Supporting (Opposing) Patient-Centered Outcomes

On July 17, the Republican-controlled House Appropriations Committee posted online the proposed, fiscal year 2013 spending bill for the Departments of Labor, Health and Human Services, Education and related agencies.

This bill would end health care research in the following areas:

• The bill ends all funding for the Agency for Healthcare Research and Quality (Sec. 227).
• The bill prohibits any appropriated funds from being used for patient-centered outcomes research (Sec. 217).
• The bill prohibits funds appropriated for the National Institutions of Health (Title II, page 57, lines 20-24) from being used for any economic research.

The second one is strange, because "patient-centered" is a phrase developed in focus groups by Republican pollster Frank Luntz to describe Republican health care policies. For some examples of Republican comments using the phrase following the Supreme Court's decision on the Affordable Care Act, see David Weigel's blog posting on Slate on July 2.

And I found these other more recent examples on Twitter:

• Americans for Prosperity: "RT if you reject the government takeover of #healthcare & want real, patient-centered reform!" (7/20/12)
• George Allen: "I want to be the deciding vote to repeal this health care law & replace it with patient-centered reforms for more affordable health care." (7/16/12)
• Sarah Palin (via Kim Moons): "Our vision is of an America where health care is affordable, it's patient centered, and it's market driven."

So Republicans are in favor of patient-centered care, but are not interested in spending money for any research into what would be effective patient-centered care?

Even more confusing is that patient-centered care is an important part of the Affordable Care Act that Republicans want to repeal.  The phrase "patient-centered" (or "patient-centeredness") appears 15 times in the ACA, not counting the headings of titles, sections, and subsections, and not counting references to the "Patient-Centered Outcomes Research Institute" or the "Patient-Centered Outcomes Research Trust Fund."

One of the main ways that the ACA is supposed to hold down Medicare costs is through "accountable care organizations" (ACOs) and one of the requirements of an ACO is that it meet patient-centeredness criteria to be established by the Secretary of Health & Human Services.  (Sec. 3022)  And one of the ways that the ACA is supposed to hold down Medicaid costs is through supporting the creation of "patient-centered medical homes."  (Sec. 3502)

But Republicans want to repeal the whole ACA, including its provisions for patient-centered care, in order to enact patient-centered care, and meanwhile are working to block any research into developing models or techniques for patient-centered care.

This is terribly schizophrenic.  There are either conflicts and disagreements within the Republican party, or the whole Republican "patient-centered" talking point is just a smoke screen for repealing the ACA without offering anything in its place.

My vote is the latter.

Why Health Care Reform Won't Be Repealed

Even if Republicans were to get majorities in both houses of Congress, there really is no likelihood of health care reform being repealed, because repeal won't have full Republican support, despite what Republican may be claiming in their "Pledge to America."

Republicans are claiming to support, and re-enact, all the things that people like. Specifically:

We will make it illegal for an insurance company to deny coverage to someone with prior coverage on the basis of a pre-existing condition, eliminate annual and lifetime spending caps, and prevent insurers from dropping your coverage just because you get sick.

Of course, the Patient Protection and Affordable Care Act of 2010 already does all those things, and those are the parts of the act that people like and support. What the Republicans want to get rid of are what are referred to as the "burdensome mandates," such as the requirement that all but the smallest businesses provide health insurance for employees, and the "individual mandate" that requires individuals not covered by employer-provided insurance to get health insurance or pay a special tax.

The reason that Republicans won't be able to repeal those parts of the act is that those are the parts of the act that the insurance industry likes. Requiring insurers to provide insurance to sick people without requiring healthy people to buy insurance is a prescription for economic disaster, because there would be nothing to stop healthy people from dropping their coverage until after they get sick. So insurers would have to provide the same (or greater) levels of benefits while the number of insureds shrinks, which would cause premiums to skyrocket.

And Republicans know this, which is why the "Pledge" is so specific about the parts of the act that they would want to keep and so vague about exactly what would be repealed. They know that, if they come right out and say that they are going to repeal the employer and individual mandates, they will be (or at least should be) ridiculed for proposing a completely unworkable system.

So if the Republicans actually try to repeal health care reform with actual legislation, they will be caught between a rock and a hard place. If they repeal the entire health care reform act without providing patient protection they will anger voters, but if they repeal the employer and individual mandates and leave the patient protections in place they will anger (if not bankrupt) some of the biggest contributors.

So it's pretty safe to say that there's going to be lots of rhetoric, but not much actual repeal.

Overreaching by the Pennsylvania AG

The Attorney General of Pennsylvania, Thomas Corbett, is now running for governor, and it will be interesting to see what will happen to Pennsylvania's role in the lawsuit Corbett joined in seeking to have the new health care reform law ("The Patient Protection and Affordable Care Act," H.R. 3590, P.L. 111-148) declared unconstitutional. Corbett was able to join in the lawsuit even though the governor of Pennsylvania, Edward Rendell, is a Democrat who actively supported passage of the health care bill, because the AG of Pennsylvania is an elected office that is largely independent of the governor. So, somewhat ironically, Corbett will be unable to continue to support the lawsuit if he is elected governor, because the next AG will be able to decide whether to proceed.

And Corbett never should have joined in the lawsuit, because it was outside of his powers as AG. If the lawsuit were just challenging the parts of the act that affect state government operations and revenues (mainly the provisions expanding Medicaid, which is a program created by federal law but only partially funded by the federal government), it would have been within his powers to represent the interests of the state, but the lawsuit also challenges the provisions requiring individuals to purchase health insurance (the "individual mandate"), and that is not within the powers of the AG.

The complaint that was filed says that the Attorneys General who are the plaintiffs seek "to protect the individual freedom, public health, and welfare of their citizens and residents" and specifically asks the court to order the federal government not to enforce the act against both the states represented by the AGs and the citizens and residents of those states.

But who gave the Attorney General of Pennsylvania the right to "protect" the individual interests of citizens and the right to represent their individual interests in court? And what if I (or other citizens) don't want the AG representing me in this lawsuit?

There is an allegation in the complaint that the Florida AG has "broad statutory and common law authority to protect the rights of the State of Florida and its people." There is no similar allegation regarding the powers of the Pennsylvania AG, and I don't believe that AG Corbett has the legal power to represent the people of Pennsylvania (i.e., the individual citizens of Pennsylvania separate from the government of Pennsylvania) in this lawsuit.

Section 4.1 of the Pennsylvania Constitution creates the office of Attorney General and declares that the AG " the chief law officer of the Commonwealth and shall exercise such powers and perform such duties as may be imposed by law." The law that seems most relevant is section 204 of the Commonwealth Attorneys Act, Act of October 15, 1980, P.L. 950, 71 P.S. §732-204, which states in subsection (c) that the AG shall represent "the Commonwealth and all Commonwealth agencies" in civil litigation. There is also the power to represent the Commonwealth and its citizens in federal antitrust litigation, but there is no general power to represent the citizens of Pennsylvania in any other kind of civil litigation. (On the inability of the AG to represent private parties, or enter into settlements affecting the rights of private parties, see Commonwealth v. Philip Morris, Inc., 40 Pa.D.& C. 225 (1999).)

It is possible that AG Corbett thinks that the statutory power to "intervene in any other action, including those involving ... the constitutionality of any statute" (71 P.S. §732-204(c)) allows him to join in this lawsuit but, unless the context clearly indicates otherwise, the word "statute" is defined to mean the statutes enacted by the General Assembly of Pennsylvania. 1 Pa.C.S. §1991. (And the context here does not clearly indicate a broader meaning of "statute." Quite the opposite, in fact, because it makes sense to give the AG the duty and power to defend state statutes against challenges to constitutionality, but it makes no sense to give the Pennsylvania AG the general power to challenge the constitutionality of federal statutes.)

The attempt by AG Corbett to challenge the constitutionality of the provisions of federal law which affect individual citizens of Pennsylvania but not the government of Pennsylvania is therefore outside of his power (what lawyers sometimes call "ultra vires") and the courts should deny him any standing to make those challenges.

But that might become moot if the next AG decides to withdraw from the suit.

Overreaching by the Pennsylvania AG

I was surprised to read that the Attorney General of Pennsylvania, Thomas Corbett, had joined in the lawsuit seeking to have the new health care reform law ("The Patient Protection and Affordable Care Act," H.R. 3590, P.L. 111-148) declared unconstitutional, because the governor of Pennsylvania, Edward Rendell, is a Democrat who actively supported passage of the health care bill. I knew that the AG of Pennsylvania is an elected office, but had forgotten that the current AG is a Republican, not a Democrat. (I live in Pennsylvania and it is a fairly moderate state politically, and tends to alternate regularly between Republican and Democratic administrations.)

If the lawsuit were just challenging the parts of the act that affect state government operations and revenues (mainly the provisions expanding Medicaid, which is a program created by federal law but only partially funded by the federal government), I would be somewhat annoyed, but what really bothers me is that the lawsuit also challenges the provisions requiring individuals to purchase health insurance (the "individual mandate").

The complaint that was filed says that the Attorneys General who are the plaintiffs seek "to protect the individual freedom, public health, and welfare of their citizens and residents" and specifically asks the court to order the federal government not to enforce the act against both the states represented by the AGs and the citizens and residents of those states.

But who gave the Attorney General of Pennsylvania the right to "protect" my individual freedom and the right to represent my individual interests in court? And what if I don't want him representing me in this lawsuit?

There is an allegation in the complaint that the Florida AG has "broad statutory and common law authority to protect the rights of the State of Florida and its people." There is no similar allegation regarding the powers of the Pennsylvania AG, and I don't believe that AG Corbett has the legal power to represent the people of Pennsylvania (i.e., the individual citizens of Pennsylvania separate from the government of Pennsylvania) in this lawsuit.

Section 4.1 of the Pennsylvania Constitution creates the office of Attorney General and declares that the AG " the chief law officer of the Commonwealth and shall exercise such powers and perform such duties as may be imposed by law." The law that seems most relevant is section 204 of the Commonwealth Attorneys Act, Act of October 15, 1980, P.L. 950, 71 P.S. §732-204, which states in subsection (c) that the AG shall represent "the Commonwealth and all Commonwealth agencies" in civil litigation. There is also the power to represent the Commonwealth and its citizens in federal antitrust litigation, but there is no general power to represent the citizens of Pennsylvania in any other kind of civil litigation. (On the inability of the AG to represent private parties, or enter into settlements affecting the rights of private parties, see Commonwealth v. Philip Morris, Inc., 40 Pa.D.& C. 225 (1999).)

It is possible that AG Corbett thinks that the statutory power to "intervene in any other action, including those involving ... the constitutionality of any statute" (71 P.S. §732-204(c)) allows him to join in this lawsuit but, unless unless the context clearly indicates otherwise, the word "statute" is defined to mean the statutes enacted by the General Assembly of Pennsylvania. 1 Pa.C.S. §1991. (And the context here does not clearly indicate a broader meaning of "statute." Quite the opposite, in fact, because it makes sense to give the AG the duty and power to defend state statutes against challenges to constitutionality, but it makes no sense to give the Pennsylvania AG the general power to challenge the constitutionality of federal statutes.)

The attempt by AG Corbett to challenge the constitutionality of the provisions of federal law which affect individual citizens of Pennsylvania but not the government of Pennsylvania is therefore outside of his power (what lawyers sometimes call "ultra vires") and the courts should deny him any standing to make those challenges.

Health Care Dichotomy

Conservatives seem to be expressing two fears about health care reform:

1. The government will intrude into the patient-doctor relationship, interfering with things like end-of-life decisions.

2. The government will NOT intrude into the patient-doctor relationship, allowing things like legal abortions.

The first fear is especially peculiar, because it was conservatives who wanted the federal government to intrude into the end-of-life decisions of the Schiavo family.

The lesson I draw from this is that conservatives don't want the government intruding into your decisions as long as you make the decisions that conservatives approve of. If you make any other decision, well then the government will have to step in.

In which case, it's your own fault for not being more moral and sensible.

Gouging the Uninsured

Every time I get a medical bill, I am shocked at the difference between the price of medical services and the cost of medical services.

I paid a bill this morning for a medical procedure and, according to the bill, the price of the procedure was $1,300. However, because I am insured, there was a $862 "adjustment," reducing the cost of the procedure to only $438.

This "adjustment" was not a payment by the insurance company, but reflected a price agreement negotiated between the insurance company and the doctors. The insurance company has said to the doctors, "You can quote whatever price you want, but we're only going to pay $438 for that procedure." And the doctors agreed.

What is most shocking is not just that doctors routinely bill prices that are 66% more than what they are really willing to accept as payment, but the implications of what this means for the 40% of our population that are uninsured. If you're uninsured, no one has negotiated a lower price for you, and no one will, and you're probably in no position to bargain, being in an emergency room with a serious medical problem and a poor credit history.

So if you're uninsured, you get gouged.

Remember that the next time you hear about some astronomically large medical bill that was run up by an uninsured person, or when you hear about the high cost of medical care, because what you may be hearing about is inflated prices.

The Social Security "Crisis"

We've heard for years about a "crisis" in Social Security, as benefits are predicted to exceed FICA tax revenues at some time in the future, most recently in 2005 as President Bush tried to undermine the Social Security system by allowing workers to opt out of the system and create private accounts (which even the White House eventually agreed would not solve the financial problems of the system). But the assumptions made by the Social Security Administration are conservative and new projections often push the predicted shortfall further into the future. (The latest estimates, in the 2007 reports of the Social Security Administration, say that projected tax income will begin to fall short of outlays in 2017, and the trust fund will be exhausted in 2041.) Now, there are new reasons to believe that the predicted shortfall might never occur.

According to the book "Microtrends" by Mark Penn, a growing number of people are working past the traditional retirement age of 65, either by necessity or choice. For example, the number of workers 65 and older has almost doubled in the last 25 years, and a 2005 survey by Merrill Lynch found that three fourths of baby boomers were not planning a traditional retirement.

Of course, if people work longer, they continue to contribute taxes while delaying receipts of benefits. According to an economist at the Urban Institute, Eugene Steuerle, if everyone worked just one year longer than the SSA has been assuming, and so received one year less in benefits and contributed one more year of FICA taxes, the projected shortfall would disappear.

There is also recent news that the fertility rate for American women has reversed a long-term downward trend, and is now something like 2.1 children per woman, which exceeds the "replacement rate" and is one of the highest of any industrialized nation. That means that in 20 years we may have more workers than previously expected, and more tax revenue than previously predicted.

All of which means that the so-called "crisis" in Social Security might no longer exist (assuming it ever really did exist).

But funding Medicaid and Medicare is going to be a problem.

Trolling II

According to an article in today's NY Times (2/2/2007), President Bush will be asking Congress to cut Medicare and Medicaid spending by $60 billion over the next five years. The article notes that Bush had sought $40 billion in cuts two years ago and Congress failed to enact most of his requests even though Republicans had a majority in both houses of Congress. So Bush thinks he can get larger cuts in two popular social welfare programs now that the Democrats have majorities?

Congressman Charles Rangel (D-NY), who is now the chair of the tax-writing House Ways and Means Committee, put it very succinctly: “There is a large area for potential compromise and agreement, but with these latest Medicare proposals, the president is just asking for controversy.”

"Just asking for controversy" defines a troll very well.