AFFORDABLE CARE ACT AND THE IPAB: whose sails should be trimmed?

THE INDEPENDENT PAYMENT ADVISORY BOARD (IPAB) of the Affordable Care Act (ACA) was written into the ACA to control costs. It is a regulatory mechanism included in the ACA to regulate the commerce that the ACA creates. Congress cannot reasonably argue that the ACA doesn't create commerce while at the same time inserting into the ACA a mechanism to regulate newly created commerce. The argument comes down to this point: either Congress has the right to create commerce or it does not.

As a regulatory mechanism, the IPAB will have the authority to deny access to care to methods of diagnosis and treatment prescribed by licensed physicians. The IPAB will not report to Congress nor to the population at large. As a politically appointed board the IPAB will report to the political persons who appointed them.

The Supreme Court of the United States (SCOTUS) could invalidate some but not all parts of the ACA which was characterized in court as consisting of over 2,000 pages which many members of Congress haven't read and don't understand. On the other hand, everyone understands that insurance companies, left to their own devices, have often arbitrarily denied forms of treatment or engaged in retroactive denials of care and coverage. Nobody trusts the insurance companies to do the right thing, least of all Congress which exempted itself from the ACA. A modest proposal would be to preclude retroactive denials of coverage and arbitrary utilization review by doctors who haven't interviewed and examined the patients for whom specific diagnostic and treatment protocols have been prescribed. Another modest proposal would be to repeal the IPAB.

The more radical proposals are to do away with the entire ACA which would strip away protection from denials of care based on pre-existing conditions, e.g., life, and which could also pave the way for wrongful denials of care especially to the poor and elederly and to Medicaid and Medicare in particular.

Both sides have in common a distrust of the insurance companies; however, the Justices are supposed to deal with issues of law, not justice. It is strange then, isn't it, that we already know how at least four of the justices will rule. We don't need law degrees to know that. Neither do the justices need medical degrees to know the consequences of their decisions about the accessibility of medical care.

References

See The Weinmann Report on POLITICO Forums, POLITICO.com, 3/28/2012, Reply # 43, http://dyn.politico.com/members/forums/thread.cfm?catid=1&su ...

CAN CONGRESS CREATE COMMERCE? That's the question that was asked today in the United States Supreme Court with reference to the Affordable Care Act.

While it was acknowledged that Congress can regulate commerce, it was not accepted that Congress can create commerce. The basic question is whether or not the creation of the Individual Mandate creates commerce. It is this concept, requiring persons to purchase a product, that opponents argue is a step too far. Can government require the purchase of specific products on the grounds that they're good for us, e.g., the now famous broccoli argument, or exercise. What would prevent government from requiring the purchase of this or that vegetable if it were deemed good for the general health? Why not require everyone to buy a gym membership and then police the purchasers to be sure they exercise? The argument is that so doing would be an unconstitutional extension of federal authority even if the argument that "it's good for you" is correct.

WHAT IF THE LAW IS STRUCK DOWN? Will we then get return to policies that allow disqualification from health insurance because of pre-existing conditions?

WHAT IF THE LAW IS UPHELD BUT THEN WE TURN OUT TO HAVE A SHORTAGE OF DOCTORS? A shortage of 20,000 primary care doctors is predicted over the next few years. To this question we have an answer, i.e., government will allow non-physicians to practice medicine by setting up alternative credentialing processes that will allow persons with "alternative credentials" to practice (after all, in stiff white laboratory coats don't they all look alike anyway?).

WHAT ABOUT PIECEMEAL DISMANTLING OR ENABLEMENT OF THE ACA? The court could rule in such a way that insurance companies are precluded from denying insurance to persons with pre-existing conditions. The court could throw out the Independent Payment Advisory Board (IPAB) which many of us see as a thinly veiled ruse to deny access to care without invoking formal rationing (see our previous columns wherein the IPAB as a cost-control mechanism is discussed).

SOME PUNDITS THINK THAT BOTH OBAMA AND ROMNEY ARE ON THE ROPES, Obama because the ACA is largely his doing, Romney because he developed a similar plan in Massachusetts. Although Romney is campaigning against the ACA on a federal level, he avers that so doing within individual states is a matter of states rights, not unlike mandatory automobile insurance. On the other hand, Obama has let several of his health-care promises slip away, e.g., "I will ensure that no government bureaucrat gets between you and the care you need."

The IPAB was inserted into the ACA for cost control, in short, to stand "between you and the care you need." But for now, the ringing question is whether or not cramming mandatory health insurance down our throats is a wise extension of government policy or an unconstitutional creation of commerce as opposed to a regulation of commerce. Stay tuned.

Reference

"What Obama should've said about health reform," Robert L. Weinmann, MD, THE HILL NEWSPAPER, Washington, DC, 16 September 2009

UTILIZATION REVIEW AND THE CALIFORNIA PROFESSIONAL FIREFIGHTERS

On 14 February 2012 Assemblyman Paul Fong introduced AB 1687 at the request of California Professional Firefighters. The purpose of the bill is to improve how Utilization Review (UR) is applied in California's workers comp system. Currently the UR process may be used by insurance companies to delay and deny care to injured workers. Doctors retained by the insurance companies and their affiliated UR companies are not required to have California licenses. If these doctors make mistakes, wrongfully deny care, and cause harm to injured workers, they do not answer to the Medical Board of California as would treating doctors, known as PTPs or Primary Treating Physicians, who are licensed in the states in which they practice.

Non-California licensed doctors do not answer to their own state boards because out-of-state medical boards do not have jurisdiction in California. Insurance companies derive financial benefits from this method because they don't pay for care that has been disallowed by the unlicensed doctors even if the care was actually prescribed by licensed doctors. This form of retroactive denial of care has previously been discussed in these pages.

Efforts to pass legislation to correct this situation by requiring UR doctors to be licensed in California have been successfully opposed by insurance companies who easily convinced Gov. Schwarzenegger to deny access to care to injured workers but who also persuaded Gov. Brown to veto AB 584 in 2011 (AB 584, also by Paul Fong, would have required UR doctors who do California cases to be licensed in California).

Fong's current bill, AB 1687, says that

"communications or responses regarding decisions to modify, delay, or deny medical treatment services requested by physicians also shall include a clear and concise explanation of the available options for objecting to the modification, delay, or denial of those medical services."

It does not say that the UR doctors who make these decisions should be licensed in California. This omission is the Achilles' heel of AB 1687.

Without this provision the UR doctor and the medical director employed by the UR company, in turn retained by the insurance company, may assert that whatever reason is presented for delay or denial of care is "clear and concise." The change in language requested by the California Professional Firefighter is a step in the right direction and deserves support even though it isn't strong enough to challenge wrongful and harmful decisions by non-California licensed doctors who can simply state that their reasons for delaying or denying care are "clear and concise."

Rather than get involved in debates about whether or not language was "clear and concise," beleagured doctors who prefer to practice medicine will leave the system. The large clinics that see patients at breakneck speed will inherit the patients. Injured workers will once again inherit the wind.