HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Saturday, August 17, 2013

Another ACA Delay--and a Proposed Solution

This past week, the New York Times published a story about yet another delay in the implementation of the Affordable Care Act.  Earlier this summer, NPR also reported the delay, which concerns total limits on out of pocket costs that consumers can be required to pay.  Under ACA, beginning in 2014 consumers were supposed to have to meet only one out of pocket limit--$6,350 for an individual and $12,700 for a family--including all deductibles and co-payments.  But the Times story reports that insurers have been granted a year's grace in implementing this requirement and quotes an administration official as attributing this decision to the inability of insurance plans to communicate with each other in determining out of pocket costs. 

Both stories emphasize the plight of patients who are covered under separate medical and pharmacy benefit plans.  Pharmacy plans in particular may have very high copayments, without annual limits.  Patients with expensive drug needs for diseases such as multiple sclerosis are especially hard hit by these benefit structures.

As I ruminated on this delay, it occurred to me that the problem of the plans' inability to communicate with one another is the plan's problem, not the patient's.  To say the least, it does seem rather unfair to have patients bear all of the costs of the delay. 

Moreover, there is a model that could have been used to implement the single limit:  submission of claims for out-of-network care.  Patients do this all the time and receive reimbursement to the extent covered by their plans.  The payer has a record of the claim and can credit it against the patient's deductible.  Why couldn't this model have been applied to the problem of multiple plans for patients?  It would be simple.  These are primarily patients with employer-provided plans.  All that would be needed would be to stipulate which plan is primary for the purpose of maintaining the single out of pocket total.  Medical plans are used to maintaining such totals. If the medical plan were stipulated to be the primary plan, all the patient would need to do would be to submit records of out of pocket payments under their pharmacy plans.  When patients meet the out of pocket total for the year, they would no longer be responsible for copays or deductibles from the primary plan.  How would other plans know about this?  Patients will receive records from their primary plans that they have met their deductible for the year.  They would then be responsible for submitting these records to their other plans--after which the other plans would no longer be able to charge copays or deductibles.

This approach, to be sure, puts the burden on patients to solve the communication problem.  But I'm surprised notbody seems to have entertained this suggestion, in a health care climate that heralds patient responsibility.  Perhaps the difficulty instead is that the multiple-plan structure emerged as a way to limit health care costs for payers by shifting costs to consumers.


August 17, 2013 in Accountable Care Organizations, Affordable Care Act, Consumers, Cost, Employer-Sponsored Insurance, Health Care Costs, Insurance, Payment, Reform, Spending | Permalink | Comments (0) | TrackBack (0)

Friday, August 16, 2013

Published This Week

Tuesday, August 13, 2013

Bringing Emergency Room Misuse to a Strip Mall Near You

National Public Radio aired an interesting story this morning about the proliferation of free-standing emergency rooms in places like strip malls, mostly in suburban locations with relatively affluent, well-insured residents.  These places are equipped to handle life-threatening emergencies in much the same way as hospital-based ERs, and can charge the same high "facility fee" that a full-service hospital charges to reimburse the costs of maintaining expensive equipment and services.  Consumers are likely to confuse them with urgent care centers, and often show up at the free-standing ER for a problem that could be treated appropriately and more cheaply in an urgent care center or a doctor's office.  So rather than easing the problem of inappropriate use of the hospital ER for non-life-threatening problems, these facilities make it easier for well-heeled people to misuse the ER, a problem that had been more prevalent amongst the poor and uninsured in the past.  And if there is a true emergency and the patient needs to be admitted to a hospital as an inpatient, there is the ambulance ride from the free-standing ER to the hospital to pay for.  Not exactly the way to hold down health-care costs.

Another interesting wrinkle on free-standing ERs is that they are not subject to the Emergency Medical Treatment and Labor Act (EMTALA), which prevents hospitals that treat Medicare patients from dumping poor and uninsured patients out of their ERs and into public hospitals without stabilizing or treating them.  So if a poor or uninsured patients shows up in the freestanding ER, she has entered a time-warp back to the early 1980's, when such patient dumping was widespread and not prohibited by federal law.  If this trend of free-standing ERs continues, it may be time to revisit EMTALA.   

August 13, 2013 | Permalink | Comments (0) | TrackBack (0)

National Practitioner Data Bank and Due Process

Over at Bill of Health, Alex Stein posts the following:

An aggrieved patient files medical malpractice suit against a hospital in which he was treated. The hospital and the patient subsequently settle the suit. Their settlement agreement states that the hospital settles the suit “for the benefit of” a physician who treated the patient. Because the patient did not sue the physician, the physician was not a party to this agreement. Pursuant to the Healthcare Quality Improvement Act of 1986 (HCQIA), the hospital reports the agreement to the National Practitioner Data Bank (NPDB). Prior to filing this report, the hospital allows the physician to provide her account of the relevant events. The physician demands a process within which she could demonstrate that her treatment of the patient was faultless, but the hospital denies this demand.

Can the physician challenge the report?

Last week, the Court of Appeals for the Eighth Circuit decided that she cannot: Rochling v. Dep. Vet. Aff’s, — F.3d —-, 2013 WL 4017143 (8th Cir. 2013).

The physician’s principal claim—violation of procedural due process—appeared promising, but the Court turned it down because the physician failed to show the requisite deprivation of a constitutionally protected “life, liberty or property interest.” The physician argued that the report was analogous to a disciplinary proceeding that must comply with due process, but the Court held that “the NPDB report by itself is not a rebuke, censuring or reprimanding.” Rather, explained the Court, “the report simply means that a payment was made “for the [physician’s] benefit.”


The report could not “simply” mean that the hospital made a payment for the physician’s benefit. After all, it was filed with the NPDB pursuant to HCQIA and not with the IRS, pursuant to the tax code. This filing had only one plausible meaning: having the physician’s name on the government’s [black]list of actual and suspected malpractitioners—viewable by state licensing boards and the physician’s prospective employers (HCQIA, §11137)—might improve the quality of healthcare in our country. The contemplated improvement involves employers refusing to hire or credential the physician (Cf. Katharine A. Van Tassel, Blacklisted: The Constitutionality of the Federal System for Publishing Reports of “Bad” Doctors in the National Practitioner Data Bank, 33 Cardozo L. Rev. 2031 (2012)).

If so, the report’s filing clearly diminished the physician’s employment opportunities and earning capacity. There is no other way to see it. The physician’s employment opportunities and earning capacity may not qualify as a “property” interest, but they certainly fall under the “new property” definition (Charles A. Reich, The New Property, 73 Yale L.J. 733 (1964)). The Court nonetheless decided that the report’s effect on the physician’s future employment does not make it a protected “property” interest. I find this decision disappointing and unsatisfactory.  I also find it hard to reconcile with the Supreme Court’s reasoning in Mathews v. Eldridge, 424 U.S. 319 (1976).

Am I wrong?

Alex, you are spot on!


August 13, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, August 12, 2013

Symposium of interest

Just in from Marc Rodwin:

Your readers might be interested in a forthcoming symposium on Institutional Corruption and Pharmaceutical Policy that will be published in the forthcoming issue of the Journal of Law, Medicine & Ethics, 2013: Vol. 14 (3). Below I list a bit of information about the symposium. I have also attached a list of the articles with URL links on SSRN which has free access.  Also, these items can also be obtained through the Edmond J. Safra Center Lab on Institutional Corruption Web page,

The goals of pharmaceutical policy and medical practice are often undermined due to institutional corruption — that is, widespread or systemic practices, usually legal, that undermine an institution’s objectives or integrity. The pharmaceutical industry’s own purposes are often undermined. In addition, pharmaceutical industry funding of election campaigns and lobbying skews the legislative process that sets pharmaceutical policy. Moreover, certain practices have corrupted medical research, the production of medical knowledge, the practice of medicine, drug safety, and the Food and Drug Administration’s oversight of pharmaceutical marketing.

 Marc Rodwin invited a group of scholars to analyze these issues, with each author taking a different look at the sources of corruption, how it occurs and what is corrupted. The articles address five topics: (1) systemic problems, (2) medical research, (3) medical knowledge and practice, (4) marketing, and (5) patient advocacy organizations. Advanced copies of the 16 symposium articles are now available through SSRN online. []  For a summary of each article and the key themes in the symposium see, Marc Rodwin, Institutional Corruption and Pharmaceutical Policy


August 12, 2013 | Permalink | Comments (0) | TrackBack (0)