A Brave New Medicare0

This article, A Brave New Medicare, was first published in California Healthcare News on February 4, 2015. 

Caduceus background“Consistency is contrary to nature, contrary to life. The only completely consistent people are dead.” —Aldous Huxley

Next month the Affordable Care Act turns five, and by all accounts the influence of this historic legislation will forever change the landscape of health care in the United States, regardless of its ultimate fate. As each passing year introduces thousands of new regulatory pages to an already expansive body of federal and state law, praise for what has come to be known as health care reform is only rivaled by the relentless partisan calls for its repeal.

Recognition of the Affordable Care Act’s more laudable accomplishments should not be overlooked, especially the elimination of preexisting conditions, an overall reduction in the number of uninsured, and, according to some experts, findings that point to an actual slowing in health care spending at a national level. On the other hand, we as a nation must also be mindful of any collateral damage caused by reform, especially when considering that the immediate statistical data used to document the success of reform tends to present itself easily, while the longer-term, potentially less favorable information upon which the Affordable Care Act can also be judged may take decades to unfold.Read more →

Revisions to Certain Patient’s Rights, Conditions of Participation and Conditions of Coverage0

iStock_000017988429SmallThis State Bar of California Health Law E-Bulletin was published on December 16, 2014.

Medicare and Medicaid Program; Revisions to Certain Patient’s Rights Conditions of Participation and Conditions of Coverage

Last year the U.S. Supreme Court held that Section 3 of the Defense of Marriage Act (DOMA) was unconstitutional because it violated the Fifth Amendment. United States v. Windsor, 133 S. Ct. 2675, 2695 (2013).  Section 3 defined the word “marriage” to mean only a legal union between one man and one woman, and so “spouse” could only refer to a person of the opposite sex who was a husband or wife.  1 U.S.C.  § 7.  The Supreme Court argued that the federal prohibition of same-sex marriages that states had lawfully recognized “undermined both the public and private significance of state sanctioned same-sex marriages,” and that Section 3’s ‘‘purpose and effect [was] to disparage and to injure those whom the State, by its marriage laws, sought to protect’’ 133 S. Ct. at 2694-95. … Read more →

The Poor Get Poorer: the Fate of California’s Hospitals Under the Affordable Care Act0

iStock_000013550840SmallThis article appeared in California Health Law News, Volume XXXII, Issue 3, Fall 2014/Winter 2015

[1] By Samuel R. Maizel[2] and Craig B. Garner[3]

Introduction

Distressed hospitals in California operate on small or non-existent profit margins.[4] For many of these hospitals, Medicare and Medicaid (Medi-Cal in California) are the largest payors.[5] The Patient Protection and Affordable Care Act of 2010 (the “Affordable Care Act”)[6] was designed in part to increase the number of insured nation-wide,[7] the result of which logically should have been positive for California hospitals. Any cause for celebration, however, must first prevail over the cost containment provisions firmly entrenched in the Affordable Care Act, as these regulations created new concerns for California’s financially distressed hospitals.[8] Included among the multitude of threatening provisions in the Affordable Care Act are:

  1. A complete recalibration of Medicare disproportionate share payments (“DSH”) to hospitals[9];
  2. A reduction in Medicare revenue up to 1.5% during Fiscal Year 2015 (and 2.0% by Fiscal Year 2017) for hospitals which perform poorly under the Hospital Value Based Purchasing (“VBP”) Program[10]; and
  3. A penalty of as much as 3.0% for the hospitals which fail to meet the standards set forth in the Hospital Readmission Reduction Program (“RRP”).[11]

In addition to a penalty up to 2% for lapses in inpatient quality reporting and similar penalty relating to outpatient quality reporting, [12] a 2% cut in Medicare due to sequestration[13] as well as a penalty for those hospitals which fail to attest for “Meaningful Use”,[14] collectively the potential for any hospital to lose more than 10% of its Medicare revenue creates daunting challenges, especially with those institutions in California already struggling financially not to mention lacking the resources to establish the necessary infrastructure to compete in this era of change.[15]Read more →

Just As Fragile As A Patient0

This article was first published on October 30, 2014 in the Los Angeles Daily Journal.

iStock_000036113648Large“Where there is a why, there is a how.” — Friedrich Nietzsche

The American hospital has evolved greatly over the past 100 years, from the almshouse once visited mainly by the desolate and poor as a last resort to that enigmatic, cutting edge institution which today forms the foundation of modern American health care. Advances in technology and medical science have transformed what were once terminal illnesses into minor health inconveniences, with the real battles against serious health threats typically occurring inside the four walls of a patient’s local hospital. The modern hospital has become such a beacon of hope that in 1986 Congress passed laws granting nearly everyone an unrestricted entitlement to emergency medical treatment at most acute care facilities.

Read more →

Medicare: The Perpetual Balance Between Performance and Preservation0

This article was first published in the Journal of Contemporary Health law & Policy on August 1, 2014.

iStock_000039923254Medium“Confusion is a word we have invented for an order which is not understood.” — Henry Miller, Tropic of Capricorn

Passed by Congress and signed by President Lyndon Johnson into law in 1965, Medicare has weathered storms from all directions, growing to be the preeminent standard for health insurance in the United States.  The idea of losing Medicare as a vital public benefit still remains the single greatest fear with which each passing generation of Americans must contend, and yet, these challenges over the past fifty years, designed to fortify Medicare’s foundation and ensure its longevity, continue to take a toll on the program.

The most recent climate of reform includes changes implemented by the Patient Protection and Affordable Care Act (“PPACA”).  The PPACA is designed to expand coverage for a broader group of people, yet it adds unprecedented layers of complexity such that it may be but a matter of time before the confusion experienced by today’s providers proves to be Medicare’s undoing altogether.  The decades of trial and error upon which health care in the United States have been built, at least from the point of view of both physicians and lawmakers who watch from the sidelines, may give way to confusion and disruption industry-wide as a result of newly enacted regulations.

Today, Medicare is the preeminent standard for health insurance in the United States, expanding despite fluctuations in the economic, political and social climate since its initial passage.  However, in its struggle toward sustainability, the Medicare Program must understand the resulting consequences as it distances itself further and further from its original simplicity in 1965.

Medicare’s original cost-based system gave way in the 1980s to the Prospective Payment System (“PPS”), an event noted by many with great concern.  Under PPACA, the Medicare system takes another monumental step as it incorporates elements of performance into the PPS.  Formulaic and confusing, Medicare’s recent approach to provider reimbursement has been likened to Finnegan’s Wake by James Joyce, a book that some critics warn requires “skeleton keys” to understand.  In many ways, the need for hospitals and physicians to understand these performance-based measures may seem less important when fear of Medicare insolvency looms in the distance,13 especially as it relates to Medicare Part A (hospital insurance benefits for inpatient services) and Medicare Part B (supplemental insurance for outpatient services, among other things).  Irrespective of the fleeting grasp providers may have over PPACA’s new Medicare system, hospitals and physicians alike are mindful that the PPS as they once knew it is gone, replaced in part with the beginnings of a performance-based Medicare in which they may lose precious revenue, one percentage point at a time.

The entire article can be viewed here.

The Light at the End of the Tunnel . . . or Cliff0

 This article was published on June 5, 2014, in Corporate Compliance Insights.

iStock_000000261863Small“Truth emerges more readily from error than from confusion.”  — Francis Bacon

With each passing day health care reform in America gains momentum, even as the chasm between successful and unsuccessful providers continues to expand. Earlier this month, the Federal Government tested the fortitude of the system when it released thousands of regulatory pages explaining the many ways in which Medicare providers will get paid and penalized over the next few years.  Eagerly awaited by those in the field, the 2015 Hospital Inpatient Prospective Payment System regulations for acute care hospitals lives up to all expectations as it journeys through the labyrinth created by such diffuse entities as the Hospital Value-Based Purchasing Program, the Hospital Readmissions Reduction Program, and the Hospital-Acquired Conditions Reduction Program.  Not to disappoint its devoted readers, the Powers That Be issued regulations the same week for skilled nursing facilities, inpatient psychiatric facilities, inpatient rehabilitation facilities, hospices, and federally qualified health centers. … Read more →

Lessons Learned from Dial-Up0

This article was first published in the Daily Journal on May 15, 2014.

iStock_000013044243MediumIn the largest cities across the U.S., locating an Internet connection has become as easy as finding a cup of coffee. In modern times, however, the ability to effectively communicate in business is inextricably connected to the rate by which one is able to transfer data. Like a bad cup of coffee, we may tolerate a slow connection when options are limited, but no one really enjoys it. Lessons from both support the notion that we not only prefer quality speed, but it also improves our performance at work.

If bit rates are the standard measurement for telecommunications, hospital beds present the equivalent in health care. … Read more →

What Are We Fighting to Reform?0

This article was first published in California Healthcare News on May 6, 2014.

IMG_2220“Revelation can be more perilous than Revolution.”  — Vladimir Nabokov

As in baseball, the history of war favors the home team, especially when the home team prevails.  Not surprisingly, those who come in second place on the battlefield have little say in the telling of the tale. What became of the Ottoman and Austria-Hungarian Empires receives anecdotal attention, though those who live in Istanbul, Vienna and Budapest remember the Great War much like the City of Buffalo remembers Scott Norwood. So, too, will the success or failure of America’s struggle to provide universal health care be decided in the grand scheme, with little thought given to the smaller scale of unfortunate losses incurred upon the way. … Read more →

Another Healthcare Crisis: Closing Hospitals0

This Op-ed appeared in the Los Angeles Times on February 26, 2014.

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Lower Oconee Community Hospital in southern Georgia closed its doors this month, eliminating 25 hospital beds and up to 100 hospital jobs. This was the fourth Georgia hospital to fold in two years and the eighth rural hospital in the state to close since 2000. Although Lower Oconee’s shutdown may not have registered much media coverage, those in search of medical attention in Glenwood, Ga., should be mindful that the closest hospital is now 30 miles away. As reference, Santa Ana  is 30 miles from Los Angeles. When faced with a medical emergency, no one fancies a long road trip. … Read more →

American Health Care’s Temporal Order0

(January 26, 2014) The world of contemporary health care is not based upon absolutes, but rather an ever-evolving system of beliefs influenced at any given time by a confluence of advances in science, popular culture, current events and religion.  As these and other components shape that which we as a nation accept as truth, some historical notions transition away from their previously influential roles in society, to be replaced by ideologies that better conform to modern standards.  Given enough time and perspective, these erstwhile canons can even transcend into the realm of mythology and folklore. As with the idea that the mentally ill were once widely believed to be victims of demonic possession, what was once considered an immutable medical truth is now viewed as a quaint theory of an immature age.

Historically, the science of medicine presents a wealth of examples to show how fleeting truth can be, even within the context of life and death. … Read more →