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-19, first 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.6 … Read more →

Administrative, Children's Health, Clinical, Community, Health Care Law, Health Care Reform, Historical, Hospitals, News, Non Clinical, Regulatory, Technology

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 →

Administrative, Clinical, Health Care Law, Health Care Reform, Historical, Hospitals, News, Non Clinical, Regulatory, Technology

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 →

Administrative, Clinical, Community, Health Care Law, Health Care Reform, Historical, Hospitals, Lost Hospital, News, Non Clinical, Regulatory, Technology, Uncategorized

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 →

Administrative, Clinical, Community, Health Care Law, Health Care Reform, Historical, Hospitals, News, Non Clinical, Regulatory

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 →

Administrative, Clinical, Community, Health Care Law, Health Care Reform, Historical, Hospitals, Lost Hospital, News, Non Clinical, Regulatory, Technology

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 →

Administrative, Clinical, Health Care Law, Health Care Reform, Historical, Hospitals, Non Clinical, Regulatory

An Unhealthy Congressional Mess0

The Los Angeles Daily Journal first published this article, An 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 →

Administrative, Clinical, Community, Health Care Law, Health Care Reform, Hospitals, News, Non Clinical, Regulatory

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 →

Administrative, Clinical, Health Care Law, Health Care Reform, Historical, Hospitals, Miscellaneous, News, Non Clinical, Regulatory, Technology

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 →

Clinical, Community, Health Care Law, Health Care Reform, Historical, Hospitals, Lawyers, News, Non Clinical, Regulatory, Technology

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 →

Administrative, Clinical, Community, Health Care Law, Health Care Reform, Lawyers, Miscellaneous, News, Non Clinical, Regulatory, Technology

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