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What to expect after whirlwind ACA ruling

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https://www.healthcaredive.com/news/what-to-expect-after-whirlwind-aca-ruling/544527/

Judge Reed O’Connor’s unexpectedly sweeping ruling calling the Affordable Care Act unconsitutional late Friday sent shock waves rippling through the healthcare landscape.

The ruling, which will almost certainly be appealed (likely up to the U.S. Supreme Court), would effectively wipe out Medicaid expansion, pre-existing condition protections and could affect a number of hospital payment reforms.

But the decision faces a lengthy appellate process, along with attacks from the left and right alike.

What happens immediately?

The ruling doesn’t have much immediate impact, as it was a declaratory judgment and not an injunction to stop the ACA. The Trump administration confirmed Friday night that the law would stay in place during appeals.

Still, President Donald Trump himself celebrated on Twitter in the early hours of Monday morning.

Not all of the administration officials echoed the tone, however, as CMS Administrator Seema Verma tweeted a message of reassurance Friday night, confirming that the exchanges would stay open through Saturday as previously planned.

A day later, however, Verma returned to script, tweeting “Obamacare has been struck down by a highly respected judge.”

Critics decried the timing of the ruling, which dropped on the penultimate day of an already-lagging open enrollment season for 2019. Kaiser Family Foundation put enrollment in the individual market at 17 million in 2016, 15.2 million in 2017 and 14.2 million as of Q1 2018.

Saturday dawned with potential confusion for tens of thousands of Americans looking to enroll at the last minute. The Justice Department had asked O’Connor to hold off on the ruling so that it didn’t affect 2019 enrollment on Healthcare.gov until after enrollment ended Saturday.

He issued his decision one day before. But it’s unclear what effect the ruling will have, if any, on 2019 insurance.

Republicans were in a bind with the timing as well, along with the mounting popularity of the ACA.

In 2018, as protections for pre-existing conditions took center stage in the midterms, Republicans changed tack and hedged their language around the ACA, promising to protect Americans’ coverage despite dozens of attempts at repealing the entire law. 

Which players will see the biggest impact?

The decision Friday evening sent ripples through Wall Street with major dips for hospitals and insurers. HCA stock dropped more than 5%, Cigna and Humana each fell 4%, Centene took a 7.5% hit and Molina dropped as much as 13%. Some stocks recovered later Monday morning.

Leerink analysts called Monday a buying opportunity for managed care organizations, along with WellCare and HCA.

While the law touches nearly every aspect of American healthcare, some players will take bigger hits than others.

Hospitals, especially those who serve a disproportionate number of ACA-insured patients, don’t need the further stress on their bottom lines.

America’s Essential Hospitals president and CEO Bruce Siegel called the ruling a “profoundly troubling development,” adding that “the crushing rise in the number of uninsured patients likely to follow this decision, absent a higher court’s reversal, will push [hospitals] to the breaking point.”

Health systems are “deeply disappointed” with O’Connor’s decision, said Rick Pollack, CEO of the American Hospital Association. “The ruling puts health coverage at risk for tens of millions of Americans, including those with chronic and pre-existing conditions, while also making it more difficult for hospitals and health systems to provide access to high-quality care.”

Multiple provider groups urged a stay in the decision until it moves through the appeals process.

 

 

 

 

Court: Trump can’t let companies deny birth control coverage

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https://www.apnews.com/15851f17cb164b89a4fa3d8be33e156b

Image result for Click to copyhttps://apnews.com/15851f17cb164b89a4fa3d8be33e156b RELATED TOPICS Health Birth control North America Courts U.S. News Barack Obama Court: Trump can’t let companies deny birth control coverage

A divided U.S. appeals court Thursday blocked rules by the Trump administration that allowed more employers to opt out of providing women with no-cost birth control.

The ruling, however, may be short lived because the administration has adopted new rules on contraceptive coverage that are set to take effect next month and will likely prompt renewed legal challenges.

Thursday’s ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals concerned changes to birth control coverage requirements under President Barack Obama’s health care law that the U.S. Department of Health and Human Services issued in October 2017.

States were likely to succeed on their claim that those changes were made without required notice and public comment, the appeals court panel said in a 2-1 decision.

The majority upheld a preliminary injunction against the rules issued by U.S. District Judge Haywood Gilliam last year. It, however, limited the scope of the injunction, applying it only to the five states in the lawsuit and not the entire country.

Another federal judge also blocked the rules, and her nationwide injunction remains in place.

An email to the Justice Department seeking comment was not immediately returned.

Obama’s health care law required most companies to cover birth control at no additional cost, though it included exemptions for religious organizations. The new policy allowed more categories of employers, including publicly traded companies, to opt out of providing free contraception to women by claiming religious objections. It also allowed any company that is not publicly traded to deny coverage on moral grounds.

The Department of Justice said in court documents that the rules were about protecting a small group of “sincere religious and moral objectors” from having to violate their beliefs. The changes were favored by social conservatives who are staunch supporters of President Donald Trump.

California filed a lawsuit to block the changes that was joined by Delaware, Maryland, New York and Virginia.

“Today’s decision is an important step to protect a woman’s right to access cost-free birth control and make independent decisions about her own reproductive health care,” California Attorney General Xavier Becerra said in a statement.

The states argued that the changes could result in millions of women losing free birth control services, forcing them to seek contraceptive care through state-run programs or programs that the states had to reimburse.

The states show with “reasonable probability” that the new rules will lead women to lose employer-sponsored contraceptive coverage, “which will then result in economic harm to the states,” 9th Circuit Judge J. Clifford Wallace, a nominee of Republican President Richard Nixon, wrote for the majority.

In a dissent, 9th Circuit Judge Andrew Kleinfeld said the economic harm to the states was “self-inflicted” because they chose to provide contraceptive coverage to women. The states, therefore, did not have the authority to bring the lawsuit, Kleinfeld, a nominee of Republican President George H.W. Bush, said.

The case became more complicated after the Trump administration last month issued new birth control coverage rules that are set to supersede those at issue in the lawsuit before the 9th Circuit. Under the new rules, large companies whose stock is sold to investors won’t be able to opt out of providing contraceptive coverage.

Wallace said the new rules did not make the case before the 9th Circuit moot because they are not set to take effect until January.

 

 

 

 

Health Law Could Be Hard to Knock Down Despite Judge’s Ruling

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Could a federal judge in Texas be the catalyst that finally brings down the Affordable Care Act, a law that has withstood countless assaults from Republicans in Congress and two Supreme Court challenges?

On the morning after Judge Reed O’Connor’s startling ruling that struck down the landmark health law, legal scholars were doubtful.

Lawyers on both sides of previous A.C.A. battles said the reasoning behind this one was badly flawed, notably in its insistence that the entire 2010 law must fall because one of its provisions may have been rendered invalid by the 2017 tax overhaul legislation. Had Congress meant to take such radical action, they said, it would have said so at the time.

Legal experts also noted that the Supreme Court, where most people believe the case is headed, historically has been reluctant to strike down federal laws, particularly those that have become ingrained in the lives of millions of citizens.

For now, the ruling is unlikely to affect the more than 23 million people who get health coverage through the insurance marketplaces set up by the law and the expansion of Medicaid in 36 states. The Trump administration immediately said — despite the president’s gleeful tweets hailing the decision — that it would continue to enforce the law until the appeals process plays out, which could take more than a year. That will ensure that the American health care system, which has been operating under the law for more than five years, will not be thrown into immediate chaos.

Judge O’Connor, who was appointed by George W. Bush to the Federal District Court in Fort Worth, has ruled against laws supporting immigration, transgender and Native American rights. Conservative lawyers are known to choose his district to file cases, hoping he will fire opening salvos that propel their issues through the court system.

The crux of Judge O’Connor’s decision centered on the health law’s requirement that most people have health coverage or pay a tax penalty.

That tax penalty was effectively eliminated when Congress reduced its amount to zero in the tax legislation enacted last year. And once the tax penalty no longer stood, the so-called “individual mandate” was unconstitutional and the entire law had to fall, the judge reasoned in accepting the argument of the 20 states that brought the lawsuit challenging the legislation.

But an array of legal experts said that argument was unsound. Jonathan H. Adler, a conservative law professor at Case Western Reserve University in Cleveland, called that position “simply nonsensical” and said the judge’s conclusion was “hard to justify” and “surprisingly weak.”

He and others pointed to the fact that even though Congress erased the tax penalty, it did not touch the rest of the sprawling health act. A longstanding legal doctrine called “severability” holds that when a court excises one provision of a statute, it should leave the rest of the law in place unless Congress explicitly stated that the statute could not survive without that provision.

In this case Congress’s intention was particularly clear, legal experts said.

“Congress amended one provision of a 2,000 page law and did not touch the rest of the law so it is implausible to believe that Congress intended the rest of the law not to exist,” said Abbe R. Gluck, a health law expert at Yale Law School.

Judge O’ Connor also cited congressional intent, focusing on language from the 2010 law, which underscored the significance of the individual mandate to the entire act. But he largely ignored the 2017 congressional action. In essence, legal scholars said, he looked to one congressional view and not the more recent one.

And in so doing, he opened the door for House Democrats to intervene in successive appeals. On Saturday aides to Representative Nancy Pelosi, who is expected to become the next speaker of the House, said she would move quickly to notify the Trump administration that House Democrats intended to step in to defend the law in the case.

As the legal showdown plays out, efforts to protect the A.C.A. are also underway in the courts. Earlier this year the state attorney general of Maryland sued the Trump administration for attempting to gut the act. The case is pending.

Nicholas Bagley, a health law expert at the University of Michigan, suggested that Judge O’Connor may not yet be done with the case. In a series of tweets on Saturday, Mr. Bagley noted that the judge had not yet addressed a handful of central issues in the suit, nor had he issued a final ruling indicating whether the act should fall immediately. Judge O’Connor could indeed hold onto the case before an appellate court takes it up.

But if he lets the case move forward, a likely timeline, according to many legal experts, is that the case will be taken up by the United States Court of Appeals for the Fifth Circuit in New Orleans this spring. If the Fifth Circuit upholds Judge O’Connor’s decision, the Supreme Court is likely to agree to hear the case in its term that starts in October 2019, with a decision in 2020. If the Fifth Circuit overturns the judge’s ruling and upholds the law, there is a good chance the Supreme Court would decline to even take the case, legal scholars said.

One law professor, Ilya Somin of George Mason University, criticized parts of the opinion, but said he was “a bit less confident about the outcome” because “the history of A.C.A.-related litigation is filled with surprises and failed predictions by experts.”

Among the observations flying about was the notion that the Supreme Court only rarely strikes down federal laws, and it is particularly reluctant to do so when the laws have been in place for years and affect millions of people. In fact, Chief Justice John G. Roberts Jr. wrote in his 2012 opinion upholding the health care law, that the court should err on the side of sustaining federal laws.

“As between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid,” he wrote, quoting Justice Oliver Wendell Holmes Jr., “our plain duty is to adopt that which will save the act.”

The five justices who voted to uphold the law in a landmark 2012 case, including Justice Roberts, are all still on the court.

 

 

 

 

The Electronic Health Record Problem

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https://www.commonwealthfund.org/blog/2018/electronic-health-record-problem?omnicid=EALERT1529002&mid=henrykotula@yahoo.com

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It’s no secret that many physicians are unhappy with their electronic health records (EHRs). They say they spend too much time keying in data and too little making eye contact with patients. They say their electronic records are clunky, poorly designed, hard to navigate, and cluttered with useless detail that colleagues have cut and pasted to meet documentation requirements. Meanwhile, the data they really need are buried almost beyond retrieval.

Not all physicians feel this way. Two-thirds of primary care physicians say there are satisfied with their current EHRs, according to a 2018 survey by The Harris Poll. But the critics have a point. Current EHRs are not well-designed to meet the needs of users. And they don’t do enough to make clinicians smarter and more efficient. This doesn’t mean we would be better off in the paper world of 10 years ago. But it does mean that EHRs need improvement.

As we think about improving them, we need to broaden the discussion of EHRs and their role. We need to reckon with the underlying causes of EHRs’ problems, how to correct them, and how to ensure that their enormous potential benefits are understood and realized.

The Causes

EHRs are a technology. Like most technologies, they can be used in a variety of ways for a variety of purposes. Their human masters decide.

In our current health system, EHRs have one critical performance requirement: generating clinical revenues. In the fee-for-service world, this means supporting providers’ billing and documentation to generate as much revenue as possible for each clinical service. EHRs also must help providers meet regulatory requirements that may have financial or accreditation implications.

This means that current EHRs were not created to support many of the things that physicians, patients, and policymakers value: better care experiences, reduced costs, or improved care quality and population health management. They were not created to make physicians better diagnosticians or more cost-effective prescribers. The reason: our health care system has mostly not rewarded these activities. They have not been mission-critical for providers or, therefore, EHR designers.

For that reason, EHRs have only the most minimal capabilities related to clinical decision support, which has been proven to increase the quality of care, or to the collection of information on duplicate and unnecessary testing, or on the aggregate health of providers’ patient populations.

To put it simply, improving EHRs will require changing the priorities governing their design. That means moving away from fee-for-service payment toward risk-sharing by providers and, ultimately, some form of prospective compensation. Until then, optimizing the usability and value of EHRs will be an uphill struggle.

EHRs’ Undervalued Benefits: Empowering Patients and Advancing Human Health

Because the benefits of EHRs may be less visible than their burdens, some of their contributions are overlooked and undervalued.

One of these benefits is giving patients access to their medical information. Meaningful-use requirements spurred the adoption of patient portals, which, though sometimes clunky, have enabled patients for the first time to routinely see their test and procedure results. Patients can also now download their entire digital record and share it with third parties that can analyze its contents and educate them on their significance. Apple, for example, has agreements with over 100 health systems and practices to perform this function, which is likely to spawn a deluge of consumer-friendly health care applications based on patients’ own information.

Another underrated EHR benefit is that, by capturing billions of patient encounters worldwide, electronic records are generating a vast store of digital health data that are available for novel uses, including research into the causes and cures of disease and the detection and prevention of threats to public health.

Think of these data as the equivalent of a new natural resource, like water or minerals; they sit in the cloud, ready for extraction, refinement, and application. Their value is increasingly understood by technology companies, new startups as well as old stalwarts, that are pouring billions into exploiting them. There are obvious privacy and security issues raised by this development. But never before in human history have we had access to this novel (un)natural resource.

In entering all that data at the point of clinical care, health professionals and patients are creating a public good. But they get little tangible in return — at least in the short run. This maldistribution of benefit and cost lies at the heart of the current EHR controversy.

What Next?

To make health professionals’ work easier, and to exploit the vast potential of EHRs, a number of interventions make sense.

The most important is unrelated to the technology. Clinicians unhappy with EHRs have a huge stake in moving from fee-for-service to value-based payment, so that providers and their EHR vendors start to prioritize the production of health and the reduction of waste in health systems. This will reduce documentation requirements, spur the creation of decision support and information exchange that make clinicians’ lives better, and focus attention on getting value from the information so laboriously recorded by doctors and other health professionals.

A second requirement will be to lower the burden of data entry. Many providers have started using scribes to take notes during visits. While many physicians love scribes, they are expensive. A better long-term solution would be to use natural language processing and artificial intelligence to enable clinicians’ conversations with patients and their subsequent assessment and treatment plan to be recorded in real time. Given the increasing power of these technologies, such applications will soon be available.

Another approach to assisting data entry is to systematically redesign records for ease of use and to prune away unnecessary recording requirements. A recent New England Journal of Medicine commentary provided an excellent example of the benefits of this intervention.

A third requirement for EHR improvement falls to health professionals. When I was a medical student, I spent hundreds of hours learning how to take notes in the paper world. More experienced clinicians reviewed and graded these write-ups. Later, as a young physician, I observed the notes of clinicians I admired, and emulated them. This process of professional education in record-keeping unfolded over years and forever shaped my note-writing habits. If physicians are unhappy with how their colleagues use EHRs, they should start educating young physicians — and their peers — on how to properly keep records in the electronic world. What and how data get recorded are ultimately a professional responsibility.

Lastly, we need to find a way to correct the maldistribution of costs and benefits that now plagues the use of EHRs. By creating vast troves of electronic data and enabling patient empowerment, clinicians and their patients perform a valuable public service that has thus far been unrecognized and unrewarded. Reducing the cost of data entry will help, but as the benefits of EHRs and their data become monetized — as they will — some way to share those gains with clinicians and patients at the frontlines should be considered. This could be accomplished in a variety of ways such as voluntary contributions from businesses that rely on EHR data to an EHR innovation fund and/or directing a share of the taxes paid by these businesses to EHR improvement. But at least until EHRs become much more user friendly, this problem of unfair allocation of benefit and cost needs attention.

We are not going back to the paper world, but EHRs need to work better. As they pursue this goal, clinicians, policymakers, managers, and vendors need to understand and address the root causes of the problem they are trying to solve, and the full array of options for addressing it.

 

 

 

 

The impossibility of bipartisan health-care compromise

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https://theweek.com/articles/811962/impossibility-bipartisan-healthcare-compromise

People yelling at each other.

If there’s one thing political centrists claim to value, it’s compromise. It’s “the way Washington is supposed to work,” writes Third Way’s Bill Schneider. “Centrists, or moderates, are really people who are willing to compromise,” The Moderate Voice‘s Robert Levine tells Vice.

What does this mean when it comes to health care and the developing lefty push for Medicare-for-all? The fresh new centrist health-care organization, the Partnership for America’s Health Care Future (PAHCF), says it is a “diverse, patient-focused coalition committed to pragmatic solutions to strengthen our nation’s health-care system.” In keeping with the moderate #brand, PAHCF may not support Medicare-for-all. But perhaps they might support a quarter-measure compromise, like allowing people under 65 to buy into Medicare?

Haha, of course not. Their offer is this: nothing.

Valuing compromise in itself in politics is actually a rather strange notion. It would make a lot more sense to determine the optimal policy structure through some kind of moral reasoning, and then work to obtain an outcome as close as possible to that. Compromise is necessary because of the anachronistic (and visibly malfunctioning) American constitutional system, but it is only good insofar as it avoids a breakdown of democratic functioning that would be even worse.

However, “moderation” is routinely not even that, but instead a cynical veneer over raw privilege and self-interest. The American health-care system, as I have written on many occasions, is a titanic maelstrom of waste, fraud, and outright predation — ripping off the American people to the tune of $1 trillion annually.

And so, Adam Cancryn reports on the centrist Democrats plotting with Big Medical to strangle the Medicare-for-all effort:

Deep-pocketed hospital, insurance, and other lobbies are plotting to crush progressives’ hopes of expanding the government’s role in health care once they take control of the House. The private-sector interests, backed in some cases by key Obama administration and Hillary Clinton campaign alumni, are now focused on beating back another prospective health-care overhaul, including plans that would allow people under 65 to buy into Medicare. 

Behind the preposterously named “PAHCF” stands a huge complex of institutions that benefit from the wretched status quo. This includes the PhRMA drug lobby (Americans spend twice what comparable countries do on drugs, almost entirely because of price-gouging), the Federation of American Hospitals (Americans overpay on almost every medical procedure by roughly 2- to 10-fold), the American Medical Association (U.S. doctors, especially specialists, make far more than in comparable nations), America’s Health Insurance Plans, and BlueCross BlueShield (the cost of average employer-provided insurance for a family of four has increased by almost $5,000 since 2014, to $28,166).

The human carnage inflicted by this bloody quagmire of corruption and waste is nigh unimaginable. Perhaps 30,000 people die annually from lack of insurance, and 250,000 annually from medical error. America is a country where insurance can cost $24,000 before it covers anything, where doctors can conspire to attend each other’s surgeries so they can send pointless six-figure balance bills, where hospitals can charge the uninsured 10 times the actual cost of care, where gangster drug companies can buy up old patents and jack up the price by 57,500 percent, and on and on.

One might think this is all a bit risky. Wouldn’t it be more prudent to accept some sensible reforms, so these institutions don’t get completely driven out of business?

But wealthy elites almost never behave this way. John Kenneth Galbraith, explaining the French Revolution, once outlined one of the firmer rules of history: “People of privilege almost always prefer to risk total destruction rather than surrender any part of their privileges.” One reason is “the invariable feeling that privilege, however egregious, is a basic right. The sensitivity of the poor to injustice is a small thing as compared with that of the rich.”

And so we see with the Big Medical lobby. The vast ziggurat of corpses piled up every year from horrific health-care dysfunction is just a minor side issue compared to the similar-sized piles of profits these companies accumulate — which they will fight like crazed badgers to preserve.

As Paul Waldman points out, this means a big resistance to the prospect of doing anything at all, let alone Medicare-for-all. However, the political implication is clear. If compromise is impossible, then liberals and leftists who want to improve the quality and justice of American health care should write off the corrupt pseudo-centrists, and go for broke. Democrats should write a health-care reform bill so aggressive that it drastically weakens the profitability of Big Medical, and drives many of them out of business entirely. If you cannot join them, beat them.