September 14, 2012
Worth Reading This Week
- Zack Buck, Caring Too Much: Misusing the False Claims Act to Target Overtreatment, SSRN
- Kevin Outterson, Punishing Health Care Fraud — Is the GSK Settlement Sufficient? NEJM
- Sidney A. Shapiro et al, The Truth About Torts: Defensive Medicine and the Unsupported Case for Medical Malpractice 'Reform,'SSRN
- Elizabeth Weeks Leonard et al, Employers United: An Empirical Analysis of Corporate Political Speech in the Wake of the Affordable Care Act, SSRN/Journal of Corporation Law
September 13, 2012
Uninsured drop, but the challenges continue
The Pacific Legal Foundation seems unable to face its defeat before the Court in June. The PLF has filed a motion seeking leave to amend a complaint on behalf of a small business owner who would have the ACA declared unconstitutional based on the theory that the law was introduced in the Senate, not the House. Article I section 7 of the Constitution commands that "All bills for raising revenue shall originate in the House...." This plaintiff, Matt Sissel, originally filed a complaint challenging the constitutionality of the ACA as exceeding Congress's commerce power; but, because the Court decided that the ACA is constitutional as an exercise of tax authority in part because it raises revenue, the plaintiff seeks to amend his complaint rather than allow it to be dismissed based on the decision in NFIB v. Sebelius.
It seems ironic that this novel filing made news the same day that the Census Bureau reported that the number and the percentage of uninsured Americans dropped for the first time since 2007. The drop is largely attributed to young adults being permitted to stay on their parents' insurance policies under new ACA requirements. While the drop is movement in the right direction, it is hardly a victory given that nearly one in six Americans still lack health insurance coverage and the percentage of Americans on Medicaid has increased due to the ongoing effects of the Great Recession. Nevertheless, it is a small taste of the positive outcomes that the ACA may produce if the federal government could stop defending the law and instead focus on implementing it.
Though it seems unlikely that lower federal courts will be interested in the obscure constitutional provision PLF relies on, as I have said before, the administration needs to learn from the nonchalance with which it initally treated challenges to the ACA. The novelty or obscurity of the challenger's theory does not correllate to failure with the Roberts Court, which has proven itself willing to accept new legal theories and willing to ignore or modify precedent.
Cross-Posted to Bill of Health
September 12, 2012
"Waste" (according to the Oxford dictionaries online): to use or expend carelessly, extravagantly, or to no purpose; to become progressively weaker and more emaciated; to kill (North American usage), to devastate or ruin; eliminated or discarded material; unwanted or unusable material; a large area of barren, typically uninhabited land; damage to an estate caused by neglect. We hear a great deal about "waste" as a contributor to costs of health care in the US, but it is not always clear what sense of "waste" any particular commentator has in mind. Consider three news stories within the past week.
First, the Institute of Medicine issued a report calculating, in the description of the NY Times report, that 30% of health care expenditures in the US--some $750 billion annually--are "waste." http://www.nytimes.com/2012/09/12/health/policy/waste-and-promise-seen-in-us-health-care-system.html. The Report, Best Care at Lower Cost: The Path to Continuously Learning Health Care in America (Sept. 6, 2012), begins with an epigraph from Goethe:
"Knowing is not enough; we must apply.
Willing is not enough; we must do."
It defends a "learning healthcare system," a system that dramatically enhances the knowledge base used for guidance of care. Such a system would engage patients, re-align incentives, and continually improve care in light of the best available evidence. The report demonstrates clearly that there are many ways in which US health care could do better, spending less, avoiding errors, and improving care in line with patients' preferences. But waste?--perhaps, in the sense of careless, extravagant, or purposeless expenditure. Waste in the sense of outright fraud is estimated to contribute only $75 billion--10%--of the $750 billion in excess expenditures. The only lower category is "missed prevention opportunities" ($55 billion) and the highest category (at $210 billion) is "unnecessary services" (use beyond levels established by evidence, discretionary use beyond benchmarks, and unnecessary choice of higher-cost services. Insurance inefficiencies, at $190 million, are the next highest culprit identified by the IOM.
Second, the Dartmouth Atlas just published a study in JAMA analyzing the cost savings associated with accountable care organizations. Although cost savings overall were estimated to be "modest," for one group of beneficiaries, those dually eligible for both Medicaid and Medicare, savings were significant. See Colla et al., Spending Differences Associated with the Medicare Physician Group Practice Demonstration (Sept. 12, 2012), http://jama.jamanetwork.com/article.aspx?articleid=1357260. Neither the article nor the accompanying press release use the term "waste"--but interestingly several news clips featuring it showed up in a lexis search using the terms "Dartmouth and accountable and waste" . . .
Finally, the US Preventive Services Task Force released another report on the evidence of screening--this time for ovarian cancer. The Task Force gave routine screening a "D" grade, judging that for women without particular indications the screening causes more overall harm than benefits when weighing the harmful interventions associated with false positive results against the benefits of earlier detection. http://www.uspreventiveservicestaskforce.org/uspstf12/ovarian/ovarcancersum.htm Here, too, a lexis search (for "ovarian and screening and waste") turned up a host of newspaper reports. Some of these framed the task force report as illustrating the "lack" of good options for women. Many noted that one third of physicians recommend routine screening and the likelihood that this practice will continue. In these discussions, to the extent that "waste" is used, it reflects overall cost/benefit judgments about screening in a low risk population.
So what is the upshot of these observations? "Waste" is a catchy word: who could be against eliminating waste, and who could think that some might have good reasons for continuing to be wasteful? (Granted, we could recognize that the problem of managing the "waste stream" is not an easy one.) But underlying judgments of "waste" are the problematic incentives and forms of organization of health care in the US, together with a host of normative disputes about when expenditures are "excessive" or interventions "harmful." Improvements in care coordination and the use of evidence are critically important--but it is too easy to regard them as simply the elimination of "unwanted or unusable material."
Cross-Posted to Bill of Health
September 11, 2012
The Persistence of Medical Debt
Yesterday's Boston Globe reported that despite the health care reform in Massachusetts that has been in place since 2006, the scope of medical debt in the state has not changed significantly. According to the Globe, in the fall of 2010, 20% of Massachusetts adults reported having medical debt and paying it over time, despite the health care reform law requiring all residents to have health insurance. So what can we learn from the Massachusetts experience? It appears that much of the debt is due to high deductibles and co-pays that insured people cannot pay. Because much of Massachusetts' population was insured even before the state health reform law became effective, the reform did not significantly change the situation of insured people.
In contrast, In Oregon, where 35,000 low-income adults were randomly selected to receive Medicaid coverage, the evidence is that they were 25% less likely to have medical debt than those who did not have the coverage. So what can we learn from this? Having insurance is better than not having insurance as far as medical debt goes, but unless we address the high costs of medical care (which results in payment of the maximum deductible and high co-pays for the patient) in general, health care reform mandating insurance coverage will not solve the medical debt problem. The next step in health care reform has to be serious consideration of ways to reduce medical costs without compromising quality of care.
Recent articles in the Washington Post and the New York Times suggest some ways to start bringing down these costs. As the New York Times reports about a screening test for ovarian cancer, many screening tests are ineffective and actually lead to more costs for no benefit. Inculcating a mindset in the population (and in physicians) that "more is not always better" when it comes to medical tests would be a start.
The Washington Post reported that one quarter of Medicare beneficiaries end up spending all their assets on health care in the last five years of life, with average out-of-pocket spending of $38,688. Much of this appears to go to nursing home care, which is not covered by Medicare in most circumstances. Just as we updated the Medicare benefits package to cover prescription drugs, perhaps it is time to update the Medicare benefits package to cover nursing home care, or at least a portion of it. We found a way to finance the drug benefit, why not the other thing that virtually every senior will use, nursing home care?
September 10, 2012
Frozen Embryo Disputes
It will be very interesting to see whether the Pennsylvania Supreme Court agrees to hear Reber v. Reiss. This appears to be the first case in which a court of appeals has awarded frozen embryos to a woman over the objections of her former partner so she can use the embryos to have children.
Supreme courts in other states have described circumstances under which the law might allow a woman to procreate with frozen embryos despite objections from the former partner, but the intermediate court of appeals decision in Reber broke new ground in April when it actually implemented such a principle in practice. Because of Ms. Reiss' age (44) and prior treatment for breast cancer, the trial court concluded that it was highly unlikely and perhaps impossible for her to have biologically-related children.
Other courts have concluded that a man's objections to use of frozen embryos should trump a woman's desire to use them, but the Pennsylvania court's decision is consistent with the Tennessee Supreme Court's observation in Davis v. Davis that it might be possible to overcome a man's objections "if no other reasonable alternatives exist" for the woman to become a parent.
Pending the Pennsylvania Supreme Court's decision whether to take the case, the embryos are not being used.