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.

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“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 →

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 →