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Archive for June, 2012

Thursday, June 28th 2012

What The Mandate Survival Means, What The Limits On Medicaid Expansion Means

I prematurely declared the death of the individual mandate, the provision of Obama’s reform efforts that requires the vast majority of individuals to procure health insurance or pay a yearly penalty, after the Supreme Court heard oral arguments in March.

It was hard not to what with a conservative court and the Justices appearing so hostile over three days to a struggling Verrilli. Many others saw it the same way. Intrade had it at 70-75% that the mandate would be struck down, in the 24 hours leading up to the announcement of the decision.

Well, today the Supreme Court upheld nearly all of the Patient Protection and Affordable Care Act [PDF] including the individual mandate.

This despite some initial confusion over what exactly the Supreme Court was ruling.

The court basically had to review whether any powers given to Congress could justify the “mandate.” The four liberal leaning justices – Ginsburg, Sotomayor, Kagan and Breyer – thought that the Commerce Clause broadly justified the mandate. Such was the most ‘liberal’ and broadest reading of Congress’ power that could’ve been given down. However, the other five justices disagreed with that interpretation. Five of the justices also could not reconcile the individual mandate as being constitutional under the Necessary and Proper Clause. However, the five conservative justices were not so coherent when it came to the argument that “shared responsibility payment”/individual mandate was actually constitutional as part of Congress’ power to levy taxes.

In a surprise, Chief Justice John Robert sided with the four liberal justices in arguing that the mandate was constitutional if you argued it as a tax.

Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.

No doubt the individual mandate was the biggest prize but challenges against other provisions of the ACA had been made during this term and the court ruled on those as well. SCOTUS found that even if individual states refuse to participate in the expansion of Medicaid dictated under the ACA, that the federal government cannot penalize them by taking away existing Medicaid dollars.

The real question in this latter ruling is, without the stick making them expand, what happens if states refuse the Medicaid expansion? Specifically what happens to low income people in states who were supposed to be covered by Medicaid under the ACA but now aren’t? They don’t appear to qualify for large enough subsidies to afford private insurance, specifically because that wasn’t laid out or budgeted as they’re suppose to qualify for Medicaid, but they obviously will not be able to afford the penalty.

Anyway, that is for the bureaucrats at the HHS and CMS to figure out. I imagine in the end, in the unlikely chance any state refuses to expand Medicaid, the premium subsidizes will be generous enough to bring these poor individuals into the private market.

For the entirety of what the health care ruling means SCOTUSBlog summarized it best and earliest,

The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn’t comply with the new requirements, rather than all of their funding.

For physicians, hospitals and insurers the ruling at least provides an end to uncertainty. Hospital stocks rose today as the ruling came down. They, more than other providers, have the most to benefit from expanded coverage as they have shouldered most of the cost of unreimbursed care in this country over the past decades. The law, and its constitutionality, are more of a mixed bag for insurers and pharma. Obviously the individual mandate provision is a boon in the sense of new business but if the entire law had fell so would have costly provisions and regulations. The same is true to a lesser extent for the pharmaceutical and medical device industry.

The ruling is “negative because the costs are rather high and the industry may not recoup that much in new revenue once the uninsured come into the system in 2014. The fees were $2.5 billion last year and will be $2.8 billion this year. These figures are per the actual ACA law. In addition, the drug industry is also ‘paying’ for the ACA in the form of higher rebates and discounts,” Michael Levesque, a senior vp at Moody’s Investor Services, tell us.

For physicians, at least in terms of the bottom line, the Affordable Care Act has always been a little bit of bad and good. Expanded coverage is obviously a blessing in some ways, but considering how many of the proposed newly insured will be covered under the notoriously difficult Medicaid that may be a mixed blessing. Although the IPAB and the provisions for novel payment reform from CMS were not under argument in front of the court, if Justices Kennedy, Scalia, Alito and Thomas had had their way the entire law, including the provisions of the ACA aimed at reigning in the cost of health care provided by physicians would’ve gone down. So the effort to reign in physician reimbursement remain. In general, long term, the Affordable Care Act is likely to have a slowly negative impact on overall physician earnings I imagine. The ruling doesn’t change that, it just solidifies it is coming.

The drama surrounding the ruling was something else. Neoconservative hyperbole abounded after it became clear that Obama had scored a victory. The Republican candidate for governor in Indiana likened the ruling to the September 11th disaster. On Twitter a trend amongst conservatives seemed to be to threaten to move to Canada over the ruling; which would seem to make little to no sense. The bizarre blog To Be Right had this little conspiracy theory,

Later this afternoon, it’s going to come out that Roberts was coerced. A Secret Service agent overheard Obama and Axelrod discussing the Roberts blackmail. He managed to get them on tape discussing it. Later this afternoon, the whole story will come out, Roberts will issue his REAL opinion, and Obama and Axelrod will be taken away in handcuffs.

And then went on to muse that,

I was worried before, now more than ever. I really think the country as we know it is over. We’re no longer the land of the free.


I think this is the day America died.

And the sky is falling.

I will admit the votes themselves were interesting. As interesting as the humorous, hyperbolic statements streaming from Fox News and the internet was the way the decision came down. I’m not sure many saw the decision coming 5-4 with Justice Kennedy on the right and the Chief Justice on the left. I really think Chief Justice Roberts is lining up to be one of the most studied Justices of all time, say sixty years from now. How he came to his conclusions and the machinations in the Supreme Court building would be fascinating to be known, even if they fall short of the blackmail imagined above.

I’m not going to deny Justice Roberts as a conservative or imagine him as a traitor to the conservative cause. I think, as Jonathan Chait puts it, Justice Roberts saw a crisis of faith arising in the Supreme Court and decided a partisan vote against healthcare reform was too much.

Roberts will do it by a process of slow constriction, carefully building case upon case to produce a result that over time will, if he prevails, rewrite the shape of American law. What he is not willing to do is to impose his vision in one sudden and transparently partisan attack. Roberts is playing a long game.

But it would be unfair to attribute his hesitance solely to strategy. Roberts peered into the abyss of a world in which he and his colleagues are little more than Senators with lifetime appointments, and he recoiled. The long-term war over the shape of the state goes on, but the crisis of legitimacy has been averted. I have rarely felt so relieved.

I think he did such despite his initial “conservative” inkling to swipe the law away. The most interesting things I’ve read about the law all day concern the dissent from Scalia. From Ramesh Ponnuru and David Bernstein at the great blog The Volokh Conspiracy and the Legal Theory Blog comes analysis of the phrasing and style of the dissent. They provide some evidence that Scalia’s dissent may originally have started as a majority opinion.

The reference to the dissent and “we” strongly suggests that the “we” was a majority of the Court. This suggests that Justice Roberts switched his vote. There are other conceiveable explanations, but in my opinion, this evidence is very strong indeed.

I don’t think Chief Justice Roberts was massaged into changing his decision and I certainly don’t think he was blackmailed. I really think, whatever forced him into this view, his decision had as much to do with history and the legitimacy of the court than his personal philosophy concerning the constitution. That merely based on what is publicly known of his personality and the fact it appears he changed his mind and nothing more. I can’t imagine this informed his decision, but this was an interesting observation made before the decision came down,

Chief Justice John Roberts has suffered two seizures for unexplained reasons. If he didn’t have federal health benefits, he would be uninsurable on the private market without the law’s requirement for coverage of people with pre-existing conditions. At 57, he would not yet qualify for Medicare.

Of course Chief Justice Roberts, if he were to step down, could name his next job and health benefits in virtually any private company in the world. Just kind of a cute observation.

Whatever went on behind the closed doors of the SCOTUS would certainly be interesting to know; maybe someday.

I’ve heard some analysis that the ruling may help Governor Romney but I personally doubt such. It did motivate the Republican base. In the four hours after the ruling Romney’s campaign website took in more than a million dollars in donations; a good haul. But fire-brand opponents of the law are already Romney voters that will turn out on election day. He gained few if any new votes by this ruling. It is true the health care law remains unpopular and will likely continue to remain unpopular through the November election. Eventually as the provisions come online the attitude towards the law will change dramatically. Late in 2014 and into 2015 you will see huge portions of the population in favor of the law. Until then however it remains a liability for Obama I imagine. The Supreme Court ruling validates it somewhat. I might not go as far as this,

“I think it’s a big win for Obama if they handle it right,” Mr. Kessler said. “What they need to be saying is to declare that the fight is now over. It’s been decided by Congress. It’s been decided by the courts. This is now over. It’s in the past.”

but I would say that while it is, in sum, still a negative around his neck the ruling makes the ACA a little bit less burdensome for Obama on the campaign trail. And of course it preserves a domestic achievement that the President deeply believed in and that will, for better or worse, likely preserve his place in history, even if he serves a single term.

As for my personal views, I’ve always opposed the mandate as an infringement on individual liberty which I hold more important than just about anything, even improved access to health care. I’m upset at the ruling, but I certainly don’t think the country is crashing down around us or that Chief Justice Roberts or President Obama represent the antichrist. Let us keep all such things in perspective.

Sunday, June 17th 2012

International & For Profit

For profit medical schools outside of the United States which tailor to U.S. citizens have become an increasingly important part of the pipeline of American physicians. But these schools, most prominently in the Caribbean, draw their share of opposition. Beyond their for profit status, which as the broader debate on for profit education has drawn considerable ire from opponents, the graduates of these offshore (not regional) schools, largely American citizens who traveled abroad for their education, tend to do worse on a whole range of standardized tests that lead to things like licensure and board certification as compared to graduates of American schools.

Increasingly though these medical schools are drawing complaints from established American medical education institutions over the issue of third and fourth year clinical rotations for students. Many of these Caribbean medical schools in particular are multi-campus affairs; students do their first two years of medical school in the Caribbean and then come back to the United States to do clinical rotations at hospitals throughout the country.

By far the most clerkship spots for foreign based medical students to rotate are in New York and yet for the past two years there has been an intermittent struggle to cut the flow of Caribbean based students training in the state.

New York State’s 16 medical schools are attacking their foreign competitors. They have begun an aggressive campaign to persuade the State Board of Regents to make it harder, if not impossible, for foreign schools to use New York hospitals as extensions of their own campuses.

The changes, if approved, could put at least some of the Caribbean schools in jeopardy, their deans said, because their small islands lack the hospitals to provide the hands-on training that a doctor needs to be licensed in the United States.

The dispute also has far-reaching implications for medical education and the licensing of physicians across the country. More than 42,000 students apply to medical schools in the United States every year, and only about 18,600 matriculate, leaving some of those who are rejected to look to foreign schools. Graduates of foreign medical schools in the Caribbean and elsewhere constitute more than a quarter of the residents in United States hospitals.

Similar struggles are taking place in other states where international medical schools are trying to expand or establish their presence. In Texas currently no hospitals train Caribbean based medical students but that could soon change.

The American University of the Caribbean, a for-profit medical school owned by DeVry Inc., has requested authorization from the coordinating board to allow its students — and in particular those from Texas — to have the opportunity to spend years three and four of medical school in Texas hospitals, clerking or taking clinical electives.

Amongst opposition from organized medicine, leaders at public medical schools in Texas and the legislature the THEC has postponed a decision on AUC’s application.

In March, leaders from the state’s public medical schools sent a letter to Texas Higher Education Commissioner Raymund Paredes, who has recommended that the board grant AUC approval. The school leaders argued that allowing students from foreign schools into Texas clerkships would “displace Texas medical students in already limited clinical training settings at hospitals in our state.”

It doesn’t seem the fight over stateside clerkship spots for international based medical students is close to being finished.

Sunday, June 3rd 2012

The Rough Path of Defining Medicine In The Open

Suppose your spouse or child died two weeks ago and now you feel sad, take less interest and pleasure in things, have little appetite or energy, can’t sleep well and don’t feel like going to work. In the proposal for the D.S.M. 5, your condition would be diagnosed as a major depressive disorder.

Dr. Allen Frances, who wrote the DSM-IV, chastised the task force working on the upcoming DSM-V with the above words in the New York Times several months ago. Even I jumped in.

Other controversial proposals include dramatically redefining how autism is diagnosed and changes to the definition of alcohol addiction.

Many scholars believe that the new manual will increase addiction rates. A study by Australian researchers found, for example, that about 60 percent more people would be considered addicted to alcohol under the new manual’s standards.


Dr. [Charles] O’Brien, who led the addiction working group, has been a consultant for several pharmaceutical companies, including Pfizer, GlaxoSmithKline and Sanofi-Aventis, all of which make drugs marketed to combat addiction.

He has also worked extensively as a paid consultant for Alkermes, a pharmaceutical company, studying a drug, Vivitrol, that combats alcohol and heroin addiction by preventing craving. He was the driving force behind adding “craving” to the new manual’s list of recognized symptoms of addiction.

Why has there been so much outrage over the work of the task force for DSM-V? The open public comment on a draft of the work drew more than 10,000 comments form the public, the vast majority of them negative. To be fair rewriting the works which define medicine are always public jobs that draw ire, just look at work on the new ICD-10. But the APA task force behind the DSM-V seems to have put a number of bullets into their own foot and the way the APA has handled the public comment period has been less than ideal; the criticizers have run rampant in the media and the task force’s response has been slow and at times nonchalant and based solely on denial.

It is true that the public comments and criticisms have drawn changes, if not ideal ones then some, and I suppose that proves the system works. The definition of depression has changed and new diagnoses like attenuated psychosis syndrome and mixed anxiety depressive disorder have disappeared. Apparently enough for Dr. Allen Frances to say,

“At long last, DSM 5 is correcting itself and has rejected its worst proposals. But a great deal more certainly needs to be accomplished. Most important are the elimination of other dangerous new diagnoses and the rewriting of all the many unreliable criteria sets.”

I suppose, while the process works, it is a wonder why it was so particularly contentious this time. Granted the internet wasn’t what it is now back then but there didn’t seem to be such a large hoopla when the DSM-IV was being put out. Proponents of the work to date of the task force might say they are doing significant changes but just glancing through the proposals this seems more like moving from DSM-III to DSM-IV, not DSM-II to DSM-III. This isn’t an earth shattering proposal to redefine how psychiatry is to be practiced and how mental illness is to be diagnosed. Even that fact has drawn criticism. Criticism that the task force has missed an opportunity to rise to the next challenge in standardizing psychiatry,

The editors of the DSM-5 indicate that the new edition will provide new categories of disorders, alter some criterion sets, and emphasize matters of severity.4 But it will not divide psychiatric disorders into causally intelligible groups. Disregard for this issue — after 30 years’ experience with an appearance-driven policy — makes these proposed changes for the DSM-5 seem small. The big question — “What are these disorders?” — will remain unaddressed.

This mess seems mostly just the task force stepping all over their own feet and failing to rise to the occasion of the first DSM rewrite in the age of increased scrutiny.

And with that I’m out and off back to skim the proposals and self diagnose myself with a plethora of mental illnesses.

Saturday, June 2nd 2012

Do We Resuccitate Too Many People?

It is distressingly easy sometimes for DNR/DNI status to be miscommunicated or lost in the urgency of a code situation. Apparently in hospitals around the world.

The National Confidential Enquiry into Patient Outcome and Death reviewed the care given to 585 acutely-ill patients who ended up having a cardiac arrest.

The watchdog concluded that cardiopulmonary resuscitation (CPR) had wrongly become the default setting.


Details of whether or not to give CPR was recorded in the notes of only 122 patients in the study of hospitals in England, Wales and Northern Ireland.

Of these, there were 52 cases where doctors had performed resuscitation on patients who had explicitly said they did not want it.

I’ve heard of cases where there is confusion during codes as to a patient’s code status. This really needs to be a conversation that physicians have with every patient that enters the hospital from eighteen to ninety-eight, whether there for a cellulitis or end stage CHF. The places I’m at it’s true the nursing staff usually has that discussion but it’s something that the admitting physician, the first one to see the patient, should bring up as well and document well.

Do not resucitate and do not intubate orders do not mean that you or your family member are not going to be treated. It does not mean that you’re taken less seriously as a patient or priority within the hospital. It merely is planning for the unthinkable. You don’t put together emergency rations and a battery powered radio and flashlights expecting a natural disaster but instead in case.

A DNR order means that in the event of cardiac arrest or events leading to such no measures will be taken to resuscitate the heart including cardioversion by shocking or chest compressions or drugs to help make the heart beat. A DNI order means that no tube will be placed into the trachea to allow for mechanical ventilation in case the patient stops breathing on his own. The decisions are usually made together as DNR/DNI orders.

A DNR/DNI decision can be a sensitive topic of discussion and a difficult decision, not only for patients themselves but, sometimes even more so, for families when patients cannot make the choice for themselves. There are several things to consider when seriously pondering a DNR/DNI decision. First and foremost is the patient’s pre-hospitalization condition, independence and quality of life. This is probably more important than the patient’s actual prognosis from whatever condition the patient is being treated in the hospital for. The fact is that, independent of what disease your battling in the hospital, if you go into fullblown, true cardiopulmonary arrest you are very unlikely to do very well. Patients who get ACLS – chest compressions, shocks and drugs to restart their heart – and intubated for arrests do very, very poorly. In this study just 11% of patient’s who coded survived to hospital discharge. Some patients who survive are left with devastating new deficits, including potentially brain damage or long term care requirements such as tube feedings or ventilation.

Second, patients and family should consider the financial cost of cardiopulmonary arrest. As morbid as this sounds, ACLS leaves patients who are already unlikely to survive their hospitalizations, with significant ICU stays and undoubtedly significantly increase the cost of the patient’s last days of life. Patients who survive these codes to hospital discharge may require longterm care outside the hospital with significant financial burden to their families. I know this can see a tactless consideration but if we’re honest with ourselves it should be an important one when deciding DNR/DNI status.

Third, patients and families should consider the quality of death they desire. While providing for the best chance of survival following a cardiopulmonary arrest a code, and the care that follows, can be a brutal and undignified process. It is true there is likely no pain associated with a code but chest compressions will leave patients with broken ribs and long term time on the ventilator and other procedures in the intensive care setting can be upsetting to family and friends.

A DNR/DNI decision is a very personal decision. Ideally it is something that should be discussed with family and their physician before a patient requires hospitalization. At the least however both the admitting nurse and physician should have early conversations with all patients to clarify their wishes if the patient was to suffer an arrest.