IGNORANCE IS NOT BLISS: THE CONSEQUENCES OF HOW LITTLE WE KNOW ABOUT COVID-19

This article, Ignorance is not bliss: The consequences of how little we know about COVID-19first appeared in the California Lawyers Association’s California Law News, 2020, Issue Three on October 25, 2020.

“Those who can make you believe absurdities can make you commit atrocities.” – François-Marie Arouet (Voltaire)

LESSONS FROM THE PAST (X37.41XA)1

Following the 1994 Northridge earthquake, California passed legislation requiring hospitals to upgrade their physical infrastructure to survive future seismic events. Twenty-six years and multiple extensions later, California hospitals face a 2030 deadline with an eleven-figure price tag.2 Spending money on what may occur is not uncommon in health care. A 2017 study commissioned by the American Hospital Association estimated that hospitals and health systems spent as much as $2.7 billion the year before to prepare for, and respond to, the threat of violence at work.3 California law requires hospitals to rehearse disaster plans at least twice each year.4

A NOVEL THREAT (A98.4)5

An expensive endeavor, hospital disaster preparedness focuses on a rapid response to an unexpected event, designed to protect, stabilize, and bring calm to shaken communities following a disaster’s aftermath. The 2019 novel coronavirus disease (COVID-19) has presented a different type of disaster, necessitating just as novel a response. In the pandemic’s early days, it moved in slow-motion as the health care community initiated disaster protocol over a period of weeks, not hours. While mobilizing any hospital to battle a pandemic is not easy, legally at least, hospitals benefitted from unprecedented support by practically every federal and state agency. The assistance from these dual agencies eliminated most barriers overnight so hospitals could establish and maintain momentum in the face of an epic disaster that, over several months, has moved forward, backward, and forward again.6Read more →

Much Ado About Covid

Healthcare News first published this article, “Much Ado About Covid,” on August 4, 2020.

“I fear those big words which make us so unhappy.”  — James Augustine Aloysius Joyce

The Age Of The Pandemic

Once upon a time severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) caused the 2019 novel coronavirus, a pandemic commonly known as COVID-19 or simply COVID.  Considered to be of zoonotic origin, COVID is closely related to bat coronaviruses, pangolin coronaviruses and SARS-CoV, although the full extent of the pandemic’s epidemiology may take years to unfold.  Nearing the fifth-month since the World Health Organization declared COVID-19 a pandemic, the medical community, the media and the masses continue to debate the efficacy of social distancing, masks and the mortality rate while the general structure of modern civilization as it existed in late February 2020 continues to crumble. … Read more →

Do We Really Need Health Care, After All?

Healthcare News first published this article, Do We Really Need Health Care, After All?, on January 14, 2020.

“There are no facts, only interpretations.” – Friedrich Wilhelm Nietzsche

A Decade of Reform

More than seven years ago, U.S. Supreme Court Chief Justice Roberts saved the Affordable Care Act (the “ACA”) by upholding the constitutionality of the individual mandate through Congress’s authority to “lay and collect Taxes.”  Rejecting the Commerce Clause and the Necessary and Proper Clause as a means to sustain the individual mandate, the Court acknowledged that Congress’s taxing authority can exceed its power to regulate commerce, but the power to tax affords Congress less control over individual behavior than its power to regulate commerce.  At the time Chief Justice Roberts concluded Congress can only require “an individual to pay money into the Federal Treasury, no more.”  As it turns out, Congress was unable to require an individual to pay the cost of the individual mandate, leaving the Internal Revenue Service to focus its collection efforts on the interception of refunds.

In December 2017, Congress passed the Tax Cuts and Jobs Act, setting the “shared responsibility payment” amount to the lesser of zero percent of an individual’s household income or $0.00, effective January 2019.  Following Congress’s slight modification of the ACA, a U.S. District Court in Texas held that the individual mandate was unconstitutional because it no longer was a tax, and according to Chief Justice Roberts in 2012, no other constitutional provision justified such an exercise of congressional power.  That same District Court concluded that without the individual mandate, the entirety of the ACA failed.

Last month the U.S. Court of Appeals for the Fifth Circuit agreed that the individual mandate was unconstitutional, but returned the case back to the District Court to revisit whether the ACA can stand on its own without the individual mandate.  … Read more →

HERE COMES THE FLOOD

California Healthcare News first published this article, Here Comes the Flood, on October 8, 2019.

“For as in the days that were before the flood they were eating and drinking, marrying and giving in marriage, until the day that Noe entered into the ark.” 

—  Matthew 24:38 (King James Version)

Yesteryear

         Once upon a time the world existed without the system of interconnected computer networks to link devices across the globe. Information was sparse and communication slow in this modern day antiquity, a time when people relied upon encyclopedias and regular mail instead of Wikipedia and the act of composing and sending electronic messages, typically consisting of alphabetic and numeric characters, between two or more users of mobile or laptop devices.

         Equally barbaric was the need to develop film upon returning from a trip and waiting, sometimes days, before viewing these photographs for the first time.  In health care, radiology was still a physical department, and “the x-ray” referred to a large machine that produced a large film that a real physician on site had to review before rendering certain diagnoses.  It was a time when “telemedicine” meant speaking with your doctor on a telephone, and sometimes with a rotary dial.Read more →

How to Spell Health Care Without R-E-F-O-R-M

Healthcare News first published this article How to Spell Health Care Without Reform on January 8, 2019.

“God gives the nuts, but he does not crack them.” – Franz Kafka

The Federal Bench

There are more than 850 justices and judges (excluding magistrates and administrative law judges) in the United States federal court system, spread out over 94 judicial districts, 13 appellate courts and one Supreme Court.  In 2017, there were 274,547 cases filed in the District Court, 295,956 cases terminated, while another 338,013 cases remained.  For the same time period in the U.S. Court of Appeals, 49,816 cases commenced, 53,756 terminated, yet still 38,876 remained.

Any dispute involving (1) the United States government, (2) the U.S. Constitution or a federal law, or (3) a controversy between states or between the U.S. government and any foreign government, falls under the jurisdiction of the federal court system.  Additionally, 30,000 more judges oversee another 90 million state court lawsuits filed each year in America’s 50 states and 3 districts (District of Columbia, Guam and Puerto Rico).

Federal and state courts share the burden in resolving domestic health care disputes, although the federal system bears the heavier load when it comes to Medicare and the 2010 Patient Protection and Affordable Care Act (ACA), also known as “Obamacare.”  Still, it is neither plausible nor prudent for less than 0.12 percent of the federal judiciary to effectively “veto” a system so important as health care.  In 2017, approximately 294.6 million Americans had health insurance coverage to rest in one of the 894,575 beds in any of the 5,534 United States hospitals, or see one of 953,000 actively licensed allopathic and osteopathic physicians, still leaving room for the other 31 million people in the United States without health insurance.  While the ACA qualifies as landmark legislation, historical hindsight may someday place health care reform’s success in its first decade on par with President Lincoln’s Emancipation Proclamation. … Read more →

What To Do About Broken

California Healthcare News first published this article “What To Do About Broken” on October 9, 2018.

iStock_000010152161Small-150x150“All of our reasoning ends in surrender to feeling.” – Blaise Pascal

An adjective, the word “broken” encompasses a multitude of meanings, most of which identify a magnitude of concern, while very few provide comfort.  Recognizing that which is broken often remains elusive, creating a daunting challenge when facing this dangerous combination. Even when a solution presents itself, the ability to surrender remains a most formidable foe. Navigating through this labyrinth, individually and as a society, is also sometimes referred to as “life.”

It is no coincidence that life usually starts and ends in a hospital. With almost 5,500 hospitals in the United States today, only by the middle of the twentieth century did these institutions become symbols of hope, slowly creating an inextricable dependence upon which the sick and infirm rely. Nearly a score into the twenty-first century, the hospital represents the primary solution when there is a threat to health. What would happen if the basket holding all of society’s proverbial eggs breaks (assuming this container is not already broken)? … Read more →

Health Care and the Laws of Nature

The Daily Journal first published this article, Health Care and the Laws of Nature, on August 8, 2018.

Caduceus background

“If there is no God, everything is permitted.” – Fyodor Mikhailovich Dostoevsky

The Laws of Nature

When science prevails over the laws of nature, controversy is near. Stories from antiquity warned against such hubris, like poor Icarus who plunged to his death during a maiden voyage with wings made from feathers and wax. Zeus intervened twice on the side of nature, first when he sentenced Prometheus to eternal torment for delivering the gift of fire to humanity, and again when he struck down love-stricken Orpheus with a bolt of lightning before Orpheus escaped from Hades.

Whether divine warnings or stories told to invoke fear, science celebrates similar transgressions as evidence that God may be man-made. Whether we live in a universe forged over billions of years or in just under seven days, what are the malleability of nature’s laws? In 1903 Orville Wright elevated above the ground for 12 seconds in a gasoline-powered, propeller-driven biplane, but his legacy exists today in the context of war, travel and commerce. The impact from fire on an evolutionary timeline often omits reference that 10,000 years ago a spark may have transformed tuberculosis from an environmental microbe to a deadly disease that has killed more than 1 billion people. When science finally resurrects the dinosaurs, we can ask them about nature’s resilience. … Read more →

Health Care’s Latest Pissing Contest

California Healthcare News first published this article, Health Care’s Latest Pissing Contest, on August 7, 2018.

iStock_000016579707Small“I dwell in possibility.”  — Emily Dickinson

Episode 5: Insurance Strikes Back

Last March dozens of insurance companies filed suit in Florida against a hospital, a laboratory and a medical claims collection agency for more than $100 million.  Earlier in March Anthem initiated an action to recover $13.5 million against a small hospital in Sonoma County, California allegedly creating an illegal pass-through arrangement for laboratory claims. In April UnitedHealthcare sued the owners of two laboratory companies in Texas for supposedly orchestrating a similar pass-through scheme that resulted in reimbursements of $44 million.

Across the nation, insurance companies and health care providers battle over the by-product of metabolism in humans. Historically used to make gunpowder, clean, tan leather and dye textiles, urine not only has a role in the earth’s nitrogen cycle, but the $8.5 billion spent in 2014 just testing the excretion exceeded the Environmental Protection Agency’s annual budget. Lately, clinical laboratories and health care providers have joined forces to test almost anything the human body can produce and/or eliminate, but at the center of health care’s recent controversy is a staggering 44 billion annual gallons of potential contraband, most of which usually goes to waste.  A new gold rush has hit the United States health care system like a tsunami, although this liquid gold retains its color and has nothing to do with dinosaurs. … Read more →

Health Care in F Minor

This article, Health Care in F Minor, first appeared in California Healthcare News on July, 10, 2018.

baby-grand-piano_135“When we are no longer able to change a situation – we are challenged to change ourselves.” – Viktor Emil Frankl

The Opening

With four flat notes, the scale of F minor celebrates sadness while commanding infinite visceral responses to all seven tones.  The English language, on the other hand, offers only a handful of anagrams for these same seven letters, although its best effort can only make use of five. Music creates emotional snowflakes, so we forego the need to reconcile different sounds made by the piano and its 2,500 parts.  The Scrabble enthusiast, however, best performs with only two combinations, each scoring a paltry 11 points.

Comparing expression through word or song does not reveal one better than the other, although it may present certain challenges when the piano holds a conversation with the clerk at the neighborhood market.  My five-year old son offers at least one solution, even if he is unable to spell the two high-rolling Scrabble words “decaf” and “faced.” Upon hearing an F minor scale for the first time, he turned to me and said: “Papa, that is so sad.”

Second Movement: The Problem

If health care was a piano, acute care hospitals and their 14,400 different codes under the International Statistical Classification of Diseases and Related Health Problems, tenth edition (“ICD-10”) practice C major scales on a regular basis. … Read more →

HOSPITALS GIVE UNTIL IT HURTS

This article, Hospitals Give Until It Hurts, first appeared in California Healthcare News on April 10, 2018.

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“The formula ‘two and two make five’ is not without its attractions.” — Fyodor Dostoevsky

A 2005 report surveyed 1,771 personal bankruptcy filings, half of which cited medical expense as the cause.  For those suffering from an illness that preceded bankruptcy, individual out-of-pocket medical expenses averaged close to $12,000, and those qualifying as “medical debtors” were 42% more likely to experience lapses in health insurance coverage. This serves as the backdrop to what is commonly known in health care as “charity care” or “hospital fair pricing policies.”  Consumer advocates blamed hospitals as the cause of this financial epidemic, fueled by the absence of any law or regulation regarding the prices that uninsured and underinsured consumers/patients paid for health care, not to mention the collection practices employed by those entities insisting upon payment for services rendered.

Health Care By Robin Hood

Fundamentally there should be nothing wrong with accepting from those patients without financial means less money than wealthier patients for similar services. Certain laws are inconsistent with this medical benevolence, such as one federal statute that prohibits health care providers from submitting a bill for payment substantially in excess of that entity’s usual charges for these items or services.  The penalty for violating this law, 42 U.S.C. § 1320a-7(b)(6), is possible exclusion from Federal health care programs such as Medicare and Medicaid. The California Court of Appeal, Fifth District, offered another reason why hospitals should refrain from such generosity, specifically after the seminal 2014 decision in Children’s Hospital of Central California v. Blue Cross of California (226 Cal. App. 4th 1260). After decades of fighting between non-contracting providers and insurance companies, the best advice the judicial system had to offer in defining “reasonable value” was past agreements to pay and accept a particular price.

Nevertheless, legislators believed the ways in which hospitals should bill the uninsured could not be left to chance, and in 2005 California passed Assembly Bill 774 which required hospitals to develop a policy specifying how it will determine financial liability for services rendered to financially qualified patients and those patients without any insurance.  In part, AB 774 (1) placed limitations on billing and collection practices for hospitals as well as their billing agents, (2) required hospitals to submit to the Office of Statewide Health Planning and Development (OSHPD) their plan to comply with the new obligations, and (3) charged the Office of the Attorney General with enforcing transgressions. … Read more →