The anti-EMTALA

You have to love a federal appeals court decision that starts off with:  “When holding a hammer, every problem can seem a nail.”  It signals to the appellant’s attorney that “there is no need to waste any more billable time reading the rest of the opinion, loser.”   This is what the 10th Circuit Court of Appeals recently told an emergency room doctor who claimed his termination from his employment with a Colorado hospital violated EMTALA’s whistleblower provisions.  Dr. Genova claimed that he was terminated because he complained about overcrowding in the emergency room, and that this was a violation of EMTALA’s whistleblower provisions.  The good doctor complained about “patient hoarding” by the hospital in the emergency room, when patients could have been timely served elsewhere.  The problem with this theory is that EMTALA is designed to prevent hospitals from dumping undesireable patients out of their emergency rooms, not to discourage hospitals from treating too many patients in the emergency room.  Thus, Dr. Genova’s lawsuit is really based on some anti-EMTALA law that does not exist, at least not at the federal level.  There is also an interesting discussion of the medical staff bylaws that governed Dr. Genova’s termination, and the lack of support for a public policy argument.  The opinion is well-worth reviewing for those who are teaching health care law. [VJW]

Penn State Wellness Program as a “Sandusky Tax”

Pennsylvania State University apparently likes to do a lot of things “to the max” besides engaging in higher education scandals. Reuters reported last week that more than 2,000 faculty and staff employees are protesting Penn State’s wellness program. Unlike most workplace wellness programs, which use more carrots than sticks to encourage employees to take better care of themselves in the hope of decreasing health insurance and health care spending, Penn State uses a really big stick and no carrot. If an employee does not complete a 12-page on-line survey (which includes a question about men performing regular testicular exams–oh, the irony!) and have a preventive physical, the employee will be hit with a $100 per month paycheck deduction. The protesting employees are uncomfortable with turning over their private health care information to the companies running the wellness program, and question whether the $1,200 penalty is a “Sandusky tax.” Penn State assures its employees that the program is unrelated to the Sandusky scandal.

The protest raises interesting legal questions about medical records privacy and the use of coercive measures to improve health as a condition of employment. It also highlights the fact that workplace wellness programs may actually increase health care costs, at least in the short-term, as people go get physicals or bloodwork that they would not have otherwise received, in order to answer questionnaires and avoid fines, and the evidence to date is that such programs do very little to decrease health-care costs. The Affordable Care Act encourages the use of workplace wellness programs. Will they be the next piece of the law to be delayed or jettisoned?

Emergency Room Misuse Coming to a Strip Mall Near You

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

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

Concerns About Network Adequacy in Health Care Exchanges

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.”

The ACA and Job Mobility – An Ironic Twist on “Job Lock.”

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.

Pioneer ACOs – It’s Deja Vu All Over Again

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.

Health Law Wonk Summer Reading List

Last week, I mentioned that I had just finished reading Prof. Andrew Koppelman’s book “The Tough-Luck Constitution,” and said that it was a little outside of my usual summer reading lists. Then I thought about it, and realized that despite my best efforts to avoid health-care-related summer reading in favor of lighter fare, every summer I wind up reading at least one or two health-related books that don’t involve bodice-ripping and swooning, but are not quite as heavy as a casebook or treatise. So here are a few of the books that I have read over the past several years that I think belong on any health law wonk’s summer reading list. They also make great supplements for health law classes:

The Truth About the Drug Companies – Dr. Marcia Angell

The Great Influenza – John Barry

How We Do Harm – Dr. Otis Brawley

The Spirit Catches You and You Fall Down – Anne Fadiman

Flu – Gina Kolata

Unaccountable – Dr. Marty Makary

Medicine & Culture – Lynn Payer

The Healing of America – T.R. Reid

A Taste of My Own Medicine – Dr. Edward E. Rosenbaum

Hospital – Julie Salomon

God’s Hotel – Dr. Victoria Sweet

I have avoided some very worthy, but more academic reads, such as Paul Starr’s seminal “The Social Transformation of American Medicine,” but of course, if you can concentrate while sipping that Corona at the beach or on your boat, go for it. And no, I get no kickbacks, incentives, or pens with names on them from any of these authors in exchange for my listing.


“Tough Luck” Philosophy and Health Care Reform

Hello all – I am back from my teaching adventures in Italy, followed by a bit of a vacation, and am ready to resume regular blogging. I hope everybody is having a great summer, it is good to be back in the saddle again in Spokane.

Just finished reading Prof. Andrew Koppelman’s new book “The Tough Luck Constitution and the Assault on Health Care Reform.” Professor Koppelman nicely lays out the libertarian roots of the argument against the constitutionality of the Affordable Care Act’s individual mandate, explains how the Supreme Court’s conservatives came to embrace the argument, and puts forth his belief that this view of limited government power has nothing to do with the Constitution, but everything to do with contemporary politics. I particularly like his christening of the libertarian position on these issues as “tough luck” philosophy; if you fall on hard times, too bad for you, and the federal government is powerless to help you. He also aptly points out that virtually nobody actually follows this philosophy in their own life or in politics, but it fits well with the mythology of the rugged American individual, pulling himself up by his own bootstraps.

The book is written for non-experts, although having some legal background would be helpful in understanding the broader themes (he notes that other efforts by the Supreme Court to limit congressional power have been ill-advised and short-lived; such as its striking down of anti-lynching laws and child-labor laws in the pre-New-Deal era). It is short, and although I know it is not exactly summer beach reading, it is well worth your time if you have any desire to understand the constitutional arguments about the Affordable Care Act.

Turf Wars Played Out On the Legal Field

Much of the increased need for primary health care services anticipated to follow full implementation of the ACA, especially in rural areas, will likely be filled by nurse practitioners and physician assistants. Yet, restrictive state licensing regulations in many states will hamper the ability of these mid-level practitioners to fill the void. Modern Healthcare’s 11th annual workforce report (subscription required) focuses on the scope of license issues facing these professionals just as their roles in providing health care could expand dramatically. The report suggest that turf wars between physicians and mid-level practitioners is at the root of some of the scope of license restrictions at issue.

This is an area where modern communication technology could really shine to provide both access to care and to ensure quality of care. As we move towards a more team-oriented approach to providing health care, either by choice or by sheer necessity, we need to be creative about remote supervision of mid-level practitioners by physicians where appropriate, and also be honest about when a physician’s expertise is really needed, and when a mid-level practitioner is perfectly able to do the job. The physicians shouldn’t really be worried, they will continue to be the team quarterbacks. But if the law is being used to protect the team’s home turf through outdated restrictions on scope of practice, a comprehensive review of the field is needed.

Just When I Thought I had Seen Everything, Dialing for Coverage

Just when I thought I had seen everything when it comes to deciding who gets health insurance and who does not, comes a report in Sunday’s New York Times about how Tennessee administers its Medicaid program for “medically needy” residents. These are people who have very high medical bills, but would normally not qualify for Medicaid because their income is too high. If their medical debt is high enough that their income falls below a certain threshold after the medical debt is taken into account, they may be eligible for Medicaid. Qualifying for Medicaid may mean the difference between having access to needed health care and being unable to get treatment for a high-cost illness. Keep in mind that to qualify for the program, in addition to having high medical bills such that they are impoverished after the bills are paid, people must be elderly, blind, disabled, or be the caretaker of a child who qualifies for Medicaid. These traditional Medicaid populations are considered by society to be “the neediest among us,” according to Justice Roberts’ opinion on the Affordable Care Act’s Medicaid expansion.

Apparently, Tennessee limits enrollment in this program to the first 2,500 eligible callers who get through on the phone to the Tennessee Department of Human Services starting at 6:00 p.m. on a particular day once every six months. So if you are one of “the neediest among us,” and happen to be able to continually hit “re-dial” on your phone at that time, or can use multiple phone lines to call, you might get lucky enough to get health insurance. According to the executive director of the Tennessee Justice Center, this system leaves “huge numbers of desperately ill people . . . out in the cold.” As lawmakers in many states (including Tennessee) debate about whether to expand Medicaid under the Affordable Care Act, they should consider whether or not the richest country in the world should require some of its most vulnerable residents to play the equivalent of a game of roulette in order to get access to health care.

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