Health Care Lawyer Blog

The number of patients lacking health insurance is on the rise in the nation’s public hospitals, according to a survey released this week by the National Association of Public Hospitals and Health Systems (NAPH). The survey, which examined the patient population at so-called “safety net” hospitals (which typically deliver a significant level to low-income and vulnerable populations) reported an increase of 23 percent in the number of uninsured patients receiving care at their facilities since the start of the recession.

While examining patient populations at safety net hospitals may seem counter-intuitive, the results of the survey also show a 10 percent increase in uncompensated care costs at public hospitals. These costs can average up to $2.3 million per hospital, with some hospitals incurring additional costs of upwards to $16 millions.

Forty-one health systems participated in the survey, which was conducted during the second half of 2009. Although safety-net facilities represent just 2 percent of the hospitals in the count, they provide 19 percent of all hospital-based uncompensated care.

The NAPH’s report was released on the eve before today’s health care reform summit, which is the latest in President Barack Obama’s attempt to resuscitate his health care reform efforts. Efforts to pass legislation stalled as a result of last month’s GOP Senate victory in Massachusetts, which stripped the Democrats of their all-important 60th vote.

While efforts to pass health care reform legislation are currently at a standstill, some states are already braced to object to requirements that all Americans carry health insurance. This proposed mandate, which was included in both the House and Senate versions of reform legislation, allows the government to impose financial penalties on individuals who do not carry health insurance.

According to a recent Detroit Free Press column, legislatures in 36 states – including Michigan – have proposals pending to reject such requirements in the name of states’ rights. Those who oppose the requirement, such as the Health and Human Services Task Force at the American Legislative Exchange Council, claim the mandate it akin to “the government requiring something of you because you exist.”

“This is not like requiring care insurance for the privilege of driving,” said Jorge Amselle, director of public affairs for the council. “If you exist, you have to have health insurance.”

Generally, the Bill of Rights gives the states “the powers not delegated to the United States” in the U.S. constitution. However, the Constitution acknowledges that the government was established to “promote the general welfare.” Additionally, the Constitution also provides Congress with the power to “regulate commerce…. Among the several states.” This is commonly referred to as the “commerce clause” and is liberally construed. Specifically, under Congress’ ability to regulate any state-level activities having a “substantial effect” on interstate commerce, Congress may easily have the power to regulate insurance coverage.

After the jump - Constitutional considerations on mandatory coverage

Continue reading "States Balk At Proposed Mandatory Health Care Coverage" »

As part the of nationwide “Communities Putting Prevention to Work” initiative (or as I like to call it, the “Duh” initiative), the Department of Health and Human Services has awarded $119 million in grant monies to states and U.S. territories to support efforts to reduce obesity, increase physical activity, improve nutrition and reduce smoking. The initiative is funded through the American Recovery and Reinvestment Act and is directed at curbing “behavioral” waste, which is often cited as a factor in the rising costs of health care.

The monies will be allocated to all 50 states, the District of Columbia, and U.S. territories to help communities and schools support healthy choices. For example, one projected use of the funds will go towards using the media to support healthy food and beverage choices and increase physical activity, and increasing access to health choices and “safe” places to be active (which is a often-cited as a concern in inner-city areas). Grant monies will also be used to fund “quitting hotlines” for smokers and media campaigns promoting tobacco cessation.

The awards are broken up into three major categories – 1) Statewide policy and environmental change; 2) competitive special policy and environmental change, and 3) Tobacco cessation through quitlines and media. The awards to Michigan are as follows:

Policy and Environmental Change - $1,299,666
Competitive Special Policy and Environmental Change Initiative - $1.5 million to reduce exposure to second-hand smoke, including partnering with Native Americans.
Tobacco cessation through quitlines and media - $1,251,009

The grants to Michigan represent are among the largest in each of the three categories (Michigan received the seventh-highest for Policy and Environmental; seventh in Tobacco cessation, and was included as one of 13 states to receive funding for special policy and environmental changes.) Some examples of other states initiatives under the latter category include a grant of $2.7 million to Texas to promote breastfeeding; $2.3 million to Minnesota to revamp school lunch menus; and $3 million to North Carolina to “conduct a state-level policy analysis and develop a process to promote physical activity through land use and transportation planning.”

After the jump - Michelle Obama's Let's Move! campaign

Continue reading "HHS Awards $119M in Grant Monies to Promote Healthy Lifestyles" »

While news of health care reform has taken a backseat lately to fallout from the Dec. 25 terrorist attempt and the Haiti earthquake, Congressional leaders are continuing efforts to merge versions of the House and Senate health care bills passed last year.

One notable cut took place Saturday, when Nebraska Democratic Senator Ben Nelson agreed to drop the federal subsidy for Nebraska’s Medicaid program. Dubbed the “Cornhusker Kickback”, the subsidy gave special treatment to Nebraska’s Medicaid program in order to induce Nelson to cast the all-important 60th vote needed to defeat a Republic filibuster and pass the Senate health care bill. Given that the CBO estimated that the “Kickback” would cost taxpayers an additional $100 million over ten years, the compromise was not a popular one. Nelson agreed to drop the subsidy, reasoning that it had become a “sticking point” in the negotiations.

Despite winning Nelson’s vote, the Senate may have more problems ahead. Polls show that Massachusetts Attorney General Martha Coakley, the Democratic candidate running for the late Ten Kennedy’s (D-Mass) Senate seat, is slightly behind her Republican opponent, Republican State Senator Scott Brown. If Brown wins and Kennedy’s seat goes to a GOP member, the Senate may again lack the 60 votes needed to pass the health reform bill when it comes out of committee.

After the jump - House/Senate compromises continue

Continue reading "Update on Health Care Reform Legislation" »

This morning, the United States Senate voted 60-39 for passage of the Senate health care reform bill, a.k.a. the “Patient Protection and Affordable Care Act”. As with Monday’s cloture vote, the bill’s passage was completely divided down the party line, with every single GOP member (with the exception of Kentucky Senator Jim Bunning, who abstained from voting) opposing the bill. The bill will now head to a conference committee, where it will be merged with the reform bill passed by the House of Representatives last month. Both chambers will then vote on the merged bill, which will then be presented to President Barack Obama for signature.

In the hours after the vote, defeated GOP Senators such as Minority Leader Mitch McConnell (R-Kentucky) lambasted the legislation, citing poll figures which show a slight majority of the public is opposed to the Senate Bill.

“There is widespread opposition to this monstrosity,” McConnell said after this morning’s vote. “The fight isn’t over.”

Legislation which appeases everyone is, in most cases, impossible and there are bound to be dissenters in any Congressional action. However, given the unusual levels of misunderstandings, rumors and public outcry which has surrounded the health care reform debate, one can’t help but wonder – is the American public really opposed to the actual content of the health care reform legislation as it stands, or are they just opposed, period?

After the jump - reflections on the health care reform debate

Continue reading "Editorial: “The Devil I Know is Better than the Devil I Don’t”" »

Despite the fireworks caused by the night-owl Senate vote for cloture on the “Patient Protection and Affordable Care Act” by a margin of 60-40, the real questions remains – what is health care reform going to mean for America? While the Senate and House versions of health care reform legislation are similar in scope, bills contain significant differences in how the legislation will be paid for.

The hotly-contested Senate bill, which does not contain the “public option” insurance coverage provision in its House counterpart, was heralded by President Obama this morning as “a big victory for the American people.” However, given the call for bi-partisanship that emanated from last year’s presidential election, the vote was not a political victory. The vote was so evenly divided down party lines, with every single Republican Senate member opposing the bill, that Democrats were forced to coax votes from waffling Senators such as Joe Lieberman (I-Conn.) and Ben Nelson (D-Neb.) by slicing provisions from the legislation. Specifically, in order to garner Nelson’s vote, amendments were made to the bill’s abortion provisions and a provision was added requiring the federal government to cover Nebraska’s costs for expanded Medicaid coverage after 2016. (No other state is currently slated to receive this benefit.) Additionally, the public option and Medicare expansion program was jettisoned to appease Lieberman and middle-of-the-road Democrats.

The Senate will hold additional procedural votes on the health care bill this week, and a final vote is scheduled for Christmas Eve. If the bill passes (as expected), the Senate version will then head to a conference committee, where it will be merged with a House health care bill passed last month. Both the House and Senate will then have to approve the final version before it goes to President Obama to be signed into law.

Comparing the House and Senate Versions

Both the House and Senate versions require nearly all individuals to maintain a minimum level of health insurance or pay a penalty, with the House version calling for a penalty of 2.5 percent of adjusted gross income over a certain level ($9,350 for singles and $18,700 for couples). Individuals who cannot afford health insurance will receive subsidies to do so. The House bill provides for the creation of a single-payor, government run insurance plan where individuals can obtain coverage; the Senate bill would instead create new nonprofit private plans overseen by the federal government.

After the jump - comparing the House and Senate bills (continued)

Continue reading "Senate Votes for Cloture on Health Care Reform; Bill Inches Towards Final Vote" »

Senator Joe Lieberman (I-Conn.) claims that the Democrats are short two votes needed to pass the healthcare reform bill currently pending in the Senate. As previously reported, without GOP support Democrats need all 60 votes to defeat a Republican filibuster – a seemingly impossible task, given that no GOP member supports the bill in its current form.

In an interview Sunday with “Face the Nation,” Lieberman claims that provisions in the bill which expand the Medicare program, create a national public option, and begin a new publicly administered long-term care insurance program are thwarting the legislation. If left out, however, Lieberman said the bill could gain votes. He added that even if the provisions were dropped, the remaining legislation is solid enough to improve the health care infrastructure and make significant changes.

Sen. Ben Nelson (D-Neb.) also appeared with Lieberman on “Face the Nation” and echoed the independent senator’s sentiments. Nelson added that he is concerned that a Medicare buy-in provision (i.e., allowing adults in their 50s and early 60s to buy into Medicare as a way to expand their coverage options) would be a “forerunner of [a single-payor program]” and that stronger anti-abortion language is needed in order to gain his vote.

The U.S. Senate has consolidated two versions of health care reform bills into one piece of legislation, dubbed the “Patient Protection and Affordable Care Act.” Released late Wednesday night, the bill is expected to cost $130 billion over the next decade, according to an analysis of the bill released by the Congressional Budget Office. However, according to the Democrats' Senate website, the legislation will also cut the deficit by $127 billion, extend coverage to more than 94 percent of Americans, and insure 31 million more of the uninsured.

As with the House version, the Bill includes a government-run insurance plan. However, the difference with the Senate Bill is that states can opt-out of the government run plan, which means that by enacting legislation, a state may elect to prohibit the government-run plan from being made available to state residents. Of course, the problem with this is that the Senate bill also includes a provision requiring individuals to purchase some form of health insurance. However, the deadline for doing so would be moved from July 1, 2013 to January 1, 2014. Individuals who fail to purchase insurance would be penalized in an amount of up to $750 per year. Subsidies will be provided to low and moderate-income families to help such families purchase insurance.

Increasing access to health care may be a hot health care reform issue, but some legislators are focused on a different angle – making sure that health care funds are not squandered on fraud and abuse. Earlier this month Senator Ted Kaufman (D-Del) introduced the Health Care Fraud Enforcement Act of 2009 (S. 1959), which proposes to strengthen the federal sentencing guidelines and statutes governing health care fraud, forfeiture, money laundering and obstruction. Additionally, on Monday Senator Charles Grassley (R-Iowa) introduced the Fighting Medicare Payment Fraud Act of 2009 (S. 2774), which would give the Secretary of Health and Human Services authority to extend the time period in which Medicare payments must be made if the Secretary determines there is a likelihood of fraud, waste of abuse.

Kaufman Bill

The Kaufman bill, which was created to “building on the fraud-prevention efforts included in the [Senate Committees’] comprehensive health care reform bills” would make a few key reforms, including changing sentencing guidelines for criminals convicted of health care fraud, make punishments “commensurate with costs” of fraud, and increase whistleblower payments.

After the jump -- details on the Kaufman and Grassley Bills

Continue reading "Legislators Ramp Up Efforts to Stop Health Care Fraud" »

As anticipated last week, on Saturday night the U.S. House of Representatives voted 220-215 to approve H.R. 3922, the oft-discussed health care reform bill that would establish a national public-option plan. Dubbed the “Affordable Health Care for America Act,” the legislation also prohibits health benefits plan from imposing pre-existing condition exclusions, requires the establishment of uniform marketing standards for health benefit plans, and contains revisions to Medicare Parts A-D, among other provisions. The House bill also includes a surtax on individuals earning more than $500,000 a year and couples earning more than $1 million.

Notably, only one House Republican, Ahn "Joseph" Cao (R-La)), voted in favor of the Bill. Additionally, 39 House Democrats voted against it.

The Senate, under the direction of Majority Leader Harry Reid (D-Nev) is still working on combining two versions of health reform legislation, one passed by the Senate Finance Committee (S. 1796, “America’s Healthy Future Act”) and another passed by the Senate Health Committee (S. 1679, “Affordable Health Choices Act). Both include a public option, although the Finance Committee version includes an “escape hatch” provision where individual states can opt-out of the public option. Reid is awaiting a cost analysis from the Congressional Budget Office, so it is unclear when the Bill will be ready.

Continue reading "House Health Care Reform Bill Passes; Fate of Senate Bill Unclear" »

A vote on proposed health care legislation introduced in the U.S. House of Representatives last Thursday could come as early as this week, according to the Detroit Free Press. The House plan includes a public option that would negotiate rates with doctors and hospitals, rather than use prices set by the government. The Congressional Budget Office is scheduled to analyze the costs of the plan. House leaders have vowed to pass a bill by Nov. 11, however, such efforts may be waylaid by fights over abortion coverage.

In the Senate, which is entrusted with the task of melding two versions of legislation passed by the Senate Health Committee and Senate Finance Committee, Majority Leader Harry Reid (D-Nev) said that he will begin debate on the legislation once he gets costs estimates form the Congressional Budget Office. The bill passed by the Senate Health Committee this summer included a public option; while the bill passed by the Senate Finance Committee did not. However, last week Reid announced that he would include a public option in the legislation that he planned to take to the Senate floor. However, Reid’s proposal includes an “escape hatch” – individual states could choose to “opt-out” of the public insurance plan by adopting non-participation laws.

Once the debate begins, Senate Democrats will need unanimous support from every party member to reach the 60-vote majority required to stop the anticipated GOP filibuster.

It’s not just a new techo-fad – the federal government is serious about Electronic Health Records.

How serious? Enough so that one of the many health care-related provisions tucked into this year’s American Recovery and Reinvestment Act (a.k.a. the Stimulus Bill) mandates that health care providers make “meaningful use” of Electronic Health Records (EHRs) by 2011. Providers who fail to do so will be penalized in the form of reduced Medicare and Medicaid reimbursements. However, the proverbial “carrot” is that providers who do make meaningful use of EHRs can receive thousands of dollars in Medicare/Medicaid incentive payments, as well as grant monies to help implement EHR systems.

According to an open letter released earlier this month by David Blumenthal, the National Coordinator for Health Information Technology, eligible physicians (including those in solo or small practices) who make “meaningful use” of certified EHRs can receive up to $44,000 over five years in Medicare incentive payments, or $63,750 over six years under Medicaid. Hospitals that become meaningful EHR users could receive up to four years of financial incentives payments under Medicare beginning in 2011, and up to six years of incentive payments under Medicaid beginning in October 2012.

What is “Meaningful Use”?
The question most providers are undoubtedly asking at this point is – what exactly does “meaningful use” mean? A formal definition of what constitutes “meaningful use” will be issued by the Centers for Medicare and Medicaid Services (CMS), which is scheduled to publish a definition by December 31.

After the jump - a glimpse at what may constitute "meaningful use"

Continue reading "Health Care Providers Should Prepare to Make “Meaningful Use” of EHR" »

A previous Health Care Lawyer Blog post trumpeted the arrival of the “America’s Health Future Act of 2009”, a.k.a. the Senate Finance Committee’s stab at health care reform legislation. The “bill” which was released in the form of a Chairman’s Mark, will be voted on today by the Finance Committee. The 10-year, $829 billion plan would require all Americans to purchase health insurance, and includes measures to control rapidly-increasing medical costs.

One of the notable amendments to the bill is a “wellness” provision that will “incentivize Americans to lead healthy lifestyles in order to lower their overall health costs.” The provision, championed through by Sens. John Ensign (R-NV) and Tom Carper (D-DE), expands existing HIPAA wellness program regulations that allow employer-sponsored insurance plans to reduce premiums for employees who lose weight, quit smoking, control their blood pressure or practice other healthy behaviors. Current rules allow premiums to vary to up to 20 percent of a worker’s total health insurance premium. Under the Ensign/Carper amendment, that could rise to up to 50 percent.

If approved, the bill – which does not contain a public-option – must be merged with another bill proposed by the Senate Committee on Health, Education, Labor and Pensions, which does include a public option. Since the Democrats hold a 13-to-10 majority on the Finance Committee panel, it is almost certain the bill will pass.

While scheduling a doctor's appointment recently, I advised the receptionist that I needed to update my file to reflect a new last name. As I braced myself for the torturous process of spelling out both of my equally long, hard-to-pronounce names, the receptionist instead informed me that I needed to go online and make the changes on the practice's new website.

A day later, I visited the site and discovered that not only could I update my last name, but request copies of medical records, obtain a referral, and even submit a prescription refill request. However, as I clicked over to "Update Information," I realized that I could not just make a quick name swap but had to update my complete profile and provide my husband's name, address, insurance information, primary care physician's name, and a bevy of other details. And for just a moment, I hesitated.

I'm no stranger to the Internet. Like many, I send dozens of emails daily, make eBay purchases, and use networking sites freely. I send out E-vites for big events. I check my friend's blog every day to see pictures of her babies. (As you may have noticed, I even have my own blog.) And yet, I hesitated.

While many of us tend to balk when faced with new experiences, was this REALLY a new experience? Understandably, many people have concerns about sending their health secrets into cyberspace. For example, A Wall Street Journal blog entry cites the case of a patient who was given an incorrect diagnosis after an electronic record mixup. Others believe the terminology in privacy legislation will mislead consumers about their privacy rights.

Continue reading "Online Health Care - The Final Frontier?" »

This morning Senate Finance Committee Chairman Max Baucus (D-Mont.) released a health care reform proposal, offering a peek at the pending legislation to come. Dubbed "America's Healthy Future Act of 2009", the proposal is published in the form of a "Chairman's Mark." This is intended to provide a more informal overview of the nation's current health care problems and how to fix them, instead of releasing actual legislative text.

Importantly, the "Chairman's Mark" does not provide for a government-run health plan (other than existing plans such as Medicare, Medicaid, etc.). The proposal does require individuals to purchase insurance coverage, establishes state health insurance exchanges, provides for a tax refund to help individuals and families to purchase such coverage, and contains eligibility requirements (in order to prevent illegal immigrants from accessing state exchanges).

Debate on the full committee is expected to start September 22, 2009. The 23-member Senate Finance Committee consists of 13 Democrats and 10 Republicans. The Health Care Lawyer Blog will continue to monitor such debates and provide a more complete overview of the proposal in the near future.

Last week Michigan Speaker of the House Andy Dillon (D-Redford Township) introduced legislation which, if passed, will consolidate the health benefits of all Michigan’s public employees into a single state health insurance plan. HB No. 5345, which was proposed by Dillon back in July of this year faced strong dissent from parties ranging from the Michigan Education Association to Jennifer Granholm, and is expected to be the subject of similar debate as it makes its way through the legislature.

Entitled “The Michigan Health Benefits Program Act”, the legislation creates a 13-member program board to develop a health benefit plan and determine the total premium cost for each plan to be adopted. The plan will cover all employees of “public employers” which is defined to include the state; any city, village, township, county or other political subdivision; any intergovernmental, metropolitan or local department, school district, and certain community colleges and institutions of higher education.

Any health benefits plan approved by the board may include health and wellness incentives (i.e. reward improvements in health outcomes for individuals with chronic diseases, the increased utilization of appropriate preventive health services, or reductions in medical errors), and may also provide financial incentives for the increased use of health information technology.

The full plan is available here. To date, the bill has been introduced in the House and referred to the Committee on Public Employee Health Care Reform. The Health Care Lawyer Blog will continue to monitor developments.

As lawmakers scramble to devise ways to fund the health care overhaul, a recent estimate from the Federal Bureau of Investigation shows there may be a cool $75-$250 billion floating about in the health care system.

It may not be easy to recoup, but that’s the amount that could be saved each year by eliminating fraud and abuse in public and private health care programs. The estimate, which appears as part of an article published by HHS OIG chief counsel Lewis Morris in the latest issue of “Health Affairs” (September/October 2008, Vol. 28, No. 5) also means that roughly 3-10 percent of total health spending is wrongfully siphoned away by fraudsters.

Given that Medicare is expected to cost the federal government $503.1 billion in fiscal year 2009 (and Medicaid is anticipated to cost federal and state governments $386 billion), these numbers make clear that health care fraud is not just committed by a few scattered criminals masquerading as health care providers. Instead, such fraud is pervasive and extends all the way from Pfizer boardrooms to infusion clinics.

While combating such fraud may seem daunting, the article identifies several ways in which fraud can be controlled:

Five ways to combat health care fraud after the jump:

Continue reading "3-10% of Health Care Funding Lost to Fraud Each Year" »

Back in 2005, the supermarket chain Safeway (along with undoubtedly hundreds of other employers) was brainstorming ways to reduce the company's health care costs. The chain proceeded to implement a unique method for doing so - by providing its employees with financial incentives to practice healthy behavior.

According to a recent Wall Street Journal editorial authored by Safeway CEO Steven A. Burd, the plan has been a success and the supermarket giant has managed to keep its healthcare costs steady (while most American companies' costs have increased 38 percent in the same four years.) Specifically, the Safeway health care model relies on a provision in the 1996 Health Care Portability and Accountability Act (HIPAA) that permits employers to differentiate premiums based on behaviors.

The plan works as follows: Safeway's employees pay a portion of their own health care through premiums, co-pays and deductibles. Employees are tested on four chronic conditions which regularly attribute to increased health care costs - tobacco usage, healthy weight, blood pressure and cholesterol levels. (The testing program is voluntary and data is collected by outside parties, and not shared with company management.) If employees pass all four tests, annual premiums are reduced $780 for individuals and $1,560 for families.

Continue reading "Editorial: Cut Health Care Costs by Encouraging Healthy Behavior" »

Speaker of the House Andy Dillion (D-Redford Township) recently issued a proposal that suggests consolidating the health care plans of all Michigan's public workers - state, local, and public school employees - into a single state health insurance plan. Dillion claims that plan will save up to $900 million a year by efficiently organizing a single insurance “pool.” Other savings would come from careful monitoring of patients to make sure they are diagnosed and treated correctly, in order to prevent wasteful spending.

The proposal will also lump tens of thousands of retired public workers into the plan. It would essentially require unionized public employees across the state to negotiate one extensive health care plan (with various options) to replace the scattered plans that now cover everyone from teachers to police to firefighters; university, and muncipal employees such as courts and police, judges and even the legislature/governor. Under the plan, lower wage employees would pay smaller premiums.

The Michigan Education Association has already voiced objections to the plan, claiming that it is an “assault on collective bargaining.” Michigan Government Jennifer Granholm also critiqued Dillion’s plan, claiming that there are no discernable approaches to save money and that Dillion’s categorization of state employee benefits – i.e. cheaper and better than those of public sector employees – is off-base. In a statement issued Monday, Granholm (perhaps channeling Cuba Gooding Jr.) requested that Dillion "Show me the money" and that she didn't see where the savings would come from.

As part of the continuing push to reform health care, the Obama administration has announced a proposal to decrease Medicare payments for imaging services and to specialists such as cardiologists and radiologists, and use the savings to increase payments to primary care physicians.

Physicians who pursue careers in primary care may be compared to law school grads that join public interest associations – i.e,. they are foregoing the hefty paychecks of their peers who enter more specialized fields. For example, family medicine doctors earn an average of $185,000 per year, while specialists like radiologists or cardiologists can earn twice that much. However, the waning interest in primary care has led to a decrease in the number of primary care physicians, which is cited as one reason for the nation’s health care crisis. Specifically, patients without a primary care physician typically do not receive the type of preventative care that is essential to good health, such as cholesterol monitoring, smoking cessation guidance, or health management.

Take the following as an example – suppose Joe (let’s call him “Joe the Painter”) develops a nagging cough. He tries to make an appointment to see one of the few primary care physicians in his town who accept his insurance, but cannot get an appointment for several weeks. Joe decides he will just “tough it out” and hopes the cough will go away. Unfortunately, the cough gets worse. When Joe finally does get in to see a primary care doctor, the cough has evolved into severe bronchitis and Joe must be hospitalized. Joe spends several days in the hospital and receives thousands and thousands of dollars of medical treatment. As it turns out, his bronchitis was caused by a minor virus which could have easily been treated with an inexpensive antibiotic that his primary care physician could have prescribed.

Continue reading "Medicare Payments for Imaging, Specialists Slashed Under Proposed MPFS" »

The United States House of Representatives is contemplating legislation which would tax drugmakers to the tune of nearly $37 billion in order to help pay for the nation's health care overhaul. Currently, drugmakers are permitted to deduct their direct-to-consumer advertising costs for prescription drugs. The proposal is only one of many revenue-raising measures that are being discussed as a way to fund a plan being drafted by House Democrats which would include $600 billion in tax increases and $400 billion in cuts to Medicare and Medicaid.

Drugmaker advertising has come under fire in recent months, and House Ways and Means Committee Chairman Charles Rangel has stated that it's improper for taxpayers to subsidize pharmacuetical ads because such ads actually encourage consumers to request drugs that they might not actually need. However, the proposed change has sparked outrage from drugmakers and ad groups, who claim that such measures violate First Amendment freedom of speech and unfairly target one industry.

While tax increases are seldom (if ever) met with universal approval, the fact remains that cuts and revenue-raising will have to take place at some level given the current budget deficit. Furthermore, taxpayers may be more amenable to plans that would tax drugmakers as opposed to taxing employer-provided health insurance, another idea which has been tossed around in Congress recently.

As I reported earlier, the Michigan Medicaid False Claims Act was amended effective January 1, 2006 through the efforts of Attorney General Mike Cox and Representative David Law (R., Commerce). I worked actively for passage of the amendment and testified before the Michigan House of Representative Judiciary committee, then chaired by Rep. Law..

The State of Michigan can recoup extra funds from combined state/federal recoveries because of the provisions of the federal Deficit Reduction Act of 2005 ('DRA"). To explain, shortly after the the Michigan Medicaid False Claims Act amendment passed the Michigan Legislature and Governor Granholm signed the Act, the U.S. Congress passed the DRA providing for a 10% incentive to States which enacted a "compliant" Qui Tam statute addressing Medicaid fraud. Specifically, the Medicaid program is a joint federal/state program. Thus, in Michigan, the federal government pays about 56% and the state 44% of the costs of the Medicaid program and fraud recoveries are divided on the same percentage.

If the state has a "compliant" Qui Tam statute, the state receives an extra 10% of the recovery--that is, 54% in Michigan--of the recovery--instead of 44%--a significant amount of money since most recoveries are in the tens of millions of dollars or more!!

However, on December 21, 2006, the U.S, Department of Health and Human Services/Office of Inspector General ("HHS/OIG") advised the state, by letter, that its Medicaid False Claims Act was NOT "DRA compliant" (that is, a mirror image of the federal False Claims Act).

In order to comply, all that was needed was a simple bill adding civil monetary penalties of at least $5000 for each violation and making one other technical amendment. Since the revisions would not have had any negative fiscal impact on the state and would have had a potentially tremendous positive impact in the event of any recovery, one would have expected Representative Law to quickly introduce a clarification/modification bill and obtain quick passage--after all, the State would most certainly not turn down the opportunity to reverse the flow of funds from Michigan to Washington??

Unfortunately, in 2006 and 2007, petty partisan bickering was rampant in the Michigan Legislature--we were paralyzed by the absurd budget fight and leadership was non-existent.

Rep. Law, finally, on September 17, 2007, introduced a one-page bill. The date of introduction is significant. In addition to being a Saturday, the day of the Notre Dame-UM football game (a game, I suspect, Rep. Law, a Notre Dame grad, was attending), it was three days before Ray Sayeh, then a WXYZ-TV investigative reporter, had scheduled (at my request) an interview with the representative to discuss the failure to take action on the revisions.

Unfortunately, again because of partisanship and Democratic control of the House of Representatives, the bill went nowhere while the Attorney General continued to obtain recoveries from fraud-feasors and the unclaimed 10% incentive was lost to Washington.

Finally, on February 19, 2008, Representative Marc Courveau (D., Northville) introduced HB 5757. The amended FCA, as presented in HB 5757, would allow the Michigan FCA to become DRA compliant. Once again, the small changes made by HB 5757, as required by the federal HHS/OIG., would cost the state nothing in administrative or other costs and would bring millions of dollars in the future back from Washington.

HB 5757 quickly passed the House with NO opposition and was sent to the Senate.

Tragically, because of continued political maneuvering, the Bill sits in the Judiciary Committee.

It seems that Rep. Courveau was elected at the expense of a Republican and the leadership of the Judiciary Committee and Senate Majority Leader, Mike Bishop will not allow this largely unopposed, fiscally responsible bill, to be brought up at the committee or floor level because it would give "points" to Rep. Courveau!!!!

The State of Michigan is in a deep recession/depression, unemployment sits at 8.5%, the highest in the nation, GM is in deep trouble, the City of Detroit is selling assets and landmarks--such at the Detroit-Windsor tunnel--and the Legislature cannot pass a one-page bill that will bring money to the state and its Medicaid recipients.

This Bill is under the radar, unfortunately--Ray (now Rez) Sayeh has joined CNN International and is posted in Pakistan, columnists such as Brian Dickerson and others have been unresponsive despite my entreaties, my solicitations to the Legislature and the use of my contacts have been unavailing.

I am frustrated. Medicaid fraud is rampant, the Attorney General is acting diligently in pursuing the cheaters, and we have been filing qui tam cases under the new Act, but even if all of these activities are successful--and they will be--the State will not receive the full benefit of its recoveries!!!

I will not stop my efforts, but it will take action by my readers to move this along. Sen. Mike Bishop may be contacted by email and his office phone number is (517) 373-2417.

The other Senators on the Judiciary Committee may be emailed at:

senwkuipers@senate.michigan.gov Sen. Kuipers - Chair

senacropsey@senate.michigan.gov Sen. Cropsey

senasanborn@senate.michigan.gov Sen. Sanborn

senbpatterson@senate.michigan.gov Sen. Patterson

sengwhitmer@senate.michigan.gov Sen. Whitmer - minority vice-chair

senhclarke@senate.michigan.gov Sen. Clarke

senmprusi@senate.michigan.gov Sen. Prusi

The House and Senate this week voted by substantial margins to override President Bush’s veto of a Medicare package (H.R. 6331) that blocks the over 10% reimbursement cut to physicians that went into effect July 1 (See original Alert below.)

The U.S. Senate, this afternoon, passed the Medicare Improvements for Patients and Providers Act of 2008 (H.R. 6331) upon voting to end the Republican filibuster with 69 affirmative votes for cloture. The Senators had agreed that the bill would be considered passed if cloture was invoked. The Bill, among other things, eliminates the proposed 10.6% physician pay cut, instead instituting a 1.1% increase effective January 1, 2009.

Senator Ted Kennedy made his first appearance on the Senate Floor since his brain tumor was discovered.

Monica Navarro pointed out to me that WPS Medicare Part B e-News today reported that independent laboratories may no longer (for dates of service on or after July 1, 2008) bill Medicare for the technical component (TC) of physician pathology services furnished to patients of a covered hospital, regardless of the beneficiary's hospitalization status (inpatient or outpatient) on the date that the service was performed.

WPS indicated that this ruling has its genesis In the final physician fee schedule regulation published in the Federal Register on November 2, 1999, where the Centers for Medicare & Medicaid Services (CMS) stated that it would implement a policy to pay only the hospital for the TC of physician pathology services furnished to hospital patients. Prior to this proposal, any independent laboratory could bill the carrier under the physician fee schedule for the TC of physician pathology services for hospital patients. At the request of the industry, to allow independent laboratories and hospitals sufficient time to negotiate arrangements the implementation of this rule was administratively delayed. Subsequent legislation formalized a moratorium on the implementation of the rule. As such, during this time, the carriers and, more recently, Medicare Administrative Contractors (MAC), have continued to pay for the TC of physician pathology services when an independent laboratory furnishes this service to an inpatient or outpatient of a covered hospital.

The most recent extension of the moratorium was established by the Medicare, Medicaid, and SCHIP Extension Act (MMSEA). Section 104 of the MMSEA expired on June 30, 2008, thus ending the moratorium.

Our firm published a series of articles in the Summer, 2008 edition of Michigan Medical Law Report.

Michigan Medical Law Report is published by Dolan Media Company. Frank, Haron, Weiner & Navarro was asked to contribute to this prestigious magazine sent to 20,000 practitioners.

Michelle Bayer's article on Internet pharmacies is entitled "They're efficient, but mail-order Internet pharmacies have intricate legal requirements."

Mercedes Varasteh's article entitled "Joint Commission standard fosters collaboration between medical staffs, hospitals" covered the application of MS 120.

Louis Szura wrote on revisions to Section 179 of the Internal Revenue Code in an article, "Economic Stimulus Act offers big tax breaks for health care providers."

David Haron instructed providers on the federal False Claims Act in "Exposing fraud and abuse--what a private citizen may do."

Finally, Melinda Balian and Ross Hammersley gave excellent employment related information in "Employees--your biggest risk and your biggest ally."

Fortune Magazine recently included comments from Jeff Kindler, CEO of Pfizer, the major pharmaceutical company, that approximately half of written prescriptions go unfilled. Other reports have indicated that the reason is inability to pay by seniors, difficulty finding or travelling to pharmacies (and the cost of gas doesn't help), forgetfulness and problems at the pharmacy, including language difficulties.

Such problems cause significant difficulties for patients. The obvious problem is the loss of the curative properties of prescribed drugs. Less apparent is the effect these unfilled prescriptions have on the efficacy of drugs--that is, when the patients return to their physician for follow-up care--and the previously diagnosed condition has not been alleviated or affected, embarrassed patients often do not advise the physician that the original prescription was not filled. This leads to inaccurate future diagnoses or, worse, prescriptions for more potent dosages--strength that might not have been needed had the original prescription been filled and used. Increased use of some drugs can also lead to immunities and weakening of the efficacy of these drugs.

Why is this happening in America? Why are the drug companies encouraging physicians to write more and more prescriptions--often at higher and higher dosages?

What can be done to encourage and assist patients to fill their prescriptions and to force physicians to follow-up with the patients? One solution is better follow-up calls by physician office staff. Another interesting possibility is office drug drug dispensing using a service/product such as Dispensing Solutions which is legal in all states (with some restrictions in 5 states) and approved by the FDA. More information is available at the Dispensing Solution web-site.

The Detroit Free Press reported last night that a petition drive to give voters a chance to vote on "Universal Health Care" has fallen about 260,000 signatures short of the 390,000 needed to qualify for a ballot position. However, petition drive chairman John Freeman, recognizing that the ballot effort was abandoned because of lack of financial resources and competition from other ballot initiative drives, is reported to have shifted his focus to lobbying attempts.

The petitioners, in my opinion, are well-meaning, but a mandate to the Michigan legislature is doomed to failure. This body is too split by partisan bickering, carried on by inexperienced, term-limited synchophants, to reach a meaningful compromise on such a volatile subject as universal health care. Further, even if they could, the economy in Michigan would never be able to fund such efforts.

Ironically, placement of the petition on the ballot, I believe, would have led to passage where there are some 1.2 million--or more--uninsured Michiganders--and countless other under-insureds. Significantly, the health industry -- the growth engine of Michigan where 1 in 10 Michiganders work (more than twice those directly employed in the auto industry) according to Crain's Detroit Business-- should support a lobbying effort--if it realizes that such a program would mean a million or more new paying customers. Unfortunately, none of the plans on the table in conventional debates will solve the problems with present health insurance by improving health delivery structural deficiencies, the burden on employers and still provide choice to patients and discretion to physicians. I have highlighted a plan which meets all of these objectives in an earlier entry on this Blog--but I doubt it will be debated--it is too logical and efficient.

Nevertheless, the petition effort did keep the dialogue going. Let's hope someone is listening.

The House voted today to postpone a planned cut in payments to physicians who treat Medicare patients. The bill passed by 355 to 59. There was a fear that the cut--some 10.6%--would affect physician's desire to treat medicare patients. Instead, the bill will increase Medicare payments to doctors by 1.1% in January instead of another 10% cut.

The elimination of the cut will be paid for by reducing payments to private Medicare Advantage programs.

Action in the Senate involves drafting a compromise measure that may avoid a White House veto. Senate Finance Committee Chairman Max Baucus (D-Mont.) and ranking Republican Charles E. Grassley (Iowa) may have reached a deal on the compromise.

The Michigan Medicaid False Claims Act was amended effective January 1, 2006 through the efforts of Attorney General Mike Cox and Representative David Law (R., Commerce). I worked actively for passage of the amendment and testified before the Michigan House of Representative Judiciary committee, then chaired by Rep. Law.

The Amendment brought Michigan into line with 22 other progressive states by adding a Qui Tam provision to the existing Medicaid False Claims Act. According to Wallace Hart, an Assistant Attorney General, actively involved in fraud control, the amendments--giving private citizens the right to bring Qui Tam suits to recover fraudulent monies stolen from the taxpayers by providers treating the Medicaid program as their own private ATM machine--the amendment helped him reduce his in-box.

The Michigan Medicaid False Claims Act prohibits the presentment of any false or fraudulent claim for payment under the Social Welfare Act – namely, for Medicaid benefits. The law currently provides for the State to recover the full amount received by a Medicaid provider due to fraudulent conduct, plus triple the amount of damages suffered by the State as a result of the conduct.

HB 5757, a bill pending before the Michigan Senate after having passed the House in near unanimous fashion, would allow the State of Michigan to recoup extra funds from combined state/federal recoveries because of the provisions of the federal Deficit Reduction Act of 2005 ('DRA"). To explain, shortly after the the Michigan Medicaid False Claims Act amendment passed the Michigan Legislature and Governor Granholm signed the Act, the U.S. Congress passed the DRA providing for a 10% incentive to States which enacted a "compliant" Qui Tam statute addressing Medicaid fraud. Specifically, the Medicaid program is a joint federal/state program. Thus, in Michigan, the federal government pays about 56% and the state 44% of the costs of the Medicaid program and fraud recoveries are divided on the same percentage.

If the state has a "compliant" Qui Tam statute, the state receives an extra 10% of the recovery--that is, 54% in Michigan--of the recovery.

Continue reading "David Haron Testifies on Michigan Medicaid False Claims Act Revisions" »

The Presidential candidates, Barack Obama and John McCain, have both proposed forms of "Universal Health Care." However, both plans, and those of the previous candidates, appear to address coverage for the 43,000,000 uninsured Americans--mostly children. little is discussed about the under-insured or those who become uninsured when they lose their jobs. Nor is anything mentioned about eliminating the "600 pound gorilla" in the room with every American employer who is seeing health care benefit payments rising at far more than the cost of inflation.

However, there may be an easy solution--if we had the political will to solve the issue.

We could get the government essentially out of the medical insurance business that Medicare, Medicaid and Tri-Care represent. We could provide every American the same type of coverage that the members of Congress, and their families enjoy. We could relieve every employer in the country of the burden of health care costs.

And we could do this without a painful tax increase or loss of income for the medical providers.

So what's the catch?

There is none, say Ezekiel Emanuel, M.D., PhD., an oncologist, author of No Margin, No Mission, and president of the Posterity Project and Victor R. Fuchs, the Henry J. Kaiser Jr professor emeritus at Stanford University, in their 2005 White Paper, Solved! It covers everyone. It cuts costs. It can get through Congress. Why Universal Health Care Vouchers is the next big idea..

Ezekiel and Fuchs plan envisions a mandatory voucher system providing every American access to the "Rolls Royce" health care protection every member of Congress enjoys, administered by private insurance companies and allowing free choice of providers. Government's only role will be to set up the system, oversee its operation with an independent board, modeled on the Federal Reserve Board, collect the money to pay for the program, through a value-added tax and mailing out the vouchers once a year--like Income Tax refunds.

The details of the system, and the ease of implementation and execution are set forth in their White Paper, but it is clear, as they point out, that the proposal deserves respect and consideration because it meets the obvious goals of any proposal for "health care reform:".

1. Every American is covered,
2. The program is largely paid for by cutting fraud, waste and abuse in the present system--something that has been calculated to be as high as 20% of the present $2 Trillion expense.
3. It reduces the rate of cost increases in the future..
4. The plan will provide more rather than less choice.
5. We will become more productive because of it.
6. Government bureaucracy will be decreased .
7. It will offer much to many interest groups.

Read the plan and let me know how you feel about it---and why you haven't heard of it?