Saturday, January 14, 2012
The health law section at AALS put on a truly outstanding program. Jennifer Bard posted on the speakers and topics here, and I'd wanted to do a post reporting on the program. But there was so much there that I'll try to draft a post on each speaker, or at least a column from the Journal of Law, Medicine, and Ethics that reflects her or his approach. Fortunately, as Bard reported, "the Indiana University Robert H. Mckinney School of Law’s Health Law Review has agreed to print pieces about these programs as well as the proceedings of the panel in a Spring 2012 volume."
The first speaker was Prof. Charity Scott, Catherine C. Henson Professor of Law and Director of the Center for Law, Health & Society at Georgia State University College of Law. Her presentation, "Collaborating with the Real World: Opportunities for Developing Skills and Values in Health Law," was a terrific mix of high level observation, on-the-ground experiences, practical examples from her own health law program, and articles she edited as editor of the Teaching Health Law column of the JLME. Scott noted that experiential learning can happen in time slots ranging from an hour to a day to a semester or year, so any committed professional can fit some opportunities into their schedule at some point. She particularly focused on how students could help attorneys, doctors, and community members solve pressing problems. In coming weeks, I'll blog on some of the particular programs she mentioned.
[FP]; Simulposted at Health Reform Watch.
Thursday, January 12, 2012
Thanks to Katharine and the other editors here at the Health Law Profs Blog for having me as a guest blogger this month. During the month, I look forward to sharing a few thoughts with you about health care delivery and finance. As an initial foray, take a look at these two posts, one from KevinMD.com about how prospective application of the Medicare Sustainable Growth Rate (SGR) will affect the take home pay of physicians, and the other from Chicago health lawyer Scott Becker’s Orthopedic, Spine, and Pain Management Review about broader policy issues involved with the application of the SGR. As you might be aware, when President Obama signed the Temporary Payroll Tax Cut Continuation Act on December 23, 2011, the imposition of SGR was stayed for only two months. Unless once again modified by Congress, its formula is set to ratchet down physician payments at the beginning of March this year.
If there is one idea I’d like for you to get from this post, it’s that: sometimes the law erects barriers that can inhibit people from doing the very things that the law (and lawmakers) really want that person to do. In the case of health care, the SGR is such a barrier. It’s the infamous and very complicated “governor” on the growth of physician’s fees paid for by Medicare. Its formula is based, in part, on the growth (or lack thereof) of gross domestic product in the broader economy. Because Medicare payment rates are already thought to be low, Congress has consistently delayed the application of the Sustainable Growth Rate, which if applied, would downwardly adjust doctors’ fees. To be fair, SGR theoretically could generate a positive update if the variables in its formula lined up just right. Nevertheless, SGR is distinctive in that it “remembers” past cuts that its formula generated, yet Congress postponed. Thus, if they were ever to be imposed, the cuts mandated by SGR would be massive.
However, at the same time that Congress wants to manage the growth of physician fees, it really wants Americans to have better access to primary care physicians. For example, Congress knew that primary care physicians are both valuable to Americans’ health, yet they are underpaid. Hence, it provided in the Affordable Care Act for a significant (yet temporary) 10% upward adjustment in fees for certain primary care services (see ACA § 5501(a)(1)).
Congress is playing a grand game of chicken with its contracted doctors. Congress has enticed physicians to keep playing the game with a 10% fee increase, yet it consistently swerves at the last minute when it pulls back the SGR cuts. Physicians have every right to be skittish about such gamesmanship from Congress. It is no wonder that groups like the AARP and the AMA couch the SGR as a healthcare access issue. They know that doctors will discontinue their participation in Medicare if the SGR is ever imposed.
It is therefore time for Congress to bite the proverbial bullet and fix the SGR once and for all. Two commentators recently estimated that it will cost upwards of $300 billion to set Medicare physician reimbursement on the right track. (see Mark Harkins and Erica Stocker, “Congressional Dysfunction Imperils Health Care System,” BNA Health Care Policy Report, January 6, 2012). Although the right thing to do, it seems implausible in an age of eye-popping deficits and breathtaking defense cuts that the doctors would get $300 billion. Without such a fix, they are forced to be content with their heads being saved from the guillotine every few months.
It would be irresponsible to lay all of physicians’ money woes at the feet of the SGR. As an article from CNNMoney pointed out last week, there are several factors that complicate doctors’ quests for profitability: hassles with private payers, overhead costs, and the nature of fee-for-service reimbursement, in which payers are incentivized to package many services into one. In fact, it would probably be irresponsible for any particular physician to blame real time, balance-the-ledger, pay the employees right now(!!!) woes on the possibility of SGR being imposed and thus driving the fees so low that she will have to declare bankruptcy or go out of business. No, SGR is contingent. It looms in the shadows. It lurks in the corners scaring doctors of what might come next. But, if imposed, it will be disastrous for doctors’ practices, as ably described by Dr. Matthew Mintz in his KevinMD.com post. But it hasn’t been imposed since 2002, as Bob Herman points out in the Becker article. One wonders, though, when the infamous other shoe will drop. And if it ever does, one must also soberly wonder how many doctors will leave Medicare and the practice of medicine altogether.
The Health Law Prof Blog extends a warm welcome to our guest blogger for January, Professor Jeff Hammond. Here is his short bio:
Jeff Hammond is an Associate Professor of Law at Faulkner University’s Thomas Goode Jones School of Law in Montgomery, Alabama. He received his B.A. in English from Harding University in 1997. Jeff is an alumnus of Emory University’s joint-degree program in law and religion, earning the Master of Theological Studies degree from Emory’s Candler School of Theology and the Doctor of Law degree from Emory’s School of Law in 2001. From 2001 to 2007, Jeff practiced exclusively in the area of health law while working for two large firms in Nashville, Tennessee. Jeff’s research interests in health law include finance and delivery issues and fraud and abuse issues. He’s also written in the area of law and bioethics, with an article about legal protections due to persons in the minimally conscious state. Jeff is also interested in the intersection of law and Christian theology. Jeff’s other published articles include one about the reemerging trend of “cash only” physicians and another about compliance norms for chronically diseased Medicare beneficiaries. His current projects include pieces about the Stark Law, the federal Anti-Kickback Statute, and a companion piece to the “cash only doctors” article about private contracting in the Medicare program.
By Thomas L. Hafemeister, J.D., Ph.D., Assoc. Prof., University of Virginia School of Law
An interesting article just appeared in the New England Journal of Medicine that asserts that “[a]lthough major components of [The Patient Protection and Affordable Care Act of 2010 (ACA)] do not go into effect until 2014, the fate of the ACA depends on the outcome of four key events in 2012.”
Provided by the Department of Health Management and Policy and the Department of Political Science at the University of Michigan, the four identified events are (1) 2012 state legislative sessions, “the vast majority of which” will occur between January and June, (2) the Supreme Court ruling on the constitutionality of the ACA, expected by the end of June, (3) “the June 29 deadline for applications for the final federal grant that states can obtain to support establishment of a health insurance exchange,” and (4) the Presidential, Congressional, and state elections (including the heads of the departments of insurance in three states) on November 6.
The article proceeds to anticipate various potential outcomes associated with these events. Of particular note, comments in response to this article may be posted through January 18. The article can be found here.