Thursday, June 21, 2012
Professor Jennifer Bard of Texas Tech University School of Law makes the point in an Op Ed written for the Houston Chronicle that "[w]hatever the opinion Supreme Court decides about the constitutionality of the Affordable Care Act (ACA), one thing is certain: it will not be based on an assessment of the merits of a national health care system." She goes on to explain that the Supreme Court's ruling on ACA
will be a ruling about whether there is explicit constitutional authority for the way Congress chose to fund a system to make health insurance affordable and accessible to all Americans. In other words, the decision is about how Congress chose to fund the system it set up, not the system itself.
There is no legal dispute, either in the written opinions of in any of the courts that have reviewed the bill so far, or among anyone else, that Congress has the power to spend the money it collects in any way it believes will promote the nation's best interests. Article 1, Section 8, Clause 1 of the U.S. Constitution gives a lawfully elected Congress the power to tax and spend the money collected in order to promote the "general welfare" of the country. Since then, the Supreme Court has interpreted this clause very broadly and granted Congress nearly unlimited discretion in deciding what does, and does not, promote the general welfare. The dispute here is about whether Congress acted within its authority in how it structured the finances of this law, not about the law's merits.
Wednesday, June 20, 2012
For the last three Junes, HHS has sponsored “Datapaloozas”: summits (otherwise known as the “Health Data Initiative Forum I, II, and III”) designed to highlight the vast resources of health information possessed by the federal government (and elsewhere); to showcase the impressive knowledge to be gained from their use; and to stimulate the development of innovative consumer, community, and industry tools that capitalize on their capabilities. These data summits have so grown in popularity that they are now held in the Washington, D.C., Convention Center. Todd Park, the dynamic former chief technology officer of HHS and now White House chief technology officer, is the enthusiastic champion of these events. “Data liberation” is the rallying call.
These events are moments of genuine excitement. This year’s was keynoted by a speech from HHS Secretary Sebelius, highlighting the importance of innovation in health care. Attended by over 1600 people, the Datapalooza starred “Rockstars” of health care innovation—and also featured the music of at least one more conventional rock star, Jon Bon Jovi. Major sponsors of this year’s Datapalooza were the Robert Wood Johnson Foundation; the California HealthCare Foundation; the Department of HHS; the Institute of Medicine; esri, a commercial provider of geospatial technologies; Healthways, a commercial provider of well-being services; the Jewish Healthcare Foundation; and Feinstein Kean Healthcare, a communications firm serving the health care industry. As this sponsor list indicates, the Datapalooza is of great public health, research, and commercial interest.
I might have been persuaded by Justice Stephen Breyer's dissent on behalf of drug company sales representatives in Christopher v. SmithKline until I got to his reliance on the ethics code of the Pharmaceutical Research and Manufacturers of America (PhRMA). [The majority rejected a claim by sales representatives (detailers) that they were entitled to overtime pay under the Fair Labor Standards Act because they were not really engaged in sales.]
As Breyer observed, the PhRMA ethics code "refers to detailers as 'delivering accurate, up-to-date information to healthcare professionals'" and "explains why a detailer should not (hence likely does not) see himself as seeking primarily to obtain a promise to prescribe a particular drug, as opposed to providing information so that the doctor will keep the drug in mind with an eye toward using it when appropriate" (emphasis added).
Perhaps Breyer is correct that drug company detailers see themselves as educators, rather than salespersons, in accordance with the PhRMA ethics code. But it's difficult to square that view with the reality of the detailers' compensation. As the majority pointed out, detailers receive substantial incentive pay (more than 30 percent of gross pay for one of the plaintiffs) that is based on sales volume of the detailers' assigned drugs in their sales territory. They are not given bonus pay based on the extent to which doctors in their sales territory are knowledgeable about their assigned drugs.