HealthLawProf Blog

Replacing the Affordable Care Act?

With the future of the Affordable Care Act in doubt after last week’s hearing before the U.S. Supreme Court, Republican lawmakers are busily preparing back-up legislation. New options should not be necessary—the government should prevail against those challenging its interpretation of the Act’s premium subsidy provisions. But it is prudent to consider alternatives in the event that the Court rules against the government.

While most of the ideas being floated would do little to bring health care insurance to the uninsured, there is an option that really could expand access to coverage while also containing health care spending. And it could be attractive to Republicans and Democrats alike on Capitol Hill.

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Health Care Policy by Common Sense?

In announcing the federal government’s approval of Indiana’s Medicaid expansion, Governor Mike Pence invoked common sense in defending his insistence that beneficiaries shoulder a share of their health care premiums. According to Pence, “It’s just common sense that when people take greater ownership of their health care, they make better choices.”

But relying on common sense is not a good way to make health policy. Common sense leads people to incorrectly believe that they are more likely to catch a cold by going out in cold weather or to take megadoses of vitamins that provide no additional health benefit and can be toxic. Common sense also leads physicians down the wrong path. Because lowering blood sugar has been good for the health of diabetics, medical experts recommended tight control of blood sugar levels. But that resulted in an increased risk of death for many patients.

It turns out that our intuitions often lead us astray, making it important that we rely on data from scientific studies to distinguish between good and bad policies. And we know from the data to date that when the poor are required to pay for their health care, they may choose to forgo it, not only when care is not needed but also when it is needed.

Kudos to Governor Pence for bringing the Medicaid expansion to Indiana and for worrying about health care costs. It may turn out that Indiana's cost-sharing is low enough to avoid problems, but rather than trying to contain costs by discouraging patients from seeking too much care, we should try to discourage physicians from providing too much care. Physicians are better able than patients to distinguish between necessary care and unnecessary care.

[cross-posted at Bill of Health]

The Debate over Laura's Law: The Challenge of Providing Appropriate Care to Individuals with a Mental Disability

One of the cruelest features of some mental disabilities is that they create a level of fear and suspicion that can make it difficult for individuals to seek or accept treatment.    The situation is even worse when there is no infra-structure of community mental health clinics that could help  build relationships of trust with healthcare providers.    The result is  our current situation where county jails are often the largest mental health providers in their communities. (not this phenomena is all that recent--I and many others have been writing about it for over ten years).

California's Laura Laws that provide mechanisms for mandatory outpatient treatment are one way of keeping people are a way of keeping people whose only crime is having an illness out of jail.   But as the current debate over their use shows, any kind of compelled treatment raises important concerns about respect for civil liberties.  Yet some advocates for the mentally ill are supporting the law's implementation because it provides funds for outpatient treatment that would otherwise be unavailable.

News of efforts to provide increased services to those with severe mental disabilities is always of interest--but this policy debate in California is especially so because the arguments on both sides--for providing treatment to those not seeking it--are compelling and thoughtful.

 

 

 

Continued Skepticism re "Wellness Programs"

A big part of the job of being a Health Law Prof is to help students understand the intersection of the many legal specialties that comprise the big tent of "Health Law."  Wellness Programs are a good way of doing that because one of the key features of the Affordable Care Act is the flexibility it provides employers to link the cost their employees pay for health insurance with the individual employee's participation in a company sponsored "welleness program."  Here's an article I wrote explaining how PPACA went about doing that.  Here's a link to the Department of Labor's summary of the current rules and a good overview by the law firm Nixon-Peabody.  This report from Rand is an overview of what these programs are and how companies have increasingly fallen in love with them.   At this point just about every insurance company is offering to create one--here's some information from Aetna.  

The problem is, there's very little evidence that these programs do anything to demonstrably improve health (whatever that may mean).  And quite a bit that they may promote many different kinds of social injustice.

 This article in the Harvard Business Review does a great job describing the kinds of programs that are now descending on employees and how they are creating disatsifaction without any scientifically supportable improvement in "health."

There is also a growing literature suggesting that these programs may disproportionately discourage workers who employers aren't that unhappy to see go--but might not legally be able to actually fire.  Here is some very interesting testimony by Jennifer Mathis Director of Programs, Bazelon Center for Mental Health Law
On Behalf of the Consortium of Citizens with Disabilities.

Michelle Mello at Harvard has coined the term "life-style discrimination" to describe the ways Wellness Programs may target individuals employers may perceive as undesirable because they are obese, smoke or have other non-job related characteristics.

Studying Wellness Programs--and the issues they raise--can be an accessible entry point for students who can easily be intimated by the regulatory complexity of health law and can also be a bridge to understanding how fundamentally the Affordable Care Act has affected the way health care will be paid for and delivered as our students begin their careers in advising those struggling to implement these new regulations.

 

 

 

 

Get to Know the 9 ACA Exemptions-Health Care Sharing Ministries

Stacey Tovino, a rock-star health law professor and Lincy Professor of Law at the UNLV William S. Boyd School of Law and I were nearly knocked off our chairs at a presentation by Wellesley College Professor Charlene Galarneau, PhD on The ACA Exemption of Health Care Sharing Ministries at the ASBH- American Association of Bioethics and the Humanity’s annual Meeting last month.  If you are a health law professor (or hobbyist) and do not yet know what a Health Care Sharing Ministry is, prepare to be surprised.  It is NOT insurance but rather a non-binding agreement among people of faith to share their health care costs.  As the Alliance of Health Care Sharing Ministries explains, “A health care sharing ministry (HCSM) provides a health care cost sharing arrangement among persons of similar and sincerely held beliefs. HCSMs are not-for-profit religious organizations acting as a clearinghouse for those who have medical expenses and those who desire to share the burden of those medical expenses.”  It specifically does not provide the essential services of an ACA qualified plan.  Yet those without health insurance who are participating in one of these ministries are exempt from the obligation to purchase insurance or pay a penalty—even though it is highly likely that the cost of their care will fall on the community where they become sick and seek treatment.  Read more about it here and here.  Health Care Sharing Ministries are among the 9 exemptions in the Affordable Care Act, yet have not attracted significant attention.  Given their important role in exempting large numbers of people from the obligation of obtaining health insurance, they deserve a place, or at least a shout-out, in all of our classes.

 

Solving Two Federal Problems at Once: Lets Mail Information to Those Losing Their Inadequate Health Insurance

The efforts by both Congress and the President  to ensure that people can keep individual health care policies which  do not meet the Obamacare minimum coverage standards are so misguided that if it weren't for the fact that vulnerable people are being caused needless suffering  it would be comical.

so far, there is no evidence that anyone is going to be worse off with the coverage now available to them on the exchange than they were with the policies being cancelled.   In fact,  information available to us  from sources like the Kaiser Family Foundation, Business Insider, and Families USA about the characteristics of the policies being cancelled is that whatever peace of mind they provided to those paying for them was illusory.

 The fact that this insurance did not meet Obamacare criteria means that it is highly likely that the coverage they had:

•  Excluded the conditon for which they were most likely to need care
• Had a far higher deductible than the policies now available on the exchange
• And if it covered mental illness at all, did not do so at the same level as other covered illness.

Moreover,  these policies were subject to cancellation as soon as they were needed (for example after a diagnosis of cancer or after a debilitating accident).

Yet these facts are of no help to people without access to information about their alternatives.

Here's one thought--instead of requiring insurance companies to continue making these inadequate plans available, why couldn't they be required to send individualized information about alternatives on the exchange at the same time they send the cancellation letters?

The fact that they already have the relevant information about their policy owners means that those individuals don't need the web site to find out about their options.

In retrospect, depending on any web site to provide all the information to everyone who needed it was a bad idea from the beginning.   But letting people continue to pay good money for bad coverage is not the right solution.

Here's a win/win idea--why don't we activate an already existing but underused government resource to get individualized information out quickly to those who need it---the U.S. Postal System.

The Difference Between a Law Professor and a Pundit

is that most of what I do is in the "no spin zone."  I may agree or not with a holding or a policy, but my job is to explain--not (in my view) editoralize.

 

Unless something is really wrong--and this headline is really wrong. Obama: ‘I’m Sorry’ About Americans Who Are Losing Current Health Plans

 

 Yes, I heard President Obama say he was "sorry" that people who "liked" their health insurance were losing it.  But there are no facts to support the implied conclusion that they were reasonable in their affection.

 So--are people "losing" health insurance they had because it provided so little coverage (so little value for money) that it was as good as being uninsured?  Yes.  But  are there any identifiable people who experienced an illness, were satisfied with the level of coverage they had from these policies?  Not that I've heard speak in any form that can be recorded for review.

 I'm from Connecticut and to say that people are losing coverage they "liked" is to suggest that those unlucky enough to pay a peddler for a piece of wood shaped like a nutmeg "liked" it well enough to continue putting sawdust in their eggnog for years to follow.  Sure, maybe they had thought they got a bargain and at the time could not have afforded a real nutmeg.  But there's a solid old time English word for what they experienced: they were swindled.  And would in no sense describe their feeling about the old block of wood as "liking."

What's missing here is any definition--let alone understanding--of what it means to "like" insurance coverage for which you are paying a monthly premium only to discover on needing it that it's not worth what you paid for it.    People who had this insurance  did so either because they were defrauded or because they had no other access to health insurance and were hoping for the best from it.

Here's my concern--I'm not qualified to assess the politics of this or even the longterm economics.  But I do know that many vulnerable people who either now have solid, excellent insurance through Medicare, the VA or their jobs believe that they could lose it because of Obamacare.  And that's simply not true.

 

All of us who are health law professors field questions from students,  friends, relatives, colleagues and acquaintances about Obamacare all the time--and my answer to almost everyone until very recently was, "I don't know--we'll have to see what happens when it actually takes effect." 

 But here is something I do know---the people who are "losing" healthcare are losing something that was never worth having--and which, by the way, they would surely have lost instantly the first time they made a claim.   Thus putting them in the same catagory of people from whom we have heard no complaints--those without access to health insurance because of pre-existing conditions or prohibitive premiums and now find it available and affordable.

 

Folks who are finding out that the coverage they had did not meet minimum standards and who now have the option of buying insurance that is worth what it costs may well not know the details yet--because they haven't been able to get on line to read about it.   And if they were lucky enough to never have had to use their policies, they may never have known how little they had.

But lets not forget that the system we had was responsible for 62% of personal bankruptcies due to medical bills.  And that includes a lot of people who had health insurance they "liked" but which proved inadequate when needed.

Not being a pundit--let alone an expert on presidential speech writing--I can't imagine how President Obama thought it was a good idea to make a promise that he had as much power to keep as that it wouldn't rain on anyone's Fourth of July Parade or that the entire United States would be covered by an even blanket of new snow on Christmas Eve. 

Most people with "good" insurance through work face changes in doctors, hospitals, and covered medications just about everytime their employer re-negotiates their contract.   It's a reality we all live with.  

But are people who had adequate and affordable insurance losing coverage?  To switch states for a moment,  we have to all be from Missouri.   Show us.

Until  we see what options are available to these folks who were paying monthly premiums to plans, now being cancelled, which would not be there when needed, lets stop scaring people by telling them that the adequate insurance they do have is going to be taken away.  And that they will become uninsured. 

Sure, the roll out is a disaster--and in retrospect predictable once it became apparent how many states were declining the opportunity to set up their own exchanges and shifting the burden onto the woefully unprepared department of Health and Human Services.

But lets not confuse the messenger with the message.  The actual insurance available is from private insurance companies--which for the first time must by law provide comprehensive health insurance for a fair price.  There's no reason to think it will be worse than the expensive and inadequate plans it replaces.  And certainly it will be far better than nothing.    And it seems like the people directly affected by these cancellations know that because with all the glitches and apologies, the majority of Americans  continue to support the increased access to affordable care insurance at the same rate they did when the bill was passed--three years ago!.

Getting back to being a professor, one of the biggest problems in explaining this topic is that it's a moving target and a substantial mistrust about sources of information.  Once again, I recommend the non-profit and non-partisan Kaiser Family Foundation which continues to gather and explain facts.    If indeed the people "losing" their insurance do not soon have access to better coverage at an affordable price, then there is a serious problem far past computer glitches.  Lets wait and see.

Related articles

Dartmouth Institute Publishes Atlas of Medicare Part D Areal Variations

The Dartmouth Institute has just published its Atlas of areal differences in utilization of prescription drugs by Medicare Part D recipients.  The Atlas--unsurprisingly but disturbingly--details significant differences.  Pharmaceutical interventions are classified as effective, discretionary (where there is diagnostic or therapeutic uncertainty), and likely to be harmful in the patient population at issue.  A caveat, however, is that the report measured prescriptions filled and thus may underestimate actual provider behavior.

An initial variation involved sheer numbers of prescriptions, with a high average of 63 per year in Miami and a low average of 39 per year in Colorado (overall, the average was 49 standardized 30 day prescriptions filled per year per Part D beneficiary).  In general, the Mountain West had the lowest prescription average and the Rust Belt and Appalachian states the highest.  These differences could not be explained primarily by overall burden of disease but instead appear to reflect variations in provider prescribing practices.  For example, the American Heart Association recommends use of beta blockers in heart attack patients for three years post-attack.  However, rates of prescriptions for these drugs in the first six months ranged from highs of 94% to lows of under 68%, and persistence in the next six months was only slightly lower, ranging from highs of 92% to lows of under 68%.  Variations in statin use were even greater, ranging from just over 91% in Ogden, Utah, to below 45% in Abilene, Texas.  Interestingly, there was little correlation between effective use of beta blockers and effective use of statins.

The other two therapies analyzed in the Atlas were treatment of diabetes and treatment of patients with fragility fractures.  Diabetic patients fared somewhat better than heart attack patients, albeit still with significant variations.  Osteoporotic patients, however, fared dismally, receiving a high of 28% and a low of 7% with filled prescriptions for drug to combat osteoporosis after fragility fractures in sites other than the hip (such treatment is recommended to decrease the risk of future hip fractures).

Most interesting of all, there was no correlation between drug expenditures and measures of effective care.  In other words, patients in some regions may be spending a great deal on their drugs (paid for under Part D), but receiving far less benefit that patients in other regions who spend a great deal less.

[LPF]

 

Chilling Thoughts from Chilmark about Data Analytics and Patients

Chilmark Research produces evidence-based reports of health IT and market trends in the health IT industry.

A recently issued Chilmark report, 2013 Clinical Analytics for Population Health Market Trends Report, which I have not read because it costs $4500, details the conflicting interests of clinicians and payers with respect to insights gleaned from data analytics.  The hope of EHRs in combination with data analytics is better patient health, for example through alerts about needed preventive measures or care management strategies.  But different payment may reimburse categories of care differently--so a diabetic covered by one type of payment structure might get reminders when her counterpart with different coverage might not.  Even worse, patients whose prognosis is seen as "hopeless" through the predictive lens of analytics might get very different treatment recommendations under cost-conscious reimbursement structures.

Cora Sharma's post on the Chilmark blog details these likely conflicts with chilling precision.

[LPF]

Poverty and Cognitive Function

Don't miss a fascinating article in the August 30th issue of Science, "Poverty Impedes Cognitive Function."  The article contends that there is a causal explanation for the correlation between poverty and disfunctional behavior, such as the failure to keep medical appointments or to employ healthy behaviors. Put crudely, the connection is that people in poverty have to think about so much just to keep going that they don't have the cognitive bandwidth to make carefully reasoned decisions.

The authors of the article, Anandi Mani, Sendhil Mullainanthan, Eldar Shafir, and Jiaying Zhao, present two studies in support of their claim.  The first study involved four experiments in which shoppers at a New Jersey mall were paid participants.  The income level of the shoppers varied, from the bottom quartile of US income to over $70,000.  In the first experiment, participants were asked to think about a decision about how to pay for car repairs, and were randomized to inexpensive ($150) or expensive ($1500) costs of the repair.  They were then asked to perform simple cognitive tests on a computer.  Among those asked to think about the inexpensive repair, there were no significant differences by income level in performance of the cognitive task.  By contrast, there were significant differences in performance by income among those confronted with the more expensive repair.  Variations on this experiment involved problems where sums of money were not involved (to control for math anxiety), incentives in the form of getting paid for getting the right answers on the cognitive tests, and situations in which participants came to a decision about the financial problem, engaged in intervening activities, and then were asked to perform the cognitive tests.  Each of these variations produced results similar to the initial experiment:  the performance of people in poverty on the cognitive tests was significantly associated with the expensive repair, but the performance of those in higher income groups was not.

In the authors' second study, participants were a random sample of sugar cane farmers in Tamil Nadu in southern India.  They were interviewed before and after the cane harvest.  Pre-harvest the farmers faced more significant financial pressures (as measured by criteria such as numbers of pawned items, numbers of loans, and the like) than post-harvest.  Performance on cognitive function tests was significantly higher post-harvest than pre-harvest.  Because the cane harvest extends over a considerable time period, the authors were able to control for calendar effects; the difference was similar early or later in the 5 month period of the harvest.  The authors conclude that poverty has about the same cognitive consequences as the loss of a night's sleep.

To be sure, other variables might explain the authors' findings.  They are careful to discuss many of these such as physical exertion, stress, nutrition, or training effects.  If the authors are right, however, their findings have some impressive implications for health policy.  One, which they note, is that it may just be more difficult for people who are poor to perform complex tasks needed to apply for eligibility for programs such as Medicaid (why are we surprised that so many who are eligible don't sign up?).  Another is that programs designed to incentivize healthy behaviors may just not work very well if they ignore cognitive loads.

[LPF]