Singularity Health Law Blog

HEALTH CARE IS A BUSINESS

There is a saying going around that “Healing is an art, medicine is a profession and health care is a business.”  The New York Times today had an article about more M.D. physicians going to school for an M.B.A. as well as an M.D. In the 1990s there were about six academic programs that provided for joint M.D./M.B.A degrees. Now there about 65.  The business of health care is complex and growing more so. More and more physicians are opting out of independent practice to join hospitals and even insurance companies and paid employees.  Many new physicians are looking beyond the practice to management positions in the business of health care, which of course is where the potential “action” of the future is located. It is not enough any more to to provide the professional expertise as a physician without understanding and commanding the larger business of health care, if you want to be a player in health care.

 

PRIMARY CARE PHYSICIANS FILE SUIT AGAINST CMS ALLEGING UNDUE INFLUENCE BY AMA’S RELATIVE VALUE SCALE UPDATE COMMITTEE.

Last month a group of primary care physicians from Augusta, Georgia filed suit in Federal District Court in Maryland requesting a declaratory judgment against CMS for failure to comply with management and reporting rules and other provisions of the Federal Advisory Committee Act (“FACA”) in its reliance upon the recommendations of the American Medical Association’s Relative Value Scale Update Committee (“RUC”). The extensive 74 page complaint in Paul Fisher, M.D. v. Donald Berwick, M.D. and Kathleen Sibelius seeks a declaratory judgment that the RUC is a a de facto federal advisor committee subject to the FACA.  The suit is being brought on behalf of six named primary care physicians, who seek to subject the RUC to great public scrutiny and broader physician input. The plaintiffs view the relationship  between the RUC and CMS to be way to cosy and likely to benefit from  greater public scrutiny and input.

 

ILLEGAL IMMIGRANTS WITH KIDNEY DISEASE HOT POTATO IN ATLANTA

The New York Times reported to day that a number of illegal immigrants who were receiving free care at at Grady Memorial Hospital in Atlanta had become a bone of contention between Grady and a Fresenius Medical Care Dialysis Clinic there, with Frensius foregoing further treatment and advising patients to wait until they were in serious condition in order to force Grady’s emergency room to take them under EMTALA.  

INSURANCE COMPANIES BUYING DOCTORS

The Wall Street Journal reported today that United Health Group as agreed to acquire a Monarch Healthcare, an Irvine California physician group  including approximately 2300 physicians in a range of specialties. The acquisition is by United’s subsidiary Optum Health.  The fluidity and uncertainties of health care financing and strategy has led to a number of interesting events with the merger of providers with the insurance function in different and yet reminiscent echoes of managed care arrangements of the past. The Monarch deal in California in somewhat encumbered by the arcane corporate practice of medicine restrictions.  The situation here would likely involve the purchase of some hard assets and a long term contractual relationship with an independent practice association.

 

PERSONAL ELECTRONIC MEDICAL RECORDS ESSENTIAL

Dying is a messy business.  Having watched my father endure the process involving three hospitals and a SNF in the final month, I have been impressed with the primitive nature of medical record keeping today even in the most efficient and effective of medical institutions.  My father had a long history of problems with bleeding ulcers resulting in extreme surgery to remove most of his stomach.  Lately he had been under the care of an HMO with a Medicare plan. There was no central depository of his medical records.  One of the facilities, the Henry Ford Hospital in Detroit, sought valiantly to locate all of his recent records, but limited staff in other facilities resulted in significant delays in obtaining vital information.

 

11TH CIRCUIT HEALTH REFORM OPINION: PAY LATER, Si; PAY NOW, NO.

One of several interesting aspects of the massive (291 pages) 11th Circuit Court of Appeals decision in State of Florida [and 25 other states] vs. United States Department of Health and Human Services, et al. ,  ____ F. 3d ____ (11th Cir. 2011), filed this month is a paradox of timing.   The majority of the three member panel conceded that, under the Commerce Power,  the government had the power to require people seeking medical attention to first obtain health insurance (assuming that it would be available at that juncture) before receiving the services.  Yet at the same time, the panel insisted that it would be unconstitutional as a violation of individual liberties to require those individuals to obtain insurance in advance of the need, which is stochastic in nature.

 

THOMAS V. KAGAN: SHOULD EITHER JUSTICE RECUSE FROM DECIDING CONSTITUTIONALITY OF HEALTH CARE REFORM?

Recently there have been calls from the right to have Justice Kagan to recuse herself from deciding the constitutionality of the Health Care Reform bill passed by Congress and referred to derisively as “Obamacare.”  The principal basis seems to be her service as the Solicitor General of the U.S. representing the Obama administration in appellate proceedings before her elevation to the Supreme Court.  The argument is that she must have provided some guidance on the constitutionality of the Act before leaving office.

SIXTH CIRCUIT FINDS INDIVIDUAL MANDATE CONSTITUTIONAL

A divided panel of the 6th Circuit Court of Appeals found the “individual mandate” in the federal   Patient Protection and Affordable Care Act to be constitutional.  The dissenter is a Senior Judge from the Southern District of Ohio sitting on the panel by designation.  The appellate decision rendered in The Thomas More Society et al. v. Barack Hussein Obama et al,  ____ F. 3d____(6th Cir. 2011) is the first appellate court decision to address the constitutionality of the health care reform bill. It affirmed the decision of the trial court upholding the constitutionality, but the separate opinions by all three judges underscores the continuing uncertainty that the statute faces when it ultimately reaches the Supreme Court.

 

SUPREME COURT TO DATA MINERS: “DRILL BABY DRILL.”

One of the principal arteries of pharmaceutical company marketing is the “detailing” of product information to  physicians who generally lack the time, resources or the inclination to research new drug products on their own. Several years ago the State of Vermont passed a prescription confidentiality law that proscribed data mining access to prescriber activity, information traditionally sold by pharmacies to drug companies and other data miners. The legislative purpose behind the law was to improve pub lic health and reduce health care costs by restricting the use of the information to “sell” more expensive brand name drugs to the physicians. In two separate lawsuits, Vermont data mining companies and an association of brand name manufacturers challenged the statute as offending the First Amendment to the constitution. The trial court dismissed the actions, but the Second Circuit Court of Appeals reversed.

 

BOOK REVIEW: SMART MEDICINE BY WILLIAM HANSON, M.D.

Smart Medicine: How the Changing Role of Doctors Will Revolutionize Health Care is a book soon to be published by Palgrave Macmillan is an entertaining mix of the history of medicine and promise of medical technology in the future. The history takes us through the early colonial feuds of Drs. John Morgan and William Shippen, Jr.in Philadelphia to an interesting chapter about how George Washington was killed by his doctors. Lincoln’s physicians do not show well either, but he probably would have died anyway.  There are of course other candidates for this presidential distinction such as Zachary Taylor, but enough said.