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 →

ON THE ORIGIN OF PANDEMIC

Earth laughs in flowers.”  – Ralph Waldo Emerson

Healthcare News first published this article, “On the Origin of Pandemic” on May 5, 2020.

The Battle for Planet Earth

Civilization remains under heavy attack, and for the first time in modern history almost all nations around the globe unify in battle.  The common enemy, Planet Earth, has waged war against homo sapiens since the species first ventured away from Africa to populate the rest of Earth. The planet remains undefeated in conflict and well rested since it ended all but the birds during its last global extinction campaign some 66 million years earlier.

Science speculates that Planet Earth defeated its last enemy with the help of an extra-terrestrial ally (an asteroid/meteor).  To date the planet has proven a formidable opponent, relying upon its own, antiquated but effective arsenal, employing documented textbook military strategies for over 5,000 years, including a prehistoric village in China to Athens in antiquity to Eurasia in the fourteenth century to Mexico and Central America in the sixteenth century.  Recently, Planet Earth upped its game by striking the global population in the 1918 Spanish Flu, HIV/AIDS (while still a pandemic, the virus peaked between 2005 and 2012), and most recently the 2019 novel coronavirus (COVID-19). … 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 →

The Insanity of Treating the Insane

This article the Insanity of Treating the Insane first appeared in Healthcare News on July 9, 2019.

The Insanity of Treating the Insane

“Heaven wheels above you, displaying to you her eternal glories, and still your eyes are on the ground.” – Durante di Alighiero degli Alighieri

There Is No Safety In Numbers

Not long ago, health care practitioners treated mental illness by severing connections in the brain’s prefrontal cortex.  Surgeons employed this procedure known as “the lobotomy” to reduce symptoms of mental disorder.  Those who survived the lobotomy sometimes experienced relief from mental illness as well as less spontaneity, responsiveness, self-awareness and self-control.  While the lobotomy has drifted off to medical obscurity, 75 years later an estimated 20 million Americans still embrace the idea that restricting the intellectual and emotional range of the sick mind also cures it.

Treating mental illness relies upon the subjective, while somatic matters approach illness through diagnostic testing which can often yield a more precise diagnosis.  That which is psycho has a seemingly unfair disadvantage to somatic, although general medicine has enjoyed far more decades to advance from its early days of leeches and amputations.  By comparison mental health treatment exists in its infancy.  For the patient, opioids have replaced the orbitoclast (lobotomy’s primary surgical instrument, described as an ice pick with some gradation marks), although the nine million Americans who suffer from mental illness fall somewhere within an estimated 20 million also suffering from substance use disorder (“SUD”).

The concentric circle occupied by the brain both sick and sickened may as well be infinite, at least to the extent modern medicine understands co-occurring disorders.  … Read more →

Infecting the Hippocratic Oath

Healthcare News first published this article “Infecting the Hippocratic Oath” on April 9, 2019.

“We live in a society exquisitely dependent on science and technology, in which hardly anyone knows anything about science and technology.” 

–Carl Edward Sagan

Medicine Gets Sick

Somewhere deep within the labyrinth of regulations promulgated since Congress passed the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and the Health Information Technology for Economic and Clinical Health Act (“HITECH”) in 2009 exists health care’s very own Kobayashi Maru. Mindful of the draconian consequences in deviating from the so-called HIPAA Privacy Rule, health care practitioners who follow these national standards to defend individual medical records and other protected health information (“PHI”) sometimes must stand down like a Star Fleet cadet forced to watch the entire crew and passengers of another vessel perish. On the other hand, those rogue clinicians who chose rescue over risk may face attack from federal and state authorities.

Governmental response to lapses in safeguarding PHI is due, in part, to algorithmic steps undertaken by malware, including exfiltration attempts between the malware and attackers’ command and control servers, not to mention the possibility of malware propagating to other systems, potentially affecting additional sources of electronic PHI (“ePHI”). While digitizing patient medical records remains a top national priority, fear of compromising confidentiality is still its greatest obstacle. To the unwitting health care provider, the choice between an investigation by the Office of Civil Rights (“OCR”) or a threat from ordinary malware may be just as devastating as an attack from a Klingon Negh ‘Var-class warship.

The Cost to Comply

Health care must finally surrender to systemic futility when providers wage war against disease with an arsenal that protects PHI first. Even under the guise of the Hippocratic Oath and its sacrosanct directive to help or at least do not harm the patient, the physician may not risk PHI exposure. Hippocrates’ lesser known principle included an obligation to keep the “holy things” of medicine confidential, and federal and state regulations remain vigilant as to both. Those responsible for drafting patient privacy laws, however, never imagined a malicious software from cryptovirology could make public PHI or perpetually block all access until a ransom is paid, or that it would occur 181.5 million times in the first six months of 2018 alone.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.

iStock_000002984165Small

“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 →

The Upside to Broken

This article The Upside to Broken first appeared in California Healthcare News on January 9, 2018.

iStock_000020087330LargeThe world breaks everyone, and afterward, some are strong at the broken places.”  — Ernest Hemingway

When in Colorado

Just outside Aspen, Colorado, an elevated system dependent upon variations in tension on a rope that bends and flexes over sheaves and around bullwheels transports trusting passengers 1,500 feet up the side of a mountain. Each of these sky travelers has a front-row seat to the possible danger and calamity that can at any time strike immediately below, but only an observant few notice Aspen Valley Hospital during their journey upward. Fewer still realize this health care facility is an outpatient department of neighboring Aspen Valley Hospital. Located in rural Snowmass Village, Colorado, this tiny adjunct treats most injuries and illnesses that manifest on the mountain, leaving everything else typically handled by an acute care hospital to the main facility eight miles away in Aspen proper. Heedless of weather conditions and current events, Aspen Valley Hospital soldiers on in its commitment to honor the Hippocratic Oath.

Death by Taxes

As it does so, the American health care system finds itself on the defense against yet another partisan attack, this time in the form a massive tax code overhaul. In the process of implementing record-breaking tax cuts throughout the national economy, the Tax Cuts and Jobs Act effectively eliminates the Individual Mandate provisioned under the Affordable Care Act (the “ACA”). Five years ago, in the seminal decision National Federation of Independent Businesses v. Sebelius, Chief Justice John Roberts and the United States Supreme Court upheld the constitutionality of the ACA’s Individual Mandate. This was not accomplished through the Commerce or Necessary and Proper Clauses of the U.S. Constitution, but rather through Congress’s authority to lay and collect taxes (U.S. CONST., art I, § 8, cl. 1).  While not quite the same beast as the repeatedly failed “repeal and replace” challenges the nation’s health care system withstood earlier in 2017, this most recent foray is at least legally proper. The question that still remains, however, is exactly how will health care in the United States change in 2018, when fiscal repercussions end against those Americans who fail to maintain minimum essential health insurance coverage?

In a universe where the actuarial resides, eliminating the Individual Mandate is a death sentence that will ultimately collapse the ACA’s fiscal sustainability. In other, more practical realms, a health care system within which younger, healthier patients have no motivation to obtain insurance totally undercuts the already diminishing number of payers to wreak havoc in the form of health insurance premium hikes, necessary or not. The nation’s already depleted health care arsenal against such a response from payers is practically useless, as it is left with only unthinkable options such as the return of preexisting conditions and elimination of premium parity restrictions, the justification for which is either “some lose” or “everyone loses.” This is hardly an enviable position from which to defend itself. … Read more →

A Place for Death In Health Care

California Healthcare News first published this article on October 10, 2017.

A place for death in health care“Art is the tree of life.  Science is the tree of death.”  — William Blake

When President Obama signed the 2010 Patient Protection and Affordable Care Act into law on March 23, 2010, the word “death” appeared in the 903 pages of Public Law 111-148 a mere fifteen times. However, the concept of death plays an integral role in defining the institution of health care in the United States, often in the form of increased funding from or on behalf of a health care provider to forestall its inevitable arrival. At the same time, health care has an abundance of codified rules and regulations, and hospitals and providers must adhere to a stringent standard of care governing the provider-patient encounter.  Within this equation, death is a total wild card, and the inestimable stress it places upon our health care system remains completely unpredictable.

A Matter of Life and Death

If health care’s primary function is to challenge death, Medicare bears the brunt in this modern age, especially when it comes to crafting the rules that govern care for nearly one out of every five U.S. residents, not to mention the additional 22% of the population who receive benefits under state Medicaid programs. Between federal statutes, federal regulations, administrative decisions and Medicare’s online billing manual, it was likely easier to procure a second coin for a return trip with Charon back across the rivers Styx and Acheron than it is to actually understand the infrastructure within which the United States spent $646 billion for Medicare and $545 billion for Medicaid in 2015, the equivalent of 40% of the national health expenditures for that year. … Read more →

An Unhealthy Congressional Mess0

The Los Angeles Daily Journal first published this articleAn Unhealthy Congressional Mess, on July 27, 2017.

Wooden puppet with a headache
Wooden puppet with a headache

“Genius is finding the invisible link between things.” — Vladimir Nabokov

The scope of medical technology is continually evolving. In 1967, a South African surgeon removed the heart from a twenty-five-year-old female car-accident victim and placed it into the chest of a fifty-five-year-old male dying of heart disease.  The surgery was the first success of its kind, and the patient lived for an additional eighteen days. Ten years later at Columbia-Presbyterian Medical Center in New York City, a heart transplant recipient survived fourteen months after surgery. Seven years after that, Columbia surgeons performed the first successful pediatric heart transplant. Centuries in the making, this particular miracle of modern medicine today boasts 3,500 annual heart transplants world-wide who live an average of fifteen years longer thanks to earlier trials.

The successes of modern medicine are the product of painstaking research, unprecedented and sometimes unavoidable patience, and a bit of good fortune, but the innumerable losses of the past lie in the shadows of each monumental breakthrough. The national infrastructure within which this fantasy becomes reality, however, appears to exist in stark contrast to the very reason behind its purpose.  In many ways, the chaos inherent in the current process by which Congress attempts to alter the course of the Affordable Care Act (“ACA”), exacerbated by any presidential “inspirations” delivered in messages of 140 characters or less, has transformed the stark reality of today’s health care structure into something far more surreal than swapping hearts, at least to those limited few who actually understand the status of the ACA as the Republican controlled Congress attempts to unravel it. … Read more →

The Senator Will See You Now0

California Healthcare News first published this article “The Senator Will See You Now” on July 11, 2017.

The Senator Will See You Now“It occurred to me that my speech or my silence, indeed any action of mine, would be a mere futility.”  — Joseph Conrad

On May 4, 2017, the U.S. House of Representatives passed the American Health Care Act of 2017 (“AHCA”) by a picayune margin of just four votes. Commonly referred to as the most recent legislation designed to “repeal and replace” the 2010 Patient Protection and Affordable Care Act (the “ACA”), the Senatorial counterpart to the ACHA, known as the Better Care Reconciliation Act of 2017 (“BCRA”), today rests in the hands of 52 Republican, 46 Democratic and 2 Independent U.S. Senators, as the nation waits for word on the fate of the ACA and President Obama’s legacy in the spectrum of health care reform.

There should be no cause for alarm when it comes to the hospital institution, enveloped as it is by a veritable blanket of seasoned health care practitioners with access to a formidable armory replete with 21st century medicine that defies science fiction, including cutting-edge technology that may have finally surpassed the elusive tricorder.  As the average life expectancy in the United States hovers on the cusp of 79 years, due in part to the acceptance of mental health parity and near elimination of yellow fever, smallpox, malaria, measles and diphtheria, the nation should be proud of its health care system and supportive of the estimated 23% of the nation’s $7 trillion annual budget it consumes.Read more →

The House that Cried Wolf0

This article “The House that Cried Wolf” first appeared in the Daily Journal on May 10, 2017.

iStock_000009605208Medium“The hardest thing of all is to find a black cat in a dark room, especially if there is no cat.”  – Confucius

An Exercise in Futility?

When it comes to the Patient Protection and Affordable Care Act (the “ACA”), there is one thing on which both proponents and detractors can agree – this curious, far-reaching, highly controversial bill is a survivalist. Fraught with controversy and conflict from its inception, the bill found itself with a target on its back less than one full year after President Obama signed it into law, as the “Repealing the Job-Killing Health Care Law Act,” introduced in January 2011, passed the House of Representatives (the “House”) by a lopsided vote of 245-189. Four months later, a bill to repeal the ACA’s funding for health insurance exchanges passed the House by a similar margin of 55 votes. In 2012, the “Repeal of Obamacare Act” passed the house by a vote of 244-185, followed close behind by a 2013 bill of like-minded intent which passed the House by a vote of 299-195. Still another passed the House in 2015 by a vote of 239-186.  Whether threatened by death from subcommittee or senatorial action, Obamacare nonetheless persevered through these partisan attacks.

Throughout Obama’s tenure, numerous other attempts designed to retard or even sabotage various aspects of the ACA passed the House with flying colors, such as the 2014 bill suspending the Individual Mandate penalty. It was not until 2015, however, that both the House and Senate passed the “Restoring Americans’ Healthcare Freedom Reconciliation Act of 2015,” a bill vetoed by President Obama in early 2016.  Most recently, on May 4, 2017, the House passed the latest attempt to repeal and replace the ACA by a slim margin of four votes (217-213). Fueled by the nation’s enigmatic, 45th President and coming just six months after the Chicago Cubs won their first World series in 108 years, the “American Health Care Act of 2017” (“AHCA”) seems to have everyone’s attention, even if the actual contents of H.R. 1628 remain elusive at best to both experts and laymen alike.Read more →

A Time to Kill HIPAA1

This article “A Time to Kill HIPAA” first appeared in the Daily Journal on May 5, 2017.

iStock_000006020673Large“Sarcasm:  the last refuge of modest and chaste-souled people when the privacy of their soul is coarsely and intrusively invaded.” – Fyodor Mikhailovich Dostoevsky

Imagine a world in which a basic identification card contained a lifetime of medical information, immediately accessible during a routine physical or life-threatening emergency. The technology behind such seeming science fiction could heal a fragmented health care system, affording providers access to critical information in a timely manner to ensure the highest standard of care with maximum efficiency.  Only a few years ago, such inefficiencies inherent at the core of American health care provision resulted in as much as $226 billion in increased spending annually, yet salient health care information remained just out of a provider’s technical reach.

The greatest obstacle standing between American health care and the elusive, omnipotent digital medical record turns 21 this summer, the equivalent of a modern-day Methuselah in an industry defined by zeros and ones. Born the same year Google launched and the price of gasoline was $1.22 per gallon, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) sought to improve portability and continuity of health insurance coverage by, among other things, adopting standards for organizations to develop ways in which electronic health transactions could improve health care while also addressing the security of electronic health information systems. HIPAA’s privacy component debuted in 1999, followed by a series of modifications in 2002, as well as the addition of a security rule in 2003 and an enforcement rule addendum in 2006.  Changes in health care and technology during the first decade of HIPAA ultimately led to the 2009 Health Information Technology for Economic and Clinical Health (HITECH) Act, which specifically focused on the privacy and security concerns associated with electronic transmission of health information by strengthening the civil and criminal enforcement components within HIPAA.

Together, HIPAA and HITECH revolutionized the way health care providers (also known as “covered entities”) and the non-clinical entities with which they teamed (also known as “business associates”) shared and made available for use patient health information (PHI). With such broad definitions of “breach” and the resultant draconian punishments for noncompliance, HITECH sent the act of sharing health care information back in time in many ways, forcing providers to rely upon the United States Post Office to deliver highly personal, often time-sensitive, sometimes life or death information, while improvements were made to the infrastructures within which electronic and facsimile transmissions took place. Purportedly simplified in 2013 through even more regulatory modifications, modern day HIPAA regulation affords practically no room for error for those who utilize technology as a way to improve the delivery of health care in the United States. As it turns out, we have come to learn that health care is more about perseverance than perfection.Read more →

Intricacies of the Modern Health Care Behemoth0

California Healthcare News first published this article, Intricacies of the Modern Health Care Behemoth, on April  4, 2017.

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“For every complex problem there is an answer that is clear, simple and wrong.” – Henry Louis Mencken

Known by some as the 2010 Patient Protection and Affordable Care Act, others by the often sardonic alias “Obamacare,” and most recently highlighted through contentious “repeal and replace” rhetoric, health care reform has reemerged as a hot topic of discussion in households across the country. Those affected by this issue include anyone who (1) is currently sick or has been sick in the past, (2) has a friend or family member that is dealing or has dealt with an illness, or (3) is or knows someone who may one day receive that plastic bracelet bestowing the title of “hospital patient.” Basically, this refers to every American. And yet, so great is the divisiveness on how best to manage health care in the modern age, the Affordable Care Act (ACA) now finds itself in a paralytic state as advocates and critics tangle over the vast complexities at its core. The only commonality is the recognition that there is no simple solution.

Is Health Care Really So Complicated?

Complex by necessity, America’s current health care system may appear elaborate, ridiculous or even labyrinthine in turns, and changing even the smallest fraction involves delving deep into the belly of the beast. For example, Medicare disproportionate share hospital (DSH) adjustment provisions rely upon a statutory formula to calculate DSH patient percentage which is equal to the sum of the percentage of Medicare inpatient days attributable to patients eligible for both Medicare Part A and Supplemental Security Income (SSI), and the percentage of total inpatient days attributable to patients eligible for Medicaid by not Medicare Part A. With this in mind, even the health care layman is quick to realize that, in labeling DSH adjustments (DSH Patient Percent = (Medicare SSI Days / Total Medicare Days) + Medicaid, Non-Medicare Days / Total Patient Days), one is forced to learn the equivalent of a new language. … Read more →

Repealing the Affordable Care Act – What Could Possibly Go Wrong?0

California Healthcare News first published Repealing the Affordable Care Act — What Could Possibly Go Wrong? on January 9, 2017.

Repealing the Affordable Care Act What Could Possibly Go Wrong?“Necessity is not an established fact, but an interpretation.” – Friedrich Nietzsche

Evolution or Devolution?

In a constant state of flux, the American health care system has struggled to exist in the present since the introduction of Medicare in 1965.  Both in terms of medical care and its delivery, our nation’s health care system must continually evolve if it is to keep up with advances in science, technology and the treatment of disease, as well as the way we access these advances. As a result, each generation’s health care must balance providing that which has come to be expected with the need to expand coverage and modern methods of care.  As a nation, we depend upon those in highest office to monitor such changes, adding provisions where applicable and paring down what is no longer practical. Much of the divided nation fears that come January 20, 2017, Barack Obama’s legacy, the Affordable Care Act, may find itself vulnerable to a single stroke of the pen, potentially leaving millions of Americans without meaningful access to medical care. Others will celebrate as Donald John Trump accepts the role of 45th President of the United States. The only immediate certainty for modern American health care is that both sides will continue to argue whether the Affordable Care Act is a frivolous luxury or a social necessity. … Read more →

Health Care’s Adventures in Wonderland0

This article by Craig B. Garner[1] and Jessica Weizenbluth[2], Health Care’s Adventures in Wonderland: Provider Agreements for Electronic Records, was first published in February 2016 in California Health Law News.

iStock_000068974059_Large“Now, here, you see, it takes all the running you can do, to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that!”[3]

I.  INTRODUCTION

Y93.J1: Activity, piano playing[4]

Today’s health care provides its own spin on the word “complex,”[5] while at the same time forging possible paths to what may be “unwinnable” scenarios.[6] For the modern physician[7], the universe within which he or she exists requires updated definitions for words such as “complex” and “challenging,” especially as that “perfect storm”[8] also known as health care reform continues to age. Somewhere in between the 2015 Physician Quality Reporting System (“PQRS”)[9], the Physician Value Based Payment Modifying Policies (“VBP”)[10] and tenth revision of the International Statistical Classification of Diseases and Related Health Problems (also known as ICD-10),[11] physicians find themselves still struggling to adopt electronic health records (“EHR”) in practice.[12]

As technology continues to evolve, there remains a general landscape with which those in the health care field must familiarize themselves. Even from this challenging vantage point, providers still have opportunities to bolster their position and practice their craft as they continue down the digital path and adopt an EHR system for which the Federal Government established incentive payments.[13]Read more →

Killing HIPAA0

This article, Killing HIPAA, first appeared in California Healthcare News on February 8, 2016.

iStock_000012752406_Large“When truth is buried, it grows. It chokes. It gathers such an explosive force that on the day it bursts out, it blows up everything with it.” -Emile Zola

The issue of confidentiality when applied to modern American healthcare is fraught with differing objectives, creating myriad complications as the needs of each attempt to merge together in their search for common ground and compromise. To arrive at a sense of clarity, we must look to those exceptions that define the fundamental system of rules at the heart of our nation’s health care structure, as the conflicting areas to be found within shed light on the vulnerabilities of the concept as a whole. The demands of federal statutes aside, gray areas abound, since attorneys can breach the duty of confidentiality in response to threats against life or to prevent substantial bodily harm, physicians must answer to certain matters of public health before protecting the secrets of the patient, and spouses can freely tell all when it comes to the actions of their partner, even if the words between them remain protected. … Read more →

Health Care Unhinged0

This article, Health Care Unhinged, first appeared in California Healthcare News on November 3, 2015.

iStock_000054577884_Large“And though she’s not really ill | There’s a little yellow pill | She goes running for the shelter of a mother’s little helper | And it helps her on her way, gets her through her busy day.” — Sir Michael Philip Jagger and Keith Richards

To date, there exists no thermometer to measure vacillations in a person’s mental health, which is a good thing for febriphobics, and generally speaking, neither acetaminophen nor ibuprofen can cure mental illness, especially if the diagnosis is pharmacophobia. Unlike a fractured bone or sinus infection, ailments of the mind tend to be subjective and therefore more difficult to gauge. Just as a diagnosis of schizophrenia relies on a spectrum, psychotic examples range from hallucinations to speech impediments (even for glossophobics), and bipolar affective disorder by definition alternates between periods of elevated mood and depression. While the tenth revision of the medical classification system known as the International Statistical Classification of Diseases and Related Health Problems (ICD-10) contains more than 14,400 different physical health concerns, the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-V), still hovers around a paltry 300 disorders from which to choose.

We Know What We Do Not Know

The dearth of clearly identifiable mental disorders is a disheartening factor for the 3.1% of American adults who have presented with serious psychological distress within the past 30 days, or the 1.5 million hospital inpatients discharged with psychosis as the primary diagnosis, the average length of stay for whom was 7.2 days (and this not fast enough for those inpatients with nosocomephoia). Add to such dismal figures some 63.3 million visits to doctors (not including iatrophobics), as well as emergency departments or other outpatient clinics, and top off the numbers by including the 41,149 suicides that took place in 2013 (which equates to 13 deaths by suicide for every 100,000 people), one does not need a PsyD to identify a serious problem.Read more →

HIPAA: Society’s Modern Day Prohibition0

This article, HIPAA: Society’s Modern Day Prohibition, was first published in California Healthcare News on May 4, 2015.

HIPAA: Society’s Modern Day Prohibition
HIPAA: Society’s Modern Day Prohibition

Secrets, silent, stony sit in the dark palaces of both our hearts: secrets weary of their tyranny: tyrants willing to be dethroned.” – James Joyce, Ulysses

Codified in American Law through Article Three of the United States Constitution and evolving through changing times by way of the Sixth and Fourteenth Amendments, the right to trial by jury remains a sacrosanct keystone of our nation’s legal system. Even so, there exists a degree of delicacy with which the judicial system evaluates the facts of any given case, and all involved must remain mindful that at times pertinent information may not be available for consideration. Significant violations of judicial filtering may result in the end of deliberations, known more abrasively as a “mistrial.”

The judicial system understands all too well that information cannot be honestly disregarded or ignored once heard, and does its best to account for the imperfections of the human mind. To enforce the Constitutional tenets of trust and truth upon which the faith of a jury must rest, today’s health care providers find themselves held to a unique standard of scrutiny when dealing with issues of privacy.Read more →

Advancing Health Care The Old-Fashioned Way0

This article, Advancing Health Care the Old-Fashioned Way, was first published by Healthcare Innovation News on February 8, 2015.


Stethoscope and hourglass with book.“Nothing recedes like progress.”
— Edward Estlin (e.e.) Cummings

Though cutting-edge technology serves as the foundation for modern American healthcare, an accurate measure of progress must consider the occasional conflict between society and science. Even as yesterday’s medical miracles give way to what are now considered “state of the art” practices, it is the duty of health care providers to remain mindful of both sides of the equation, balancing the capabilities of today’s technologies with the needs of today’s patient. If society and science are not in sync, patient care will suffer, and sometimes we can only advance healthcare through old-fashioned methods. For example, radiology information systems (RIS) and picture archiving and communication systems (PACS) collaborate to deliver dynamic and brilliant medical images to any healthcare provider around the globe with access to a desktop computer or mobile device. And yet, if these technologically advanced tools of the trade fail to employ the appropriate methods of encryption as they transmit digital health information to a doctor’s iPad as he or she vacations on the island of Tristan da Cunha, or worse, send this sensitive information to the hard drive of any one of the island’s 297 permanent residents living in the recesses of the Atlantic Ocean, a data breach occurs. This is no small matter for the hospital of today, and could easily result in a series of fines that could force the shutting of its doors for a single infraction.

Read more →

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 →

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.