Our Fear of Health Care Reform and the Household Vacuum0

“That’s the nice thing about carousels, they always play the same songs.”  The Catcher in the Rye by J.D. Salinger

This article first appeared on the PBS affiliated website This Emotional Life.

It starts with a vacuum.

The sudden, unfamiliar dissonance signals fear in his little mind, which grows quickly, magnified by the sight of an unexpected entanglement between the woman he trusts most and this monstrous machine. As he turns to run (or crawl), I find myself thankful to be just inches away, in perfect position to catch my 10-month old boy as he does his best to flee the frightful scene. His two outstretched arms secure a tight grip around my neck, while a sad face burrows deep into my chest. For one sharp moment I feel like a hero, a wholly necessary, trustworthy entity whose sole purpose is to be relied upon in times of trouble.

Fear is a formidable foe, and the ways in which we as grown ups react to its presence can often be inconsistent. Regardless of its origin, any meaningful cause for alarm typically signifies a commonality of chaos, to be first understood, and then vanquished. Though my son’s safety was obviously never compromised during his run-in with the vacuum cleaner, his reaction illustrates the fact that in the eyes of an infant the world is full of uncertainties. In the mind of a child, laughter and tears coexist every day, yet we seldom stop to consider how these emotions actually resonate. Rather, we tend to focus on the cause, which with luck might lead us to a solution, as a means to restore the calm and save the day. Indeed, some of the most seasoned parents have an entire cache of remedies upon which to rely when a crisis hits, and they wield them like weapons of precision, each one crafted and selected for just the right moment.

But what about the child in the midst of a trauma?  … Read more →

Providing Care for the Uninsured Without the Federal Case0

The article first appeared in Becker’s Hospital Review.

Estimated at close to 50 million strong, the fate of America’s uninsured has caused quite a stir of late. As the media anxiously reports on the U.S. Supreme Court’s acquiescence to assess the constitutionality of certain tenets at the heart of healthcare reform, the nation sits anxiously on the sidelines, awaiting the outcome. Indeed, a suggested, unprecedented televised hearing on the insurance mandate could potentially attract even more viewers than the record-breaking 111 million football fans who watched the Green Bay Packers beat the Pittsburgh Steelers in Superbowl XLV on Feb. 6, 2011.

The uninsured conundrum

At the core of the debate lies an enormous price tag. The sheer volume in dollars it takes to provide medical treatment to the uninsured is astounding, and its ramifications affect many fundamental aspects of our healthcare structure. In 2008, uncompensated medical care in the United States approached an estimated $57 billion, of which nearly $43 billion was paid by federal, state and local governments from funds earmarked for this very purpose. Although the federal government typically foots close to half of this annual bill, its contribution equals only 2 percent of federal healthcare spending yearly. The great bulk of responsibility for America’s uninsured falls to our nation’s hospitals, who shoulder approximately 60 percent of uncompensated medical care, due largely to a regulatory structure mandating that emergency departments at hospitals participating in Medicare or Medicaid must treat just about anyone who arrives in need of medical care, regardless of citizenship, legal status or ability to pay.

To add to the friction, most Americans have a stronger grasp on the rules of professional cricket than they do the leading constitutional challenge to President Obama’s 2010 Patient Protection and Affordable Care Act. … Read more →

Tracing the Evolution of American Health Care Through Medicare0

This article first appeared in the journal Health, Culture and Society.

I. Before Medicare

Since its inception as a government sanctioned public health insurance program, Medicare has been both a bone of contention between political parties and a beacon from which to gauge the changes in American health care as a whole. Passed as part of the Social Security Amendments of 1965, Medicare had as its focus individuals sixty five years of age and older, with a similar yet state-run program, Medicaid, addressing the medical needs of people with certain disabilities and low income families. Over time, however, Medicare has grown to be the preeminent standard for our nation’s health care in its entirety, with nearly every substantive change to its core foundation signaling a corresponding restructuring of our overall health care system.

The modifications imposed on Medicare, both by market forces and federal legislation, stand as a series of growing pains from which to mark the evolution of the American health care model. By charting these changes through the decades we can better understand the ways in which health care as a whole has morphed from a cost based system to one of performance evaluation. In turn, this may provide us with a glimpse into health care’s future if certain fundamental issues are not addressed in current reform legislation.

The rise of the government’s role in providing health care to its citizens came relatively late in America’s history. For much of its first two centuries the burden of caring for the sick and injured fell to neighbors, friends and relatives, with additional support from individual communities and religious groups. Visits by an actual doctor were generally limited to the home and dictated by local demographics. Almshouses and charity wards provided a certain degree of medical service, as hospitals were few and far between, and often existed solely upon the largess of the surrounding vicinities. Those who had the opportunity to visit a hospital prior to the twentieth century more than likely did so after an accident or as the result of an unfortunate designation of insanity.

Read the complete article here.

 

Advice from Antiquity0

“Life is like riding a bicycle. To keep your balance you must keep moving.”  — Albert Einstein

This article first appeared on the PBS affiliated Website This Emotional Life.

Every so often I stop to reflect upon the seemingly random series of events that have led my life to its current point. In times like these my mind rarely gravitates toward any single individuals who left lasting impressions, positive or negative, but instead remains fixed on the patterns that have emerged over time.  Make no mistake, I still search for a seemingly insignificant or banal event from my past that might offer some magical context to help define the person I have become, especially in light of my newfound fatherhood.  And yet, while I am not holding out for such an epiphany any time soon for myself, such a revelation could do wonders for my son as he crawls faster and faster toward the conclusion of his first year.

At the age of eleven, I read my first Greek myth, and I was hooked. Eleven years later, I graduated from college with a major in classical studies, a discipline I have described as familiarization with an abundance of Greek myths experienced in a written rather than spoken format, in a language that dates back seven to ten thousand years.  From this historical depository of dactylic hexameter and Socratic dialogue, a few key tenets have remained permanently etched in my brain, and it is not uncommon for me to draw upon these scraps of wisdom on any given day. While often overshadowed by the technological advances that largely define our fast-paced modern society, I continually find that those bits of knowledge I learned twenty years ago are more than enough to help me navigate through even the most baffling of days.

Victory comes to men in turns.”

This famous quote from a traditional English translation of Homer’s Iliad is a source of comfort and hope in troubled times as well as a gentle reminder for us all to strive for humility at any stage. … Read more →

Health Care Reform Sets the Standard Under the Federal Anti-Kickback Statute, But How Much Longer Will It Apply?0

17 No. 4 Westlaw Journal Health Care Fraud 1

October 12, 2011 — Commentary

Craig B. Garner, Esq.

Copyright © 2011 Thomson Reuters — Reprinted with Permission

Introduction

Under its aegis, the 2010 Patient Protection and Affordable Care Act, more commonly referred to as Health Care Reform, Pub. L. No. 111-148, clarified the criminal-intent requirement under the federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b.

Before PPACA, federal courts applied different standards of intent, both general and specific, in determining the existence of violations under the AKS. Section 6402(f)(2) of PPACA amends the AKS by stating, in part:

With respect to violations of this section, a person need not have actual knowledge of this section or specific intent to commit a violation of this section.

Like it or not, congressional design is clear, and this general-intent threshold now serves as the national standard for the AKS after PPACA. While constitutional scholars may take aim at this seemingly benign amendment when they eventually tire of health care reform’s individual insurance mandate, health care and criminal law practitioners are better served by understanding the historical landscape leading up to Section 6402(f)(2). By tracing the evolution of the AKS, as well as the companion False Claims Act, 31 U.S.C. § 3729, and the Ethics in Patient Referrals Act, 42 U.S.C. § 1395nn (more commonly referred to as Stark I and Stark II), practitioners may have a stronger perspective with which to offer their clients advice within the rapidly changing climate of health care reform, rather than relying upon cautionary missives that speak to this watered-down standard of scienter.

Some legal history

Actus non facit reum nisi mens sit rea. (“The act is not culpable unless the mind is guilty.”) [FN1]

With a few exceptions, historical discussion of criminal law has tended to combine bad actions with a previously existing desire to effectuate the same. Most often in the context of ordinary, visible crimes such as murder, battery, robbery, arson, etc., a common condition precedent to conviction for such offenses was specific intent. [FN2] This mental element exists as a subset within two separate and distinct types of crimes: those prohibited by statutory authority (malum prohibitum, such as parking regulations, copyright laws and the tax code), and those plainly in violation of society’s standards (malum in se, such as rape and murder). … Read more →

Facebook and EHRs: A Very Fine Line Just Got Even Finer0

This article first appeared on iHealthBeat.org.

Americans love their privacy. And yet, as the ever-increasing trend of social networking illustrates, they also love to share the facts of their lives. As a result, defining privacy can be tricky in this modern age and often depends on the venue in which information is presented and the form it takes.

In today’s world of electronic health records, straddling the fence between harmless information and sensitive data is no longer such an easy task, and the repercussions for the slightest transgression can be severe.

On August 22, HHS issued a press release challenging software developers to create new Facebook applications to assist in emergency preparation efforts. If Facebook was a nation, its “population” would be more than double that of the United States. If online minutes for Facebook users were the functional equivalent of “dollars spent,” the social network’s estimated $84 trillion in annual “spending” would top the collective gross national products of all nations across the globe, even if the U.S. or European Union were counted twice.

While Facebook is a great way to stay connected to friends and family, it also can blur the line between privacy and the public domain. With a few quick clicks you may come to learn that Susan is at the coffee shop with Billy, Milton is attending a marketing seminar, or David is recovering nicely from a recent appendectomy at a hospital in Florida.

While Facebook might be given free rein to spread news of David and his recently removed appendix, other mediums must proceed with caution. If someone from David’s hospital was to leak his news, the hospital would face great scrutiny because health care providers are bound by law to obtain in advance David’s express, written authorization to publicly disclose details about his physical well-being. This is true even if said metadata were common knowledge among David’s 268 Facebook friends. … Read more →

Will Health Care Reform Survive Debt Ceiling Legislation?0

This article first appeared on Becker’s Hospital Review.

Contrary to media headlines closely monitoring the lower- and mid-level federal courts as they opine on the individual insurance mandate, the United States Judiciary Branch may have little impact on the future of President Barack Obama’s 2010 Patient Protection and Affordable Care Act. As fascinating as the legal ramifications may be, the ways in which the Commerce Clause or the Necessary and Proper Clause impact the constitutionality of healthcare reform’s most notorious provision of late could have little meaning if the government fails to pay a few utility bills and the congressional lights go dark.

While the importance of judiciary participation in this historical debate should not be discounted, the U.S. healthcare system must first and foremost be concerned with self-sustainability, especially in light of recent issues concerning our credit rating as a nation. … Read more →

The Wild West Sits One Out: AB 52 is delayed until 2012 as California backs down to health insurance company interests0

As expected, the 2010 Patient Protection and Affordable Care Act (PPACA) has had a dramatic impact on the American health care system. One of the more admirable objectives deeply entrenched in health care reform is the establishment of a clear and understandable infrastructure so that its many moving parts and pieces can seamlessly coexist under proper supervision. To this effect, at the end of 2010, the federal government published proposed regulations addressing health insurance rates, including strict disclosure and careful review of any significant price adjustments by insurers.

Focusing on the exorbitant 131 percent increase in health insurance premium rates for families since 1999, these reform-based regulations required all rate increases of 10 percent or more to be publicly disclosed and justified as of 2011. With an eye to the future, PPACA further dictated that by 2012, each state shall be responsible for setting and enforcing its own rate threshold to reflect appropriate cost trends and other meaningful date when reviewing future rate hikes. For states that fail to establish such a system of oversight, either by design or due to lack of resources, the U.S. Department of Health and Human Services (HHS) will step in and satisfy the intent of the legislation.

Read more →

Preparation Does Not Guarantee Perfection0

This article first appeared on California Healthcare News.

California has always found its way into the public spotlight, and 1975 was no exception. That is the year in which Jerry Brown became the state’s 34th governor, Nolan Ryan started the season for the California Angels, President Ford survived an assassination attempt in Sacramento, actors Jon Voight and Marcheline Bertrand gave birth to their daughter Angelina Jolie Voight in Los Angeles, and the state’s Medical Injury Compensation Reform Act of 1975 (MICRA) was passed.

At its core, MICRA was the end result of efforts to save California’s physicians from the fallout of a multitude of lawsuits, runaway jury verdicts, and draconian responses by insurance liability companies. With its $250,000 cap on non-economic damages in medical malpractice litigation, MICRA made history as its backers trumpeted the salvation of medicine in California. Controversial from the day Governor Brown first signed it into existence, MICRA continues to face challenges these 36 years later. For better or worse, however, MICRA addressed a critical issue and assuaged what were at the time very real fears that issues of liability and catastrophic jury verdicts would bring California’s medical system to a halt.

California’s hospitals are not alone in their need to proactively address situations involving unforeseen events. In this present era of health care reform, providers across the nation have an even greater abundance of legal issues on which they must focus their attention. For example, in the not too distant past a new concern appeared on the horizon some 2,700 miles from Sacramento. August 2005 saw Hurricane Katrina wreak havoc throughout southeastern Louisiana, with a death toll in excess of 1,800 and an $80 billion price tag, to say nothing of the sociological and environmental collateral damage that quickly followed.

Once the storm had passed and the dust had begun to settle, a frightening discovery at Memorial Medical Center in New Orleans captured the nation’s attention anew and resonated in the hearts and minds of every hospital administrator across the nation. Forty-five Memorial Medical Center patients died from the Hurricane, a number greater than any other New Orleans hospital, and blame was quickly directed to the hospital and its failure to provide for its community in an emergency situation. … Read more →

Instructions Never Included0

“Man cannot discover new oceans unless he has the courage to lose sight of the shore.”

— André Gide, French author

This article was first published on the PBS affiliated website This Emotional Life.

I have decided at last to forgo my search for instructions. Though it was nearly a decade ago that I first hoped to uncover an operational manual at work during my first tenuous days in an unfamiliar hospital environment, such guidance always escaped my discovery.

Seven months ago a new job of sorts presented itself to my wife and me, and not surprisingly, this owner’s manual also turned up missing. The resultant experiences brought about by new fatherhood have only served to reinforce my decision to trust my instincts from this point forward, as while there is an abundance of literature that purports to bridge such gaps in both professional and personal knowledge, I have yet to encounter any crisis brimming with patience, be it related to emergency department protocol or an unexpected and unexplainable late night tantrum.

In my professional role as health care attorney and consultant, I have come to grips with the fact that the federal government may not publish an “executive summary” covering all 2,700 pages of last year’s Patient Protection and Affordable Care Act (PPACA, more commonly referred to as health care reform) anytime soon.  … Read more →