Through indirection find direction out? With apologies to William Shakespeare, the U.S. Court of Appeals for the11th Circuit and D.C. circuit say: NO, not this time.
In Jennifer D. Alley, Real Time Medical Data, LLC v. U.S. Dept. of Health and Human Services, issued Dec. 18, 2009, the Court held that plaintiffs Alley & Real Time Data cannot obtain certain Medicare data for procedures performed in Florida, Georgia, Mississippi and Tennessee by AMA physicians and for all Florida physicians (the certified class). Specifically, Medicare Part B raw claims data that could easily be matched to a particular physician and then aggregated to calculate the total annual Medicare payment by physician cannot be disclosed to Alley. Alley had sought the information through filing a federal Freedom of Information Request (FOIA).
The reason? Because the Florida District Court in 1979 issued a permanent injunction in Florida Medical Assn. v. Dept. of Health Education & Welfare, prohibiting DHHS (then HEW) from disclosing “any list of annual Medicare reimbursements…for any years, which would personally and individually identify those providers of services …. Any such disclosure of annual Medicare reimbursement amounts, for any years, in a manner that would personally and individually identify the providers….is contrary to federal law.” (quoted in Alley)
Judge Carnes in a well-authored opinion (for those of you, like me, who care about good writing) enjoys the irony of hearing argument that sounds much like the health policy arguments heard in the mid-1970s. His second sentence reads: “The present national debate over health care rhymes a lot with one that took place three decades ago.” But whether it’s still good policy or not, Judge Carnes holds that plaintiffs cannot collaterally attack the 1979 injunction by arguing it does not apply to the data sought or the context has shifted in favor of disclosure or the reimbursement methodology has changed. Rather, if plaintiffs believe the injunction is no longer valid, their recourse is to go back to the court where the injunction issued and challenge it there.
In a footnote, the 11th Circuit references a recent 2009, United States of Court of Appeals D.C. Circuit, decision: Consumers’ Checkbook, Center For Study of Services. v. U.S. Department of Health and Human Services. The lower court’s holding in this case was discussed in this blog in 2008 (Consumers' Checkbook v HHS Update). In the 11th Circuit footnote (No.9), the court observes that in a factually similar case, the D.C. Circuit has held that FOIA exemption 6 permits DHHS to not disclose the requested Medicare data. FOIA exemption 6 protects from disclosure government agency files that constitute “a clearly unwarranted invasion of personal privacy.”
What we have then are two cases: one that upholds a 1979 injunction which enjoins DHHS from providing Medicare data that can be manipulated to identify annual reimbursements to individual physicians and other providers but which injunction reaches only the certified class of providers (identified above); and a second case that holds that providing similar Medicare data that can be tied to individual providers is protected from disclosure by a FOIA exemption. Thus, data elements which might indirectly seem disclosable are not if they lead to a resulting disclosure which invades personal privacy. We will see what changes health insurance reform brings, if any.
Wednesday, October 27, 2010
Saga of Health Care
As the Congress struggled to enact Health Care Reform legislation, the process we witnessed requires some explanation because it was, in many ways, a historical lesson in legislative procedure.
First, we saw the U.S. House of Representatives whip itself into shape so that all committees of jurisdiction (the House Ways and Means, Energy and Commerce and Labor, Health and Human Services subcommittee of the Appropriations Committee) and the House leadership were on the same page. They did this without any support from the minority (Republican) party. In the House, a simple majority (218 votes) is needed to pass legislation and with 250 Democrats passing their version of the Health Care Reform legislation was completed by summer of 2009. The bill would have offered health care insurance coverage to all through a government plan; eliminated insurance denials for pre-existing conditions; required everyone and every employer to have health care coverage; reworked Medicare savings and taxes to pay for the coverage; and developed new health care information technology (IT) and workforce programs.
Enter the U. S. Senate, where in order to pass legislation (except for budget reconciliation), it is required that there be enough votes to shut off debate (i.e. prevent a filibuster); therefore the Democrats needed 60 votes for the bill to bring it up for a vote and avoid a filibuster. In the fall of 2009, the Senate began an effort to develop and pass its version of Health Care Reform and did not complete action until Christmas Eve of that year.
As passed, the Senate bill did not contain a government plan, (it had a private plan to cover those not insured), but did have a requirement for individuals and companies to purchase health insurance; a provision eliminating insurance coverage denials for pre-existing conditions; and, contained several Medicare and tax provisions to cover the cost of the program. Among those Medicare provisions were a "Productivity Adjustment" for laboratory services and a Laboratory Fee Schedule reduction of 1.75%.
First, we saw the U.S. House of Representatives whip itself into shape so that all committees of jurisdiction (the House Ways and Means, Energy and Commerce and Labor, Health and Human Services subcommittee of the Appropriations Committee) and the House leadership were on the same page. They did this without any support from the minority (Republican) party. In the House, a simple majority (218 votes) is needed to pass legislation and with 250 Democrats passing their version of the Health Care Reform legislation was completed by summer of 2009. The bill would have offered health care insurance coverage to all through a government plan; eliminated insurance denials for pre-existing conditions; required everyone and every employer to have health care coverage; reworked Medicare savings and taxes to pay for the coverage; and developed new health care information technology (IT) and workforce programs.
Enter the U. S. Senate, where in order to pass legislation (except for budget reconciliation), it is required that there be enough votes to shut off debate (i.e. prevent a filibuster); therefore the Democrats needed 60 votes for the bill to bring it up for a vote and avoid a filibuster. In the fall of 2009, the Senate began an effort to develop and pass its version of Health Care Reform and did not complete action until Christmas Eve of that year.
As passed, the Senate bill did not contain a government plan, (it had a private plan to cover those not insured), but did have a requirement for individuals and companies to purchase health insurance; a provision eliminating insurance coverage denials for pre-existing conditions; and, contained several Medicare and tax provisions to cover the cost of the program. Among those Medicare provisions were a "Productivity Adjustment" for laboratory services and a Laboratory Fee Schedule reduction of 1.75%.
Queensland Health payroll saga raises taxing issues
THOUSANDS of Queensland Health staff could be short-changed again next financial year as fears grow the payroll crisis won't be fixed by July 1.
Tax experts say arrears paid after June 30 could push staff into new tax brackets, and force thousands to pay the Medicare levy for the first time.
Some union officials say they have lost hope that the millions of dollars owed to tens of thousands of Queensland Health workers will be paid by the end of this financial year.
Superannuation and overpayments are also tied up in the debacle.
Premier Anna Bligh and Health Minister Paul Lucas have repeatedly assured workers they wanted and expected the problem to be fixed by the financial deadline.
The pay crisis will move into its fifth cycle next Wednesday, with more problems expected.
Australian Services Union secretary Julie Bignell said payroll staff still had to check 40,000 anomalies, sifting through them for errors.
"Given that, I can't see how everything could be possibly fixed by July 1," Ms Bignell said.
She said corrections by July 1 were particularly concerning for workers who had been overpaid, because they were worried about being taxed too much this year.
Electrical Trades Union organizer Scott Reichman said he wouldn't pass on any promises to his workers about pay relief in the new financial year.
Tax specialist Mohan Satyanarayanan said back pay paid to workers in the 2010-11 financial year could push some workers into a new tax bracket.
He said it could also mean workers being slugged hundreds of dollars for a Medicare levy if the arrears pushed their income over the threshold of $73,000.
But tax expert Danielle Watson of Accounting Affairs at Clay field said arrears earned in a previous financial year could be taxed confessionally, with the onus on the employer.
Queensland Nurses Union secretary Gay Hawksworth said nurses were desperate for their group certificates to be correct.
"That includes superannuation," she said. "They don't want to be messed around. If things won't be fixed by July 1, I hope we are told soon so nurses know what to expect."
Ms Bligh said staff were working "double time" to ensure entitlements were paid by the new financial year.
Tax experts say arrears paid after June 30 could push staff into new tax brackets, and force thousands to pay the Medicare levy for the first time.
Some union officials say they have lost hope that the millions of dollars owed to tens of thousands of Queensland Health workers will be paid by the end of this financial year.
Superannuation and overpayments are also tied up in the debacle.
Premier Anna Bligh and Health Minister Paul Lucas have repeatedly assured workers they wanted and expected the problem to be fixed by the financial deadline.
The pay crisis will move into its fifth cycle next Wednesday, with more problems expected.
Australian Services Union secretary Julie Bignell said payroll staff still had to check 40,000 anomalies, sifting through them for errors.
"Given that, I can't see how everything could be possibly fixed by July 1," Ms Bignell said.
She said corrections by July 1 were particularly concerning for workers who had been overpaid, because they were worried about being taxed too much this year.
Electrical Trades Union organizer Scott Reichman said he wouldn't pass on any promises to his workers about pay relief in the new financial year.
Tax specialist Mohan Satyanarayanan said back pay paid to workers in the 2010-11 financial year could push some workers into a new tax bracket.
He said it could also mean workers being slugged hundreds of dollars for a Medicare levy if the arrears pushed their income over the threshold of $73,000.
But tax expert Danielle Watson of Accounting Affairs at Clay field said arrears earned in a previous financial year could be taxed confessionally, with the onus on the employer.
Queensland Nurses Union secretary Gay Hawksworth said nurses were desperate for their group certificates to be correct.
"That includes superannuation," she said. "They don't want to be messed around. If things won't be fixed by July 1, I hope we are told soon so nurses know what to expect."
Ms Bligh said staff were working "double time" to ensure entitlements were paid by the new financial year.
The Continuing Shingles Saga & The Absence Of A Medical Home
Regular readers of Better Health will recall my personal frustration that my mother-in-law received 2 months of physical therapy, a head CT, and extensive blood testing in response to a shingles outbreak that I was able to diagnose easily over the phone. The misdiagnosis that resulted in chronic post-herpetic neuralgia and a $10,000 waste of resources, has continued to vex me. After Mrs. Zlotkus and I realized what was going on, I outlined for her the usual treatment regimen for shingles pain – explaining that most people needed a fairly high dose of the nerve pain medicine before they experience any relief at all, and to make sure her doctor gave her an adequate dose before deciding whether or not it worked.
And you can guess what happened next.
Mrs. Zlotkus was seen by a young and inexperienced neurologist who insisted on giving her a very tiny dose of the nerve medicine (it has an excellent safety profile even at very high doses). Of course, it didn’t help. She was given 100mg twice a day (where shingles sufferers often need as much as 1800mg/day) with instructions to return in a few weeks. The doctor also told her that she “couldn’t be sure the pain was due to shingles since she hadn’t seen the original rash.”
That’s like an ER physician saying to a trauma victim that they can’t be sure of the cause of the injuries because they didn’t witness the car accident.
At that point I instructed her to find an experienced pain management specialist who’d know how to titrate her medication appropriately – and who might even be able to do a nerve block to get her some immediate pain relief.
Luckily, Mrs. Zlotkus “knew somebody who knew somebody” and was able to make an appointment the next day with a senior anesthesiologist experienced in nerve blocks. The pain management physician knew just what to do, administered the nerve block, increased her medication dose, and sent her on her way. She experienced immediate relief of her symptoms and felt like a new woman.
If Mrs. Zlotkus had gone directly to the anesthesiologist in the first place, she might have saved herself months of agony and a $10,000+ bill to Medicare. (Better yet she would have gone to her PCP when she first noticed scabs on her scalp and he would have prescribed an anti-viral medicine that could have aborted the entire pain syndrome.) But how was she to know which provider was right for her? How could she know that her neurologist was prescribing her the wrong dose of pain medication, and that a nerve block might solve all of this nicely. Without the correct diagnosis, a cascade of wasted resources and personal suffering ensued. Without me nudging her in the right treatment direction – perhaps she’d still be doing neck stretching exercises in physical therapy?
I am a fan of the “medical home” concept as described by the AAFP and wonder if it could have made a difference in Mrs. Zlotkus’ care:
And you can guess what happened next.
Mrs. Zlotkus was seen by a young and inexperienced neurologist who insisted on giving her a very tiny dose of the nerve medicine (it has an excellent safety profile even at very high doses). Of course, it didn’t help. She was given 100mg twice a day (where shingles sufferers often need as much as 1800mg/day) with instructions to return in a few weeks. The doctor also told her that she “couldn’t be sure the pain was due to shingles since she hadn’t seen the original rash.”
That’s like an ER physician saying to a trauma victim that they can’t be sure of the cause of the injuries because they didn’t witness the car accident.
At that point I instructed her to find an experienced pain management specialist who’d know how to titrate her medication appropriately – and who might even be able to do a nerve block to get her some immediate pain relief.
Luckily, Mrs. Zlotkus “knew somebody who knew somebody” and was able to make an appointment the next day with a senior anesthesiologist experienced in nerve blocks. The pain management physician knew just what to do, administered the nerve block, increased her medication dose, and sent her on her way. She experienced immediate relief of her symptoms and felt like a new woman.
If Mrs. Zlotkus had gone directly to the anesthesiologist in the first place, she might have saved herself months of agony and a $10,000+ bill to Medicare. (Better yet she would have gone to her PCP when she first noticed scabs on her scalp and he would have prescribed an anti-viral medicine that could have aborted the entire pain syndrome.) But how was she to know which provider was right for her? How could she know that her neurologist was prescribing her the wrong dose of pain medication, and that a nerve block might solve all of this nicely. Without the correct diagnosis, a cascade of wasted resources and personal suffering ensued. Without me nudging her in the right treatment direction – perhaps she’d still be doing neck stretching exercises in physical therapy?
I am a fan of the “medical home” concept as described by the AAFP and wonder if it could have made a difference in Mrs. Zlotkus’ care:
“In this new model, the traditional doctor’s office is transformed into the central point for Americans to organize and coordinate their health care, based on their needs and priorities. At its core is an ongoing partnership between each person and a specially trained primary care physician. This new model provides modern conveniences, like e-mail communication and same-day appointments; quality ratings and pricing information; and secure online tools to help consumers manage their health information, review the latest medical findings and make informed decisions.
Consumers receive reminders about necessary appointments and screenings, as well as other support to help them and their families manage chronic conditions such as diabetes or heart disease. The primary care physician helps each person assemble a team when he or she needs specialists and other health care providers such as nutritionists and physical trainers. The consumer decides who is on his or her team, and the primary care physician makes sure they are working together to meet all of the patient’s needs in an integrated, ‘whole person’ fashion.”
In summary, there’s a lot of waste in our medical system caused by a lack of coordination of care, hasty diagnoses, and defensive medicine. Even the most common diagnoses (like shingles) can end up setting off a chain reaction of over testing, incorrect treatment and personal suffering. We need an “OnStar” system for healthcare – a way to help patients navigate their way to the right care at the right time. The medical home model is as good a GPS system as any… so long as the primary care physician at the center of the coordination of care is not so rushed that she can’t do her job properly. And that’s the secret to making the medical home work – giving the doctor enough time to unravel the problems at hand and figure out the best next steps in care. If we get this right, we can probably say goodbye to CT scans for shingles.
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