Category Archives: health law

IPAB comes with a pause button. Let’s discuss.

by Adrianna McIntyre

You might have missed it in the noise about Oregon, but HHS has hit “pause” on the controversial Independent Payment Advisory Board (IPAB, in the jargon). Politics aside, is the IPAB good policy?

Dependent on Medicare spending, the board (15 health care experts who would be appointed by the President) is responsible for submitting proposals to reduce program expenditures. There are limitations to what the board can do: they’re forbidden from rationing health care by restricting benefits, changing eligibility, or increasing cost-sharing.  Congress would have a chance to match proposed reductions in a different way—but if they failed to offer a viable alternative, IPAB reductions would go into effect.

But not yet. As Sarah Kliff reports:

This isn’t due to any great success of IPAB opponents. It’s a relatively straightforward provision of the law … The IPAB would only come into effect when Medicare’s per-enrollee spending grew faster than the average of overall price growth (measured by the Consumer Price Index) and medical price growth …

The law also set a deadline: By April 30, 2013, Medicare’s chief actuary would need to determine whether the entitlement program would hit that trigger point. And, a few days ago, acting chief actuary Paul Spitalnic made his determination: Medicare cost growth would not be high enough to call the IPAB into action.

This actually gives us extra time to discuss something worthwhile: is the IPAB an effective tool? I could give you the more common “good” and “evil” arguments, but those are shallow. Whether it’s likely to be effective policy is trickier, and far more important.

Valid concerns have been raised about the Administration’s ability to staff the board, but I consider that tangential to the broader policy question. This alternative debate—whether the IPAB is sound policy—really traces back to the root of most health policy problems: incentives. According to the statute, the board must offer recommendations that “will result in a net reduction in total Medicare program spending in the implementation year that is at least equal to the applicable savings target [for that year]” (emphasis added).

Spot the problem?

The Affordable Care Act imbues the IPAB with considerable power—so long as they’re acting within the context of annual spending targets. In this way, the board functions almost like a second sustainable growth rate, though one that’s insulated from political pressures to which Congress has proven vulnerable, year after year. This creates an incentive for the board to prioritize quick-fix cost adjustments over the kind of systemic reform that holds real promise, but takes longer to generate savings. The IPAB is instructed to recommend such efforts, but their authority to act is exclusively short-term—which I fear may render the board’s proposals short-sighted, to the detriment of the Medicare program.

To be entirely fair, the Center for Medicare and Medicaid Innovation does have serious potential to pick up slack in the domain of long-term, systemic reform (that’s CMMI’s entire purpose, after all). Perhaps that is enough that IPAB could bring providers to the bargaining table. As Nicholas Bagley writes:

About the best that can be said about IPAB is that steadily mounting cuts to Medicare could bring providers to the negotiating table. This has been a consistent pattern in Medicare reform: legislative threats followed by negotiation … IPAB proposals may put pressure on provider groups to accept Medicare reforms that they might otherwise have successfully resisted.

For better or worse, the IPAB is the policy we have, assuming Medicare rates rise in the future (forecast: likely). It may not be game-changing reform—not in the way controversy might lead you to believe—but it’s surely better than nothing, and it remains one of the most powerful cost-containment measures in the Affordable Care Act. Whenever the IPAB is implemented, it’s important to understand what it is, is not (see also: ‘death panel‘), and limitations the board will face, even if it functions perfectly.

 

In related news, Dan Diamond is a local prophet. From the long SCOTUS wait in June:

 

Further reading, for the hyperwonks: 

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Adrianna works in clinical research and is a graduate student in public policy & public health at the University of Michigan. Follow her on Twitter @onceuponA.

Health reform’s “latest” legal challenge

by Adrianna McIntyre

There’s fresh buzz in the headlines about the latest legal challenge to the Affordable Care Act—except this challenge actually isn’t actually all that new; Oklahoma filed a similar suit awhile ago, and opponents of the ACA have been making noise about challenging on these grounds for the last year. However, these are new plaintiffs.  Sam Baker summarizes the argument nicely

The latest challenge accuses the IRS of illegally implementing subsidies to help people buy private insurance. And because the administration is giving out too many subsidies, the plaintiffs argue, it is also forcing too many employers to provide insurance even in states. [...]

And that’s the catch — the law specifically refers to subsidies flowing through exchanges “established by the state.” The law’s critics say subsidies should therefore only be available in state-run exchanges — not in the federal version.

“The IRS rule we are challenging is at war with the act’s plain language and completely rewrites the deal that Congress made with the states on running these insurance exchanges,” Carvin said.

If you’re interested in diving into the weeds, I did a lengthy write-up of how the challenge works a few months ago. It’s a little heavy on the legalese and wonkery, so consider yourself warned.

Is this something for supporters of the ACA to be seriously worried about? That seems to depend on who you ask. I’ve talked to multiple professors and colleagues—all of whose opinions I respect immensely—and have received mixed responses. I’m definitely keeping an eye on it, and will blog accordingly.

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Adrianna works in clinical research and is a graduate student in public policy & public health at the University of Michigan. Follow her on Twitter @onceuponA.

What does HIPAA have to do with gun control? Maybe more than you think.

by Adrianna McIntyre

I have a four-hour health law exam in six days, so naturally I’m blogging about some legal quirk I absolutely won’t be tested on.

There aren’t many who would quibble with an argument that those with severe mental illness—specifically, individuals “who have been involuntarily committed to a mental institution, found incompetent to stand trial or not guilty by reason of insanity or otherwise have been [legally judged] to have a severe mental condition that results in the individuals presenting a danger to themselves or others“—should not be able to purchase firearms. Right? Right.

Making that law isn’t actually the trouble (expanding background checks is, of course, a different story). It’s already law, and has been on the books for awhile. The trouble is enforcing it.

The federal government maintains the National Instant Criminal Background Check System (NICS), a database of people who are federally prohibited from purchasing guns, including felons, people convicted of domestic violence, and individuals who meet the extreme mental illness criteria above. Except:

Federal law does not require State agencies to report to the NICS the identities of individuals who are prohibited by Federal law from purchasing firearms, and not all states report complete information to the NICS.  

To recap: We have federal criteria that prohibits certain individuals from buying firearms. The feds maintain a database of known individuals for background checks (which take 30 seconds, per the regulation). But states aren’t required to offer the names of “prohibitors” to the database.

gao-nics

What does it mean when states aren’t compelled to disclose this information? Among other things, 17 states submitted fewer than ten records each for individuals who would be prohibited on mental health grounds. What’s more, just 12 states make up the overwhelming bulk of submitted mental health prohibitors. The GAO was kind enough to give us a graph to that effect—those 12 super compliant states make up the dark blue sections of the graph; the slivers of light blue represent the other 38 states and five U.S. territories. Unfortunately, the report doesn’t actually identify the highest- or lowest-performing states—if any of you readers manage to sleuth it out, let me know. (Update: via a reader, this interactive map from the Seattle Times offers a snapshot of mental health reporting laws by state.

What’s the problem here? In a word, it could be HIPAA.

HIPAA is federal law that’s… well, it’s complicated, and I have notes from class to prove it. But in part, it creates federal protections for “protected health information,” so health providers can’t disclose that information without your consent. There is an exception that should permit disclosure for the purpose of gun safety, though (emphasis added):

The Privacy Rule seeks to balance individuals’ privacy interests with important public policy goals including public health and safety. In doing so, the Privacy Rule allows, subject to certain conditions and limitations, disclosures of protected health information without individuals’ authorization for certain law enforcement purposes, to avert a serious threat to health or safety, and where required by State or other law, among other purposes. 

Still, the privacy rule seems to create a barrier in establishing a lines of communication between NICS and “HIPAA-covered entities” (e.g., physicians, hospitals, mental health centers) who might fear legal repercussions for disclosing that information, considering the somewhat broad language of the exception. The Obama Administration is working on a solution to this problem; last Friday they issued an advance notice of proposed rulemaking, which is a fancy legalese way of saying that they’re looking for public input and recommendations to work out the kinks before writing the regulation. If successful, HHS might create an express permission within HIPAA for reporting relevant information to the federal database. Importantly, (emphasis added):

The information maintained by the NICS typically is limited to the names of ineligible individuals and certain other identifying information, such as their dates of birth, as well as codes for the submitting entity and the prohibited category that applies to the individual. Other than demographic information about the individual, only the fact that the individual is subject to the mental health prohibitor is submitted to the NICS; underlying diagnoses, treatment records, and other identifiable health information is not provided to or maintained by the NICS. 

There are concerns that this might discourage care-seeking behavior for those who suffer from from mental health conditions—and this regulation isn’t about your average Xanax user. The proposed regulation has a set of specific questions at the end for public input; how to correct for “unintended adverse consequences for individuals seeking needed mental health services” is among them.

This is a far cry from a silver bullet in gun control reform, but it’s a development worth watching. It’s one way to strengthen background checks—which enjoy insanely popular support from the public—within the context of current law and without facing the intransigence of Congress. It also spotlights the intersection of mental health and gun violence, which deserves far more conversation than it currently receives.

Check out the advance notice of proposed rulemaking (the source of all blockquotes above) here, and additional coverage here and here.

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Adrianna works in clinical research and is a graduate student in public policy & public health at the University of Michigan. Follow her on Twitter @onceuponA.

Wellness Programs Aren’t Working. Let’s Change That.

by Mike Miesen -

You’d be forgiven if, after reading last month’s Health Affairs, you came to the conclusion that all manner of wellness programs simply will not work; in it, a spate of articles documented myriad failures to make patients healthier, save money, or both.

Which is a shame, because – let’s face it – we need wellness programs to work and, in theory, they should. So I’d rather we figure out how to make wellness work. It seems that a combination of behavioral economics, technology, and networking theory provide a framework for creating, implementing, and sustaining programs to do just that.

Let’s define what we’re talking about. “Wellness program” is an umbrella term for a wide variety of initiatives – from paying for smoking cessation, to smartphone apps to track how much you walk or how well you comply with your plan of care, and everything in between. The term is almost too broad to be useful, but let’s go with it for now.

When we say “Wellness programs don’t work,” the word work does a lot of, well, work. If a wellness program makes people healthier but doesn’t save lives, is it “working”? What if it saves money but doesn’t make people healthier?

To be thorough and appropriately critical, let’s go with the following definition:  a wellness program “works” if it improves the health of a population and reduces health care costs for that population. Full stop.

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Hide-and-Seek Cigarettes: Mayor Bloomberg’s Newest Anti-Smoking Measure

by Mike Miesen -

You have to give the man points for persistence.

On Monday, New York City Mayor Michael Bloomberg announced a proposal that would keep cigarettes and other tobacco products out of sight and, ideally, out of mind. It comes on the heels of a New York State Supreme Court judge’s admonishment and denunciation of Bloomberg’s well-publicized and passion-inducing soda ban.

The new plan would force bodegas, delis, and other sellers of cigarettes to hide them from view—though stores would still be allowed to advertise the sale of cigarettes and their prices. The justification for the proposal is to two-fold: first, as Bloomberg put it, to “…help reduce impulse purchases, and if it does, it will literally save lives;” second, to prevent children and young adults from becoming addicted to nicotine in the first place.

Tellingly, it seems that Bloomberg has learned his lesson from the soda ban cacophony. One of the issues with the soda ban was that, as Judge Milton Tingling argued, the authority to “limit or ban a legal item under the guise of ‘controlling chronic disease” fell to the City Council. Bloomberg went through the New York City Board of Health for the soda ban; for the cigarette proposal, he’s working through City Council.

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