Tuesday, April 16, 2019

Study: Wellness Programs "Don’t Cut Costs for Employers, Reduce Absenteeism or Improve Workers’ Wealth"

From Kaiser Health News
Workplace wellness programs have become an $8 billion industry in the U.S. But a study published Tuesday in JAMA found they don’t cut costs for employers, reduce absenteeism or improve workers’ health. 
Most large employers offer some type of wellness program — with growth fueled by incentives in the federal Affordable Care Act. 
A host of studies over the years have provided conflicting results about how well they work, with some showing savings and health improvements while others say the efforts fall short. 
Many studies, however, faced a number of limitations, such as failing to have a comparison group, or figuring out whether people who sign up for such wellness programs are somehow healthier or more motivated than those who do not. 
Now researchers from the University of Chicago and Harvard may have overcome these obstacles with one of the first large-scale studies that is peer-reviewed and employs a more sophisticated trial design. 
They randomly assigned 20 BJ’s Wholesale Club outlets to offer a wellness program to all employees, then compared results with 140 stores that did not.
The big-box retailer employed nearly 33,000 workers across all 160 clubs during the test. 
After 18 months, it turned out that yes, workers participating in the wellness programs self-reported healthier behavior, such as exercising more or managing their weight better than those not enrolled. 
But the efforts did not result in differences in health measures, such as improved blood sugar or glucose levels; how much employers spent on health care; or how often employees missed work, their job performance or how long they stuck around in their jobs.  
Full story.
 

Thursday, April 11, 2019

People Are Addicted to All Things Digital - And Yes, This Calls for Employer Accommodation

Pretty eye-opening piece from the folks over at Fisher Phillips:
... It is prudent to accommodate an individual with a digital addiction the same way you would accommodate any other individual: engaging in the interactive process, and reviewing and discussing any restrictions, limitations, or accommodations that may be needed. While there may be concerns regarding an employee’s ability to return to work in the digital age after receiving treatment for a directly related addiction, this concern cannot be used as a basis to engage in an adverse action against an employee. 
This remains the case even if the disorder is not officially “diagnosable.” In other words, an employer must take a digital addiction seriously, even if it does not understand the addiction or personally believe the addiction is legitimate. ...
The law requires that you participate in a “good faith” interactive process, which means considering each and every possible reasonable accommodation in “good faith.” Document any legitimate reasons why an accommodation may not be “reasonable,” but understand that not everything is “unreasonable.” While employers do not have to provide accommodations that are unduly burdensome, “undue burden” is an extremely tough standard to meet and is looked at primarily in financial terms by courts. So, unless a particular accommodation costs you some serious money, results in a loss of serious money through disruption to your operations, or is a direct threat to the health and safety of others, you are probably going to have to provide it. ...
 

20 New Healthcare-Related Bills in California's Legislature

Friday, March 22, 2019

Best of March Compliance and Benefit News

March 21, 2019 – McGriff Insurance Services
Excerpt: “An opinion letter from the Department of Labor (DOL) clarifies that employers cannot delay designating paid leave as FMLA leave, even if the employee would prefer this delay. Employers must notify employees that their leave is FMLA-protected within five days of obtaining enough information to make this determination.”

March 11, 2019 – McGriff Insurance Services
Excerpt: “On March 7, 2019, the DOL issued its new proposed rule on overtime exemptions. This proposal would increase the salary threshold for employees who qualify for the white collar exemptions under the FLSA from $455 per week to $679 per week ($35,308 per year). This is a far less significant increase than the $913 minimum weekly salary level set in the DOL's 2016 final rule (which never went into effect because of a federal court injunction). The proposed rule would also increase the $100,000 salary level for highly compensated individuals to $147,414 per year."

March 14, 2019 – Thomson Reuters
Excerpt: “A group health plan subject to COBRA is required to provide an initial (or “general”) COBRA notice to a covered employee or covered spouse only once—within 90 days after the individual first becomes covered under the plan…Remember, though, that…”

March 14, 2019 – U.S. Department of Labor, Wage and Hour Division
Excerpt: “FMLA2019-1-A: Provides an opinion on the obligation to designate FMLA-qualifying leave and prohibition on expanding FMLA leave; FLSA2019-1: Clarifies FLSA wage and recordkeeping requirements for residential janitors and the “good faith” defense; and FLSA2019-2: Addresses FLSA compliance related to the compensability of time spent participating in an employer-sponsored community service program.”

March 12, 2019 – BakerHostetler
Excerpt: “The DOL will then issue a Final Rule, taking all comments into consideration. The DOL expects that the Final Rule will ultimately take effect in January 2020. Employers should begin preparing now to ensure that their payroll procedures comply with the new rule by first reviewing payroll and salary records to determine which employees would no longer be exempt under the higher salary requirements.”

March 11, 2019 – Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Excerpt: “Not surprisingly, however, the COBRA rules are complex, and we frequently field questions from employers who are facing employee terminations and just want to get things right. Here are some of the more common questions we receive from our employer clients.”

March 11, 2019 – World at Work
Excerpt: “In the meantime, employers are in a holding pattern awaiting the EEOC’s guidance on this issue. Paretti said he expects that guidance come within the next week and that employers should sit tight until it does…Murdock said she wouldn’t be surprised if the EEOC extends the deadline for employers to report on the revised W-2 wage information and total hours worked. Paretti said he believes the DOJ has strong grounds for an appeal or a stay that would push back the collection of the pay data another year.”

March 11, 2019 – Winston & Strawn LLP
Excerpt: “…the benefit can be wrapped into the employer’s existing medical plan as a participating benefit. However, if an employer offers the telemental health benefit outside of the medical plan to all of its employees, the benefit may be treated as a separate ERISA plan with separate COBRA administration and, if not integrated with a medical plan, may not comply with the all of the requirements under the Affordable Care Act (ACA) that apply to group health plans.”

March 2019 – Harvard Business Review
Excerpt: “For competitive companies, providing quality coverage is good business. It helps attract and retain employees (good health plans are a sought-after benefit), and workers who receive good, affordable care are more satisfied and productive. But that coverage is expensive, and costs are rising.”

March 18, 2019 – Fisher & Phillips LLP
Excerpt: “…the EEOC this morning unveiled its 2019 EEO-1 reporting system that fails to include any request for such pay data. It appears as though employers will not have to provide information about their employees’ 2018 compensation for the time being…We fully expect the EEOC or OMB to appeal the judge’s decision and seek a delay of the revised EEO-1’s implementation while the appeal is pending. However, you should operate under the assumption that you will soon have to comply with the revised EEO-1 reporting rules.”

March 15, 2019 – FMLA Insight
Excerpt: “Despite the Clarity for the Rest of Us, the Opinion Letter Creates Quite a Trick Bag for Employers in the 9th Circuit.”

March 14, 2019 – Forbes
Excerpt: “So far, the partnership accounts for almost 100 million health plans and IBM expects additional members such as health care providers, technology companies, startups, and health organizations to join in the coming months. Among other things, the blockchain project encompasses a system for processing insurance claims and payments, which should decrease administrative costs and remove some duplication issues.”  

Thursday, March 14, 2019

Spent the Morning with Armstrong & Getty to Discuss Woes & Cures in U.S. Healthcare



Craig "The Healthcare Guru" joins The Armstrong & Getty Show to talk about a new regulation that could be the greatest thing to happen to healthcare in modern times. Buckle up--here's a commercial free and comprehensive explanation of the woes of American healthcare--and how to fix them.
 

Saturday, March 9, 2019

Trump Administration Considers Groundbreaking Regulation Forcing Healthcare Providers to Disclose Secret Industry Pricing

This proposed regulation has the potential to do more for healthcare price containment and transparency than the 40,000 pages of statues and regulations spawned by the Patient Protection and Affordable Care Act ("PPACA" or "Obamacare").  The Trump Administration is considering a regulation to compel doctors, hospitals and other healthcare providers to make the "secret" agreements on pricing they have in place with the insurance industry publicly available.  For the first time in the history of modern insured healthcare in America, the public would actually know the real prices and the free market would begin to be unleashed.

The U.S. Department of Health and Human Services (HHS) is seeking public comment on this proposed regulation.  Absolutely everyone should take the time to make their views known here.  As the Wall Street Journal Reports, "[t]he request for public comment has been largely overlooked because it was tucked into a 700-page draft regulation released last month on improving patients’ access to their electronic health records. Many insurers and hospital groups declined to discuss the government’s request for comment, saying they were still studying the idea."

See Footnote 1 (FN. 1) below for a copy of the comment I submitted to HHS on this regulation.  Please use your own words as HHS does not want duplicate comments.  This is solely provided so you can see the type of comment that may be appropriate if you agree with what you have read in this post.  The relevant section of the regulations is reprinted below in FN. 2 for your convenience.

The Journal also reports:
'It’s an effort by the president to help put Americans back in control of price ata,' said Dr. Don Rucker, national coordinator for health information technology at the Department of Health and Human Services. 'Our interest is on how can we empower the American public to shop for their care and control it.' Industry officials say the administration faces many hurdles before implementing such price transparency. The move is likely to be met by fierce opposition, including possible legal challenges, from hospitals, doctors groups and insurers since it could have far-reaching impact.
I couldn't agree more.  Insurers and providers alike will have a bullseye on the Trump Administration and the officials responsible for implementing this rulemaking. And that is no small lobby, with pockets as deep as one-fifth of the entire U.S. economy.  The cash cow of obfuscation, secret discounts, unknown prices and third-party payment would begin a rather strict diet very soon if this information were permitted to flow into the light of day.  

I can already imagine insurance plans with very large deductibles paired with massive HSA or HRA accounts and online shopping tools. This will allow patients to spend their own pre-tax healthcare dollars shopping on robust online comparison platforms telling you exactly what your shoulder MRI will cost at the 15 nearest providers.  This can lead to the sort of consumerism in healthcare that we've only been partially able to achieve around the edges so far for procedures like Lasik eye surgery, vasectomies or cosmetic surgeries - areas where providers advertise pricing and patients regularly spend their own money.   

What kind of arguments are made against this type of transparency and consumerism?  Well, as it turns out, embarrassingly weak ones.  Consider this one from the Journal's article, "[t]he American Hospital Association said it opposes the move. 'Disclosing negotiated rates between insurers and hospitals could undermine the choices available in the private market,' said Tom Nickels, an executive vice president of the trade group. 'While we support transparency, this approach misses the mark.' 

I actually laughed out loud at this assertion.  Yes, it certainly could "undermine choice," particularly in the short run as the most bloated, inefficient and overpriced providers are driven out of business for failing to be competitive.  But when has true competition, price transparency and a free-market ever actually hurt the consumer, El Presidente Nicolás Maduro?  This assertion isn't ground in reality.  Consumer choice will explode as providers begin to compete on price, expensive providers become more efficient, and lower cost options spring up at your local drug or box stores.  Then, Healthcare Guru's (like yours truly, thanks Armstrong & Getty) will get busy designing coverage that rewards consumers who shop for price by loading up pre-tax accounts and making online price comparison tools readily available.  

The Journal further notes that:
Hospital groups also said the rule is unnecessary because they already publicly release their list prices. Hospitals had to comply with that new Trump administration requirement this year. But the steep discounts that insurers negotiate from the list prices remain kept from public view.  
The only thing that matters in that quote is the last sentence.  The prior sentences represent another anemic assertion by providers to try and keep their pricing scheme in the dark.  No, we don't have to tell you the real prices because we've already published hard to find, unintelligible lists of completely fake prices that nobody ever pays!  

In fact, insurers and providers regularly engage in contractual agreements not to disclose the prices they've negotiated as those prices are "proprietary."  Yes, that's right, the price is proprietary.  I cannot fathom a more un-American, anti-capitalistic circumstance than secret proprietary pricing.  First, American workers pay these premiums with mostly hidden dollars as wages are suppressed to pay for year over year double-digit premium escalation.  Then when they visit a doctor where they will be expected to pay 20% of the bill, patients are often not permitted to see the price until afterwards.  What sort of insanity have we all signed up for here?  How have we allowed to let this go on this long?  

As the Journal story states:
The prices charged for health care vary widely depending on whether a provider is in or out of the patient’s insurance network and on the insurer’s undisclosed price agreements with hospitals.  Employers and patients are often unable to see which hospital systems and doctor’s offices are driving prices upward. Some health-care economists argue that the secrecy is a factor in why the U.S. spends more per resident on health care than any other developed nation.  
That last sentence is the understatement of 2019.  I realize the year is young, but I cannot comprehend any healthcare economist that would argue that secrecy in pricing is not contributing to our astronomically high healthcare costs.  

That this decades-long scam may now begin to crumble because we have a President in place who is so unconventional, bold and outside the norm of traditional party ties is both fitting and ironic.  Yes, he is a billionaire businessman widely lauded by many in the business community for the country's current economic growth.  But he's clearly not beholden to the $4 trillion dollar healthcare industry the way so many in both parties are.  After sharing this story with my friends Jack and Joe of The Armstrong and Getty Radio Show, one of the first questions they asked me was which political party, if any, will support this?  Maybe neither.   

It will be captivating to see how this rolls forward politically.  My suspicion is that the far left third of the Democrat Party will generally support this as a way to stick it to big insurance and giant hospital conglomerates; not because of any affinity for consumer-driven free-markets.  I also think that the more libertarian leaning 20 to 30 percent of the Republican Party may support it as a warm embrace of cleaner capitalism and a strong shot across the bow of the crony capitalism that dominates the industry now.  (See FN. 3 for more background on the legislative history giving rise to this regulation and FN 4 for my response to fellow free-marketers who may find it peculiar to see me arguing for more regulation.)

One thing we can be sure of is that any of our elected officials who receive substantial donations from the healthcare industry will come out against this as this threatens the very core of that system.  And there are plenty in both parties in that camp.  Maybe they won't actually come out against the regulation, as being out publicly loud and proud against telling someone the price before they buy something isn't a particularly good look; even for the most Marxist among us.  But they will work vehemently during the regulatory sausage making to water down the strength of the rule and do all they can to render it impotent.  For more on that, see my discussion as to how the Obama Administration wholly neutered PPACA's individual mandate once it realized it was going to start costing them votes to penalize those who didn't want to buy insurance.  

The full article from Stephanie Armour and Anna Wilde Mathews writing at the Wall Street Journal is worth your time to read. In the meantime, here are some other outstanding sections from their story:
... The U.S. Department of Health and Human Services is seeking public comment on whether patients have a right to see the discounted prices in advance of obtaining care, federal officials said. The invitation for comment—outlined in a little noticed passage of a broader patient-data proposal released last month—is a major step toward a possible rule that could require providers to release such information, they said. 
Commercial health-care markets are rife with complex systems of hidden charges and secret discounts. Policy makers, employers and patients are often unable to see clearly which hospital systems and doctor practices are driving high costs. 
The administration’s vision—which would possibly include fines for noncompliance—is to arm patients with information needed to make health-care decisions much like shopping for other consumer services. Rates potentially could be posted on public websites, where consumers would check the negotiated price of a service before they pick a provider. That, in turn, could lead to lower copays or deductibles. ...
Insurers might demand the same hospital discounts won by competitors, while some hospital systems might push for payment rates that match their crosstown rivals’. If doctors’ negotiated rates become public, other doctors could lower their prices to try to lure away patients.  ...
A group that advocates for patients praised the proposed rule.

“If this rule goes forward, it will be a huge step towards true pricing transparency and will finally allow patients to really see what their costs will be before a service—something that has rarely been possible before,” said Caitlin Donovan, director of outreach and public affairs at the National Patient Advocate Foundation, which advocates for quality health care for people with chronic, debilitating or life-threatening illnesses. ...
Administration officials could move to issue a final rule mandating the disclosure of negotiated rates after the comment period closes May 3. 
The move follows a report on health-care markets issued in December by the Trump administration, which called for greater pricing transparency and cited reporting in The Wall Street Journal on the complexity of health costs, among other sources. 
Regulators said the authority for requiring price disclosure stems from the 21st Century Cures Act enacted in 2016, which makes blocking of health information illegal under penalty of up to $1 million, and from regulations stemming from federal privacy law. ...
Fully forcing the rates into the open could change the dynamics of the health market. Employers and patients, given clearer comparisons, might change their habits—though consumers often show limited inclination to shop for health-care services, even when they face significant costs under high-deductible health plans. 
“You can’t shop for care if you don’t know what the prices are,” said HHS’s Mr. Rucker. 
Once publicly available, patients may have the benefit of third-party technology companies aggregating the price data and building shopping tools that show the negotiated costs for services charged by various hospitals and providers.

Out-of-network doctors could try to compete with in-network negotiated rates. Health systems that charge higher negotiated rates could lose business if they don’t match competitors’ rates or justify the reasons for their steeper costs. Employers could press their insurers to include hospitals with lower negotiated rates in their networks.
 
Hospitals are likely to push for insurers to be under the same transparency rules and be required to release the negotiated discounts they pay for patient care.
“They’d need to bring insurers and payers into the equation because they have the data to determine for patients what their costs should be,” said Chip Kahn, president of the Federation of American Hospitals, which represents investor-owned community hospitals and health systems. 
I was on the Armstrong and Getty show the morning of March 11th to discuss this story:





FN. 1: Sample Comment to Proposed Regulation - The language in Section VIII., C, 3 of this proposed regulation found on pages 90-91 of the PDF requiring medical providers to disclose the true pricing of medical procedures is an imperative step to resuscitate free-market healthcare in the U.S.  I wholeheartedly support HHS in its efforts to compel this much needed transparency from hospitals and medical providers.  This will spur competition, lower prices and empower the patient to direct his or her own care.  When providers and insurers enter into contracts claiming that the actual procedure pricing is "proprietary" and cannot be disclosed it hurts consumers, patients and the American economy in the form of inflated oligopoly pricing in healthcare.  If we don't take legislative and regulatory steps like this to compel this broken market to reveal its actual pricing, America will default into socialized medicine because nobody can afford the perpetual 10 percent premium increases.  People will throw their hands in the air and give up on the market if we don't help it heal with rules like these.

FN. 2: 45 CFR Parts 170 and 171, Section VIII, C., 3. found on Page 90 of 187 in this PDF:

Price Information

The fragmented and complex nature of pricing within the health care system has decreased the efficiency of the health care system and has had negative impacts on patients, health care providers, health systems, plans, plan sponsors and other key health care stakeholders. Patients and plan sponsors have trouble anticipating or planning for costs, are not sure how they can lower their costs, are not able to compare costs, and have no practical way to measure the quality of the care or coverage they receive relative to the price they pay. Pricing information continues to grow in importance with the increase of high deductible health plans and surprise billing, which have resulted in an increase in out-of-pocket health care spending. Transparency in the price and cost of health care would help address the concerns outlined above by empowering patients to make informed health care decisions. Further, the availability of price information could help increase competition that is based on the quality and value of the services patients receive. Consistent with its statutory authority, the Department is considering subsequent rulemaking to expand access to price information for the public, prospective patients, plan sponsors, and health care providers.

Increased consumer demand, aligned incentives, more accessible and digestible information, and the evolution of price transparency tools are critical components to moving to a health care system that pays for value. However, the complex and decentralized nature of how price information is created, structured, formatted, and stored presents many challenges to achieving price transparency. To this point, pricing within health care demands a market-based approach whereby, for example, platforms are created that utilize raw data to provide consumers with digestible price information through their preferred medium.

ONC has a unique role in setting the stage for such future actions by establishing the framework to prevent the blocking of price information. Given that price information impacts the ability of patients to shop for and make decisions about their care, we seek comment on the parameters and implications of including price information within the scope of EHI for purposes of information blocking. In addition, the overall Department seeks comment on the technical, operational, legal, cultural, environmental and other challenges to creating price transparency within health care.

Should prices that are included in EHI:
  • Reflect the amount to be charged to and paid for by the patient's health plan (if the patient is insured) and the amount to be charged to and collected from the patient (as permitted by the provider's agreement with the patient's health plan), including for drugs or medical devices;
  • Include various pricing information such as charge master price, negotiated prices, pricing based on CPT codes or DRGs, bundled prices, and price to payer;
  • Be reasonably available in advance and at the point of sale;
  • Reflect all out-of-pocket costs such as deductibles, copayments and coinsurance (for insured patients); and/or
  • Include a reference price as a comparison tool such as the Medicare rate and, if so, what is the most meaningful reference?
For the purpose of informing referrals for additional care and prescriptions, should future rulemaking by the Department require health IT developers to include in their platforms a mechanism for patients to see price information, and for health care providers to have access to price information, tailored to an individual patient, integrated into the practice or clinical workflow through APIs?

To the extent that patients have a right to price information within a reasonable time in advance of care, how would such reasonableness be defined for:
  • Scheduled care, including how far in advance should such pricing be available for patients still shopping for care, in addition to those who have already scheduled care;
  • Emergency care, including how and when transparent prices should be disclosed to patients and what sort of exceptions might be appropriate, such as for patients in need of immediate stabilization;
  • Ambulance services, including air ambulance services; and
  • Unscheduled inpatient care, such as admissions subsequent to an emergency visit?
How would price information vary based on the type of health insurance and/or payment structure being utilized, and what, if any, challenges would such variation create to identifying the price information that should be made available for access, exchange, or use?

Are there electronic mechanisms/processes available for providing price information to patients who are not registered (i.e., not in the provider system) when they try to get price information?

Should price information be made available on public websites so that patients can shop for care without having to contact individual providers, and if so, who should be responsible for posting such information? Additionally, how would the public posting of pricing information through API technology help advance market competition and the ability of patients to shop for care?

If price information that includes a provider's negotiated rates for all plans and the rates for the uninsured were to be required to be posted on a public website, is there technology currently available or that could be easily developed to translate that data into a useful format for individuals? Are there existing standards and code sets that would facilitate such transmission and translation? To the extent that some data standards are lacking in this regard, could developers make use of unstandardized data?

What technical standards currently exist or may be needed to represent price information electronically for purposes of access, exchange, and use?
Are there technical impediments experienced by stakeholders regarding price information flowing electronically?

Would updates to the CMS-managed HIPAA transactions standards and code sets be necessary to address the movement of price information in a standardized way?
How can price transparency be achieved for care delivered through value based arrangements, including at accountable care organizations, demonstrations and other risk-sharing arrangements?

What future requirements should the Department consider regarding the inclusion of price information in a patient's EHI, particularly as it relates to the amount paid to a health care provider by a patient (or on behalf of a patient) as well as payment calculations for the future provision of health care to such patient? 

If price information is included in EHI, could that information be useful in subsequent rulemaking that the Department may consider in order to reduce or prevent surprise medical billing, such as requirements relating to:
  • The provision of a single bill that includes all health care providers involved in a health care service, including their network status;
  • The provision of a binding quote reasonably in advance of scheduled care (that is, non-emergent care) or some subset of scheduled care, such as for the most “shoppable” services;
  • Ensuring that all health care providers in an in-network facility charge the in-network rate; and
  • Notification of billing policies such as timely invoice dates for all providers and facilities, notwithstanding network status, due date for invoice payments by the prospective patient's payers and out-of-pocket obligations, date when unpaid balances are referred for collections, and appeals rights and procedures for patients wishing to contest an invoice?
FN. 3:  Statutory Authority - HHS maintains that the authority for this regulation comes from "Section 4004 of the Cures Act added section 3022 of the PHSA (42 U.S.C. 300jj-52, 'the information blocking provision'). Section 3022(a)(1) of the PHSA defines practices that constitute information blocking when engaged in by a health care provider, or a health information technology developer, exchange, or network.  Section 3022(a)(3) authorizes the Secretary to identify, through notice and comment rulemaking, reasonable and necessary activities that do not constitute information blocking for purposes of the definition set forth in section 3022(a)(1).  We propose to establish seven exceptions to the information blocking definition, each of which would define certain activities that would not constitute information blocking for purposes of section 3022(a)(1) of the PHSA because they are reasonable and necessary to further the ultimate policy goals of the information blocking provision. We also propose to interpret or define certain statutory terms and concepts that are ambiguous, incomplete, or provide the Secretary with discretion, and that we believe are necessary to carry out the Secretary's rulemaking responsibilities under section 3022(a)(3)."  This is located on page 85 in this PDF.  

Interestingly enough, The 21st Century Cures Act was authored by a Democrat from Oregon and supported overwhelmingly by both parties.  By in large, the law deals with health information technology protocols, information sharing, patient privacy, disclosure procedures, and a myriad of other health IT matters.  That Act, directed HHS to basically determine what is and is not unlawful information blocking in the health IT realm.  

The 21st Century Cures Act grew out of and expounded upon the HIPAA HITECH Law of 2009.  That was part of the Obama Administration's Stimulus Package or the The American Recovery and Reinvestment Act of 2009 ("ARRA")  That law passed congress almost entirely on party lines with only a handful of Republican politicians joining Democrats.  Now, 10 years later, the Trump Administration is reaching deep within that legislative lineage to write this regulation.  

FN. 4: Administrative law is an utter nightmare in America.  We produce 60,000 to 90,000 pages of new rules and regulations in the federal register each and every year.  Congress repeatedly abdicates its responsibility to legislate by passing broad, feel good, ambiguous measures and directing unelected administrative bureaucrats to write regulations that have the force of law.  The phenomenon didn't even begin in the United States until 100 years after our constitution was adopted.  There are very reputable law professors and scholars who maintain that it is either wholly illegal or at a minimum, has completely sprawled well beyond anything our forefathers could have imagined.  For more on the extra-lawful sprawl of Administrative law into every aspect of our life, read and follow Tim Sandefur.  I know of nobody better in America on the topic.  

Hence, it is not without some trepidation that I find myself in favor of this proposed regulation.  From a constitutional law perspective, my instinct is to reject all new laws and statutes unless those new mandates are narrowly tailored and necessary for a clear constitutional purpose like protecting our borders, right to bear arms or freedom of speech.  Government force must be limited to the protection of the rights of individuals to life, liberty, and property.  The government's proper role at this juncture in our history should be to repeal many of our duplicative, unnecessary and inane laws.  The government should not interfere with two people's right to contract unless they are physically harming or defrauding another.  

However, a government should also insert itself in the limited instances when markets fail to provide solutions.  Whether those failures are for externalities like pollution or when the market perversion emanates from an arguably government-aided failure like in the case of monopolies and oligopolies.  America's modern health insurance delivery system is a clear oligopoly with anti-competitive contracts built in to mask transparency.  We are left with only four major, national insurance carriers in the U.S.  The healthcare "market" has been choked off with hundreds of thousands of pages of statutes, case law and regulation in a mish-mashed attempt to partially socialize, protect the oligopoly's power and even help patients where that fits with the other two goals.  It is broken and it cannot continue down its current path or we will end up with a fully socialized system within ten years.  

So yes, it would be better for all of of us and it would be cleaner constitutionally if this proposed regulation had been clearly passed by congress.  But it wasn't.  And I'm in the trenches fighting the healthcare behemoth every day with American patients and businesses.  So I'm willing to use whatever free-market tool is given to me and head into battle.  I will not let pefect be the enemy of good in this struggle.  
  

Friday, February 22, 2019

On Armstrong & Getty: Who Owns Your Healthcare Data? Our Guru's Info Will Blow Your Mind!

Insurance companies are gaining a ton of information about your health--and making predictions about you.

Is the information accurate? Who owns it? Who's profiting from it?

Listen to the Armstrong & Getty Extra Large Interview featuring Craig "The Healthcare Guru" Gottwals.




Incredibly alarming trend in our industry expounded on by Marshall Allen at Pro Publica / NPR:
Without any public scrutiny, insurers and data brokers are predicting your health costs based on data about things like race, marital status, how much TV you watch, whether you pay your bills on time or even buy plus-size clothing. ... 
With little public scrutiny, the health insurance industry has joined forces with data brokers to vacuum up personal details about hundreds of millions of Americans, including, odds are, many readers of this story. The companies are tracking your race, education level, TV habits, marital status, net worth. They’re collecting what you post on social media, whether you’re behind on your bills, what you order online. Then they feed this information into complicated computer algorithms that spit out predictions about how much your health care could cost them.
Are you a woman who recently changed your name? You could be newly married and have a pricey pregnancy pending. Or maybe you’re stressed and anxious from a recent divorce. That, too, the computer models predict, may run up your medical bills.
Are you a woman who’s purchased plus-size clothing? You’re considered at risk of depression. Mental health care can be expensive.
Low-income and a minority? That means, the data brokers say, you are more likely to live in a dilapidated and dangerous neighborhood, increasing your health risks.  ...
The industry has a history of boosting profits by signing up healthy people and finding ways to avoid sick people — called “cherry-picking” and “lemon-dropping,” experts say. Among the classic examples: A company was accused of putting its enrollment office on the third floor of a building without an elevator, so only healthy patients could make the trek to sign up. Another tried to appeal to spry seniors by holding square dances. ... 
Robert Greenwald, faculty director of Harvard Law School’s Center for Health Law and Policy Innovation, said insurance companies still cherry-pick, but now they’re subtler. The center analyzes health insurance plans to see if they discriminate. He said insurers will do things like failing to include enough information about which drugs a plan covers — which pushes sick people who need specific medications elsewhere. Or they may change the things a plan covers, or how much a patient has to pay for a type of care, after a patient has enrolled. Or, Greenwald added, they might exclude or limit certain types of providers from their networks — like those who have skill caring for patients with HIV or hepatitis C. ...
The full story is absolutely worth your time to read. 
  

Thursday, January 17, 2019

Links: ERISA Lawyer Fees; Fake Health News; Canadian Care; HSAs & Obamacare Waste, Cost Explosions & Deaths

Momma, don't let your babies grow up to be lawyers ... unless it's ERISA lawyers ..."[T]he court found that hourly rates of $450 for the associate on the case and $900 for the partner to be reasonable and within the prevailing rates in the market of ERISA attorneys.

The IRS overpaid nearly $4 billion to Obamacare customers through tax credits last year, and because of the way the law is written it can't even try to collect on a quarter of that.

Remember the claim that the ACA was going to reduce the cost of healthcare $2,500 per family?  Well, not so much.  ObamaCare to Cost Large Employers an Added $4,800 to $5,900 Per Employee Per Year.

Government Healthcare: Nothing like a 60 hour emergency room wait for a hospital bed. But hey, it's free!

#FakeHealthNews: Burying the Lede ... Rand Paul is scheduled to have the outpatient operation at the privately administered Shouldice Hernia Hospital in Thornhill, Ontario.

It Sure Looks Like This Obamacare Program Has Led to More People Dying. Under the health law, Medicare started penalizing hospitals for too many readmissions. Now mortality rates are up.

Wellness programs — which provide financial incentives for healthy activities or preventive care — don’t work, as numerous studies have shown. Here and Here

Hospitals are now required to post prices online. But most price lists are buried under many sub-menus or at the very bottom of a long page scroll. Nearly 75% of hospital websites in the study required three or more clicks to find the information. Some required 100s of clicks.

Cutting Employee Hours to Avoid ACA Requirements Costs Dave & Buster's $7.4 Million.

With HSA changes, here's how to find your best option.

Friday, December 21, 2018

Healthcare Reform & Benefit News, Week of Dec. 21, 2018











Healthcare Reform News

The ACA Remains in Place After Being Struck Down by Federal Court
December 20, 2018 – McGriff Insurance Services
Excerpt: “This lawsuit was filed by 20 states as a result of the 2017 tax reform law that eliminates the individual mandate penalty. In 2012, the U.S. Supreme Court upheld the ACA on the basis that the individual mandate is a valid tax. With the penalty’s elimination, the court in this case ruled that the ACA is no longer valid under the U.S. Constitution.”

Obamacare Battle Now Before a Baltimore Judge Picked by Obama
December 19, 2018 – Bloomberg
Excerpt: “Hollander was nominated to the federal bench by Obama in April 2010, less than a month after the ACA was signed into law and the first suits were filed to dislodge it. She may issue a ruling as soon as arguments are completed, but more likely will compose a written ruling in coming days or weeks.”

House Rules to Repackage Tax-Retirement Bill Today
December 19, 2018 – ThinkAdvisor
Excerpt: “Members of the House Rules Committee are preparing to look at the big Republican retirement bill starting at 5 p.m. today, in the U.S. Capitol…The latest would version would also extend the current moratorium on the Affordable Care Act (ACA) medical device tax; put off implementation of the ACA “Cadillac plan tax,” or tax on high-cost health benefits packages; extend the current suspension of the ACA annual fee on health insurers, or “health insurer tax”; and repeal the excise tax on indoor tanning services.”

ACA Ruled Unconstitutional, But It’s Status Quo For Employers—For Now
December 17, 2018 – Fisher & Phillips LLP
Excerpt: “A Texas federal judge dealt a serious blow to the Affordable Care Act (ACA) late Friday afternoon, ruling that the tax reform law passed by Congress in late 2017 rendered the healthcare law unconstitutional. While U.S. District Court Judge Reed O’Connor’s 55-page opinion overturns the entirety of the law on a national basis, his ruling does not include any sort of injunction that would immediately cause employers to alter their practices with respect to benefit administration.”

ACA? Unconstitutional, So Declares a Federal Judge
December 15, 2018 – FisherBroyles LLP
Excerpt: “To keep track of the whipsaw that is the ACA, be aware that Democrat defenders of the ACA have confirmed they would appeal. Notably, the federal judge did not issue an injunction to stop enforcement of the law, and even the White House (though applauding) cautioned that the ACA remains in place while appeals proceed. So, now what??!!”

Texas Judge Throws Out Most of ACA
December 14, 2018 – ThinkAdvisor
Excerpt: “U.S. District Judge Reed O’Connor said today that the PPACA provision requiring many individuals to own health coverage is now an unconstitutional requirement for people to buy health coverage, not a tax that complies with the U.S. Constitution. Because PPACA contains no “severability clause,” or provision that lets the rest of PPACA survive if one part of PPACA is nullified, all of PPACA is invalid, O’Connor writes in an opinion explaining his ruling on the case, Texas et al. v. USA (Case Number 4:18-cv-00167-O).”


In Other News:

Removal of Final ADA Wellness Rule Vacated by Court
December 20, 2018 – The Federal Register
Excerpt: “This action responds to a decision of the U.S. District Court for the District Court for the District of Columbia that vacated the incentive section of the ADA) rule effective January 1, 2019.”

The Evolution of America’s Sick Leave Epidemic vs. State Efforts to Find a Cure
December 19, 2018 – Seyfarth Shaw LLP
Excerpt: “This blog presents Seyfarth Shaw LLP’s Infographic tracking the spread of paid sick leave and anti-local sick leave laws around the country. The Infographic is divided into four distinct time periods to highlight the geographic and historic evolution of these laws.”

Ohio small businesses may get more access to employee health data
December 18, 2018 – Dayton Daily News
Excerpt: “A proposed Ohio law could help small businesses shop for affordable health insurance by letting them see details on expensive health insurance claims, though critics say it would violate employee medical privacy. For employees with a claim that’s $30,000 or more, Senate Bill 227 will allow insurers to provide companies the amount paid toward that claim and the health condition being treated.”

3 Options For Providing Wellness Program Incentives In 2019…And Beyond
December 14, 2018 – Fisher & Phillips LLP
Excerpt: “Employers are about to enter into limbo when it comes to maintaining wellness programs, and you will soon need to make a decision about how you will implement any such programs at your workplace. As of January 1, 2019, the federal rules that had been put into place to govern wellness program incentives will be officially invalid…”

Health Plan Fiduciaries Liable for Restitution and Penalties Relating to Tobacco Surcharge
December 13, 2018 – Thomson Reuters
Excerpt: “A federal court has entered a consent order requiring the fiduciaries of a group health plan to repay over $145,000 to participants who, as tobacco users, were required to pay health insurance premium surcharges as part of the plan’s wellness program.”