SENATE BILL 562 (INTRODUCED BY LARA & ATKINS): A PR0P0SAL FOR SINGLE-PAYER THAT INCLUDES PROVISION FOR COLLECTIVE BARGAINING

Senate Bill 562 enjoys the nickname of The Healthy California Act because it is intended to offer comprehensive health-care coverage to all residents of California -- it would be innovative as a single-payer plan for Californians. All the same the California Medical Association (CMA) is opposed.

By contrast the Union of American Physicians and Dentists (UAPD) holds a more guarded position and currently is "watch" on this bill although it is widely thought that the majority of its physicians who are employed or salaried favor SB 562. 

The reasoning goes like this: California already has a state-wide program called Medi-Cal (the stateside version of Medicaid). This program is administered by DHCS (Department of Health Care Services) and is largely governed and funded by the federal program, Medicaid. SB 562 purportedly would expand this program to cover all residents of California. 

The chief argument in favor of SB 562 is that it would cut out the meddlesome middleman, namely, the insurance company. Supposedly so doing would reduce costs; however, there is nothing in the law that mandates passing on these costs reductions to the patient. More likely the savings in costs would find their way into the pockets of the corporate overseers in the form of increased corporate compensation. 

The argument stumbles on, akin to the United States Postal Service whose rates have gone up while its efficiency has not. What is more likely than not is that the single-payer system would simply declare certain expensive services out of bounds as was done in the summer of 2015 when cardiac pacemakers were put on a rationing status by requiring conditions beyond what most cardiologists would require, e.g., Big Gubbamint decided that Mobitz Type II syndrome did not require a pacemaker.

How about rationing? Under the Affordable Care Act (ACA), popularly known as Obamacare, Sections 3403 and 10320 are especially relevant -- these sections set up how a public policy committee will be set up within the ACA to keep costs down. 

The method used for Obamacare was to appoint a committee,  the Independent Payment Advisory Board (IPAB) whose job it would be to decide, once costs got too high, which services should  be curtailed. The IPAB as envisioned in the ACA will not report to Congress. The salary is expected to be about $165,000 each for 15 appointees (none will be elected). 

Trouble is that SB 562 envisions a similar mechanism, namely, "a public advisory committee to advise the board on all matters of policy for the program." The members of this committee would include 4 physicians (one must be a psychiatrist) appointed by the Governor, Senate Rules Committee, and two by the Assembly Speaker. It doesn't get more political than that, does it!?

Two appointees would be registered nurses appointed by the Senate Committee on Rules. One would be a dentist appointed by the Governor. One representative would be from the private hospital sector, also appointed by the Governor. Another appointee would be a representative of the public hospital system, appointed, wouldja' believe, by the Governor. Another would be a representative of an integrated health care delivery system, no surprise by now, also appointed by the Governor. There would also be other representatives appointed by the Governor, the Assembly Speaker, and the Senate Committee on Rules. 

So instead of a science-based advisory board, we'll be offered a "public advisory" board steeped in political intrigue. 

Under Chapter 2, Governance, we learn that there will be "Appointments to the board by the Governor, the Senate Committee on Rules, and the Speaker of the Assembly," to wit 

(A) "At least one representative of a labor organization representing registered nurses,"

(B) "At least one representative of the general public,"

(C) "At least one representative of a labor organization,' 

(D) "At least one representative of the medical provider community."

Does it escape anyone's notice that the first dictum above guarantees appointment of two RNs and that none of the provisions guarantees the appointment of an MD? The closest it comes to that is the statement about someone from "the medical provider community" but not necessarily an MD.

Notice also how the provisions outlined above tilt to labor, e.g., the two RNs are to be from "a labor organization representing registered nurses" AND "at least one representative of a labor organization" which makes at least three appointees from Big Labor. Not, come to think of it, that the insurance companies haven't earned this shift in appointee preference!

In referring to a piece done by the undersigned for the Indiana Daily Journal in 2009 it was mentioned that "the trap to avoid is restrictive utilization review such that we get Rationing Coupons as opposed to access to care." When this comment came to the attention of Stuart A. Bussey, MD, JD, UAPD president, he stated that "we will follow this bill 562 and suggest safeguards to avoid restrictive utilization."

Finally, that brings us to why unions might be interested in SB 562. On page two of the current draft still in committee, we read that "the bill would authorize health care providers, as defined, to collectively negotiate rates of payment for health services." 

We will no doubt continue this discussion as SB 562 walks, runs, or stumbles its way through the legislative process. 

References

"Single-payer health plan has its own disadvantages," Indiana Daily Journal, Franklin, Indiana, August 8-9, 2009

"Medicare versus the Independent Payment Advisory Board (IPAB)," The Weinmann Report, www.politicsofhealthcare.com, June 29, 2015














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Accountable Care Organizations: Gag clauses, firing doctors, liability, and profits

Accountable Care Organizations (ACOs), encouraged by the Affordable Care Act (ACA), aka Obamacare, brace for trouble while preparing for profits.

One of the questions we're being asked is whether or not ACOs may impose gag clauses, e.g., if a treating physician wants to prescribe a diagnostic test or treatment, and said diagnostic test or treatment is not authorized or is denied by the ACO, may the treating physician tell that to the patient who has been denied a diagnostic test or treatment? May the cost of the procedure to the ACO be discussed with the employee or patient?

Our initial reaction to reply affirmatively is tempered by our understanding that a recommended study or treatment would have been discussed first with the patient who would presumably already have agreed to it and would know about any non-authorization or denial. But we also observe contract language that physicians are precluded from discussing disagreements about compensation "and other matters" with patients. The treating physician is told in contractual language that where "disagreement cannot be resolved ... under no circumstances shall such disagreement be expressed to the Enrollee."

Contractual language tells the doctors that they may not discuss what the ACO has determined is protected information "to any person ... until such person agrees in writing to be bound by the provisions of this Agreement ..." We take this preclusion to mean that doctors cannot discuss ACO disagreements even with their own lawyers unless the lawyers agree to be gagged!

What lawyer would agree to being gagged before having heard the case?

These gag clauses are reminiscent of the 1990s when HMOs sought to muzzle doctors (see references below).  Both the HMOs at that time and the ACOs as currently construed have contract language that allows them to fire doctors at will. Such power is essential to keeping the doctors in their place, compliant, subservient, and dependent.

The ACO agreements we've seen so far carry both "termination without cause" as well as "termination with cause" clauses.  The latter are often subsequent to what the ACO may have called a "material breach" which is defined by the ACO itself and generally refers to what the ACO calls information that "that compromises the security or privacy" of information considered proprietary or confidential.  Disclosure of this information to patients could be considered a "material breach." That the patient has "right to know" might be a legal defense but it would not preclude ACO management from firing the doctor.

Potential participants, physicians and patients alike, need to understand that ACOs are business organizations selling and dispensing health care services. They are entitled to make profits which they can then distribute to their own business associates as a second source of income in addition to whatever fees have already been paid. One selling point is that ACOs will cut down on unneeded tests and treatment but a countervailing point is that along the way the ACO may deny access to diagnostic tests and treatments with harm coming to patients while participating physicians are not allowed to speak out under penalty of being fired from the ACO.

Questions of medical-legal liability are already being asked: who gets blamed for what if an indicated study or treatment is denied and the patient suffers or dies as a result? Is there liability to physicians who've kept this    information under wraps in compliance with ACO non-disclosure policy?

How will profits and payment to providers, including physicians, be determined? One contract we've  examined says straight out that the ACO will make that determination, e.g., "Physician agrees that decisions (by the ACO, actual name deleted) ... management and other administrative policies and procedures may be used by (ACO) to deny or reduce payment ..."

In essence this language means that whatever fee schedule the physicians signed may be abrogated, changed, or set aside at the will of the ACO. No bargaining or negotiating is  required or encouraged.

All the same "bonus payments" or the prospect thereof will remain in effect. This section of the ACO agreement means that ACOs that actually achieve what they call "savings" will be allowed to allocate a portion of the "savings" to providers as "bonus payments" or additional income, essentially a second source of income, to participating providers. That helps to explain why ACOs will favor primary care physicians as opposed to specialists since it is the latter that usually prescribe expensive tests and the most up-to-date and often most expensive treatment protocols. The "gag clause" will stop timorous physicians from explaining too much to patients about how ACOs work their magic.

ACOs need primary treating physicians to ensure "savings." While specialists with their expensive procedures may be necessary to ensure quality of care, they'll be carefully scrutinized -- call it "economic credentials" (see references below) -- to make sure that they don't have too much impact on profits which the ACOs refer to as "savings." Finally, expect that bonus payments to treating doctors will be limited with the bulk of savings going to the ACO itself and to additional executive compensation.

While the ACO mechanism is more sophisticated than the old HMO methods,  they have in common that the goal is financial gain with as much devotion to patient care as can be accommodated.

HMO References

"Why HMOs want to muzzle doctors," San Francisco Examiner, 4 April 96, by Robert L. Weinmann

"Medical Red-Lining, Economic Credentials for Physicians, 12 January 96, by Robert L. Weinmann

The Congressional Record, Vol. 144, # 118, commentary by Hon. Tom Campbell, R-California, 9 September 98

ACO References

 "A Hospital War Reflects a Bind for Doctors in the U.S.," New York Times, 11/30/12, by Julie Creswell and Reed Abelson

"Covered California's Plans to Become Self-Sufficient," California Healthline, 11/19/12, by David Gorn

"California's Role In Ensuring That the Potential of Health Reform Becomes Reality," Health Affairs, 30, no. 1 (2011): 71-75

                                  

  

The Affordable Care Act (Obamacare) with emphasis on the Independent Payment Advisory Board (IPAB):  Memo to Subscribers & Followers of www.politicsofhealthcare.com   The hot-button issue in healthcare this week is the Affordable Care Act (ACA), known as Obamacare to some.  Within the text of the ACA is an item known as the Independent Payment Advisory Board (IPAB). The IPAB is the section of the law that will allow unelected appointees to overrule treatment decisions made by our personal physicians. The IPAB is empowered by Sections 3403 and 10320 of the ACA. This writer has found large enough fault with the IPAB to have called for its repeal regardless of whatever fate befalls the rest of the ACA. The fate of the ACA is likely to be decided on November 6th -- President Obama wants to keep the ACA as is, Governor Romney wants to repeal the whole thing. Check out our posts on this topic, e.g., January 18, 2011; June 29, 2012; October 4, 2012; and October 20, 2012 (this last one updated on October 29, 2012). When you check out the posts of 1/18/11, 6/29/12, and 10/20/12 you'll see reprints of my comments in POLITICO. Click on the box to enlarge the print to read the comments. Let me know what you think by commenting directly on-line at www.politicsofhealthcare.com (we do not sell, rent, or share your e-mail addresses with others.  Your comment will be considered for publication unless you ask us not to publish). -- RLW, Ed.

AFFORDABLE CARE ACT LOSES DEBATE

OBAMA and ROMNEY Debate each other but the loser is The Affordable Care Act.

It appears as though President Obama likes the name, Obamacare, for the Affordable Care Act (ACA). It wouldn't hurt if he understood his own legislation better. On other hand, why should he? He and Congress are exempt from it. Romney simply doesn't need it.

Romney said during the debate of 3 October 2012 that Obamacare "puts in place an unelected board that's going to tell people ultimately what kind of treatments they can have." Romney doesn't like that idea. Except he has incorrectly, some would say on purpose, misconstrued the unelected board,  named  the Independent Payment Advisory Board (IPAB). It will consist of political appointees none of whom need be a physician. Its purpose will be to oversee Medicare costs. The IPAB will have the power to shut down certain costs incurred by Medicare if costs soar out of control and Congress fails to intervene. The IPAB will not be enabled to tell individual physicians what tests to order or what treatment should be used. It will not be allowed to ration care on a patient-by-patient basis. It will not be empowered to raise the Medicare eligibility age or shift costs to retireds. What the IPAB will have will be the power to determine which diagnostic and treatment protocols aren't worth  funding anymore and will in that way ration care for the entire Medicare population, the same as when private insurance companies tell hapless patients that they're seeking what they determined in cloaked boardrooms were actually "non-covered benefits," i.e., you pay for it yourself because this or that benefit is not included in your private health care plan. The IPAB method constitutes a form of sophisticated rationing, but it's not on an individual patient-by-patient basis.

Obama said that the IPAB would be composed of "doctors et cetera." Not necessarily. There's no provision in the ACA that requires doctors to be appointed to the IPAB. Obama himself evidently didn't know that when he made his comment, either that or he sought to hoodwink the audience. The 15 or so appointees to the IPAB will be political appointees who will not need to report directly  to Congress. They will not be elected so they won't represent the public or an electorate. Their job will be to make economic judgments when they decide which diagnostic and treatment protocols will be covered by Medicare and which won't be covered. In short, your doctor can prescribe whatever he wants. But your doctor can't make Medicare pay for it. And neither can you.

The IPAB is empowered by Sections 3403 and 10320 of the ACA.  These sections of the ACA should be repealed. We'll have more to say in due course. So should Obama and Romney. The October 3rd debate showed that both candidates have lots more to learn about the ACA. For instance, they can tell us if it's correct that the members of this board are to be paid $165,000 per year at a total public cost of $2,475,000. Repealing these two sections of the ACA will save taxpayers nearly $2.5 million.

"WHAT WE DON'T WANT IS PEOPLE MAKING ... DECISIONS BASED ON MONEY INSTEAD OF CARE OF THE TROOPS," intoned Representative Norman Dicks, D-Belfair

In our previous column we discussed how insurance companies can twist policies and distort the Affordable Care Act so that denials of care replace rationing. Now we have a situation wherein an actual diagnosis is rationed if not tossed to the winds, i.e., medical treatment for post-traumatic stress disorder (PTSD) in military veterans. This diagnosis can cost from $400,000 to $1.5 million in lifetime benefits.

Rep. Norm Dicks asked Army Surgeon General Lt. Gen. Patricia Horoho to explain how 14 soldiers diagnosed with PTSD had their diagnoses retroactively changed by a forensic psychiatry team in such a manner as to reduce the veterans' disability benefits.

This method replaces actual rationing of care because it allows forensic personnel concerned with costs to overturn a medical diagnosis upon which actual treatment was based. The implication is that the injured soldiers were incorrectly treated and were then awarded excessive benefits.

Keep in mind that the so-called forensic team does not interview and examine the patients -- what they do is a coding audit to determine if the submitted paperwork justifies the diagnosis. Here's an example: post-concussion head syndrome, not a PTSD diagnosis per se, is listed as ICD-9 code 310.2. This diagnosis may include headaches, vertigo and cognitive loss. But if the paperwork reflects headache such that a forensic team can claim with a modicum of reasonable medical probability that the formal diagnosis of 301.2 wasn't fully documented, the diagnosis can be altered to one less remunerative in terms of treatment and disability benefits, e.g., headache, 784.0 -- in this way the payer, whether government or a private insurance company, saves money, increases corporate compensation for the private insuror, and puts the screws to the injured party, a private patient or a wounded soldier.

While we appreciate Rep. Dicks' intervention for the soldiers, we ask where he stands on repeal of the Independent Payment Advisory Board (Section 10320) which is part of the Affordable Care Act for which readers will want to know how Dicks voted. Our expectation is that Rep. Dicks cares as much about Medicare recipients and patients generally as he does about PTSD veterans and their disability remuneration.

If Rep. Dicks wants to stop the deprivation of disabiity benefits to sick and injured soldiers, he just might want to do as much for sick and injured civilians. So might also my own Congressional representantive, Anna Eshoo, D-Ca.

How about it, Norm, Anna, and all other Members of Congress?

References

"Rationing Comes Home to Roost in the Form of Denial of Care," posted originally on www.politicsofhealthcare.com, 2/17/12, reprinted workcompcental, 2/24/12

"Army insists doctors at Madigan aren't discouraged from diagnosing PTSD," The News Tribune, by Adam Ashton, 2/10/12

"Head of Madigan removed from command admid PTSD probe," Seattle Times," 2/20/12, by Hal Bernton