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Avoid The Rush: Say Goodbye To PPACA Now

Posted by J. Paul Spencer, CPC, CPC-H in Health Care Reform

I began writing this post at 1:12 AM in the morning on the 30th of March (or is it May?). At roughly 7:20 PM last night, I commenced reading through this week’s oral arguments from the Supreme Court regarding the constitutionality of the Patient Protection and Affordable Care Act. The three days of testimony spanning four sessions was strewn across over 400 pages.

Given the title that I have chosen for this particular post, it should not be hard for the reader to discern my conclusions about the future of PPACA after my reading the arguments, but in order to give full context as how I came to this inference, I feel I must first share a few personal observations on the Supreme Court.

In a perfect world, the make-up of the Supreme Court would consist of nine swing votes. Attorneys would present their arguments to the Court, and the justices would impartially decide the merits of each case using 223 years of judicial precedent as their guide. Unfortunately, since the administration of Ronald Reagan, nominees for the bench have been selected based solely on their political ideologies, rather than on legal competence. Since the rejection of Robert Bork in 1987, the Supreme Court has ceased to resemble the impartial interpretive Court of Last Resort envisioned by the Framers of the Constitution and has instead evolved into a 9-person monarchy. Sniveling weasels lurk in the shadow of the Court, waiting, much like over-eager princes, for a vacancy caused either by death or retirement, for with that one open seat, the ideological leaning of the entire Court hangs in the balance. In this context, the justices of the Supreme Court cease to be recognizable as respected jurists and instead morph into blathering carrion with vultures circling above their collective heads.

We fought a revolution to rid ourselves once and for all of this type of regal intrigue, with our evolution as a country helping to greatly reduce the additional lingering paternalistic stains of gender and racial discrimination. The three-decades-old politicization of the Supreme Court has been but one of several new and unexpected ideological battlefields that have had a measurable negative impact on the political discourse in our country. One need only peer briefly into the mosquito-infested swamp of the 24-hour cable news cycle or the comments section of the online version of your local newspaper to realize how far we have fallen. It is with great disappointment that I report that based on this week’s oral arguments, the Supreme Court of the United States continued down a path that eventually will lead directly to the end of our once-functional democracy.

Monday’s session began with all justices present and accounted for. On the conservative wing of the court sat budding weird uncle and semi-professional Borscht-Belt comedian Antonin Scalia, the self important tacticians Samuel Alito and John Roberts, the accidentally aloof Anthony Kennedy and, reprising his sterling impression of Harpo Marx for a sixth straight year (minus hat, horn and any sense of actually being funny) Clarence Thomas. On the other side of the Court sat Steven Breyer, whose interjections during oral arguments took on the appearance of following an old man wearing a hat in a Buick LeSabre in the left lane of the freeway. He was joined by the Court’s answer to Wilson Phillips, in the form of Elena Kagen, Ruth Bader Ginsburg and Sonia Sotomayor, shimmering with their sunny liberal harmonies.

The first day of arguments centered on the penalty terms of the individual insurance mandate provisions of PPACA. There was extended discussion over whether this penalty was actually a tax. It was referred to as a tax, a penalty and (you knew this was coming) a “tax penalty” during Monday’s arguments by different parties. This evolved quickly into a discussion as to the proper timing of injunctive relief for parties subject to the penalty, with the government attorneys arguing that it should be after the determination of a penalty. It is worth noting here that this portion of the Act isn’t in effect until 2014 (for now). 

Prior to recounting the second day of arguments, I should pause now for another philosophical rambling along our path. I have never had much of a need for attorneys. This comes mostly from personal interaction with lawyers within my own family. There were segments of my family that went into the medical profession and some that chose the legal route. The doctors were mostly well-meaning and successful people dedicated to their profession. The best of the attorneys in my family only rose to the unimpressive level of Apprentice Dirtbag. Other less-skilled familial esquires rose to the lesser title of Pond Scum. There was even one who ripped off the estate of an older female client to the tune of hundreds of thousands of dollars. Decency precludes me from telling you what notorious level this person occupied, but is it any wonder that I eventually changed my surname?

That being said, if your life’s mission is to be a high-level trial attorney, and you someday accept the position of Solicitor General of the United States, it is hoped that you have the ability to argue a case before the highest court in our country without resembling someone who accidentally swallowed a throat lozenge. Such was the fate of Donald Verrilli as Day 2 of arguments unfolded. Tuesday’s session was dedicated to the constitutionality of the individual mandate. The fundamental question to be answered was whether forcing uninsured citizens to purchase health insurance constitutes a creation of commerce (which Congress is prohibited from doing based on the Constitution), or the regulation of existing commerce. Verrilli found himself on more than one occasion without credible answers to questions that in his role as Solicitor General, he must or at least should have known would be asked. It bespoke of a fatal flaw in legal strategy for Team Obama. Tuesday’s session was further complicated by Justice Scalia attempting to compare the automobile industry to health care as similar types of commerce, which spoke volumes about his disdain for relevant context and his philosophical allegiances.  

Prior to this day’s session, it was thought that Anthony Kennedy may have been a swing vote with regard to this most important question regarding the Act. All illusions of such a stance were shattered shortly into oral arguments when Kennedy asked “Can you create commerce in order to regulate it?” This signaled to me that Kennedy’s mind is made up about Congress having overstepped its authority by creating commerce, making him by my count the fifth vote to eventually strike down the individual mandate to purchase insurance.

This led into the arguments of Day Three. Over two sessions on Wednesday, the issue of severability was on the table. Attorneys for both sides argued either for or against throwing out the entirety of the Act if the Supreme Court declared the individual mandate portion unconstitutional. Of all of the arguments brought forth this week, those of the third day should sufficiently scare the daylights out of everyone involved in any way, shape or form with a government health care program. The conservative wing of the Court appeared to signal their willingness to throw out the entire law based upon the central importance of the individual mandate, even those unrelated portions such as payment reform, the temporary 2010 Doc Fix (which set the table for the next four fixes), funding for the Indian Health Service and a host of other issues addressed across over 1,000 pages in the Act.

A final ruling is expected in June, but this week’s arguments were only the latest in the long and painful journey that has been the decline of the Supreme Court. It is recommended that all health entities begin to conduct impact analyses to determine what throwing out PPACA and starting again will mean to your facility or physicians. I’ve been wrong before, but I’m betting it all that PPACA died this week. E Pluribus, Chaos!

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March 30th, 2012 | 5 Comments »

Slippery Slopes Begin With Snake Oil

Posted by J. Paul Spencer, CPC, CPC-H in Health Care Reform

It is usually a small idea, conjured up with the best of intentions, that leads to slow-motion, protracted disasters. In the 20th Century alone, we had the Treaty of Versailles that inadvertently led to the rise of Hitler and the massive loss of life that was World War II. The noble fight against the threat of communism led to net negatives as atomic weapons, Joe McCarthy and the Vietnam War.

And then came Medicare.

Started in 1966 as a way to provide health care to those over 65 years of age, Medicare has recently become a prisoner of the sudden urge by some in Washington to never see another increase in the nation’s debt limit. One side is insisting on massive cuts to Medicare and Medicaid reimbursement as part of any deal to raise the limit. The other is cowering and caving in a corner like a battered spouse trying to reach the phone to call for help.

In the bipartisan slouch toward debt default, we are hearing a number of tried and true terms blurted out, the most toxic of which is “means testing”, the idea being that if you have a lot of money, you probably don’t need assistance from the government in the form of Medicare coverage or a Social Security check. This idea was introduced in the late ’80’s and early ’90’s as part of now-ancient budget discussions, and it led not to implementation, but to hundreds of well-heeled, impeccably-dressed old people taking to the streets to protest the impending loss of their nickel-slot-machine money. The idea was quickly abandoned, as the elderly vote angry and often.

The problem with means testing is that whenever a recognized government benefit is restricted in any way, shape or form, it opens the door to either further cuts or outright elimination. We could state philosophically that anyone who reaches retirement with $5 million in assets shouldn’t receive any benefits from Social Security and/or reduced Medicare benefits. Three years from now, someone will suggest $4.7 million, then $4.3 million and so one until one day, some third-generation sociopathic Senator says “IT’S A BOONDOGGLE AND IT NEEDS TO BE ELIMINATED!”.

Meanwhile, a population of the elderly, which by any credible metric leads far and away with regard to health care utilization, is left uninsured or chronically underinsured. The appeal of Medicare to the insurance industry as a whole is that the sickest portion of the population isn’t in their actuarial universe, save for those patients under Medicare Advantage (a topic I covered in an earlier post). The non-elderly are increasingly receiving less and less for their health care premium dollar from major insurers. Imagine Grandma having to pay a $2000 deductible before the insurance picks up any costs. Or worse yet, imagine her skilled nursing facility stay being found to be “not medically necessary” based on the opinion of an insurance apparatchik. Suddenly, as end-of-life care kicks in, $5 million in assets doesn’t seem like a sufficient amount of money.

We should take care of the elderly population in this country not because we feel obligated to do so, but rather that a society that considers itself decent and humane would think of this as a cornerstone of its existence. Unfortunately, since the introduction of “trickle-down economics”, our country has devolved into a select few at the top of the economic ladder stating “I’ve got mine, good luck getting yours”. Such a society existed in 1789 in France, and if my memory serves, that didn’t work out so well for Marie Antoinette and the others at the top of that particular ivory tower. I would remind those who currently pull the financial strings that the omnipresent nature of Home Depot and Lowe’s stores make it easier in the modern age for people to buy pitchforks, as well as oil for their torches. 

The strident opponents of the Patient Protection and Affordable Care Act, many of whom are on the “Cut Medicare” side currently, are having mixed results in courts around the country. Knowing that outright repeal cannot be achieved, they are looking for a back door. Cutting Medicare and Medicaid as part of the debt limit argument is seen as a political victory in this group’s eyes, as they can undermine health care reform by underfunding part of the law before implementation, thereby rendering it virtually useless to its goal of providing coverage to those who truly need it.   

So continue to watch the political follies as once again, those who can’t afford it get punished for not having a rich lobbyist friend with a check arguing for their ongoing health needs at the negotiation table. As for myself, after next Wednesday’s posting on RAC issues, this space shall remain empty until August 10th, when I return fresh from my 2,600- mile automobile journey across Eastern Canada. I figure that a country that provides ice hockey, beer, doughnuts and a people-friendly health care system in such abundance deserves to be taken out for a test drive.

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July 22nd, 2011 | No Comments »

Incentives For What Exactly?

Posted by J. Paul Spencer, CPC, CPC-H in Health Care Reform

The old joke states that you can tell when politicians are lying to you when their lips are moving. Time was you could count on at least one person in government to deal with you honestly. Judging from the week we just had in health care news, and political news in general, those days have come to an abrupt end.

The Healthcare Financial Management Association concluded their Annual National Institute last week. The keynote speaker for this conference was Peter Orszag, who was the former head of the Office of Management and Budget who followed the tried and true Washington career path by landing in the Wall Street offices of CitiBank.

During his time in the Obama White House, Orszag was one of the behind-the-scenes architects of the Affordable Care Act. The combination of the legislation, combined with the placement of Donald Berwick at CMS, led some on the other side of the fence to yell “RATIONING!” and “DEATH PANELS!”. I have no idea what the latter term denotes, outside of some select episodes of The Twilight Zone, but the concept and meaning of health care rationing is pretty clear to everyone involved.

At the HFMA ANI, Peter Orszag spoke in favor of rationing and lowering costs, providing anecdotal examples from other countries of the success of this approach. Just as quickly, Orszag stated that due to political paralysis, this approach would never work in the United States. Instead, the focus should be on comparative physician research (such as CMS’ Physician Compare website) and provider incentives.

Let’s stop right here and think about the provider incentive piece of this equation for a moment. Currently, providers are being given incentives to report PQRS and for implementing an electronic medical record. Some physicians received incentive payments for prescribing electronically. All of this is wonderful, as long as there are standards as to how all of these elements are utilized.

Let me use the example of the electronic medical record. This has been in place with some organizations for over a decade. The potential to use it properly to document a patient’s overall and specific health is there, but in the end, it relies on humans to input information. As a chart auditor, I am seeing too many examples of a provider putting one template in place and seeing that as the be-all and end-all of documentation of patient illness. What it leads to, in actuality, is the careful crafting of medical information to fit statutory requirements. We are told that EMRs, at the end of the journey, will share useful information with multiple medical entities. I guess no one thought this through enough to realize that useless information can also be widely shared.

If we take all of this into account and work backwards to the subject of comparing physicians against one another, Orszag’s Theorem begins to unravel. If providers are generating useless information en masse, it no longer becomes a matter of comparing good physicians to bad physicians, but rather physicians who have learned to game the system for payment incentives compared to those who haven’t, rendering comparison worthless.

Incentives can either encourage compliance or encourage cheating, depending on the gatekeeper. We are learning that the hard way with regard to our educational system in the post-”No Child Left Behind” world in glaring terms this week. Orszag went on to state that malpractice reform could start with a safe harbor philosophy of “if the doctor follows the treatment protocol, they won’t get sued”. Suppose you have a patient who has no mental capacity to understand the treatment they are receiving? In the world of electronic medical records, how easy would it be for a less-than-moral doctor to document that he followed the treatment protocol for the patient in this scenario? An electronic medical record, when applied here, gives a doctor a “Get Out Of Jail Free” Card, and, because EMR is standardized, makes him harder to find as a compliance risk among the good doctors who are actually following protocol.

Orszag can at least be credited with trying to bring forth ideas that exclude the financial input of private enterprise. As Paul Ryan’s plan to turn Medicare and Medicaid into a voucher program controlled by the insurance marketplace continues to age, fewer people like it, and no amount of lipstick makes that particular pig look or smell any better. Left out of all conversations is how best to address the medical needs of the patient, which in a way can’t be all that surprising. When all parties are brought to the negotiating table, who has the smallest bankroll among doctors, hospitals, insurance companies, patients and the government?

As a footnote to today’s post, CMS released their proposed rule for the physician fee schedule for 2012, which included a 29.5% cut across the board. We’ve been through this before. The Sustainable Growth Rate is unsustainable, a lot of doom-and-gloom ink will be wasted, and at the last minute, the Senate will do nothing on a permanent solution due to institutional paralysis, a temporary fix will be passed and, once again, the can gets kicked down the road. This concludes all of my current and future analysis of the proposed rule. I’m going to spend my free time on more noble and intellectually stimulating pursuits, such as trimming my nose hair and cutting the lawn.

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July 8th, 2011 | 1 Comment »

An Easy Budget Fix For Medicare

Posted by J. Paul Spencer, CPC, CPC-H in Health Care Reform

I was, perhaps unfortunately, born into a political family. Because my early childhood memories revolve around assorted family members watching the evening news and commenting loudly, sometimes using the off-color language of prejudice that was the hallmark of bygone generations, I continue to be sucked into political discussions as an adult.

There are only a few differences between the political junkie and the heroin junkie, not the least of which is that I lived beyond 30. While the actual junkie can usually be found in a dank room without furniture, huddled around a candle with a needle, a spoon and their latest bag of potential death to get them through the next six hours, the political junkie can be found in a different kind of shooting gallery (probably a Starbucks), huddled around a laptop, reading an opinion blog, with the latest cup of cream-softened caffeine to keep them going for the next four hours. The only physical similarity is the sunken eyes, one from walking death, the other from absorbing too much information, with both self-constructed prisons ensuring that they’ll never live carefree and happy again.

With this in mind, and with more than a little information about America’s health care situation in my mind, I wade into the morass that is our country’s current slouch towards debt default. Ironically, I’m due to be in Canada when the default is scheduled. Judging from the idiocy I see scattered among the people placed in charge of preventing the default, I might have to stay there. Why wouldn’t I? They have wonderful people, cold weather, intelligent public discourse, hockey, beer and doughnuts, all in abundance, which those who know me can tell you is a pretty sexy package in Spencerland. My wife is one-half Canadian, so I’m practically there already.

As the latest posturing about the federal budget drags on, I was struck by Senate Minority Leader Mitch McConnell recently stating that unless something is cut from Medicare, Republicans will not compromise on raising the country’s debt ceiling. Being the paragon of common sense that I am (at least during work hours), I’m here to accept Mr. McConnell’s challenge, and I can do it in three words.

End Medicare Advantage.

Federal contracting, in every Cabinet department, is a vast, apocalyptic land of waste, fraud, overpayment for everyday products and services, political back-scratching, and unfulfilled promises. Within the Department of Health and Human Services, there is no more salient example of a program that exists to no benefit for the country’s citizens than Medicare Advantage, or Medicare Part C.

The idea behind Medicare Part C is that private insurance companies offer Medicare beneficiaries an alternative to traditional Medicare coverage which, in theory, would also offer other benefits not available under the original plan. The beneficiary pays the competitive premiums to the insurance company, and voila!, everything is rainbows, good fairies, dancing elves, candy buttons and fountains of strawberry milk and gumdrop trees.

Since this is a joint initiative of the federal government and the insurance industry, one cannot be surprised that the program is one big con job and money pit all rolled into one.

Let’s start with the accuracy of claims payment. The claims error rate for traditional Medicare is 10.5%. That’s a lousy number, but the error rate for Medicare Part C is 14.1%, meaning that if your claim is sent to a Medicare Advantage plan, and it waits in a virtual line for claims adjudication on a given day, and its number in that line is divisible by seven, it will be paid incorrectly. It doesn’t end there. The American Medical Association issues an insurance report card, showing the accuracy of claims payment of the largest insurance companies in the country. The results of these measurements is the finding that one out of every five claims sent to the big insurers is deliberately underpaid based on contracted rates with physicians. In addition, the amount of the underpayment is usually far less than the administrative costs on the provider end to collect the remaining money owed. If we combine the Medicare error rate with this set of facts, the picture painted is less Rembrandt and more Picasso.

Next, we look at the incentive payments we pay to Medicare Advantage as taxpayers. Each Part C plan receives extra dollars if the data received from claims indicates that the population they are servicing is sicker and consuming more resources. These payments are in addition to the financial benefits to the insurance company of syphoning off patients from the traditional Medicare program. If you’re on Medicare, you’re either 65 or older, or have a chronic disease. If an insurance company makes a business decision to offer a Medicare replacement plan for a population that common sense dictates is worse off in terms of health than the rest of the general population, why is this incentivized? Opening a store offering glass figurines is fraught with inherent risks, but the government doesn’t pay to keep it open simply because of what’s being sold inside. Old people and those with chronic diseases get sick more often. The Medicare program offers them coverage because the insurance industry looked at their actuarial tables and said “no dice”. Medicare Advantage is being paid a tribute just to provide coverage to the sickest beneficiaries under the plan to make up for the actuarial loss. Voiding Medicare Part C would end this circular logic once and for all.

As the infomercial says, “But wait! THERE’S MORE!”. When Medicare Part D, which offers coverage for prescription drugs, came into being in the last decade, the vultures circled. Insurance brokers used the selling opportunities for Medicare Part D to sign up traditional Medicare patients to corresponding Medicare Advantage plans, many without their knowledge. The best comparison for this practice was the long-distance “slamming” that went on in the late-’80’s and early-’90’s, where virtuous corporate paragons like MCI/Worldcom would sign up someone for their long distance service without their knowledge, with the first indication that it actually happened being an eye-popping bill to the slammed. Medicare recipients have been lured into Medicare Advantage plans, hypnotized by drug formularies, to the great financial benefit of the insurance companies behind the Advantage plans. The OIG is aware of these behaviors and has issued a few slap-on-the-wrist fines, but the practice continues.

Finally, the so-called “advantage” of Part C plans was that they offered benefits above and beyond what traditional Medicare offered. The most common of these was coverage for yearly preventive exams with the beneficiary’s primary care physician. As of 2011, traditional Medicare offers an annual wellness exam to all beneficiaries as part of the plan, which significantly diminishes the value of Medicare Advantage plans right out of the starting gate.

Medicare Part C has become a worthless boondoggle. It has value only to the insurance companies collecting premiums. It is the worst kind of corporate welfare, redirecting benefit dollars from the sickest of our citizens into the pockets of corporate America. It is a drain on the budget at a time when we can’t afford it. If you want to be serious about deficit reduction ahead of raising the debt ceiling, tackle the waste. Other than the continuing misadventures in Iraq and Afghanistan, I can think of no better example than Medicare Part C.

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June 3rd, 2011 | 3 Comments »

Sneezing in the ACO House of Cards

Posted by J. Paul Spencer, CPC, CPC-H in Health Care Reform

Growing up in and around Philadelphia, I have special insight into watching things crumble and decay. Despite the fact that the city and the surrounding area is filled with historical landmarks, making sure that many of them stay intact becomes more difficult with each passing year.

As an example, Independence Hall has had termite problems in the past, but thanks to the will of many, a large infusion of cash and an overhaul, it remains standing. When a building of such importance becomes threatened, it falls within the common interest to save it. To put it simply, desperation turns into positive action.

There is quite a different outcome when something is widely seen as unpopular and not worth the time and investment. When the public will and the money can’t be found, whatever is trying to be saved is usually facing an inevitable appointment with a wrecking ball. All the while, the interested party trying to save it will be much like Kevin Bacon at the end of Animal House, pleading with everyone to “Remain calm. All is well“. In real life, it is with an equal mixture of pity and gallows humor when we watch someone be in denial about something that is obviously failing and beyond saving.

An announcement this week from CMS of three new initiatives demonstrated this principal in rather stark terms. Not long ago, CMS released the proposed rule regarding Accountable Care Organizations (ACO). To say that the proposed rule was met with skepticism and indifference is an understatement. The large upfront costs of setting up an integrated health model has made the idea of an ACO a non-starter, despite the promise of savings and incentives for such at the end of the road.

One of the initiatives announced this past Tuesday was called the Advanced Payment ACO. The purpose of this type of model would be to make a portion of the projected savings from an ACO available to an organization setting up an ACO in order to cover a portion of the upfront costs of forming such a model. CMS is accepting public comments on this initiative until June 17th, which can be submitted here. Being that I have a little space, allow me to share my public comments on this initiative in this forum.

You have to have pity for poor Donald Berwick. He became the CMS chief through a recess appointment due to continuing negative attitudes of Republicans in the Senate toward the President and any of his ideas. It has already been announced that he will not be renominated prior to the expiration of his term at the end of 2011. No Democrats in the Senate are defending him as he tries to remake Medicare from a program riddled with waste and inefficiency to one with any semblance of a salvageable  financial future. He has been left to twist in the wind until his clock runs out. It leaves those of us in the public with an impression of him as a crazy uncle at Thanksgiving, spewing forth ideas that are neither welcome nor appropriate to the circumstance. It is a view of him that, based on his past accomplishments, isn’t fair in any sense of the word.

Yet here we have Dr. Berwick, left to his own devices on his Speaker’s Corner pulpit, preaching the ACO gospel to an audience doubly armed with skepticism and rhetorical tomatoes, as the clock continues ticking, now promising to pay for ACO formation up front by taking the savings from the end of the rainbow.

The American Hospital Association released a study this week that showed that the costs of forming an ACO could range from $11.6 to as high as $26.1 million, which is significantly more than CMS’ estimate of $1.8 million. The AHA’s conclusion to the study stated that the shared savings rate needed to be adjusted to encourage participation in the ACO model. As an illustrative question, if 100 Advance Payment ACOs are formed, is the federal government ready to spend up to $2.6 billion on the hope that there is a pot of gold at the end of the rainbow? Further, would this be a welcome announcement to the general public in a country with a current true unemployment rate of 15.9%?

I have one other simple question; what if, after the ACO is formed, despite all efforts, no savings is realized from the model? Worse yet, what if neither savings nor improved coordination of care develops? The answer to these questions, as far as I can see, is that we just took a few million dollars per accountable care organization and set them on fire.

The final rule on ACOs has yet to be written, but desperate panic and a traveling medicine show sales pitch rarely add up to good strategy. The house of cards that is the ACO model is showing signs of instability, and CMS’ sneezing, in the form of the Advance Payment ACO Initiative, is not saving it from crumbling. Mr. Berwick, do not remain calm. All is not well.

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May 20th, 2011 | No Comments »

Real Reform At The State Level

Posted by J. Paul Spencer, CPC, CPC-H in Health Care Reform

To say the least, this has been an interesting news cycle in the past week. I am hard pressed to find better evidence of events taking on a life of their own. In a 72-hour period, the most important story in the world transitioned from a royal wedding in London to a dead terrorist in Pakistan. If nothing else, the world is not lacking variety.

In the last month, health care has continued to linger on the outskirts of the front page. First, we had the Republicans in Congress present a plan to convert Medicare in its current form to a voucher plan. This in turn led the elderly of America to forsake their usual schedule of Murder, She Wrote reruns and 2 PM dinners during the recent legislative recess in favor of town hall meetings with their congresspeople. Representatives who voted for the Republican plan learned the hard way that there are few dull knives in this world as blunt as older Americans speaking off the cuff.

If we take the lens for the news of the last week and refocus it to the state level, it finds changes occurred that have the potential to greatly alter the health care landscape.

First we begin in Florida, where a group of bills was passed that will place strict limits on malpractice lawsuits against health care providers. The legislation awaits the signature of current Florida governor, former HCA Medicare crook and Lex Luthor look-alike Rick Scott. The bills place pain-and-suffering caps of $250,000 for nursing homes and $300,000 for physicians. The only way these caps can be exceeded is if the plaintiff can prove that the provider acted maliciously.

Florida went a step further. For litigation purposes, teaching hospitals will now fall under the state’s “sovereign immunity” protections. In order to exceede the cap on damages from these institutions of $100,000 per person and $200,000 per incident, a plaintiff would need an act from the legislature. Having the mind that I have, this leads me to envision pieces of legislation such as The Surgical Resident Took My Wrong Leg Act of 2013, but that’s just me.

As a final cherry on top of Florida’s sundae, anyone who presents themselves as an expert witness in a malpractice action who arrives from out-of-state must obtain a certificate from the state health department. Further, the state board of medicine will be allowed to discipline expert witnesses if their testimony is later found to be fraudulent, deceptive or misleading.

All of the changes in Florida were added as a prelude to converting the state’s $22 billion Medicaid program into an entirely managed care model. Physicians felt that without codifying malpractice protection, there was no incentive whatsoever to offer services to Medicaid patients. This does not solve the larger problems of low reimbursement from Medicaid and one-third of physicians in Florida being over the age of 56. Time will tell whether these initiatives stem the negative tide of medical care for the uninsured in Florida.

Meanwhile, in the far-off reaches of New England, the state of Vermont was staking out much different territory. Long known for its pioneering efforts towards creating a state health care system that covers every resident, the Vermont legislature forwarded a bill to Governor Peter Shumlin that provides the blueprint to do just that.

The bill would create the first health exchange in the country, to comply with provisions of the Patient Protection and Affordable Care Act. The exchange will provide information on different types of insurance coverage, allowing state residents to compare plans. It additionally creates a 5-member board that will be tasked with reducing the costs of health care (currently at $5 billion) in the state.

There are two populations that would be excluded from the state plan. Veterans who have coverage under TRICARE would defer to that plan. The legislature also passed a revised definition of a “resident” of the state to exclude undocumented people living in the state from the Green Mountain Care program.

The Vermont plan is unabashedly modeled after a plan created in the Province of Saskatchewan that eventually led to Canada’s single-payer health system. The financial promises of the legislation will need to be seen to be able to judge the success or failure of the plan, but it will be interesting to watch the reaction of businesses both in and out of the state. Any state promising to take the burden of health insurance out of the hands of employers is certain to spark great interest from the business community.

The changes implemented last week come on the heels of the Supreme Court’s decision on April 25th to deny “fast-track” status to the challenge of health care reform law by the Virginia Attorney General. This case is scheduled to drop onto the Supreme Court’s docket in 2012, just in time for the next national election cycle. Everyone still has time to buy a shovel prior to that happening. 

As we can see, health care and its machinations continue to dominate the news 14 months after the passage of PPACA. As the biggest drag on our gross domestic product, I would argue that it is exactly where it needs to be.

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May 6th, 2011 | No Comments »

Another Week, Another CMS Initiative

Posted by J. Paul Spencer, CPC, CPC-H in Health Care Reform

Quite obviously, health care is always on my mind, but it has been an interesting week for me to say the least.

Last week, I had my annual physical. I can report that as of today, 14 days prior to my 45th birthday, the Earth’s natural process of shedding itself of my presence appears to have begun in earnest. If the examination bullets and lab reports are accurate, I am iron deficient, vitamin D deficient, my cholesterol has spiked, I’m heavier than I’ve ever been and my resting blood pressure was measured at 150 over 110. Naturally, given my personality, I sprang into action immediately; I went home and I had a beer.

Given all of these newly-discovered health risk factors, I’ll try to get to this week’s point as quickly as possible.

This past Tuesday, my e-mail box lit up like the skies around Devil’s Tower in Close Encounters of the Third Kind. CMS announced their latest initiative, called Partnerships for Patients, with great fanfare and a bonus conference call. The call was targeted at “stakeholders, and not the media” as I was told twice prior to the guts of the call. Nevertheless, since my vital signs are screaming at me to relax, I listened in for a few moments

CMS administrator Donald Berwick was the first to speak, introducing the initiative. Dr. Berwick called it a “turning point for patient care” and then came forward with the goals of the program. Simply put, Medicare is partnering with hospital systems to find ways to reduce hospital-based adverse events and readmissions. The program has set aggressive goals of reducing hospital-acquired conditions (HACs) by 40 % and readmissions by 20% by 2013. The initiative will be funded by the Department of Health & Human Services to the tune of $1 billion in federal funding that has been made available by the Patient Protection and Affordable Care Act.

Dr. Berwick touted the work of pioneering hospitals across the country that have successfully lowered their instances of HACs and readmissions. He stated a larger goal of “making best practice the normal practice” to reduce preventable medical errors nationwide.

On the heels of CMS’ April 7th release of proposed rules for Accountable Care Organizations (ACOs), as well the April 5th release of the House Republicans’ Medicare privatization model, it has been an eventful few weeks for the Medicare program. The unspoken undercurrent regarding all of this sudden activity is that the Medicare program is the largest drain on the federal budget, and everyone is realizing (somewhat belatedly) that something desperately needs to be done to reign in the growing costs of the program.

About the only fact that all parties can agree on is that medical care is too expensive, and that the upward trend is unsustainable. The two choices we have been offered this month are “fix it from within” and “sell it off to the highest bidder”, both of which fail to offer anything close to a solution if we strictly use history as a guide. Add to that the announcement in early March that Dr. Berwick, who is the CMS Administrator by recess appointment until December 31st, is not going to be re-nominated for Senate confirmation prior to the end of his term due to objections from Republicans in that chamber, and Medicare’s immediate future suddenly becomes murky. It will be left to Dr. Berwick’s eventual successor to see the ACO and Partnership for Patients initiatives to their conclusion.

As this month’s initiatives get up and running, the puffy-cloud dreams that are yesterday’s initiatives continue unabated, the biggest of which are focused on improper payments. I continue to eagerly await HHS’ annual report to Congress detailing the financial impact of these initiatives, especially with regard to the Recovery Audit Contractor program. Given that healthcare costs currently consume 16% of the country’s gross domestic product, any initiative that shows tangible evidence of savings can’t be anything but positive. It is hoped that the political will can be found to insure that Medicare will still be around when people of my generation reach a certain age. My odds of seeing it suddenly became longer in the last week, but I wish my contemporaries luck nonetheless.

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April 15th, 2011 | 2 Comments »

PPACA: One Year Later

Posted by J. Paul Spencer, CPC, CPC-H in Health Care Reform

On the 13th of March, my wife and I celebrated our 6th wedding anniversary. We found out that the 6th year is the iron anniversary. We commemorated this by going out to dinner and seeing the film Black Swan. I’m still trying to figure out what a chicken sandwich and the latest celluloid self-abuse fest from Darren Aronofsky have to do with iron, but nothing made of this particular element struck our fancy.

The first anniversary is celebrated with paper, and do I ever have a chunk of paper with which to celebrate the latest one.

This past Wednesday marked the first anniversary of the passage of the Patient Protection and Affordable Care Act. The 2,409-page document, despite a few current legal decisions to the contrary, remains the blueprint for expanding health care coverage to as many citizens of the United States as possible by 2014.

The last year has been an odd journey for this law. In the past year, we’ve seen the House of Representatives switch parties, with the new party putting forth as their first piece of legislation a full repeal of the Act. We’ve seen two judicial votes against and three votes for implementing the act as it is currently written. We’ve seen Aetna and Cigna, two of the richest corporations in America, look the government in the face and tell them that they couldn’t afford to provide their employees with the minimum coverage mandated in the act, and the government believed them and granted a waiver.

With all of this in it’s first year, the biggest threat to the implementation of the act as written is currently one that rumbles under the surface. The creation of state-run exchanges and the expansion of Medicaid coverage mandated in the Act is encountering the roadblock of America’s lingering economic quagmire. An almost genetic unwillingness to raise revenue from the upper end of  the existing tax base is leading many state legislatures, including my own, to cut every service for everyone unfortunate enough not to be able to afford a seat at the lobbying table. One of the prime targets across the country has been Medicaid spending. State budgets are a mess, and excitement about expanding Medicaid, especially for bigger states such as Texas and California, is non-existent.

A few weeks ago, President Obama attempted to bridge this divide by proposing to change the time frames for state innovation waivers from the current 2017 to 2014. It’s a calculated gamble from an administration seemingly saying “if you can do it cheaper and provide the same level of coverage, while not increasing the federal deficit, be my guest”. Unfortunately, the audience for this message consists of the same states who are suing to negate the Act prior to that date. The states of Vermont and Massachusetts, who were uniquely positioned from standpoints of politics and existing policy prior to PPACA, would appear to already qualify for the waiver.

One part of PPACA that is going well is anti-fraud activity. $4 billion was collected in fiscal year 2010. We have yet to hear the final numbers for the Medicare RAC program for 2010, but all indications are that the number will provide enough encouragement to expand the program to Medicare Parts C & D some time in 2012. The Medicaid RAC program final rule is due later this year.

For its paper anniversary,  PPACA is creating and giving more than it’s receiving. A majority of the goals of the legislation are still three years away, but the journey of health care reform continues.

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March 25th, 2011 | No Comments »

Does Health Reform Stand A Chance?

Posted by J. Paul Spencer, CPC, CPC-H in Health Care Reform

As anyone who knows me can tell you, laughing is my favorite activity. For the most part, I’m an easy audience, but my favorite kind of comedy usually involves one central character with demonstrated acumen at the center of a world that is crumbling around him, despite his best efforts. Groucho Marx was an absolute master of verbal comedy, but the magic of the Marx Brothers lies with his Harpo and Chico foiling his most well thought out plans with slow-burning lunacy.

Another favorite of mine was Benny Hill. Thanks to my long-term viewing of his show in reruns on American TV when I was younger, whenever I hear “Yakety Sax” by Boots Randolph, I immediately associate it with chaos. It is with this musical gem playing in the never-ending jukebox of my mind that I look upon the current landscape of health care reform in America.

It’s been yet another confusing week. The first news was of action taken was by Judge Roger Vinson in Florida. This was the jurist who ruled the entirety of the Patient Protection and Affordable Care Act unconstitutional back in January, based on the narrow belief that the effects of the individual mandate on the other 450 or so provisions in the Act couldn’t be ascertained, thereby voiding the entire law. On March 3rd, over the length of 20 pages, in a self-serving  judicial equivalent of a temper tantrum, Vinson demanded that the Department of Justice expedite their appeal of his ruling, while at the same time granting a stay of his declaratory judgment against PPACA.

The wording of the 20 pages is widely seen as response to criticism that his original ruling in the case was a case of activism and overreach, seeing as three federal judges have ruled the Act constitutional. When the Justice Department submitted a motion to clarify the judgment, Vinson responded in imperial tones of annoyance that the Obama Administration dared wait 2 1/2 weeks to file the motion. “It is possible that the defendants may have perhaps been confused or misunderstood its import”, said Vinson of his original ruling, a quote that would carry great weight had Vinson been elected Czar, rather than appointed as a district judge. Judicial experts state that it is rare for a District Court judge to insert themselves so bluntly into Appeals Court scheduling.

All of this posturing currently changes nothing with regard to the implementation of the Affordable Care Act, but a press release from HHS yesterday gives me pause about the Act’s viability and the emotional state of the Executive Branch. One provision of the ACA involved “state innovation waivers”. These waivers were to be granted to the states beginning in 2017 to states that have created insurance infrastructures that provide at least as much coverage at the same or less cost as what is mandated in the Affordable Care Act for state insurance exchanges, without increasing the federal deficit. The press release stated that the Obama Administration now supports legislation that would grant waivers beginning in 2014.

While this press release sounds innocuous enough, consider the backdrop for a moment. We have 26 governors suing to keep PPACA from being implemented who have thus far shown no interest in beginning the process of putting the law into place in their states. We have a judge in Florida who is stomping his feet to fast track this legal challenge, and we have a House of Representatives that has already voted (mostly symbolically) to cancel the entire law. Taken as one, this appears to be a political move aimed more at the 2012 election cycle. By moving up the waiver date, Obama is attempting to show that states in the hands of the opposite party are penalizing their own citizens by challenging the constitutionality of the law, rather than attempting to provide affordable coverage to their residents.

I’m seeing more than a little fear from the administration in this approach. The administration realizes that a change in the executive branch in 22 months spells the end of PPACA. It remains to be seen whether the President’s calculus of redirecting the spotlight will be successful, but between the lines of the press release is a realization of the consequences if he fails.

And so concludes the week in health care reform news. It’s not Harpo Marx stomping barefoot in a tank of lemonade, or Benny Hill running away from an angry mob, but it brings forth its own brand of chaos nonetheless. Cue the saxophones!

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March 11th, 2011 | No Comments »

Breaking Through The Barriers of Ignorance

Posted by J. Paul Spencer, CPC, CPC-H in Health Care Reform

I have a short patience fuse for ignorance and superstition, whether willful or unfortunate. In a country where the loudest voices, irrespective of education level, are pushed to the front of the public opinion line, I consider myself challenged every day of my life.

This week, the results of a poll conducted this month were released by the Kaiser Family Foundation. In response to the question “As far as you know, which comes closest to describing the current status of the health reform law that was passed last year?”, a staggering 48% either thought that PPACA had either been repealed or simply did not know the status of the law.

I try to think of myself as a teacher of sorts. I sit here, in the man-cave that is my work area, bringing useful information to the world, relating to health care and the world at large, twice a week. I’m empowered by the energy that becomes the power of facts. I long ago turned off cable news and their many offshoots in an attempt to gain greater understanding, rather than a far greater number for my systolic blood pressure. It appears that all of my hard work, self-reflection and vocabulary rattling has gone for naught.

So let me try to tear down the walls around the uninformed. PPACA, as it stands today, February 25th, 2011, remains in place and on schedule to be largely implemented in 2014. Yes, on January 31st, a federal district judge in Florida (much like a judge in Virginia prior to him) ruled that PPACA was unconstitutional, but three other federal judges have ruled that the law is indeed constitutional, including one judge three day ago. Until the Supreme Court rules on the legality of PPACA, the law is in force, and will be so until such a day comes to pass.

The problem with our news media, as it is currently configured, is that the truth is buried under twin towers labeled “AGENDA” and “OMISSIONS”. As an example of the latter, while reading an article on an online website this week, I came across a headline at the bottom of the page stating “Neil Young Dead at 66″. Now I could have gone off half-cocked and told everyone I know that one of my favorite musicians just died and gathered everyone for several beers and a sing-along, but instead I clicked through to the story. As you can see by following the link, it pays to have curiosity and click through to the story. The beers will have to wait.

To believe that the law is not in effect because a couple of lower level judges say so speaks to a wide-ranging ignorance of how the judicial branch of government operates. Might I suggest that those who either think the law isn’t in effect or have no idea start with buying a civics textbook.

Sharing this information won’t stop people from burning down their own houses, crossing against the lights or even begin to assist them in finding Canada on a map, but I feel that any help I can provide to give people knowledge is a help. I’m not a part of some cabal trying to destroy the country from within. I’m just informed.

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February 25th, 2011 | No Comments »

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