Obamacare severely injured by recent Federal Court decision. But, not a mortal wound.

May 24th, 2016

Recently, the media has been headlining statements that Obamacare was declared unconstitutional, on May 12, 2016, by a Federal District Judge because the court found that Obamacare’s Section 1402 reimbursements paid to insurers had not been validly appropriated by Congress.

The media is wrong to classify all of Obamacare unconstitutional. The judge’s ruling was directed at reimbursements to insurers to cover Obamacare’s dictates that co-pays, deductibles and similar charges for low-income individuals must be reduced (referred to as Obamacare “cost-sharing reductions”).

The Government had promised to reimburse insurers for these reductions. These reimbursements were estimated to exceed 130 billion dollars over 10 years. A number big enough that its loss will surely damage the insurers participating on the Obamacare exchanges.

All expenditures by the Government must be authorized and appropriated by the Congress of the United States. If there is no Congressional Appropriation, there cannot be an expenditure. “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . .” Art. I, § 9, cl. 7 of the U. S. Constitution; see also United States v. MacCollom, 426 U.S. 317, 321 (1976) (“The established rule is that the expenditure of public funds is proper only when authorized by Congress, not that public funds may be expended unless prohibited by Congress.”).

An appropriation must be expressly stated, it cannot be inferred or implied.

The House of Representatives instituted this lawsuit because the Obama administration’s reimbursements to insurers, without a valid appropriation, were a violation of the U. S. Constitution’s “separation of powers.”

The Democratic party’s Obamacare authors, when writing section 1402 of the law, did not appropriate any money for Section 1402. The Democratic party controlled Congress could have remedied this by making an appropriation for Section 1402 after Obamacare became law, but they did not.

The House of Representatives instituted this lawsuit because the administration’s reimbursements to insurers, without a valid appropriation, were a violation of the U. S. Constitution’s “separation of powers” between the Executive Branch and Congress.

The Obama administration was sure that the the House of Representatives’ lawsuit would be dismissed on the basis of standing. The adminstration’s position was generally supported by legal scholars. But, it seemed to me that any harm to the constitutional rights of Congress, by the Obama administration, would be enough to grant the House of Representatives standing and allow the suit to move forward.

The Obama administration’s constant abuse of executive power had made it overly confident that it would nevertheless win even if standing was granted. I was optimistic that the “separation of powers” question would be decided in the House of Representatives’ favor.

So now, Obamacare is severely injured but not mortally wounded. The way to save the patient is to have Congress pass a valid appropriation for Section 1402. But, I don’t see that happening in an election year. So, the only hope for the Obama administration is to seek a reversal on appeal. I don’t think that will happen either.

This all could have been avoided if the authors of the law and the Democratic party controlled Congress would have dotted all the i’s and crossed all the t’s in the law. They did not. Sloppy work.

Now we have to wait and see if this will force insurers to abandon or limit their future participation on the Obamacare exchanges. At a minimum it will increase deductibles and co-pays for consumer policies obtained through Obamacare exchanges.

More unnecessary pain for the citizens, physicians and healthcare insurers of this Country. The Affordable Care Act (Obamacare) is quickly becoming the “Unaffordable Care Act.”

Another set of Medicare payment models: MIPS versus APMs. U. S. physicians have to pick one.

April 18th, 2016

Organized medicine seems optimistic that the reporting and payment systems which will result from the repeal of the sustainable growth rate [SGR] in 2015 will be beneficial to practicing physicians. I am not sure that is correct.

The optimism is partly based upon the fact that CMS Acting Administrator Andy Slavitt, on January 13, 2016, stated that CMS is changing its culture in order to focus on physician and patient needs. Mr. Slavitt also said: “We have to get the hearts and minds of the physicians back because these are the people that our beneficiaries and consumers count on every day. And I think we lost them.”

Mr. Slavitt is correct that the Government has lost “the hearts and minds of the physicians,” but it will require more than words to get them back. Unfortunately, it is unlikely that there will be much of a cultural shift at CMS in the last year of President Obama’s tenure. Time is running out quickly.

The Medicare Access and CHIP Reauthorization Act of 2015 [MACRA] was passed in order to repeal the sustainable growth rate formula. But Congress has used the repeal of the SGR to create a new framework for paying physicians for patient care. Payments for “better care not just more care.”

There are two options for physicians to choose from:

1) Merit-Based Incentive Payment System (MIPS), and

2) Alternate Payment Models (APMs).

Each year CMS will set a “performance threshold” point which a provider has to exceed before he or she will be able to receive payment incentives for that payment year. If they come in below the “performance threshold” there will be a penalty.

Starting in 2017, the MIPS program will measure Medicare Part B providers’ performance by combining parts of the Physician Quality Reporting System (PQRS), the Value-based Modifier System (VBM), and the Medicare Electronic Health Record (HER) Incentive Program into one single program on which physicians will be measured. The measuring criteria will be:

1. Quality,
2. Resource Use,
3. Clinical Practice Improvement, and
4. Meaningful Use of Certified EHR Technology.

The performance score (0 to 100) can significantly impact a provider’s Medicare reimbursement in each payment year. Performance categories are: 50 points for quality (PQRS and VBM), 25 points for meaningful use, 15 points for clinical practice improvement and 10 points for resource use.

Each year CMS will set a “performance threshold” point which a provider has to exceed before he or she will be able to receive payment incentives for that payment year. If they come in below the “performance threshold” there will be a penalty.

There is the anticipation that there will be more losers than winners.

MIPS rules will have to be formulated to address group performance as well as individual performance.

MIPS scores will be available to the public so the public may compare an individual provider’s score to those across the country. This is designed to motivate providers to seek to continually improve their scores. The higher the score over “50,” the greater will be your compensation. The higher your score, the better the public will feel about you.

MIPS rule-making and implementation schedule:

2016:
July (estimated) – Proposed 2017 MIPS rule
November (estimated) – Final 2017 MIPS rule

2017:
January – MIPS first performance year begins

The APMs are to give Physicians new risk-based payment models for care to Medicare patients. They will provide lump-sum payments for care. The Government wants to push more physicians into risk-based models. ACOs, Patient Centered Medical Homes and bundled payment models are examples of APMs.

Beginning in 2017, a provider will have to fall under MIPS, an APM or under programs that are covered by both MIPS and an APM.

There are exemptions for participation:

1. First-year providers cannot participate.

2. Providers whose volume of Medicare payments or patients fall below a certain threshold, which has not been defined, cannot participate.

So, does that mean that low volume Medicare providers will not be able to participate in Medicare?

Starting in 2017, MIPS participants will be:

Physicians and Physician Assistants
Nurse Practitioners and Nurse Anesthetists
Clinical Nurse Specialists.

In later years, participation will be available to other providers.

Although MIPS implementation does not begin until 2017, you can start preparing now. Understand the Proposed MIPS Rule which is supposed to come out in July and, later, the Final Rule. Use what is left of 2016 to get your house in order. You do not want to be playing catch-up in 2017.

If you have problems with the Proposed Rule, then let CMS know what the problems are. You can work through organized medicine if you are comfortable with that route or you can go directly to CMS and your Congressional Representatives. Mr. Slavitt’s email address is Andy.Slavitt@cms.hhs.gov.

Be vocal. Be heard.

Your healthcare attorney will be happy to assist you.

Always new rules and regulations put forth by politicians, bureaucrats, lobbyists and academic consultants that never seem to cease. I wonder how much longer the profession can continue to endure this treatment.

Is it finally time for U. S. Physicians to UNIONIZE?

March 15th, 2016

In the 1960’s, as a young man and member of the United Steelworkers union, I worked as a night shift “lid-man” on the tops of coke ovens charging the ovens with coal. The coke we produced was used by blast furnaces in the production of steel. It was hot, dirty and dangerous work but was helpful in meeting college costs. It can only be described as working in a surreal version of “hell” with 20 to 30 feet of super hot flames and coal all around you. You had to continuously consume salt tablets just to survive a shift.

Later, as a businessman, I had labor unions as customers. As a former union member and as a businessman, I experienced firsthand the protections and benefits that unions imparted to their members. These were benefits the workers would not have achieved on their own.

Along with you, I have been painfully watching the continual erosion of autonomy in the practice of medicine. There has been an unlimited imposition of costly regulations on physicians while a simultaneous continual decrease in reimbursement levels.

Obamacare has resulted in the consumption of physician practices by hospital systems in order to help insure the survival of these hospital systems. The justification for this is the falsehood that the consolidations will increase quality and decrease the cost of care. I have actually seen just the opposite.

All this in spite of the existence of organizations such as the American Medical Association, the American Academy of Family Physicians and other like minded organizations.

More and more physicians are becoming employees of hospital systems. That has one advantage for physicians: the right to now organize as a union with the ability to strike.

Don’t discount this thought because you think the profession is too “elite” and is above unionizing. If you want to protect the profession, you must consider this. It may be the last opportunity to save the profession.

The Government and larger institutions are counting on the profession to continue not moving forward with effective organizational steps. That is how they have achieved their control over the profession to this point.

As private employees of hospital systems, doctors have rights under Section 7 of the National Labor Relations Act [NLRA]. Protected rights include the rights to form, join, or support labor unions.

Doctors who hold managerial positions in which they have authority to make, change, or authorize exceptions to an employer’s policies are not considered “employees” under the NLRA. Doctors who are “supervisors,” and who have the authority to hire, fire, discipline, or direct employees are not “employees” under the NLRA. These physicians do not have the right under the NLRA to form or join unions.

Now that there are many more physicians satisfying the definition of “employees,” it is time to consider moving forward with steps to unionize nationally. With unionization there is the right to strike. The right to strike can be an effective weapon. Last year physicians at the University of California Southern California campuses effectively went on strike.

Currently, the American Medical Association [AMA] dictates that physicians who bargain collectively must guarantee that patient health and patient care are not compromised. The AMA also advises that physicians should refrain from the use of a strike as a bargaining tactic. See AMA Opinion 9.025 issued December 1998, updated June 2005.

The AMA is effectively telling the Government and hospital systems that physicians, even if they organize, will not be able to back up their demands with action. That makes no sense. If physicians agree with this, they will never regain control of the profession.

Recent rulings by the National Labor Relations Board now make it easier for unions to organize, and these changes could ease the way for union organizing of employed physicians. So, now is the time to consider being represented by a union and not just by a peer professional organization.

The time to increase efforts to save the profession and the art of medicine is now. It is time to learn how to play hardball.

Hillary Clinton’s email criminal liability made simple.

February 11th, 2016

Is Ted Cruz eligible to be President of the United States?

January 23rd, 2016

Facts support that defensive medicine is real and must be addressed.

December 30th, 2015

As I began the year, I will end with a discussion of defensive medicine and medical malpractice.

Is there a need for procedural changes to medical malpractice liability in order to significantly reduce costs associated with defensive medicine?

Answering the following questions will tell us.

1. Does defensive medicine exist?

2. If it does, can increased costs of care be associated with defensive medicine?

3. Is the use of defensive medicine effective in reducing malpractice claims?

4. Is the percentage of increased costs significant enough to justify changes to medical malpractice liability procedures?

5. If yes, then what changes should be implemented?

Anecdotally, we all know that defensive medicine is a reality in spite of a number of individuals saying that it does not exist or, if it does, that it is inconsequential and does not need to be addressed. To help support the reality of defensive medicine you simply have to read a recent paper, “Physician spending and subsequent risk of malpractice claims: observational study,” by Harvard and Stanford scholars in the British Medical Journal.

The study question was: “Is a higher use of resources by physicians associated with a reduced risk of malpractice claims?” The answer was yes. But, you knew that already. Importantly, the study supported this with facts.

The study included 24,637 Florida physicians, 154,725 physician years and 18,352,391 hospital admissions. 4,342 malpractice claims were made against the physicians.

The results showed that greater spending by physicians was associated with a lower risk of being subject to a malpractice claim.

Internists that fell within the lower 20% of internist spending ($19,725.00 per hospital admission) had a 1.5% chance of incurring a malpractice claim.

Internists in the top 20% tier of spending ($39,379.00 per hospital admission) had a 0.3% chance of incurring a malpractice claim. A five fold decrease in being subject to a malpractice claim.

Who wouldn’t use more resources and increase spending if it would significantly reduce incurring a malpractice claim.

The authors concluded that:

1. “. … a greater use of resources was associated with statistically significant lower subsequent rates of alleged malpractice incidents.”

2. “Within specialty and after adjustment for patient characteristics, higher resource use by physicians is associated with fewer malpractice claims.”

The study showed an increase of $19,654.00 in costs per hospital admission from the bottom 20% tier to the top 20% tier in the numbers we presented above.

The upper tier internists actually outspent the lower tier internists by a factor of two.

A 100% increase in spending is significant. The overall percentage increase would be less when all the tiers are included. But, it would still be significant. It would be greater than the 25% level I previously have considered as a benchmark cost of defensive medicine.

So, the existence of defensive medicine and significant increased associated costs is supported by a factual study.

Because defensive medicine significantly increases the overall costs of healthcare, changes to medical malpractice liability procedures could reduce the need for defensive medicine and dramatically reduce overall healthcare costs in the U. S. It might make healthcare insurance more affordable.

Also, changes would dramatically increase overall physician satisfaction with the profession.

This is needed in today’s highly regulated practice environment.

You cannot have effective healthcare reform without real medical malpractice reform. Obamacare did not introduce any changes to medical malpractice liability and, as written, specifically protects the status quo of medical malpractice liability.

U.S. economy in crisis: graphic presentation of Federal Reserve economic data

October 1st, 2015

A crisis in ethics education exists worldwide.

September 9th, 2015

Recent U. S. Appellate Court ERISA ruling will not have a dramatic impact on physicians.

August 31st, 2015

Two New York physicians sued Cigna for terminating them from Cigna’s provider network (Rojas v. Cigna Health and Life Insurance Company). Cigna claimed that the physicians had overbilled Cigna $844,000.00 for allergy tests on 150 patients. Cigna requested the money be returned. The physicians refused. Cigna terminated them. The physicians sued.

The physicians’ suit claimed that they should be reinstated to the Cigna network because their termination was retaliation against the physicians. Retaliation is not allowed under a Federal law called ERISA. The law does not allow retaliation for an ERISA beneficiary exercising their rights under the law.

The court disagreed with the physicians claim. The court ruled that the physicians had no standing to sue because they were not participants or beneficiaries under the defined categories of section 502 of ERISA.

The court concluded that the network status of the physicians had not made them an ERISA beneficiary or participant. If the physicians’ suit had addressed a right of payment for services, the court may have ruled differently.

The lesson to be learned from this case is to 1) make sure that, as a physician, your patients sign assignments that give you the right to receive payments under ERISA for medical services and 2) not to claim rights, under ERISA, that you clearly do not have.

A physician’s network status is based upon an agreement with a health insurer. It would be better to address the physician’s network status and rights under this agreement rather then litigating based upon a non-existent right under ERISA.

Network participation is important for a physician. It is important to preserve this status.  Over time, network participation is going to become harder to obtain. For that reason, it is best to hold onto what you have. Once lost, it will not be obtainable again.

Is the Family Physician to be eliminated from being a major factor in delivering primary care?

June 30th, 2015

It seems that this may become a reality if state medical associations and the American Academy of Family Physicians do not become more aggressive in protecting primary care physicians from being overrun by nurse practitioners. Already, 21 states have granted full practice authority to nurse practitioners. Full practice authority does away with the requirement that a nurse practitioner have an “attestation agreement” with a physician in order to practice. Full practice authority allows a nurse practitioner to practice on his or her own.

In May, the State of Maryland was the 21st state to grant full practice authority. In March, Nebraska was the 20th state. Florida is currently taking steps to do the same. The latest attempt, in Florida’s recent Special Session, was Bill 27A.

In Florida, the argument used to justify full practice authority for nurse practitioners is that Florida has a primary care physician shortage because “1.6 million Floridians” have obtained healthcare coverage through Obamacare. The fact that “1.6 million Floridians” have obtained healthcare coverage through Obamacare does not mean that there are not enough primary care physicians in Florida to care for them. What percentage of the “1.6 million” had coverage prior to signing up for Obamacare? That figure is never quoted in the justification argument. Those arguing for full authority for nurse practitioners want you to believe that all of the “1.6 million” never had healthcare coverage before. That cannot be the truth.