FEHBlog

The Texas v. United States case concerning the constitutionality of the Affordable Care Act will be held a week from tomorrow before a three judge panel of the U.S. Court of Appeals for the Fifth Circuit in New Orleans beginning ar 1 pm CT. The panel includes Judeeeges Carolyn D. King (Carter appointee), Jennifer W. Elrod (G.W. Bush appointee) and Kurt D. Engelhardt (Trump appointee). The Court makes recordings of their oral arguments available to public at this site.

The Burlington (NC) Times Journal reports on the avalanche of lawsuits against two major medical providers LabCorp and Quest Labs which used American Medical Collection Agency to collect its patient invoices. AMCA is now in bankruptcy court following the disclosure of a massive patient data breach. It will be interesting how the courts rule in these cases (assuming they are settled first). In any event businesses will need to engage in greater due diligence over their vendors that hold and/or process their confidential consumer information.

Currently telehealth services generally are provided in real time. Mhealth Intelligence reports on the development of alternative asynchronous or store and forward telehealth services.

Video-based telehealth programs require that both patient and provider be online and in front of a video screen at the same time, he said, while store-and-forward platforms aren’t that rigid, allowing patient and provider to access the platform when and where they want. 

According to the article, the development of alternate telehealth approaches has been slowed by state law limits and reimbursement approaches. Carrier should give alternate telehealth approaches a look.

The FEHBlog’s alma mater is the University of Connecticut. The FEHBlog read in UConn Today that

Using blood pressure self-monitoring is an effective way to empower patients with hypertension to stick with an exercise program, according to a first-of-its-kind study conducted by a multidisciplinary team of UConn researchers in collaboration with Hartford Hospital.

The findings, recently published in the Journal of Hypertension, confirm a long-held but previously untested theory by the study’s principal investigator, Linda Pescatello, a distinguished professor in UConn’s Department of Kinesiology, and Dr. Paul Thompson, chief of cardiology at Hartford Hospital, that blood pressure self-monitoring can and should be used as a behavioral strategy to help keep patients with hypertension engaged in an aerobic exercise training program, a proven means of addressing the chronic condition known to be a leading risk factor for cardiovascular disease.

Interesting.

Finally when you have a free hour, listen to today’s Econtalk episode in which physician and author Adam Cifu of the University of Chicago talks about being a medical conservative with EconTalk host Russ Roberts. Fascinating.

Congress is out of town this week for the Independence Day holiday. The FEHBlog is surprised that the Senate did not consider Dale Cabaniss’s nomination to become OPM Director last month. Congress returns to Capitol Hill next week for the remainder of July. A Congressional recess will occur in August because this is not  Congressional election year.

The Wall Street Journal reports that

Doctors are taking a second look at the procedure known as shock therapy, saying the long-stigmatized treatment is safer than before and can be remarkably effective in patients with severe symptoms. 

Electroconvulsive therapy, its official name, is a brief electrical stimulation of the brain that causes about a minute-long seizure, helping to realign disrupted circuits. Although the treatment’s most serious potential side effect—memory loss—remains a meaningful risk, advances in technology and technique have reduced the severity. Experts say ECT is among the most effective treatments for serious depression when medications and talk therapy don’t work.

Given the fact that the FEHBP’s enrollment is 50% annuitants, it’s worth calling attention to this Fierce Healthcare story on a recent UnitedHealth survey finding that

Nearly 70% of Americans ages 62 and older named physical health their top concern * * * In fact, 86% of the demographic are worried about falling ill or becoming hospitalized in the near future. 

Other concerns for this demographic that made the UnitedHealthcare survey included cognitive health (16%), social health (13%), and financial health (6%). Collectively, health was of greater concern than financial stability, with 63% of respondents saying maintaining physical ability to live in retirement was more of a concern than maintaining financial stability (37%).

FEHB plans typically offer healthcare coaching programs. Perhaps coaching program attention should be directed at annuitants (if not already.)

Govexec.com reports on an OPM employee town hall held yesterday. The FEHBlog admires the job that Acting OPM Director Margaret Weichert does at OPM. It’s certainly not easy particularly considering she also holds a larger job at OMB and she knows how to maintain her cool.

Minneapolis Business Journals reports that UnitedHealth Group has named an Optum executive Dirk McMahon to replace Steve Nelson who is retiring after 15 successful years as CEO.

The Wall Street Journal reports that two large non-profit midwest hospital systems, Sanford Health and Unity Point, intend to merge their operations.

Sanford and UnityPoint have more than $11 billion in combined operating revenue from health-care and health-insurance operations and hospitals across Iowa, Illinois, Minnesota, North Dakota, South Dakota and Wisconsin. Sanford also operates long-term-care services in two dozen states after its January merger with the Evangelical Lutheran Good Samaritan Society, a Sioux Falls-based nonprofit.

StatNews offers an interesting report on flu vaccine effectiveness rates. Many vaccines have effective rates of at least 90%. The flu vaccine, whose composition changes annually, is considered successful if it has a 40% effectiveness rate. Last years vaccine had a 29% effectiveness rate. Nevertheless,

Flu shots are recommended for virtually all Americans age 6 months or older. Officials say the vaccine is still worthwhile since it works against some strains, and it likely prevented 40,000 to 90,000 hospitalizations over the winter flu season.

Becker’s Hospital Review informs us that “Access to a patient portal through the EHR can help improve patients’ self management of healthcare services, resulting in increased outpatient appointments and reduced emergency room visits and hospitalizations, according to a recent study published in PLOS One.” Bravo.

The FEHBlog was stunned to read in Health Payer Intelligence that “PwC’s Health Research Institute (HRI) predicted a six percent increase in medical cost trend in 2020, with a five percent net growth rate after adjusting for increased employee cost sharing or altering of benefits.” Wow.

The FEHBlog was prompted by a pop up notice on his computer to look into a new arrangement between Amazon and Rite Aid drug stores. The FEHBlog thought that the deal concerned PillPack. However, it turns out according to TechCrunch, that Rite-Aid agreed to allow Amazon to place its new Amazon package pickup service called Counter in one 100 of their stores, at least to start.

The FEHBlog ran across a press release confirming that UnitedHealth’s Optum unit has closed on the acquisition of DaVita’s Medical Group with the exception of Davita’s Las Vega’s doctors who wound up with Intermountain Healthcare at the direction of the Federal Trade Commission. It’s an interesting trend that large insurers are rapidly expanding into providing healthcare. Whether intended or not, such a move is necessarily a hedge against a Medicare for All bill passing in the next decade that would kill the U.S. private health insurance market.

Federal News Network reports that the House Oversight and Reform Committee beat OPM like a drum again today over the President’s reorganization plan. One of the Committee’s takeaways is that

Stephen Billy, OPM Deputy Chief of Staff, testified that his agency could not provide a legal analysis of the Administration’s plan to abolish an agency that provides health care and benefits to more than 8 million people because it does not exist. This makes it clear that the Administration has no idea whether its actions related to eliminating OPM are legal, and proves that the Administration’s plan is reckless and ill-conceived.

The Administration never intended to abolish FEGLI, FEHBP, FEDVIP, etc. and the reorganization would not kill those programs. The Administration intends to transfer these functions to GSA and send the policy work to OMB.  Similarly, and for many years, federal government procurement policy is set in OMB and the contracts are created and administered in the agencies principally GSA. No doubt this particular OPM-GSA transfer requires Congressional action. But it’s not reckless or ill-conceived. Acting Director Weichert sought bipartisan legislation to iron out the fine points.

Today, according to the Wall Street Journal, the House relented from its position and passed a Senate bill on emergency appropriations for the Mexican border. Does the FEHBlog think this means that eventually the House will accede to a Senate appropriations bill that adopts the Administration’s reorganization plan for OPM. No way. The FEHBlog does not think that anyone in Congress wants to expend political capital on this issue. (as opposed to making political hay on it which is happening now) He does think that this development means that it’s more likely that the bipartisan Senate bill to lower healthcare costs (S. 1895) will become law this year (see PwC report above).  

At today’s Senate Health, Education, Labor, and Pensions Committee meeting, the Committee approved by a 20-3 vote a further revised version of S. 1895, a bill to lower healthcare costs, for full Senate consideration.  The Chairman Sen. Lamar Alexander ( TN) expects additional bipartisan bills from the Senate Finance Committee and other committees to be included in the bill before a Senate vote is held before the August recess.  The FEHBlog  listened to the hearing and hoo boy there was an entertaining combination of bipartisanship and hyperbole. The FEHBlog is looking forward to finding and reviewing a current version of the bill, which as they say on the Hill has legs.

Also today, the House of Representatives approved HR 3351, the Fiscal Year 2020 Financial Services and General Government appropriations by a 224-196 vote. As discussed in this Federal News Network article, the bill, which now goes to the Senate, includes a 3.1% 2020 pay raise for federal employees and clamps down on Trump Administration efforts to dismantle OPM.

Tomorrow, the U.S. Supreme Court will hold its last decision day for the October 2019 term. Today the Supreme Court issued its decision in Kisor v. Wilkie, an Administrative Procedure Act case that the FEHBlog had been following. The decision is too complicated for full FEHBlog treatment. Suffice it to say that the Supreme Court did not reach the outcome that the FEHBlog hoped to read. But it’s not the end of the legal world either.

In other judicial news, a three judge panel of the U.S. Court of Appeals for the 5th Circuit, which on July 9 will hear the Texas v. United States case concerning the ACA’s constitutionality, asked the parties for supplemental briefing on the following topics:

(1) Whether or not the state intervenors and the U.S. House of Representatives have standing to intervene in this appeal, see, e.g., Va. House of Delegates v. Bethune-Hill, No. 18-281 (U.S. June 17, 2019), and whether the interventions were timely as to all issues, including whether the U.S. House of Representatives’ intervention was timely as to both orders of the district court;
(2) Whether or not, if none of the intervenors have standing, there is a live case or controversy between the plaintiffs and the federal defendants given their positions on appeal, see United States v. Windsor, 570 U.S. 744 (2013); and
(3) What the appropriate conclusion is if the federal defendants’ change in position has mooted the controversy and no other defendant has standing to appeal. See, e.g. U.S. Bancorp Mort. Co. v. Bonner Mall P’ship, 513 U.S. 18 (1994); United States v. Munsingwear, Inc., 340 U.S. 36 (1950).

As you can see from item 1, the panel’s action was triggered by a very recent U.S. Supreme Court decision. The FEHBlog’s sense is that if the Court finds that the intervening defendants lack standing, then the whole case, including the district court decision, would collapse like a house of cards. But we shall see. The FEHBlog firmly expects the Fifth Circuit or the Supreme Court to reverse the district court decision holding the ACA constitutional if the courts get to the merits.

Also today, the HHS Office for Civil Rights, which enforces the HIPAA Privacy and Security Rules, issued frequently asked questions on permissible uses and disclosures of protected health information for coordination / continuity of care purposes. Check the out.

The House of Representatives began debate this afternoon of the Fiscal Year 2020 Financial Services and General Government Appropriations bill (HR 3351) which funds OPM, its Inspector General and the FEHBP, among other line items.  Federal New Network reports on Democrat and federal employee union efforts to block the Administration’s efforts to transfer certain OPM functions, including FEHBP administration to the General Services Administration. HR 3351 would block funding for this initiative.

The Senate Health Education Labor and Pensions Committee will consider the bipartisan leadership bill to lower healthcare costs (S 1895) tomorrow morning. The FEHBlog skimmed through this lengthy bill yesterday. It substance a wide variety of hot button issues, like price and quality transparency and data exchange, surprise billing, and drug pricing. Needless to say while bipartisan, it remains controversial so tomorrow’s meeting will be interesting.

The Wall Street Journal reported this morning on a noticeable surge in hospital lawsuits against patients for collection of unpaid bills

The Affordable Care Act, the signature achievement of former President Barack Obama, set new requirements for nonprofit hospitals that were largely expected to curb aggressive collection efforts. These hospitals must post and provide information on their financial-assistance policies and send notices that they are planning to sue. They also must limit the amount charged to the uninsured and wait four months before using stepped-up collection efforts such as filing a lawsuit. And yet, concerns persist.

Affordable Care Act indeed!

On the prescription drug front —

• The Wall Street Journal reports that “AbbVie Inc. agreed to buy Allergan AGN 25.36% PLC for about $63 billion in a bet by the two drugmakers that a combination will deliver new sources of growth that they have struggled to find on their own.” The article adds that “Buying Dublin-based Allergan would deliver a dominant position in the $8 billion-plus market for Botox and other beauty drugs, as well as a number of popular eye treatments, as AbbVie braces for the end of patent protection for the world’s top-selling drug, Humira.”

• Drug Channels explains how a CVS Health lawsuit recently revealed three aspects of Amazon’s PillPack strategy. 

Finally, Health Data Management discusses the efforts of cooperative Blockchain Health Utility Network to identify and implement blockchain technology in the healthcare sector. “Blockchain offers the potential to find easier solutions in healthcare for problems that stem from lack of standards or doubts about how to facilitate the secure exchange of healthcare information, said Dan Sanders, director of technology and innovation for Anthem.”

The President, as anticipated, did issue today an executive order on improving healthcare price and quality transparency. The order directs administration action from the Department of Health and Human Services, the Internal Revenue Service and other agencies on pretty aggressive timelines. The Wall Street Journal reports in this regard that

Some action could come soon because the administration is already working on two unrelated rules that deal with pricing. HHS is expected in July to release a hospital payment rule that may include price-disclosure requirements, and a separate health-information rule could also require rates to be publicly shared. Either regulation could become a tool for delivering on the order.

The Journal also explains that

President Trump’s order reflects a deeper worry over the escalating cost of health care animating voters and shaping the presidential election. More than two-thirds of people say that reducing health-care costs should be a top priority for the president and Congress this year, according to a January survey by the Pew Research Center. 

The Senate Health Education Labor and Pensions Committee’s bipartisan bill to lower healthcare costs (S. 1895) has two titles (III and V) dealing with healthcare pricing and quality transparency. The FEHBlog expects this bill to pass the Senate but whether it can clear the House of Representatives is an open question.

The rules stemming from today’s Executive Order likely will face legal challenges. In this regard, the Supreme Court took another Affordable Care Act case today. The Court will consider the case discussed at this Scotusblog link during its October 2019 term. The FEHBlog wrote an article for the American Bar Association’s Health Law Section eSource on the Federal Circuit decisions that the Supreme Court will review in this case. Is there another law that has been the subject of so many legal challenges??

The FEHBlog is a fan of Russ Roberts’ EconTalk podcast. Check out today’s episode with Eric Topol about his new book Deep Medicine: How Artificial Intelligence Can Make Healthcare Human Again. Learn about incidentalomas.

Congress remains in session on Capitol Hill this week. The House of Representatives is expected to vote on the Fiscal Year 2020 Financial Services and General Government appropriations bill (H.R. 3351), which includes OPM appropriations, early this week. The House Rules Committee takes up the bill tomorrow afternoon. Also as mentioned last week, the Senate Health Education Labor and Pensions Committee will vote on its bipartisan bill to lower healthcare costs (S. 1895) on Wednesday at 10:30 am.

Last Friday, the U.S. Court of Appeals for the D.C. Circuit issued its decision in the OPM data breach case. In 2015 OPM announced a massive breach of federal employee personal data. The American Federation of Government Employees brought a lawsuit for compensatory damages on behalf of group of 38 named plaintiffs and similarly situated class members. The National Treasury Employees Union alleged that OPM violated its members constitutional right to informational privacy for which declaratory and injunctive relief is appropriate. The federal district court dismissed both cases for lack of standing / a remediable injury making federal court jurisdiction appropriate. The district court further held that the plaintiffs’ claims were barred by sovereign immunity, the government’s general protection against lawsuits which had not been waived here. The Court of Appeals held that the plaintiffs did assert standing and that the AFGE claim alleged a cognizable claim for OPM breach of the federal Privacy Act. The Court of Appeals agreed with the district court that the NTEU’s constitutional claim is not cognizable. The case now goes back to the district court although it’s likely that OPM and NTEU may ask the Supreme Court to review the Court of Appeal’s decision. Here’s a link to an article from the Hill on this decision.

The Wall Street Journal reports that

The death rate for cardiovascular disease—which includes heart disease and strokes—has fallen just 4% since 2011 after dropping more than 70% over six decades, according to mortality statistics from the Centers for Disease Control and Prevention.

Particularly alarming is that the death rate is actually rising for middle-aged Americans.

The overall cardiovascular-disease death rate is an under-recognized contributor to the recent decline in U.S. life expectancy. While that has been driven mostly by deaths from drug overdoses and suicides, improvements in cardiovascular health are no longer providing a counterbalance. 

According to the article, the cardiovascular death rate is being driven by obesity driven diabetes type 2.  The Journal also provides a list of steps that adults can take to reduce the risk of cardiocvascular disease.  Here’s a link to a similar American Heart Association list. The key step in the FEHBlog’s view is exercising self control and keeping in regular touch with your primary care provider.

Happy Summer Solstice!

The Wall Street Journal reports that on Monday the President will issue an executive order mandating healthcare price transparency.  “It’s unclear how aggressive the order will be because of the pushback from industry, and some White House advisers who have urged a more measured approach, sources said.”

Healthcare Dive reports on Cigna CEO David Cordani’s encouraging address to an AHIP conference earlier this week.

“We all know there is an election coming up and we all know there is a present narrative around this because society demands more value from us today. The question is: are we going to resist, are we going to collaborate, or as we look at the path forward, will we choose to lead by being able to identify the bright spots that are working?” he asked.

For its part, Cigna is promising to bend the cost curve of healthcare by committing to deliver a rate of medical cost growth that will not exceed the consumer price index by 2021. 

Health Payer Intelligence informs us about an AHIP initiative on social determinants of health known as Project Link.

Project Link encompasses three major components:

•     A learning collaborative in which insurance providers can discuss social determinants of health and social barriers, sharing how to set up new programs, what tools to use for tracking results, and how to know if the programs are successful
•     The new Project Link Website shares positive solutions for non-medical health factors through access to AHIP staff’s research, AHIP members’ programs, and various digital resources including The Healthcare Policy Podcast
•     New payer partnership opportunities with different kinds of entities encourage healthy outcomes through conquering social barriers

The Joint Commission, which accredits hospitals, nursing homes, etc. announced a new antibiotic stewardship accreditation standard for outpatient facilities that takes effect on January 1, 2020.

Tammy Flanagan, on govexec.com, offers helpful information on the options available to married couples with at least one employed federal worker for survivor benefits, including continuation of FEHBP coverage. Check it out.

Following up on yesterday’s Senate Health Education Labor and Pensions Committee hearing, “Senate health committee Chairman Lamar Alexander (R-Tenn.) and Ranking Member Patty Murray (D-Wash.) today introduced S.1895, the Lower Health Care Costs Act of 2019 — bipartisan legislation to deliver better health care at lower cost.” The Committee leadership has scheduled a markup and vote on the submitted bill for June 26 at 10:30 am. Here’s a link to a Workshare Comparison of the discussion draft of S. 1895 vs. the submitted version of S. 1895.

Also today the Federal Trade Commission sought public comment on a proposed consent decree approving United Healthcare’s acquisition of Davita’s medical group for $4.3 billion. The settlement principally involves divestiture of the Davita medical group in the Las Vegas area. The consent decree will be open to public comment for 30 days after the decree is published in the Federal Register.

Yesterday, the FEHBlog pointed out a recent American Healthcare Quality and Research report on hospital readmission. Becker’s Hospital Review explains AHRQ focused on readmissions for 18 of the 21 principal diagnosis categories listed in ICD-10’s diagnosis coding system. Three categories were excluded for lack of data, or because they involved planned aftercare. The average readmission cost for any diagnosis in 2016 was $14,400.” The Review then listed the average readmission cost in 2016 for those 18 evaluated diagnoses.