Only Alternative Facts Can Support the Protecting Access to Care Act

Only Alternative Facts Can Support the Protecting Access to Care Act

In late March of this year, JAMAInternal Medicine published a study finding that the “the overall rate of [malpractice] claims paid on behalf of physicians decreased by 55.7% from 1992 to 2014.”  The finding wasn’t new.  In 2013, the Journal of Empirical Legal Studies published a study co-authored by one of us (Hyman) which found that “the per-physician rate of paid med mal claims has been dropping for 20 years and in 2012 was less than half the 1992 level.”  In fact, peer-reviewed journals in law and medicine have published lots of studies with similar results.  It is (or should be) common knowledge that claims of an ongoing liability crisis are phony.

But inconvenient facts have never stopped interest groups or politicians from making false claims about med mal litigation.  Since 1991, when Dan Quayle struck gold by asserting that the U.S. had too many lawyers, Americans have heard non-stop about “jackpot justice” in which patients who weren’t even injured win millions; about the flood of frivolous lawsuits in which doctors are sued even though they didn’t make any mistakes; about jury verdicts skyrocketing out of control; and about doctors working all their lives only to have their savings wiped out by a single malpractice suit.  All of these charges are false—you can find the evidence here, here, here, and here.  But in politics, it’s staying on message that counts; it doesn’t seem to matter whether the message is true.

Kellyanne Conway brought “alternative facts” into the political lexicon, but tort reform advocates have been mouthing alternative facts for decades — and researchers who study the civil justice system empirically have been debunking them for just as long.

Politicians don’t take kindly to being called out.  When Texas’ tort reformers sought to limit lawsuits in 2003, they promised that caps on damages would save money by reducing the practice of defensive medicine.  Then, we co-authored a study showing that health care spending rose at the same pace after 2003 as it had before.  How did then-Governor Rick Perry respond? He said that the real goal of reform was to lure doctors to Texas, not to save money.  And, he claimed the real goal had been accomplished, because thousands of new doctors had flooded into the state.  Perry’s fallback claim was also based on alternative facts.  As we showed in another co-authored study, there was no evidence of an increase in the number of direct patient care physicians in Texas during the post-reform period. Perry’s career did not suffer because of these statements – he now heads the U.S. Department of Energy.

Perry has a kindred spirit in Dr. Tom Price, the Secretary of the U.S. Department of Health and Human Services.  In 2010, Price asserted that defensive medicine accounted for $650 billion  every year, or 26% of health care spending.  Price’s “evidence” for this astonishing claim was a survey of physicians, asking them to estimate what percentage of health care spending was attributable to defensive medicine.  This figure is implausible on its face, and is roughly 15 times the estimate of $45.6 billion per year published in 2010 in Health Affairs.  Some studies have found even lower estimates.  And, with 30 states already enacting tort reform, many of the potential savings (if any) have already been realized.

Republicans are still pushing for tort reform at the federal level.  H.R. 1215, the Protecting Access to Care Act would impose a $250,000 cap on recoveries for non-economic losses.  The FY 2018 budget for HHS includes a similar proposal to “modernize” the medical liability system by capping non-economic losses at $250,000, but indexing the cap for inflation. We doubt that these caps will have much of an impact on health care spending or physician supply. They are also a remarkable intrusion into an area traditionally regulated by the states.  And they are aimed at a peculiar target, since there is no evidence that med mal victims are routinely over-compensated.  To the contrary, it is well established that most receive amounts that are too small to cover the economic losses they incurred, or, in the case of plaintiffs who win at trial, too small to cover the losses that juries think they incurred.

H.R. 1215 also includes a sliding scale cap on plaintiffs’ lawyers’ contingent fees.  The FY 2018 budget for HHS includes a similar provision allowing courts to modify fee arrangements. These provisions are sold as protections for vulnerable patients who can’t protect themselves from greedy attorneys, but they are really just price controls that prevent many victims with meritorious claims from obtaining the legal services they need.  We have studied the market in which clients hire med mal lawyers.  Lots of firms compete for their business, and “it is hard to make an economically plausible argument for capping contingency fees.”  The only explanation for the GOP’s desire to cap their fees is that plaintiffs’ attorneys tend to support Democrats.

To support H.R. 1215, then, one needs a host of alternative facts—a med mal liability crisis that doesn’t exist, hundreds of billions of dollars in imaginary health care savings, fictional damage awards, and imaginary overcharges by plaintiffs’ attorneys.  Could even Kellyanne Conway deliver all that?

Charles Silver is a professor at the University of Texas School of Law and David A. Hyman is a professor at Georgetown University School of Law.  They are co-authors of After Obamacare: Making American Health Care Better and Cheaper (forthcoming 2018).

House v. Price and the CSR Payments Paradox

House v. Price and the CSR Payments Paradox

Many countries in the world have dysfunctional governments. Some have corrupt and devious ones, or even deadly ones. We’ve lived with serious dysfunction in Washington for two decades. Now we join the ranks of countries with a corrupt and devious government, one without a moral compass.

And I’m not just talking about Trump.

The news and blogosphere is replete with this sentiment surrounding the White House, of course, a la the “Russia thing” and Comey’s firing and all the rest.

But the cynicism and political bankruptcy that suffuses our elected leaders’ failure to assure that the cost-sharing subsidies for people buying health insurance through the exchanges will be secured for 2017 and 2018 is a new low in the wretched ongoing saga of Obamacare vs. Trumpcare.

This is playing out right now and could affect 12 million people come this fall and in 2018.

To be sure, there’s a legal issue that deserves attention. Here’s the quick background if you haven’t been following this closely:

The Republican-led House of Representatives in November 2014, in an unprecedented move, legally challenged the Obama administration’s payment of subsidies to insurers to compensate them for helping people between 100 and 250 percent of the poverty level pay their deductibles and out-of-pocket payments.

The House claimed that Congress never appropriated money to fund these payments; thus the administration was making them unconstitutionally. In May 2016, a judge ruled in the House’s favor, holding that Congress had indeed not specifically appropriated money to cover the “cost sharing reduction” (CSR) payments.

The judge ordered that future payments stopped until Congress specifically appropriated the funds, but then stayed that ruling pending certain appeal. The Obama administration did indeed appeal, in October 2016. The House then requested additional time to file its responsive.

Then came the election and Trump’s win.   The House asked the court in February that the appeal be stayed until the new administration took a position. The judge agreed and issued a deadline of May 22, 2017. (See below for what happened on Monday.)

From Jan. 21 through May 22, Trump and administration health officials sent mixed signal after mixed signal on the fate of the lawsuit and the CSR payments, which totaled $7 billion in 2016 and helped 7 million people.

One minute the White House seemed to agree the payments had to continue—while ACA repeal and replace was being debated and legislated—only to undermine that sentiment within days.

In particular, on numerous occasions, Trump said flatly that letting the CSR payments lapse would “kill Obamacare.” He threatened to do just that, by ordering the payments be stopped—something he can do. He also suggested several times that he might use continuation of the CSR subsidies in 2017 as leverage to get the Democrats to support the House Republican health care bill.

And Trump said: Congress can authorize the payments if they want to, though he never indicated (to my knowledge) that he supported that course of action or that he would sign such a law.

Notably, the House’s American Health Care Act (AHCA) would continue the CSR payments through 2019—something Trump seemed not to know. But, as Tim Jost points out in this Health Affairs blog, “the bill provides no additional funding for the program, necessitating continued defense of the appeal to stop the lower court’s order from going into effect prior to that time.”

Virtually every major healthcare lobby group—insurers, physician, hospital and consumer groups—argue that failure to continue the CSR payments will have a dramatic negative impact on the ACA marketplaces in 2018.

Insurers have all but said that premiums will spike even further in 2018 without the payments. The Kaiser Family Foundation put a nationwide average on that increase of 19 percent.

The deadline for states to let the federal government know whether they will participate in the exchanges in 2018 is June 21.   That means they are figuring it all out NOW.   Several states have already given insurers permission to submit two sets of proposals—one assuming the CSR payments continue and one assuming they don’t.

Fast forward to recent days.   Recognizing the dire nature of the situation and the political failure at the federal level, on May 18 attorneys general from 15 states and the District of Columbia filed a motion to “intervene” in the litigation.

Again, courtesy of Tim Jost, that means the states are claiming they have an immediate interest on behalf of their residents to seek a resolution to the litigation. Namely, the states argue that subjecting future CSR payments to an unpredictable appropriations process will lead to higher insurance costs and to more insurers abandoning the individual health insurance market.

The states further assert, according to Jost, a healthcare attorney, that:

“President Trump’s statements demonstrate that the administration cannot adequately represent the states’ interest in the litigation,” and that they, the states, “have a sovereign interest in administering their insurance markets and protecting their residents.”

The National Association of Insurance Commissioners, along with a number of large insurers and major employers, also weighed in to warn Congress and the administration of the danger ahead if the CSR subsidies cease.

On Monday May 22—the deadline for the administration’s decision—this dirty can, filed with political mold and moral decay, got kicked down the road.

The House of Representatives and the Department of Justice jointly sought an appeal court’s permission to preserve the status quo for another 90 days, until August 20.

The court is expected to issue a decision soon. But make no mistake, this leaves states, insurers and millions of exchange customers in a state of deep uncertainty and angst—even if the administration, as reported, agrees to pay the subsidies through August.

The stupidity of all this is exacerbated by the fact that ending the CSR program would actually cost the government more money, as long as the ACA exchange system is in place. That’s because higher premiums translates to higher premium subsidies from the government. Of course, many people would drop out if, as predicted, insurers hiked premiums an average 19 percent in addition to increases planned for other reasons.

The Congressional Budget Office score of the House-passed repeal and replace bill may shed further light on the impact of the CSR payments—or not.   The CBO is expected to issue its report this week.

As Jost notes, passing an ACA repeal and replace bill (if the Senate gets its act together) will not resolve all of House vs. Price, as the case is known. Apart from the CSR subsidies, it’s legally murky whether a single chamber of Congress has standing to sue an administration to stop the expenditure of funds that it believes were not properly appropriated.

If our elected officials had any sense at all and were acting in the public interest, the CSR issue would get resolved as soon as possible. The solution is simple: Congress has but to authorize the subsides and appropriate the money. They can and should do that for the remainder of 2017 for starters.

ACO Turnover is High. Doctors Have Few Patients, and Those Patients are Unusually Healthy

ACO Turnover is High. Doctors Have Few Patients, and Those Patients are Unusually Healthy

ACOs suffer astonishingly high turnover rates among their doctors and patients; their patients are unusually healthy; and those unusually healthy ACO patients constitute about 5 percent of each ACO doctor’s panel of patients. These facts appear in three recent reports: CMS’s final evaluation of the Pioneer ACO program, and two papers published in Health Affairs by John Hsu et al.

Each of these facts – high turnover, healthier patients, and few ACO patients in each physician’s panel – poses problems that cannot be solved without a substantial redefinition of the ACO. How are doctors supposed to influence the health and cost of patients they see only sporadically or not at all? How are ACO doctors supposed to lower costs if their sickest and most costly patients are not in the ACO? How are ACOs supposed to alter physician behavior when their physicians see fewer than 100 ACO patients out of a typical panel of 1,500 to 2,000 patients?

This post is the first of a three-part series in which I discuss the documents I mentioned above – the final evaluation of the Pioneer program and the two papers by Hsu et al. In this essay I will review the findings of those documents regarding turnover, biased selection, and numbers of ACO patients per doctor. In the second installment I’ll discuss the implications of these findings for ACOs and for MACRA’s “alternative payment model” program. In the third installment I’ll ask whether the final evaluation of the Pioneer ACO program sheds any light on why the program failed to work as advertised.

The ACO revolving door

The final evaluation of the Pioneer program, published quietly last December, indicates the 23 Pioneer ACOs that participated in that program over the three-year period 2012-2014 lost two-thirds of their doctors and patients during that time. [1] Here is how L&M Policy Research, the firm that wrote the evaluation, described physician churn: “Looking across 23 ACOs in all three performance years …, 34 percent of Pioneer ACO providers (11,777 of 34,882) were affiliated in all three years.” (p. 25) And here is how L&M described patient churn: “Looking across all three performance years at the 23 Pioneer ACOs… , only 30 percent of aligned beneficiaries were aligned in all three years (352,421 of 1,173,843)….” (p. 29).

In two papers published over the last year in Health Affairs, one published last April and the other in March 2016, John Hsu et al. reported high turnover among doctors and patients in the ACO run by Partners HealthCare, a Boston hospital-clinic chain. That ACO was the second largest of the 32 Pioneer ACOs. [2] In the April 2017 paper , Hsu et al. reported that only 52 percent of the 748 primary care physicians listed as participants in Partners HealthCare’s ACO during the 2012-2014 period were affiliated during all three years. Oddly enough, 13 percent of those 748 doctors did not have any Medicare recipients assigned to them at all and, therefore, had no ACO patients to lose through the ACO revolving door.

In their March 2016 paper , Hsu et al. reported, “In 2014 …, only 45 percent of the beneficiaries [in the Partners ACO] had been aligned with the ACO since 2012….” (p. 425)

These churn rates should be no surprise to anyone who was paying attention to the Physician Group Practice (PGP) demonstration, a test of the ACO concept conducted by CMS over the period 2005-2010. CMS assigned Medicare recipients to the PGPs using the same plurality-of-primary-care-visit method they employed to assign recipients to the Pioneer ACOs. According to the final evaluation of the PGP demo, the PGPs lost 37 percent of their assigned patients over the first three years (see Table 11-2a p. 222). “PGPs generally retained approximately 70 percent of their assigned beneficiaries from one year to the next,” the report stated, “and … PGPs generally retained approximately 40 percent of their assigned beneficiaries after five years.” (p. 221).

CMS shunts sicker patients away from ACOs

In its first evaluation of the Pioneer program released in May 2015 (with a March 2015 date on it) in which L&M Policy evaluated the program’s first two years, L&M suggested that CMS’s method of assigning Medicare recipients to ACOs could result in favorable selection, that is, the assignment of healthier patients to ACOs. In this final evaluation, L&M did not mince words: They clearly stated that CMS’s assignment algorithm causes highly favorable selection.

To measure the degree of favorable selection, L&M calculated what they called a “spillover group” of patients for each ACO. This group consisted of Medicare recipients within the ACO’s market area who had at least one primary care visit with an ACO doctor during the year in question but did not have enough contact with the ACO’s primary care doctors to be assigned to the ACO by CMS’s plurality-of-primary-care-visit algorithm. These “spillover groups” turned out to be much sicker and more expensive than the groups CMS assigned to the ACOs. Here is how L&M put it (note that L&M uses CMS’s trendy word “aligned” as a substitute for “assigned”): “Aligned beneficiaries tended to have … substantially lower spending compared to those not aligned but receiving at least one qualified service from an ACO provider during a performance year (spillover group).” (pp. ix-x)

Data reported by L&M indicates the “spillover” patients were about 1.6 times sicker and more expensive than the assigned patients. Here are more quotes from the final evaluation: “The average PY1 [performance year 1] expenditures of these two populations differed significantly: $11,605 per aligned beneficiary compared to $18,992 per spillover beneficiary.”(p. 32) “In PY2, for example, [spillover patients] were more expensive than the beneficiaries aligned with ACOs in PY2 – $19,313 per beneficiary compared to $11,768.” (p. 34) “The spillover populations had higher proportions of beneficiaries with dual eligible status, six or more chronic conditions, or more inpatient stays than the aligned populations….” (p. 34)

Finally, it’s important to note that the spillover and assigned groups tended to stay separate over the three years of the Pioneer demonstration. As L&M put it, “[T]here was consistency over time for the two groups: aligned beneficiaries tended to be re- aligned in the following year, and spillover beneficiaries tended to remain not aligned with the ACO.” (pp. 34-35) [3]

ACO doctors see few ACO patients

Hsu et al.’s April 2017 paper reported that a total of 748 primary care doctors participated in Partners’ ACO during at least one of the three years (2012, 2013, or 2014). Those 748 doctors had an average of 91 ACO patients assigned to them during those three years out of an average panel size of 1,700. “This means that ACO beneficiaries accounted for less than 5 percent of the median physician’s patient panel,” the authors concluded (p. 644). (I calculate the percent to be 5.4 percent.)

To make matters worse, the sick patients that did get assigned to Partners’ ACO were not evenly distributed among the ACO doctors. A few doctors got far more than their share of sick patients. Hsu et al. illustrated how badly skewed the distribution of sicker patients was with this ominous remark: “ACOs’ ability to deliberately select participating physicians year to year … creates a relatively simple mechanism to ‘game’ the risk pool. For example, in our sample, dropping the twenty-two primary care physicians (top 5 percent) with the most high spending beneficiaries (spending more than $81,000) would reduce the mean Medicare ACO spending per beneficiary by 17 percent ….” (p. 646).

Finally, I remind you that the figures I’m reporting here are for the second-largest ACO among the 32 Pioneer ACOs. It’s possible that in smaller ACOs beneficiaries assigned to the ACO account for even smaller percentages of physician panels.

A restatement of the exceedingly obvious

Is it any wonder that ACOs are failing to cut Medicare’s costs, or that when ACO intervention costs are added, ACOs are probably raising total spending? Is it any wonder that ACOs are having, at best, only minor and mixed effects on quality?

I hereby announce the obvious: ACOs cannot possibly work as long as they must labor under the three handicaps I am discussing here – high doctor and patient turnover, limited ability to focus on the sickest patients because CMS is shunting sicker patients away, and few ACO patients per ACO doctor. For the ACO proponents who should have thought about these handicaps before they climbed on the ACO band wagon a decade ago, let me spell it out clearly.

The revolving door problem: It is neither logical nor fair to “hold doctors accountable” for populations of patients that include large numbers of phantom patients (patients doctors never see but are nevertheless “accountable” for) and patients who see numerous other doctors outside the ACO.

The biased selection problem: ACOs probably cannot lower total spending even if they were to receive a random selection of the Medicare population, but we can be certain they cannot do that if CMS continues to assign ACOs a disproportionately healthy population. Most readers of this blog have probably heard of the 20-80 problem – the sickest 20 percent of the population accounts for 80 percent of total medical costs. If it’s possible for ACOs to reduce net costs for at least a portion of their assigned patients, it will be for their sicker patients. But by sending ACOs disproportionately healthy Medicare beneficiaries, CMS is ensuring that a very difficult assignment under the best of circumstances is even more difficult.

The small-patient-pool problem. No one knows what tactics ACOs use that will allegedly make their doctors better doctors, but whatever it is, those tactics are unlikely to be effective when they’re applied to just 5 percent of the patients seen by the average ACO doctor. Even if ACOs could apply their magic to all 1,700 of each doctor’s panel, in other words, even if ACOs were just staff model HMOs with a new name, we would still have no evidence or reason to think they would lower costs or improve quality on balance. After all, if HMOs of any stripe had worked, we would not now be discussing ACOs and “medical homes” and other managed care fads invented decades after the HMO was unleashed on the populace. But when that ACO magic is applied to such a tiny percent of each doctor’s patients, it becomes even more difficult to imagine how ACOs are supposed to lower costs or improve quality.

Next post

In my next post I will ask whether these three problems – high turnover, biased selection, and small ACO patient pools – are fixable without a substantial redefinition of the ACO. My answer will be no. I’ll argue that ACO advocates can either redefine the ACO to look like staff-model HMOs, or they can radically redefine the ACO so that it focuses on a few clearly defined chronic diseases or subsets of patients. I’ll recommend the latter. I’ll also argue that even if ACO proponents wanted to choose the first option and risk another patient and doctor backlash against HMOs dressed up as ACOs, there’s no reason to believe that the HMOs in ACO drag would work any better today than they did in the closing decades of the last century.

[1] Thirty-two groups signed up for the Pioneer program and participated in the first year, 2012, but only 23 participated during all three years.

[2] Partners HealthCare was the second largest of the 32 ACOs if we use number of attributed Medicare beneficiaries as our measure of size. Partners ranked lower if we use number of participating doctors as our measure. The CMS final evaluation presents data on the number of physicians and patients in each of the 32 ACOs that participated for at least one year in the Pioneer program (see Table 30 p.99 and Table 32 p. 102). This data is presented for each of the three years (2012, 2013, and 2014) and for “any year.” The “any year” data show how many doctors and patients passed through the ACO revolving door over the three-year period. Partners was the second largest of the 32 ACOs as measured by total assigned patients in 2014 (77,135) and in any year (98,196). Heritage California ACO was the largest (96,617 in 2014 and 162,264 in any year).

[3] Deep within the final evaluation of the Physician Group Practice demo published in 2012, one can also find evidence that the plurality-of-visit method CMS uses guarantees that ACOs will get healthier patients. According to that evaluation, the average risk score for the Medicare recipients assigned to the ten PGPs in year one was 0.921 (1.0 equaled average risk). Interestingly, the report demonstrated that these risk scores would have risen to approximately average (that is, 1.0) if the method of assignment had been merely “one or more visits,” and would have fallen to 0.898 if “a majority of visits” had been used (see tables at page 222 of the final report ). In other words, the more patient loyalty CMS’s assignment algorithm requires before a patient can be assigned to an AC), the greater the favorable selection enjoyed by the ACO. The biased selection problem caused by the plurality-of-visit assignment method is worse for ACOs enrolling non-Medicare populations under 65, because the proportion of that population that fails to seek any medical attention in the course of a year is much higher than the proportion of those over 65.

 

Suppose It’s an Obligation and Not a Right?

Suppose It’s an Obligation and Not a Right?

Suppose we frame the current health insurance* debate in a different way?

*It is about insurance. “Health insurance”=/=”health care,” although the former should lead to the latter.

Rather than arguing whether American individuals have a right to health care (beyond what you can already find in EMTALA, and please God let’s not consider repealing that), because people get very huffy about this concept, can we ask a different question?

Should we Americans collectively assume an obligation to “promote the general Welfare” by providing everyone access to basic health services, in the way that we have obliged ourselves to provide all children with access to a free public education (largely from each state’s constitution, with the exception of protections for disabled children)?

Consider this:

We have already agreed, by enacting EMTALA in 1986, that as a society we don’t want to see people die because an ER turns them away if they can’t pay. We have already assumed that obligation. But waiting until people are very nearly dead before we assume any obligation for their care is extremely expensive, and in the case of many ailments, just cruel. Think heart disease. Think diabetes. Think cancer.

We have already agreed, by enacting mandatory vaccination laws (although we have wobbled a little on this one with exemptions), that we have an obligation to protect the herd by requiring this simple public health measure. We also have quarantine laws to fulfill our obligation.

We have already agreed that we have an obligation to provide safe water to all (coughs Flint coughs), also pretty basic for health.

We have also agreed, via our Supreme Court, that it is a violation of the Eighth Amendment prohibition against cruel and unusual punishment to deprive prisoners of necessary medical care in Estelle v. Gamble, 429 U.S. 97 (1976). Let me repeat that. People in prison have a right to medical care (although even they can be charged co-pays).

It does not seem like that far a reach to propose that we have an obligation (collectively) to provide people who are not incarcerated access to health care before they show up at the ER, if for no other reason than to reduce the expensive ER visits that we are already obligated to fund.

Given the way our system is currently set up, rather than nationalizing the health care system, which sounds like quite the disaster, or providing everyone with a government doctor (which also sounds like a disaster, given how the VA has been struggling), making sure everyone has health insurance coverage seems the least disruptive path. Although nationalizing the insurance companies has a brutal appeal to me, and eliminating the middlemen in the long run through gentler measures will probably be helpful.

So for those of you who don’t want to grant other people individual rights in this area, ask whether you might be shirking the societal responsibility that you have already undertaken. And see also this interesting analysis of the free rider problem in this area.

Not your brother’s keeper, you say? Can we have a talk about the corporal works of mercy?

The Dark Goddess of Replevin is a lawyer in recovery. She majored in Russian and has a varsity letter in extemporaneous speaking.

Maintainance of Conflict of Interest?

Maintainance of Conflict of Interest?

In the May 2nd issue of the Journal of the American Medical Association (JAMA), the American Medical Association (AMA) discusses the subject of physician conflicts of interest in medicine. This puts them at an interesting juncture when the editor-in-Chief and executive editor of JAMA failed to disclose their relationship with the AMA and the AMA’s relationship with US physicians. The AMA still presents itself to the public and legislators as representing Americas’ doctors, even though representing US physicians’ interests has not been their financial priority for many years. In fact, it is telling that their mission statement no longer includes the words doctor or physician. If they do represent US physicians as they often claim, then the AMA (and its publication JAMA) are rife with numerous conflicts of interest and public clarification of this fact is desperately needed.

Which is it?

In June 2016 at the invitation of the Pennsylvania Medical Society, concerns regarding the conflicts of interest inherent to the American Board of Medical Specialties’ (ABMS) Maintenance of Certification (MOC) program were brought before the interim national AMA House of Delegates meeting. The AMA and ABMS are co-member organizations of the Accreditation Council for Graduate Medical Education (ACGME) and each organization took interest. The room was full of concerned physician delegates who had taken time away from their practices to represent their colleagues, alongside the President and chief council of the AMA, senior executive officer of the American College of Physicians, and the President and CEO of the ABMS. These courageous practicing physician delegates issued a “vote of no confidence” in the American Board of Internal Medicine (ABIM) – the largest ABMS member board representing approximately 200,000 US physicians – during a national panel discussion. They later passed a resolution to end the ABMS MOC program, which is a laborious recertification process plaguing overburdened physicians across this nation. Unfortunately, the AMA leadership has yet to honor this resolution.

Which is it?

In June 2016 at the invitation of the Pennsylvania Medical Society, concerns regarding the conflicts of interest inherent to the American Board of Medical Specialties’ (ABMS) Maintenance of Certification (MOC) program were brought before the interim national AMA House of Delegates meeting. The AMA and ABMS are co-member organizations of the Accreditation Council for Graduate Medical Education (ACGME) and each organization took interest. The room was full of concerned physician delegates who had taken time away from their practices to represent their colleagues, alongside the President and chief council of the AMA, senior executive officer of the American College of Physicians, and the President and CEO of the ABMS. These courageous practicing physician delegates issued a “vote of no confidence” in the American Board of Internal Medicine (ABIM) – the largest ABMS member board representing approximately 200,000 US physicians – during a national panel discussion. They later passed a resolution to end the ABMS MOC program, which is a laborious recertification process plaguing overburdened physicians across this nation. Unfortunately, the AMA leadership has yet to honor this resolution.

If the House of Delegates is little more than a figurehead that makes a mockery of representing practicing US physicians before the AMA, then the public, legislators, and participating physicians should be formally notified and the perceived conflict clarified. Likewise, when a physician notifies JAMA’s Editor in Chief of ABMS authors that have consistently failed to disclose their affiliation with their own for-profit wholly-owned subsidiary ABMS Solutions, LLC in JAMA and elsewhere, a response and action addressing this specific conflict should occur.

However, if the AMA has chosen to serve as an independent business entity paying their journal’s editor-in-chief (who also serves as their Senior Vice President) $687,290 while also earning $111.1 million from CPT code “royalties and credentialing services” and $20 million from advertisers, then there is no conflict and the editors can feel reassured their disclosures in JAMA were proper. The AMA is one of the largest nonprofit 501(c)(6) business leagues in the country and has accumulated assets of over $686 million for its purposes.

Publishing an entire journal issue dedicated to the topic of physician conflict of interest while failing to acknowledge their own conflicts with physicians threatens to render JAMA’s coverage of this topic to little more than ethical “fake news.” The onus is on the AMA to clarify their role and potential conflicts with working US physicians or as Maya Angelou once said, “When a person shows you who they are, believe them.”

GEHA’s Seven-Year “Glitch”

GEHA’s Seven-Year “Glitch”

In a little piece of legislation known as the Affordable Care Act, preventive services are mandated to be covered with no out-of-pocket expense to consumers. According to the Healthcare.gov website, approved insurance plans must cover a “list of preventive services for children without charging a copayment or coinsurance.” Number 18 on that preventive care list is: childhood immunizations for children from birth to age 18, acknowledging regional variation in the standard recommendation schedule. After all, vaccinations are the cornerstone public health achievement of the last century and have saved countless pediatric lives.

Alas, all fairy tales must come to an end. For government employees choosing GEHA insurance coverage, that type of prevention comes at a definitive out-of-pocket cost. According to Wikipedia, GEHA is a self-insured, not-for-profit association providing health and dental plans to federal employees and retirees and their families through the Federal Employees Health Benefits Program (FEHBP) and the Federal Employees Dental and Vision Insurance Program (FEDVIP). According to the US Census Bureau 2014 statistics, Washington State has approximately 341,000 state and local government employees. My hometown has three very large installations, the Puget Sound Naval Shipyard, Naval Undersea Warfare Center Keyport, and the Bangor Naval Submarine Base employing a large number of full-time employees and contractors.   Many of these individuals have health insurance coverage provided by the Government Employees Health Association (GEHA) insurance plan.

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Is Health Privacy a Human Right?

Is Health Privacy a Human Right?

Health privacy sits at an uncomfortable junction between three interests: individual human rights, public / population health, and private business interests. There’s no obvious reason for these three interests to be misaligned but a lot of pain and money are involved so either politics or competition are typically in the picture.

Health privacy is a subset of the human right to privacy, what Supreme Court Justice Brandeis called “the right to be left alone”. But privacy has never been defined, and is seldom enforced, in health care because of the competing interests of society to manage populations, and a $100 Billion industry in data brokerage that’s hidden from public view. Big Healthcare business seeks our trust on the one hand while doing their best to manipulate prices on the other.


Privacy is very different from security, but the two are used interchangeably by interests that want maximum leverage to sell or benefit from use of our personal data. Security problems arise as a result of hacking, bugs, and other unforeseen failures of a system. Privacy problems are in the system by design. Sale or abuse of personal data is done by people acting within their legal authority using technology that’s working as designed. The misdirection of privacy concerns to security discussions is intentional because it makes money.

HIPAA is a good example of the misdirection at work. The part of HIPAA we all hear about and the part that’s enforced is security. The part of HIPAA that looks like “information blocking” or your inability to easily get a health record from your hospital is hardly ever in the news and never the subject of enforcement action. HIPAA actually took away your right to control to how a hospital shares your data and, with the exception of a few states, you have no private right of action if your privacy is breached.

Outside of the US, in the European Union, where human rights benefit from some very bad experiences in the first half of the 20th Century, the regulatory climate is different than the US. EU privacy is now front and center for business as a result of the General Data Protection Regulations (GDPR) due to come into force less than a year from now. This marked divergence from US health privacy practice will certainly shake up the global market for personal data (ab)use.

The rapid rise of blockchain technology for trusted transactions is also coming into healthcare focus. Much of the HIPAA “information blocking” problem and the lack of transparency in how our personal health data is actually used is due to the consolidation of data around giant regional institutions that benefited most from nearly $40 Billion of Federal incentives and a relaxation of the Stark anti-kickback statutes as applied to electronic health records. Blockchain trust replaces institutional trust with trust in mathematics and health record systems can now be built that are truly patient-centric.

Is Health Privacy a Human Right? This and related topics are on the agenda at the 7th International Summit on the Future of Health Privacy on June 1 and 2 at Georgetown Law Center in Washington, DC. Admission is free and open to the public and the sessions are live streamed, also free.

10 Reasons Why You MUST Attend HxR 2017!

10 Reasons Why You MUST Attend HxR 2017!

We know there are plenty of healthcare conferences to choose from if you’re looking to get inspired. However, we strongly believe our conference really sets us apart when it comes to applying design and technology to improve health. Here’s why…

10. Networking
There are plenty of opportunities to rub elbows with hundreds of high-level individuals who are changing the game in health. Take advantage of coffee breaks, lunches, and the reception at the end of day one!

9. Workshops
Register for the workshops at HXR to get hands-on information and be able to apply what you learned, right away.

8. Connect with companies
The exhibit hall will be filled with companies who are showcasing their latest and greatest work in health. Strike up a conversation and take a look at case studies from various companies.
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Why Health Reform is a Risky Business for Politicians: Even Winning Can Cost You at the Polls!

Why Health Reform is a  Risky Business for Politicians: Even Winning Can Cost You at the Polls!

In August 1989, Chicago Congressman Daniel Rostenkowski, then Chairman of the “powerful” House Ways and Means Committee, narrowly escaped an angry mob of seniors in his own district who attacked his car with umbrellas. His crime: eliminating the gaping patient financial exposure built into the Medicare program in 1965 by raising taxes on the “high income” elderly.   In November, 1989 Congress rescinded the so-called Catastrophic Coverage Act, a bipartisan reform signed into law by Ronald Reagan just sixteen months earlier.

In the spring of 1994, Bill and Hillary Clinton abandoned their famously arcane health reform plan and months later, forfeited control over Congress in the 1994 mid-term elections. Health reform was a major factor giving Newt Gingrich’s House Republicans control for the first time in forty years. Twenty five years later, Barack Obama succeeded, with huge Democratic majorities, in passing the Affordable Care Act and . . . lost control of the House less than eight months later in the largest Republican landslide since 1938, due in major part to voter backlash against “ObamaCare”.

What was the common denominator of all these political events? The answer: powerful voter retribution for tinkering with the healthcare system, successfully or not.  Why is health reform such risky business for politicians?

First, US. healthcare is a vast enterprise, the size and complexity of a large industrial nation.  In 2017, we will spend more than $3.5 trillion on healthcare, roughly equal to the GDP of Germany.   It employs sixteen million people.   Its physicians, scientists and engineers, hospitals, pharmaceutical and technology firms, information technology vendors, not to mention patients themselves, are, collectively, the most powerful private interest group in the country. Invading a third world country like Iraq or Afghanistan is child’s play compared to reforming the US health system.

Second, and more important, the health system touches every American at vulnerable times. Virtually every mother in America became a mother in one of its hospitals.   One third of us will die in those same hospitals, and perhaps half of us will spend some time in the hospital in the last month of our lives. There are nearly 5000 US hospitals, more than 800 thousand practicing physicians and millions of nurses and other health professionals devoted to sheperding us through critical life passages. They see us, and try to help us, when we are not at our best.

But third and most important, American voters view health reform schemes emanating from Washington through a prism of fear borne of intimate personal experience. For example, nearly 1.6 million people will be diagnosed with cancer this year, and six hundred thousand people will die of the disease.  There are over 14 million cancer survivors in the US, most of whom have families to dealt with the fear and risk together with their family and friends. That adds up to many tens of millions of people directly affected by just one illness. Every one of those 14 million cancer survivors, including the author of this post, is the proud owner of a “pre-existing condition”.

The primal fear of becoming ill is now accompanied by the fear of being bankrupted by the medical bills that result. More than 43 million Americans have unpaid medical bills. Nearly 40% of adults have been contacted by bill collectors for those bills.

And there isn’t much of a margin in most household budgets for that surprise medical bill. Almost half of American households cannot cope with a surprise $400 bill without borrowing the money or selling something they own.   Medical expenses are the major contributor of personal bankruptcy .   It is worth noting here that personal bankruptcies have fallen by HALF since the Affordable Care Act was passed.

And finally, as the 2016 election of consummate outsider Donald Trump, with nary five minutes of prior experience in government, conclusively demonstrated, tens of millions of voters do not trust the competence of the federal government or believe that it is working for them.

So- health care- nearly 20% of the economy, hellishly complex, intimate attached to voters’ darkest fears and their pocketbooks, encased in a huge mesh of powerful interest groups and vast public skepticism over whether government can do anything right.  What is there for a politician not to love here? Political leaders intent on “reforming” healthcare are messing with something with a lot of nerve endings attached to primal voter fears, both for their own health and their finances. And there isn’t a great deal of trust to go around.

Republican health reformers, as you take your turn, take note: health policy isn’t brain surgery. It’s actually a lot harder.  Voters remember what you promised. Recall Obama’s most costly promise: “If You Like Your Health Plan, You Can Keep It”.   It also pays to be humble about what you can accomplish. Trump promised a “terrific” health plan that “covered everybody”.   And the Hippocratic Oath doesn’t just apply to medicine. It applies in force to health policy, particularly the “At First, Do No Harm” part.

Failure to Translate: Why Have Evidence-Based EHR Interventions Not Generalized?

Failure to Translate: Why Have Evidence-Based EHR Interventions Not Generalized?

The adoption of electronic health records (EHRs) has increased substantially in hospitals and clinician offices in large part due to the “meaningful use” program of the Health Information Technology for Clinical and Economic Health (HITECH) Act. The motivation for increasing EHR use in the HITECH Act was supported by evidence-based interventions for known significant problems in healthcare.

In spite of widespread adoption, EHRs have become a significant burden to physicians in terms of time and dissatisfaction with practice. This raises a question as to why EHR interventions have been difficult to generalize across the health care system, despite evidence that they contribute to addressing major challenges in health care.

Problems Motivating Use

EHR interventions address known problems in health care of patient safety, quality of care, cost, and accessibility of information. These problems were identified a decade or two ago but still persist. Patient safety problems due to medical errors were brought to light with the publication of the Institute of Medicine report, To Err is Human, with recent analyses indicating medical errors are still a problem and may be underestimated. Deficiencies in the quality of medical care delivered was identified about a decade and a half ago and continues to be a problem. The excess cost of care in the US has been a persistent challenge and continues to the present. A final problem motivating the use of EHRs has been access to patient information that is known to exist but is inaccessible, with access stymied more recently by “information blocking”.

Evidence Base

These problems motivated initial research on the value of EHRs. One early study found that display of charges during order entry resulted in a 12.7% decrease in total charges and 0.9 days shorter length of stay. Another study found that computerized provider order entry (CPOE) led to nonintercepted serious medication errors decreasing by 55%, from 10.7 events per 1000 patient-days to 4.86 events, with preventable ADEs reduced by 17%. Additional studies of CPOE showed a reduction in redundant laboratory tests and improved prescribing behavior of equally efficacious but less costly medications. Another analysis found that CPOE increased the use of important “corollary orders” by 25%. Additional studies followed from many institutions that were collated in systematic reviews published first in 2006 and then updated in 2009, 2011, and 2014 that built the evidence-based case for EHRs. There were some caveats about the evidence base, such as publication bias and the benefits mostly emanating from “health IT leader” institutions that made investments both in EHRs and the personnel and leadership to use them successfully.

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