Thursday, January 8, 2015
With Harvard professors protesting their increased responsibility for health care costs, we are seeing just the most visible aspect of the recurring cycle described in “Tragic Choices.” As Guido Calabresi and Philip Bobbitt observed in that book, society tries to defuse societal conflict by hiding its rationing choices through implicit forms of rationing. Thus, for example, health care insurers relied on managed care organizations in the 1990’s to contain health care costs with the premise that managed care would preserve health care access and quality while squeezing the fat out of the health care system.
But after a time, the public realizes what’s going on and rebels against the implicit rationing policy. Hence, managed care’s effective cost containment strategies, such as limited networks of physicians or primary care gatekeeping, were dumped, and health care costs began to climb again.
What did health care insurers turn to after abandoning serious managed care? Shifting more of the costs of health care to patients through higher deductibles and higher copayments. Insurers didn’t need to identify limits on their coverage because individuals would respond to their higher out-of-pocket costs by hesitating to seek care. Costs would be contained by “market forces” rather than rationing. But the Harvard professors and other Americans are now rebelling against the shifting-of-costs policy, just as Calabresi and Bobbitt predicted in 1978. (Indeed, they even included the shifting of costs as an example of an implicit rationing strategy.)
Of course, cost shifting raises a number of concerns, including the fact that patients often do not distinguish well between necessary and unnecessary care when cutting back their doctor visits in response to cost shifting.
Where do we go from here? The Affordable Care Act includes many provisions designed to reward high quality care, and maybe we’ll see some meaningful cost containment out of them. But more likely, health care insurers will need to find another form of implicit rationing that will work for a while until the public rejects it.
For more discussion of the "Tragic Choices" cycle and the change from rationing through managed care to rationing through cost shifting, see here. For more discussion of the barriers to explicit rationing, see here.
[cross-posted at Bill of Health.]
Tuesday, January 6, 2015
Cross-posted from Bill of Health
Health reform may have signaled the shift from hospital-based “sick” care to primary care and “wellness” but the ACA failed to provide a detailed roadmap. All we know for sure is that primary care (PC) will be hugely important. Increasingly it also seems that it will look quite different. “Old” PC is being battered; Medicaid primary care physicians (PCP) saw their the two-year ACA bonuses expire in December, the OIG just reported that way too many Medicaid-listed doctors are not taking new patients, and the coverage-doesn’t-equal-access mantra is born out by persistent reports of PCP shortages. If PC as we have known it is not going to step up to the plate, what is the “new” model and who will end up owning it?
The ACA gave hospitals both good (fewer uninsureds in ERs, Medicaid expansion) and bad news (fewer profitably occupied beds because of HAC and readmission penalties). Not surprisingly there was a sharp increase in hospitals buying PCP practices. In part this was just hospitals following the money as usual, looking to roll these practices into their new ACOs. But, longer term strategies also persisted, such as strengthening networks, intercepting patients before they turn up in ERs, and creating local or regional dominant positions. Smaller PCP practices have also been more willing to sell as they faced financial regulatory disincentives (such as meaningful use penalties) if they continued as independents.
However, we are seeing hospitals doing more than increasing the number of hospital-based clinics. Many are also opening their own free-standing urgent care clinics, the “new” PC. There are several models, including full ownership as with the Intermountain Healthcare group or, perhaps for those late to the game, strategic partnerships with urgent care specialists like Premier Health or MedSpring.
Urgent clinics also are proliferating in traditional retail stores such as Wal-Mart, Target, CVS and Walgreens. Although originally designed to capture additional revenue for the stores’ pharmacies or, in the case of Walmart, to provide care for employees, these clinics increasingly are owned by their retail hosts and are viewed as important and growing sources of revenue. Of this cohort CVS may be worthy of particular attention; reportedlythey already have 800 walk-in MinuteClinics with plans to double that number by 2017.
Joining hospitals and traditional retailers in this booming urgent care space are health insurers. For example, in 2010 Humana purchased Concentra, the largest urgent care provider, while CareFirst BlueCross BlueShield is a major regional player. There has also been speculation that WellPoint will enter the space.
It is a fair assumption that “new” PC will be quantitively and qualitatively different from the old, and much maligned, “Doc in a Box” model. But, who will win the urgent care PC war? A good bet would be on the players with the highest level of cost-controlling vertical integration, suggesting the health insurers may be early favorites, with larger networks not far behind. However, as always seems to be the case with healthcare, it is likely that IT prowess, deal making nimbleness, and local variables will throw up many different winners (and losers). Remember, also, that we’ve seen major PCP acquisition activity before, and the last cycle ended badly.
Beyond any scorecard, “new” PC suggests an array of policy and legal issues. Will urgent care centers be in or out of traditional MCO networks? How many will accept Medicaid or treat the uninsured (and should they be required to)? Might “urgent care” nomenclature confuse patients seeking emergency care (on which see this new Illinois statute)? Will conventional healthcare providers harness state laws (everything from the corporate practice to telemedicine licensure, and physician-extender scope of practice) to slow down some or all of these disruptive forces? Will a promise of increased access be accompanied by reduced cost (some studies suggest urgent care clinics cost 20 to 40 percent less per visit)? Or, true to the familiar integration-consolidation narrative, will costs edge up? And, on that note, will current healthcare antitrust litigation alter the landscape of practice acquisitions? The next year or two should answer at least some of these questions.
If you have comments please post to @nicolasterry on Twitter.
Tuesday, December 23, 2014
Research participants don’t always do what they are supposed to do. When their personal interests conflict with the demands of study participation, some participants surreptitiously break the rules. Rule-breaking participants don’t normally intend to compromise the study process; they simply see their own interests as more important than study rules aimed at generating good data.
Some participants have written about their rule-breaking and others have disclosed it to reporters and scholars writing about human trials. Researchers also report discovering various forms of rule-breaking that participants tried to hide. But because not many studies use techniques that can uncover rule-breaking, much of the behavior isn’t detected.
Monday, December 22, 2014
Cross-Posted from Bill of Health
The “Cromnibus” spending bill signed by the President on December 16 rightly upset Senator Warren and not just for providing luxury cars to a feckless Congress. However, in general the bill ignored healthcare. There was no new money for those ACA “villains” CMS and IRS and only a little more for NIH (resulting in net reductions all around given inflation). Of course constituencies have to be pandered to, so there was a symbolic $10 million cut from the moribund IPAB. Meanwhile, the CDC did well, HRSA picked up a few telemedicine dollars, but ONC didn’t get everything it wanted. However, look closer and it seems that during the convoluted legislative process someone threw a meaty wrench into the gears of an already flailing meaningful use program.
As I have discussed at length here and here the meaningful use subsidy program for EHRs may have delivered hundreds of thousands of mediocre electronic health records systems into provider offices but has failed to deliver effective data sharing. ONC knows this is an issue, is aware of and discussed the JASON report, has its own “10-year vision” and emphasizes interoperability in its recently released Health IT Strategic Plan (Disclosure: I serve on the HIT Committee Consumer Workgroup, but these views are mine alone). But, some kind of showdown has been brewing for a while. Have the HITECH billions been wasted? Was the regulatory problem in meaningful use or in certification? Are the HIT developers to blame or health care providers? (Answer: Yes). And, the AMA being “appalled” aside, what happens now that the meaningful use carrots have begun morphing into sticks?
Sunday, December 21, 2014
It's been almost a year since the publication of the HIPAAA Omnibus Rule. Since then then the regulatory mavens have been quiet. And that's not surprising. Solutions for our contemporary health privacy challenges such as big data and information collected by mobile apps generally lie outside the scope of HIPAA. In the interim some state courts have been showing surprising vitality in filling HIPAA’s remedial gap, the absence of a private right of action.
In Walgreen Co. v. Hinchy, 2014 WL 6130795 (Ind. Ct. App.), Withers, the defendant's employee-pharmacist, viewed the prescription records of the plaintiff-customer. Withers then divulged the information she learned from those records (including that the plaintiff had failed to fill her oral contraception prescription) to her husband, the customer’s ex-boyfriend and the father of the plaintiff’s child. Plaintiff brought breach of privacy claims agains the pharmacist and alleged both vicarious liability and direct negligence against the employer pharmacy chain. The jury returned a verdict for $1.8 million.
Thursday, December 18, 2014
Marshall B. Kapp, Getting Physicians and Patients to Choose Wisely: Does the Law Help or Hurt?, 46 U. Tol. L. Rev. (Forthcoming 2015).
Michael Ashley Stein, Christopher P. Guzelian, Kristina M Guzelian, Expert Testimony in Nineteenth Century Malapraxis Actions, 55 Am. J. Legal Hist. 284 (2015).
Daniel James Sheffner, Fatal Medical Negligence and Missouri's Perverse Incentive, 7 St. Louis U. J. Health L. & Pol'y 147 (2013).
Wednesday, December 17, 2014
Not so long ago, medical researchers had a habit of using themselves as guinea pigs. Many scientists saw self-experimentation as the most ethical way to try out their ideas. By going first, researchers could test their hypotheses and see how novel interventions affected human beings. In his book Who Goes First? Lawrence Altman reports that my own institution, Washington University, was nicknamed the “Kamikaze School of Medicine” because of its self-experimentation tradition.
Today we rely on a more systematic process to decide when to begin human testing, with experts and ethicists evaluating when a trial is justified. But a modified version of self-experimentation still makes sense.
Friday, December 12, 2014
Wednesday, December 10, 2014
Professionals like researchers, doctors, ethicists, and lawyers are largely responsible for the regulations and ethical guidelines that govern human subject research. Nearly everyone appointed to the groups that develop and apply research ethics standards is a professional. Although ordinary citizens are sometimes included in research ethics deliberations, they play a minor role.
Most surprising, and to me, disturbing, is the omission of people who know what it is like to be a research subject. Few people with direct experience as subjects have been involved in the creation and application of human research rules and guidelines. I believe their exclusion has deprived the oversight system of morally relevant information.
Monday, December 8, 2014
HealthLawProf Blog would like to thank our wonderful November guest bloggers, Professor Jean Macchiaroli Eggen, Assistant Professor Marc D. Ginsberg, Associate Dean and Professor of Law Joan H. Krause, Professor Maya Manian, and Assistant Professor Jessica L. Roberts. Here is a short recap of their posts:
Professor Jean Macchiaroli Eggen posted the following: Is Nanotech the Next Asbestos?, Low-Level Exposures to Chemicals in Drinking Water: Are They Actionable?, In Honor of Veterans Day: Resolving the Complex Legal Issues of the Iraq and Afghanistan Burn Pit Litigation, and Will the Neuroscience Revolution Change Tort Law?: Some Thoughts on the Mental Disabilities* Rule in Negligence Law.
Assistant Professor Marc D. Gnsberg posted the following: The Locality Rule And A National Standard Of Care, Enforceability of Voluntary Binding Arbitration of Medical Negligence Claims, Admissibility of Forensic Autopsy Reports in Homicide Prosecutions, and Informed Consent.
Associate Dean and Professor of Law Joan H. Krause posted the following: United States v. Nayak: The Application of Honest Services Mail and Wire Fraud to the Health Care Industry (Part I), United States v. Nayak: The Application of Honest Services Mail and Wire Fraud to the Health Care Industry (Part II), The Complicated Relationship Between Integration and Health Care Fraud, and The Right to Try Meets the Reality of Drug Approval.
Professor Maya Manian posted the following: The 2014 Midterm Elections and Access to Reproductive Healthcare, The Criminalization of Pregnant Women, Health Exceptions in Anti-Abortion Legislation, and Young v. UPS: Will the Supreme Court Deliver a Healthy Ruling for Pregnant Workers?.
Assistant Professor Jessica L. Roberts posted the following: Healthism? The EEOC, Employer Wellness Programs, and Discrimination on the Basis of Health Status, Executive Power and the Employer Mandate, and Turkey for Me, Turkey for You: The FDA Kicks Off the Holiday Season by Finalizing Two Anti-Obesity Rules.
Guest Blogger Associate Dean and Professor of Law Joan H. Krause: The Right to Try Meets the Reality of Drug Approval
Whether it be a social media campaign to convince a company to provide an experimental anti-viral drug to a young cancer patient suffering from a life-threatening infection or the debate over appropriate treatment for high-profile Ebola cases, access to potentially life-saving but unapproved medications remains a controversial issue. Two recent articles, published on the same day, illustrate the difficulty of trying to balance desperate patients’ willingness to try unproven therapies with the very real concerns faced by manufacturers undergoing the drug approval process. The first was a Kaiser Health News article describing the passage of “Right to Try” laws in five states. The second was a brief note in the Los Angeles Business Journal that shares of CytRx Corporation, a biopharmaceutical R&D company, had fallen 9% after the company announced that the FDA had placed a partial clinical hold on its clinical trials after a patient’s death.
Friday, December 5, 2014
Most of the time, we teach and write about health issues from a distance. We don’t deal with matters like access to health care and enrolling in clinical trials ourselves. But every so often, a personal event disrupts this situation. We find ourselves facing the very issues we are used to considering from a comfortable, professional point of view.
This happened to me and six of my medical ethics colleagues, Dan Brock, Norman Fost, Arthur Frank, Leon Kass, Patty Marshall, and John Robertson. After many years of writing and teaching about serious illness and ethics, serious illness and ethics became something personal. Five of us were diagnosed with life-threatening cancers and three had spouses in that situation (one of us faced both situations).
Thursday, December 4, 2014
HealthLawProf Blog is very pleased to welcome our first guest blogger for the month of December, Professor of Law Rebecca Dresser. The following is her short bio:
Rebecca Dresser is the Daniel Noyes Kirby Professor of Law and Professor of Ethics in Medicine at Washington University in St. Louis. Since 1983, she has taught medical and law students about legal and ethical issues in end-of-life care, biomedical research, genetics, assisted reproduction, and related topics. Before coming to Washington University, she taught at Baylor College of Medicine and Case Western Reserve University. In 2003, she was a Visiting Research Scholar at the University of Tokyo, where she taught a short course in law and bioethics. Dresser received her law degree from Harvard Law School. Her book, When Science Offers Salvation: Patient Advocacy and Research Ethics, was published by Oxford University Press in 2001. She also edited and contributed to Malignant: Medical Ethicists Confront Cancer (Oxford University Press, 2012). She is a co-author of The Human Use of Animals: Case Studies in Ethical Choice (Oxford University Press, 2d Edition, 2008) and Bioethics and Law: Cases, Materials and Problems (West Publishing Co., 2003). Dresser has written numerous journal articles, as well as commissioned papers for the National Academy of Sciences and National Bioethics Advisory Commission. She is Chair of the Hastings Center Fellows Council and an “At Law” columnist for the Hastings Center Report. From 2002-2009, she was a member of the President’s Council on Bioethics. In 2011, she was appointed to a four-year term on the National Institutes of Health Recombinant DNA Advisory Committee.
Guest Blogger Professor Jean Macchiaroli Eggen - Will the Neuroscience Revolution Change Tort Law?: Some Thoughts on the Mental Disabilities* Rule in Negligence Law
Over the past several decades research in neuroscience, through the use of functional neuroimaging and other techniques, has sought to explain a vast array of human thought processes and behaviors, and the law has taken a keen interest in these studies. Neuroscience has offered tantalizing insights into human cognition and decision making. Criminal law has been the most frequently discussed area of the law to take an interest in and incorporate neuroscience research, most notably in matters related to juvenile sentencing. E.g. Miller v. Alabama, 132 S. Ct. 2455, 2464-65 (2012) (noting that neuroscience has demonstrated a fundamental difference between juvenile and adult brains and holding that mandatory life imprisonment without parole for persons under the age of eighteen was unconstitutional); Roper v. Simmons, 543 U.S. 551 (2005) (prohibiting the death penalty for older juveniles based, in part, on brain development studies).
Guest Blogger Professor Maya Manian - Young v. UPS: Will the Supreme Court Deliver a Healthy Ruling for Pregnant Workers?
In Young v. United Parcel Service, argued before the U.S. Supreme Court on December 3, 2014, the Court will decide whether the federal Pregnancy Discrimination Act (PDA) protects pregnant workers from suffering economic harms due to pregnancy-related health conditions. The PDA provides that pregnant women “shall be treated the same for all employment-related purposes … as other persons not so affected but similar in their ability or inability to work.”
In 2006, Peggy Young became pregnant while working as a delivery truck driver for UPS. Her healthcare provider recommended that she not lift more than twenty pounds, but Young’s job description required hauling much heavier packages. Based on the medical advice she received, Young requested a temporary accommodation of a lightened load similar to accommodations UPS already granted other workers. Young’s supervisor denied her request and sent her on an unpaid leave, during which she lost her healthcare benefits.
Wednesday, December 3, 2014
Are you attending AALS 2015? The Hamline University Health Law Institute cordially invites you and a guest to a reception honoring members of the Association of American Law Schools (AALS) Section on Law, Medicine and Health Care.
When: Friday, January 2, 2015, from 6:30 to 8:00 p.m. at:
Where: Lebanese Taverna
2641 Connecticut Avenue NW
Washington, DC 20008
Please RSVP here by December 20.
We look forward to seeing you,
Guest Blogger Assistant Professor Jessica L. Roberts - Turkey for Me, Turkey for You: The FDA Kicks Off the Holiday Season by Finalizing Two Anti-Obesity Rules
Last Thursday was Thanksgiving, the gateway meal to the notoriously high-fat, high-sugar, high-calorie American holiday season. One recent estimate speculates that Americans consume approximately 4500 calories during Thanksgiving dinner, with about 45% of those calories coming from fat. While traditional wisdom holds that most Americans gain between seven and ten pound over the holidays, several studies have indicated that on average we gain only one pound. However, that happy news comes with a few qualifiers: one, overweight people gain about five pounds over the holidays (instead of the average one) and two, once we gain that extra pound, we never lose it, leading to gradual weight gain over the course our lifetimes. Thus, maintaining a healthy weight is more of a marathon than a sprint. Although countless websites are replete with tips for avoiding holiday bloat, the real battle happens long after the menorahs and wreaths go back into the closet.
David Orentlicher, Aging Populations and Physician Aid in Dying: The Evolution of State Government Policy, 48 Ind. L. Rev. 111 (2014).
Tuesday, November 25, 2014
Guest Blogger Associate Dean and Professor of Law Joan H. Krause: The Complicated Relationship Between Integration and Health Care Fraud
On October 17, CMS announced a one-year extension of the interim final rule on Final Waivers in Connection With the Shared Savings Program. The interim rule, published on November 2, 2011, established waivers of the Stark self-referral prohibitions, the Anti-Kickback Statute, and some civil monetary penalties provisions for certain entities participating in the Medicare Shared Savings Program (MSSP) created by the Patient Protection and Affordable Care Act. Per the interim rule, HHS was required to consider comments and publish a final rule within three years; that deadline has now been extended until November 2, 2015. In announcing the delay, CMS explained that feedback from the initial stages of the MSSP suggested that modifications were necessary before the waiver rule could be finalized.
Monday, November 24, 2014
I'm editing the newsletter for the AALS Section on Law, Medicine and Health Care. I'd love to get news from folks who are AALS members--or news from others that might be relevant to AALS members. I've asked for replies by December 20th, so I can get the newsletter out before the AALS meeting in January.
You can send me all that good stuff here: https://www.surveymonkey.com/s/XWKYJVY