1N1) swine flu strain would be as it became clear that they had too little information about Mexico’s outbreak — in particular how many cases had occurred in what is thought to be a month before the outbreak was detected, and whether the virus was mutating to be more lethal, or less.  “We’re in a period in which the picture is evolving,” said Dr. Keiji Fukuda, deputy director general of the World Health Organization. “We need to know the extent to which it causes mild and serious infections.” . . .

American investigators said they expected more cases here, but noted that virtually all so far had been mild and urged Americans not to panic. The speed and the scope of the world’s response showed the value of preparations made because of the avian flu and SARS scares, public health experts said.  The emergency declaration in the United States lets the government free more money for antiviral drugs and give some previously unapproved tests and drugs to children. One-quarter of the national stockpile of 50 million courses of antiflu drugs will be released. . . .

In the meantime, it would be helpful if Congress approved the HHS nominee so that perhaps we could also have a new CDC director. 

April 27, 2009 | Permalink | Comments (0) | TrackBack (0)

Sunday, April 26, 2009

Digital Medical Records

Business Week provides an overview of some of the discussions and debate taking place over digital medical records.  Here is a brief excerpt:

The high cost and questionable quality of products currently on the market are important reasons why barely 1 in 50 hospitals has a comprehensive electronic records system, according to a study published in March in the New England Journal of Medicine. Only 17% of physicians use any type of electronic records.  Hospitals and medical practices that plugged in early have experienced pricey setbacks and serious computer errors. Suddenly dumping more money on hospitals, which will then funnel the cash to tech vendors, won't necessarily improve the situation, say many doctors and administrators.

Studies have shown that some large networks, such as the Veterans Administration and the Kaiser Permanente system, based in Oakland, CA, have used electronic records to help cut costs and improve care. But so far there's little conclusive evidence that computerizing all of medicine will yield significant savings. And improvements to patient care may be modest. An analysis of four years of Medicare data published in March in the scholarly journal Health Affairs found only marginal improvement in patient safety due to electronic records—specifically, the avoidance of two infections a year at the average U.S. hospital. "Health IT's true value remains uncertain," wrote Stephen Parente and Jeffrey McCullough, researchers at the University of Minnesota.

Part of the problem stems from a fundamental tension. Info tech companies want to sell mass-produced software. But officials at large hospitals say such systems, once installed, require time-consuming and costly customization. The alterations often make it difficult for different hospitals and medical offices to share data—a key goal. Meantime, the health IT industry has successfully lobbied against government oversight. . . .

April 26, 2009 | Permalink | Comments (0) | TrackBack (0)