Tuesday, August 13, 2013
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.
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!
Monday, August 12, 2013
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, http://www.ethics.harvard.edu/lab/featured/325-jlme-symposium
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. [http://www.ethics.harvard.edu/lab/featured/325-jlme-symposium] For a summary of each article and the key themes in the symposium see, Marc Rodwin, Institutional Corruption and Pharmaceutical Policy http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2298140
Saturday, August 10, 2013
Johanna Westeson, Reproductive Health Information and Abortion Services: Standards Developed by the European Court of Human Rights,122 Int'l J. of Gynecology & Obstetrics 173 (2013).
Fernando Dias Simões, The Provision of Medical Services in Portugal: Informed Consent and Liability (A Prestação De Serviços Médicos EM Portugal: Consentimento Esclarecido E Responsabilidade Civil), 22 Dereito: Revista Xuridica Da Universidade De Santiago De Compostela 1 (2013).
Wednesday, August 7, 2013
In an article just posted on SSRN, "Reproductive health information and abortion services: Standards developed by the European Court of Human Rights," International Journal of Gynecology and Obstetrics 122 (2013) 173–176, Johanna Westeson provides a useful account of three recent decisions by the European Court of Human Rights. In light of the decisions, she also highlights the importance of the development of professional standards to the evolution of human rights norms.
In the first case, R.R. v. Poland, No. 27617/04, Eur. Ct. H.R.; 2011, the patient had been denied access to diagnosis of a genetic condition of her fetus until after the time at which abortion was legal in Poland. The ECHR held that this was a violation of her right to information in the context of reproductive health care. Westeson points out the importance in this decision of the existence of medical standards regarding rights of access to information about maternal and fetal health. In the second case, P & S v. Poland, App. No. 57375/08, Eur. Ct. H.R.; 2012, the patient was a 14-year-old rape victim, for whom abortion in Poland was legally permissible. However, she was subjected to a variety of forms of humiliating treatment, including release of her confidential information to the press and removal from the custody of her supportive mother . The ECHR determined that her treatment had violated the right not to suffer inhuman and degrading treatment and the right to respect for private life of both the patient and her mother. Here, Westeson emphasizes the importance placed by the ECHR on ethical standards for when and how conscientious objection by providers is permissible. Westeson also notes the ECHR's decison not to address the claim that the failure to provide emergency contraception violated the adolescent's human rights, and suggests that if Poland had had clearer ethical standards about such contraception, the ECHR might have been willing to take up the question.
The final decision discussed by Westeson is A. B. & C. v. Ireland, App. No. 25579/05, Eur. Ct. H.R.; 2010, a case involving three Irish women who received abortions in the UK. Abortion is illegal in Ireland except when the mother's life is at stake. In the case of one of the women, a patient with a form of cancer that could not be safely treated during pregnancy, the ECHR concluded that her inability to determine whether her life was at stake, and thus the legality of an abortion in her case, violated her right to private life. For the other women, not suffering from life-threatening conditions, the ECHR concluded that Ireland was justified prohibiting abortion given the deep moral views of the Irish people. Westeson is critical of the court's refusal to conclude that there is a human right to abortion, failure to recognize that travelling abroad is not an option for many women and is degrading for others, and inability to recognize that life and health may be difficult to distinguish in the abortion context. Had the WHO Safe Abortion Guidelines been available in 2010, Westeson hypothesizes, the ECHR might have had medical judgments to rely upon in reaching a conclusion that threats to the women's life and health cannot be easily distinguished.
Westeson's discussion is worth reading both as a useful summary of the cases and as suggestive of how evolving standards of medical ethics and practice can be useful to courts in dealing with complex human rights issues.
My home state of Washington is about as far along in the process of creating a functional health insurance exchange as any state in the country. So when the Washington State Office of Insurance Commissioner announced that only four companies were approved to offer plans in the exchange, out of nine applicants, I was curious as to why the other five had been turned down.
According to the Insurance Commissioner, the companies whose plans were not approved "struggled to guarantee access" to hospitals and providers. Many of the companies that were not approved were traditionally purveyors of Medicaid managed care plans, such as Molina, or otherwise have a history of insuring low-income people, such as Community Health Plan of Washington. The failure of these plans to be able to ensure that they would have sufficient providers who are willing to contract with them to care for the newly insured says two important things about the state of our heatlh care for low-income people--comparatively few doctors are willing to treat these people now, and doctors have a high level of distrust of the insurers who have traditionally cared for them. One of the biggest challenges for the ACA will be to change the attitudes of both consumers and providers towards providing care to those of low or moderate income.
The Insurance Commissioner's announcement highlighted another interesting fact that confirms that at least one of the problems with the ACA that are anticipated are likely to come to fruition. Although a total of 31 plans were approved, in many of the rural counties of Washington, residents will have a choice of only one insurer. The problem of coverage in rural areas will be a real one. At least the customer service reps for the three insurers who did not want to provide insurance in the rural counties won't have to learn names like "Okanogan," "Wahkiakum," and "Pend Oreille."
Monday, August 5, 2013
For some in Silicon Valley, the rise of new data and communication networks creates unprecedented opportunities to solve problems like obesity, traffic, and flu pandemics. For example, an app like FitBit or LoseIt can keep track of calories and buzz a dieter once he goes over his daily limit. Futuristic early warning systems can warn drivers away from bottlenecks, and detect emerging influenza outbreaks.
Evgeny Morozov’s illuminating book To Save Everything, Click Here challenges both “internet centrism” and “solutionism.” The internet may, for instance, make traffic worse. Moreover, solutionism tends to “reach for the answer before the questions have been fully asked.” Is the problem really traffic, or something deeper in the way cities and opportunities are arranged? Solutionism tends to prioritize issues that widely accessible tech can address: small, algorithmically decomposable bits of wicked problems.
While a solutionist might think of gamified calorie counting as a wonderful new way to fight obesity, a more sober analysis of the problem will lead us to doubt the smartphone will make us svelte. Similarly, calorie counts may be a great disclosure tactic, but disclosure is only the first step on the road to changing behavior. And our food problem, like our traffic problem, may entail reconsideration of privilege, taste, and inequality as far deeper problems than individual struggles for self-control.
Big data has been linchpin of solutionist narratives about the future of tech in health care. However, there are still major challenges in data quality. Even if the data were perfect, causal inference still may be a challenge, as Hoffman & Podgurski explain:
EHR [electronic health record] vendors are making slow progress towards achieving interoperability, the ability of two or more systems to exchange information and to operate in a coordinated fashion. In 2010 only 19% of hospitals exchanged patient data with providers outside their own system. Vendors may have little incentive to produce interoperable systems because interoperability might make it harder to market products as distinctive and easier for clinicians to switch to different EHR products if they are dissatisfied with the ones they purchased. . . .
Even if the EHR data themselves are flawless, analysts seeking to answer causal questions, such as whether particular public health interventions have had a positive impact, will face significant challenges relating to causal inference. These include selection bias, confounding bias, and measurement bias.
Paul Ohm adds to the data skepticism in a recent essay:
[A]s medical research follows the lead of Google Flu Trends and begins to slip outside these traditional institutions and their concomitant safeguards, we should be concerned about the relative lack of controls. Particularly as more medical research is conducted by proﬁt-driven companies—–whether large corporations or small startups—–we should worry about forcing the public to accept new risks to privacy with little countervailing beneﬁt and none of the controls. The worst of all worlds would occur if medical researchers at non-proﬁt institutions began to clamor for relaxed human subjects review in a race to the bottom to compete with their forproﬁt counterparts.
Ohm’s point about maintaining a baseline of standards is prescient: I have heard at least one behavioral scientist argue that research will migrate out of universities and into private companies if the universities don’t relax IRB standards. Ohm also questions whether something as celebrated as Google Flu Trends has led to actionable data:
Who has created an app, therapy, or epidemiological study based on the colors on [Google's flu maps]? Has a traveler ever avoided boarding a plane to a city on a distant coast because of the relative diﬀerence in the shading of the oranges between home and destination? The answer, I suspect, is that none of these positive results has occurred. Instead, the project’s primary mission is to market Google: we are reminded by a colorful map that Google is not evil.
X-Posted at Concurring Opinions.
AALS Section on Nonprofit
AALS Section on Law,
Medicine and Health Care
2014 Annual Meeting
Friday, January 3, 2014,
10:30 a.m.–1:15 p.m.
The Role of Nonprofits Under the Affordable Care Act
The Sectionon Nonprofit and Philanthropy Law is issuing a call for proposals for its session on the role of nonprofit organizations under the Affordable Care Act of 2010 ("ACA"). The panel, co-sponsored by the AALS Section on Law, Medicine and Health Care, will be held on Friday, January 3, 2014, from 10:30 a.m. to 1:15 p.m., at the AALS 2014 Annual Meeting in New York, New York. Presentations might address the ACA's impact on nonprofit and other tax-exempt organizations; the ACA’s new requirements for 501(c)(3) tax-exempt hospitals; the participation of tax-exempt hospitals in Accountable Care Organizations (ACOs); and nonprofit Consumer Operated and Oriented Plans (CO-OPs).
Panelists will be a mix of presenters chosen through this call for proposals and solicited panelists with relevant expertise. Presenters will have the opportunity to publish their papers in the Indiana Health Law Review. To submit your proposal, please email a short abstract (one or two paragraphs) of your proposed paper to Rob Katz, Chair of the Section on Nonprofit and Philanthropy Law, at firstname.lastname@example.org, and Elizabeth Weeks Leonard, email@example.com, Chair of the Section on Law, Medicine and Health Care, at firstname.lastname@example.org. The deadline for abstracts is August 31, 2013. If you have any questions, please send them to Rob Katz and Elizabeth Weeks Leonard.[KVT]
Friday, August 2, 2013
Assistant, Associate, or Full Professor of Law
Southern Illinois University School of Law seeks to fill up to four full-time tenure-track or tenured faculty positions to begin in the 2014-2015 academic year. With a range of curricular needs, the School of Law welcomes applications from candidates with a wide variety of interests including Health Law, as well as Contracts, Torts, Legislative and Administrative Process, Family Law and other courses.
Rank & Title: For Associate or Full Professor rank: significant teaching experience and demonstrated achievements in scholarship consistent with the tenure and promotion standards of the Southern Illinois University School of Law.
Duties &Responsibilities: Classroom instruction, scholarship, and service.
To Apply or Nominate a Candidate: A complete application will require a letter of application detailing your interest, qualifications and relevant experience, along with a vitae or resume and three references with names.
Address or email applications to:
Assistant to the Dean
Mail Code 6804
Southern Illinois University School of Law
1150 Douglas Drive
Carbondale, Illinois 62901
Deadline for application: October 1, 2013 or until position is filled.
Myungho Paik, Bernard S. Black, David A. Hyman, The Receding Tide of Medical Malpractice Litigation Part 2: Effect of Damage Caps, 10 J. Empirical Legal Stud. 3 (2013).
Leslie Meltzer Henry, Moral Gridlock: Conceptual Barriers to No-Fault Compensation for Injured Research Subjects, 41 J.L. Med. & Ethics 411 (2013).
Jean M. Eggen, Medical Malpractice Screening Panels: An Update and Assessment, 6 J. Health & Life Sci. L. 1 (2013).
Zahra Mastaneh, Lotfollah Mouseli, Patients Awareness of Their Rights: Insight from a Developing Country, 1 Int'l J. Health Pol'y & Mgmt. 1 (2013).[KVT]
Wednesday, July 31, 2013
The most recent issue of the Hastings Center Report features an illuminating discussion of the failure to include reimbursements for discussion of end of life care options in the Affordable Care Act. As is well known, the “Advance Care Planning Consultation” (APCP) proposal met a fiery rhetorical end, consumed by charges of the legitimation of “death panels.” The Kaiser Family Foundation reported last spring that a significant percentage of the public continue to believe that ACA provides for death panels, and that this contributes to the unpopularity of ACA.
In “Avoiding a ‘Death Panel’ Redux,” Nicole M. Piemonte and Laura Hermer offer an illuminating explanation for the advance care planning fiasco. As the APCP provision was introduced, it contained language mandating certain contents for end of life conversations: "Mandatory content included an explanation of advance care planning, advance care directives, living wills, and durable powers of attorney; an explanation of the role and responsibilities of a health care proxy; provision of a list of national and state-specific resources to assist in advance care planning; an explanation of the continuum of end of life resources available, including palliative and hospice care; and an explanation of orders regarding life-sustaining treatment, including why such orders are beneficial to the individual and the family." Piemonte and Hermer suggest that this content mandate detracted from the aim of encouraging genuine dialogue between physicians and their patients and instead suggested a problematic checklist approach. An additional problem was the proposal to include adherence to advance care directives as a quality measure. Taken together, Piemonte and Hermer argue, these aspects of the APCP fed perceptions that the government was prescribing what physicians had to do with respect to end of life decisionmaking--even, perhaps, with respect to cost controls. The form in which APCP was originally proposed thus may have played a role in its demise.
Piemonte and Harmer praise later proposals (none as yet enacted) for education and encouragement of open-ended communication between physicians and patients. Unfortunately, it is difficult to visualize what how different these proposals might actually be in practice; one, for example, takes content mandate out of the statute but into regulation. Nonetheless, the article is a useful reminder of the need for attention to good physician-patient relationships as ACA unfolds.
Tuesday, July 30, 2013
The super-size soda ban, a program advocated by NYC Mayor Michael Bloomberg, is not constitutional according to the unanimous opinion from a state appellate court in New York Statewide Coalition of Hispanic Chambers of Commerce v. NYC Department of Health and Mental Hygiene.
The court affirmed a state trial court's decision that the NYC regulation prohibiting sugary drinks in restaurants, movie theaters and arenas that exceed 16 ounces was an unconstitutional exercise of power by a city agency, as well as arbitrary and capricious. A good discussion of the trial court's decision is here.
Essentially, the issue is whether NYC Health Code §81.53, known as the "portion cap rule" is within the power of the Department of Health. The short answer by the judicial branch: no.
In today's opinion, the court held that the NYC
Board of Health overstepped the boundaries of its lawfully delegated authority when it promulgated the Portion Cap Rule to curtail the consumption of soda drinks. It therefore violated the state principle of separation of powers. In light of the above, we need not reach petitioners' argument that the subject regulation was arbitrary and capricious. Before concluding, we must emphasize that nothing in this decision is intended to circumscribe DOHMH's legitimate powers. Nor is this decision intended to express an opinion on the wisdom of the soda consumption restrictions, provided that they are enacted by the government body with the authority to do so. Within the limits described above, health authorities may make rules and regulations for the protection of the public health and have great latitude and discretion in performing their duty to safeguard the public health.
Doctrinally, the decision is most pertinent to New York state constitutional law and administrative law scholars and practitioners. It has broader interest, however, to those interested in the powers of governments to enact regulations that (arguably) promote health.
The New York Times reported yesterday that many Congressional staffers are thinking about leaving their jobs because the ACA requires them (and members of Congress) to purchase their health insurance on state exchanges, and there is no mechanism in the law for the federal government to continue to pay its share of the premiums for the coverage, as it does now under the Federal Employees Health Benefits Program. (Apparently, members of Congress are not thinking about leaving their jobs because of this, you can decide for yourself whether that is fortunate or unfortunate.) This gap in the law was flagged by the Congressional Research Service almost immediately after the ACA was signed into law by President Obama, but nobody has come up with a solution to date. The most the administration is saying about this right now is that they are "working on a regulation."
This situation presents an ironic twist on the often-voiced fear amongst critics of the ACA that the existence of the exchanges and the penalties for employers who do not offer adequate health insurance coverage to employees will encourage employers to drop insurance coverage as a job benefit. Here, the employer wants to continue to cover the employees, but is prevented from doing so by a glitch in the law. It also presents an ironic twist on the often-voiced praise amongst supporters of the ACA that the existence of the exchanges and the subsidies for purchasing individual insurance will allow employees who want to leave their jobs for greener pastures, but could not do so for fear of losing their insurance, to finally leave their unsatisfactory jobs. Here, we have people who want to keep their jobs, but say they will be forced to leave because their employer cannot provide them with insurance.
These problems can probably be fixed with a simple administrative policy, and the people affected have the political clout to see that it is done. If only that was the case for most other folks affected by the unintended consequences of legislation.
Monday, July 29, 2013
This month's Hasting Center Report contains a case study written by me and by Dr. Craig Klugman considering both the practice of "deporting" indigent patients who lack legal immigration status and the ability of a medical center to withdraw life sustaining treatment against a family's wishes.
The article considers a scenario occuring in Texas which, of course, has a highly structured mechanism to refuse to follow an advanced directive if it means providing care which the hospital believes not productive. However, the problem of how to assert the legal right not to have a DNR is one of growing in importance.
For example, organizations like the Texas Alliance for Life tried but failed this last legislative session to vote in laws that would bar physicans from writing DNR orders against a patient or her surrogate's objection.
Saturday, July 27, 2013
Barry R. Furrow, Cost Control and the Affordable Care Act: Cramping Our Health Care Appetite, 13 Nev. L.J. 822 (2013).
Thaddeus Mason Pope, Legal Briefing: The New Patient Self-Determination Act, 24 J. Clinical. Ethics __ (2013).
Allison L. Cross, Chapter 261: Prohibiting Discrimination Based on Genetic Information, 43 McGeorge L. Rev. 700 (2012).
Krista A. Dolan, Creating the Best Practices in DNA Preservation: Recommended Practices and Procedures, 49 Crim. L. Bull. ___ (2013).
Jonathan Kimmelman, Trudo Lemmens, Scott Y. Kim, Analysis of Consent Validity for Invasive, Nondiagnostic Research Procedures, 34 IRB: Ethics & Hum. Res. 1 (2012).[KVT]
Thursday, July 25, 2013
The Office for Civil Rights (OCR) at the Department of Health and Human Services has recently taken a much more aggressive enforcement stance. This has been evident in its enforcement of HIPAA. It is now also evident in enforcement of the Rehabilitation Act against physicians who refuse to treat patients with disabilities. In announcing its action, OCR stated firmly that it is part of a coordinated strategy to improve access to treatment for patients who are HIV positive.
The physician in question is a California neurosurgeon who refused to operate on a patient with HIV. The facts of the case were not contested. The physician was found to have violated the Rehabilitation Act by refusing to treat the patient based on his disability, HIV. The ALJ decision can be found here. The physician has been barred from future Medicaid funding until he can demonstrate compliance with the Rehabilitation Act.
These efforts by OCR are to be welcomed.
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Tuesday, July 23, 2013
Bribery is the lubricant that helps keep China's public hospitals running, and the health system would struggle to function without illegal payments to poorly paid doctors and administrators, say medical practitioners and industry experts.
The corruption stems largely from doctors' low base salaries, which are set in line with a pay scale for government workers. Hospitals can pay bonuses but, given public hospitals are strapped for cash, compensation is usually low, say doctors and industry experts.
Low salaries have also spawned a system of under-the-table payments from patients. The payments are known as "hongbao" -- a reference to the cash-filled red envelopes given as presents during Lunar New Year festivities -- and cover various services from jumping the queue for appointments to extra surgical fees.
I predict we'll soon be seeing a concierge medicine firm called "Red Envelope" springing up in the USA. More seriously: have America's health care cost cutters seriously considered the potential unintended consequences of their crusade? We live in a world where Wall Street compensation has skewed expectations generally. "Only 28 percent of those worth $1 million to $5 million said they were wealthy," according to a recent survey. I don't predict many specialists are going to miss out on a chance to join the $5 million+ crowd. Health care cost cutters may simply be encouraging them to shift their energies away from ordinary Medicare and Medicaid patients, and toward the worried wealthy.
Numerous outlets, including the Washington Post, have reported that nearly one-third of the 32 Pioneer ACO's under the Affordable Care Act have left the program. Almost half of th program participants have failed to produce any cost-savings. Most of those that have left have switched to the Medicare Shared Savings Program, which does not carry the down-side financial risk that the Pioneer ACO program carries. One of the major reasons for leaving the program cited by those dropping out is that physician groups aren't accustomed to dealing with financial risk of this nature.
In the late 1990s, I practiced health care law in Seattle, Washington. Among the folks I represented were physician-led organizations who had contracted with commercial insurers to accept downside financial risk for the cost of the care they rendered. Invariably, when the accounting at the end of the contract term was done, the physician-led organization was told that it had incurred a loss, and owed money back to the insurers. This tended to result in the four stages of litigation: Disbelief, denial, blame, and filing a lawsuit, followed by the four stages of settlement: Discovery, failed negotiation, mediation, and payment of substantial attorneys' fees. Ultimately, most physician-led organizations stopped accepting contracts with down-side risk, and insurers came up with different methods of controlling costs and ensuring quality of care, with varying degrees of success. Clearly, there is more to facilitating the delivery of cost-effective, good-quality care, than merely putting all of the financial risk of the care on the providers.
When the Pioneer ACOs were first proposed, I wondered why anybody thought that the outcome of this experiment would be different than the mostly failed full-risk contracts that had been the rage in the late 1990's. While the early ACO numbers indicate that some progress has been made (2/3 of the providers are remaining in the program, and almost 60% have produced some cost-savings), this early outcomes data should give us a reason to re-examine our assumptions about what it takes to change the way we deliver health care in the United States. Clearly, it's not all about financial incentives.
Monday, July 22, 2013
Elaine Gibson & Jocelyn Downie, Consent Requirements for Pelvic Examinations Performed for Training Purposes, 184 CMAJ 1159 (2012).
Sandeep K. Narang, John David Melville, Christopher S. Greeley, James D. Anderst, Shannon L. Carpenter, Betty Spivack, A Daubert Analysis of Abusive Head Trauma/Shaken Baby Syndrome — Part II: An Examination of the Differential Diagnosis, SSRN.