Wednesday, December 20, 2023

On Armstrong and Getty for a Couple Hours This Morning

7 AM Hour - Just a Wee Bit Less Dynamic: features our guest, Craig, the Obamacare Guru, who joins Jack to discuss...

  • The escalation of Christmas...
  • The Trump/Colorado ruling...
  • Jack's confrontation conundrum...
  • Immigration...
  • Those magical family moments! 

8 AM Hour - Just Eat Your Cotton Candy! features Craig, the Obamacare Expert, who joins Jack to discuss...

  • The Trump/Colorado decision...
  • Weight Loss Drugs...
  • The Ukraine/Russia War.
  • Expert military analyst Mike Lyons joins the show to talk about the Israel/Hamas war.


Friday, September 15, 2023

Healthcare's Final Frontier: Navigating the Wild West of RBP with Industry Renegades

Omar Arif of ClaimDOC & Scott Schnaidt of HST on All Things RBP

Ever imagine healthcare could feel like the Wild West? Welcome to the untamed lands of Reference-Based Pricing (RBP), the sizzling frontier where a select few employers unleash radical savings while giving the traditional PPO system a stiff arm.

Unveil a world where only 3-4% of employers dare to tread, but where jaw-dropping 30-40% savings rain like gold and concierge-level service is the sheriff in town.

Curious about RBP's magic? This isn't just healthcare. It's "Health-FAIR!" Here, employers "price-match" medical costs against benchmark prices, slicing their claims in half compared to big insurers.

Projections say employer healthcare costs will shoot up another 7-9% in 2024. Yet Medicare Part D Premiums are projected to decrease by 1.8%. All major insurers participate in both markets. The lesson? Employers with private insurance are subsidizing Medicare. But hold your horses. With RBP, brace yourself for a 0-2% trend that turns the tables on traditional care.

Jump into this roller-coaster ride of a podcast with your guide through this maze, joined by two titans of the trade—Omar Arif of ClaimDOC & Scott Schnaidt of HST. They've both cracked the code, each in their unique ways, and the results? Nothing short of spellbinding.

🎯 What's on Tap:
  • The gears and levers behind RBP
  • Navigating the legal minefields
  • Secrets from Third-Party Administrators (TPAs)
  • RBP's performance across the geographical board
  • The art of handling balance bill claims
  • Litigation: When & How Often
  • Co-fiduciaries: The real deal or just smoke and mirrors?
  • Show Me the Money: Their pay structure dissected
  • Year-end Report Cards: The Good, the Bad, and the Profitable
And just when you think it couldn’t get any cooler—did one of these guys actually play pro baseball in a global tourney, while the other rocked the stage with NIRVANA? 🎸⚾

Lock in your earbuds. Prepare for a mind-bending journey. You’re entering "The Repricers"—Healthcare’s Final Frontier! 🌌🛸

Saturday, September 2, 2023

The U.S. Will Finally Start Negotiating Drug Prices with Armstrong and Getty

I spent one morning this week chatting with Armstrong and Getty regarding the news that the federal government will finally begin negotiating the price of drugs.  10 of them.  Two and a half years from now.  

Well, it's a start...

Tuesday, August 8, 2023

It's A Government Healthcare Complex: Craig Gottwals Talks To A&G

Your health insurance costs and premiums have skyrocketed compared to the rate of inflation since Obamacare passed. Meanwhile, insurance carrier stock prices have grown by 1900% in the same timeframe.

"They're making unimaginable amounts of money... off of you." -Joe Getty

Craig Gottwals, aka "Craig the Healthcare Guru,” talks about that and more in a new episode of A&G's Extra Large Podcast.

Listen to the Armstrong & Getty Extra Large Podcasts featuring Craig.

Originally posted here

Saturday, July 15, 2023

Required Leave for Any Reason, Ozempic, and Coverage for Gender Affirming Care

Tools & Webinars:

Compliance News:

Pharmacies are Sharing Sensitive Health Data with Facebook - "Looking for an at-home HIV or Plan B test on CVS’ website is not as private an experience as one might think, and CVS is not the only pharmacy sharing this kind of sensitive health data, according to a KFF Health News investigation. We found trackers collecting browsing- and purchase-related data on websites of 12 of the U.S.’ biggest drugstores, including grocery store chains with pharmacies, and sharing the sensitive information with companies like Meta (formerly Facebook); Google, through its advertising and analytics products; and Microsoft, through its search engine, Bing."

The IRS recently issued Notice 2023-37 to update its guidance for high deductible health plans (HDHPs) on expenses related to COVID-19 testing and treatment. The notice also clarifies whether certain items and services are treated as preventive care under the tax rules for HDHPs, and confirms that for plan years ending after Dec. 31, 2024, an HDHP is not permitted to provide benefits for COVID-19 testing and treatment without a deductible. 

Open Issue: Employer-Sponsored Health Plans and Coverage of Gender-Affirming Care

June 28, 2023 – Jackson Lewis P.C.

Whether an employer-sponsored health plan must cover gender-affirming care is often dependent on whether the employer’s health plan is fully-insured or self-insured; fully-insured plans must provide gender-affirming care to the extent required by applicable state and federal law, while the law on categorical exclusions for gender-affirming care in self-insured plans continues to develop. 

Talk about an FMLA leave headache! This one was a migraine

June 27, 2023 – HR Morning

A federal appeals court rejected claims filed by terminated employees who sought FMLA leave along with many others, ruling that the employer had good reason to believe the employees acted dishonestly and sought leave for an improper purpose. Employers can also take away from this article a few tips to curb FMLA leave abuse.  

July Is the New January: The Pace of New State Laws Heats Up

June 26, 2023 – Littler Mendelson P.C.

This article offers insight into an array of labor and employment laws and ordinances from across the country, state by state, that take effect mid-year and will implicate employers’ compliance obligations. 

New Trend in State Laws, Paid Leave for Any Reason - "In May 2019, Maine became the first state in the nation to require private employers to provide paid leave for any reason when Gov. Janet Mills (D) signed LD 369. Nevada followed a month later, in June 2019, when then-Gov. Steve Sisolak (D) signed SB 312, which also granted paid leave for any reason. Illinois is poised to join their ranks on January 1, 2024. In March 2023, Gov. J.B. Pritzker (D) signed SB 208, which says that beginning on January 1, 2024, private employers must offer their workers five days paid time off for any reason after they’ve completed a 90-day probation period."

  • In Nevada, for example, Employers may limit the use of paid leave to 40 total hours per benefit year and may prevent an employee from using any accrued paid leave until the employee reaches their 90th day of employment. Employers may also set minimum increments of paid leave which an employee may elect to use, so long as that limit does not exceed 4 hours.

Benefits News:

A Couple Retiring in 2023 Needs $315,000 in Retirement Savings Just to Cover Medical Expenses in Addition to Medicare - "The after-tax cost for medical expenses throughout retirement for a single, 65-year-old retiree held steady at $157,500 ($315,000 for the average retired couple at the same age), according to the new 2023 Retiree Health Care Cost Estimate, which tracks retiree healthcare expenses annually."

Renewals Not Looking Good for UHC Clients: "UnitedHealth Group extended its streak as the most profitable company among major national insurers in the first quarter of 2023, reporting $5.6 billion in earnings. By comparison, fellow healthcare giant CVS Health reported the second-highest profit in the quarter at $2.1 billion, less than half of UnitedHealth's haul. CVS' profit also declined year over year, as it posted nearly $2.4 billion in the first quarter of 2022. UnitedHealth also takes the top spot on revenue for the quarter, reporting $91.3 billion. That's up from $80.1 billion in the prior-year quarter. CVS again lands at No. 2 on revenue, posting $85.3 billion."

Will the Doctor See You Now? The Health System's Changing Landscape - "About 48% of primary care physicians currently work in practices they do not own. Two-thirds of those doctors don’t work for other physicians but are employed by private equity investors or other corporate entities, according to data in the “Primary Care Chartbook,” which is collected and published by the Graham Center.... it now takes an average of 21 days just to get in to see a doctor of family medicine, defined as a subgroup of primary care, which includes general internists and pediatricians. Those physicians are many patients’ first stop for health care."

Health and Wellness:

Watch The Truth About Weight Loss Drug Ozempic with Dr. Peter Attia - a one-minute short.

Trusting The Science: The following is a list of the 20 largest settlements reached between the United States Department of Justice and pharmaceutical companies from 1991 to 2012 - Pfizer claims the largest criminal fine in U.S. history, while GlaxoSmithKline holds the largest pharma-fine in history when combining civil and criminal penalties.

What you need to know about Ozempic & Mounjaro - "But I want all my patients and the public to know that the appetite and weight loss effects do not last forever. Effects on hunger, cravings control, sweet cravings, mood & fullness are TEMPORARY and return to baseline between years 1 & 2. This was shown in surveys taken from patients using the medication over the long term."

Just 3% of adults show no major health risk factors linked to death - "Overall, most of us have something wrong with us, and we’re more likely to have a lifestyle health-risk factor now than in the ’80s and that’s actually associated with even greater mortality risk now than before."

Ozempic, Weight-Loss Drugs Probed Over Reports of Suicidal Thoughts - "Novo Nordisk A/S’s weight-loss medications are under investigation by the European Union’s drugs regulator after a small number of reports of suicidal risks were referred to the watchdog. The European Medicines Agency is looking at adverse events noted by the Icelandic Medicines Agency, including two cases of suicidal thoughts linked to the drugs Saxenda and Ozempic, the EMA said in a statement Monday." 

Monday, June 19, 2023

This Week In Red Pilled Healthcare News

  • Not worried about the fiduciary obligation to keep costs as low as reasonable? This firm looks for employers to sue on this very topic: "His law firm, Schlichter Bogard, LLC., recently posted advertisements looking for employees and potential plaintiffs at Target, State Farm, Nordstrom, and Pet Smart. They seek “current employees who have participated in the company’s healthcare plan.”

Monday, May 22, 2023

HR’s Porta-Potty Predicament: California Compliance Chaos

From Armchair Lawyer to Bathroom Auditor. A Peculiar Friday at the Office

In the late afternoon on Friday, at the brim of the weekend, my phone shrieked with a call of urgency. It was from a client named Nancy, who, with an audible eye-roll, launched into an account of her current predicament. Here's a condensed retelling of our dialogue.

“Craig, we have a pressing compliance concern that needs an immediate solution. Regrettably, it's not tied to benefits, but I’m betting you might be of assistance.”

“Consider it done, Nancy. I'm all ears.” ...

The full story is on my Substack

Saturday, May 6, 2023

Employers Needlessly Overpay 224% for Healthcare

This week in the government-healthcare complex's gluttonous plundering of U.S. business, we saw that: 

I read stories like this every week and become increasingly enraged at the cruel injustice of it. 

We Already Have a Socialized System

The latest studies on the topic show that the American taxpayer funds 71% of all healthcare in blue states like California.  That leaves 29% of healthcare costs funded by folks paying their own way to pay 224% of what the healthcare industry's largest customer (the federal government, primarily via Medicare and Medicaid) pays for the same procedures at the same facilities.  Still think that the healthcare you receive at work is not taxed? 

The rampant fraud riddling American healthcare boggles my mind.  No, I'm not talking about the fact that one of every three dollars spent in the Medicare and Medicaid system is squandered on waste, fraud, or abuse (1).  Nor am I lamenting how America's largest purely socialized system, the Veteran's Administration, is so indifferent to our veteran's needs that it creates fake appointments at nonexistent clinics so it can show auditors that the wait times and abject patient neglect are not as they indeed are.  I'm also not referring to how and why you overpay for prescriptions by at least 25% to 50%.  Pharmacy benefits are a treasure trove of corrupt pricing, hidden rebates, and shell games that would expand this post beyond a reasonable length (2)

Instead, I'm talking about the gargantuan tax every employer and employee (3) pays for the "privilege" of buying commercial health insurance through the workplace.  Because Medicare and Medicaid pay facilities (4) so meagerly for services, hospitals respond by listing retail or chargemaster prices that are three, four, five, or even ten times as high for the same procedures at the same facilities. 

Below is a 2016 summary of cost data on Medicaid (for low-income) showing that, on average, Medicaid may not even cover the actual cost of providing services.  Generally, Medicare (for the elderly) pays a little better than this in most states.  

         Source: Understanding Medicaid Hospital Payments and the Impact of Recent Policy Changes, KFF, 2016.  

Your health insurer then negotiates a 50% discount on that completely phony "price" the facility claims through its chargemaster in the hopes that employers and employees will be mollified by the seemingly considerable discount they receive for the privilege of having a private plan.  In the end, private payers pay a national average of 224% of Medicare and as high as 600% of a hospital's cost in a state like California. 

Does your business get to mark up its products by 600%? 

Additionally, those with self-funded plans know that you are also paying $20 per employee per month for that privilege of getting a 50% discount on a claim that's been fraudulently priced at 500% of Medicare.  It is what Dave Chase, writing at Forbes, hypothesized might be "The Greatest Heist In American History."  

Obamacare was going to fix this, right?  Remember when President Obama stood in front of cameras and told us, tens of times, that the cost of healthcare was going to godown by $2,500 per family?   

Here is what that government promise of a $2,500 reduction in family premiums looks like in real life.  It is the orange line below.  See the massive drop in 2010 and the continued drop over time?  Neither do I. 

Source: KFF Employer Health Benefits Survey, 2018-2022.

But certainly, our fearless government leaders finally reined in the obscene carrier profits in order to protect the little guy with the passage of ObamaCare, right?  Not so much.  

  • Since 2009 the S&P 500 is up 422%.  
  • In that same time, five of the largest health insurer stock prices are up an average of 1,921%.

Source: Yahoo Finance.  

Okay, enough of this.  I cannot stomach another fact in this vein.  

Employers, There is Another Way 

Three Steps to a 40% Cost Reduction - A HealthCost Revolution

Step 1: if you are too small to engage in any form of self-funding or partial self-funding, buy as little insurance as possible.  The more premium you pay, the more you are pilfered.  You have to get out of that game.  Purchase the highest-priced deductible plan your insurer offers, then self-fund the amount under that deductible with a Health Savings Account (HSA) or Health Reimbursement Account (HRA).  If you have less than about 250 employees, depending on your cash flow, industry, and geographic locations, this might be the best you can do. 

Step 2: If you have more than about 250 employees, you should evaluate whether you can opt out of this fraud entirely, say goodbye to your insurers, and move to a reference-based pricing (RBP) system whereby you pay some reasonable margin over the Medicare price.  For example, you might pay 120% to 140% of Medicare.  It fundamentally works, is legally quite creative and astute, and will provide your employees with better benefits, lower costs, and more freedom. 

Is the first step intimidating, potentially rocky, and one that requires plenty of education?  Yes.  But making this move will reduce the cost of your health plan by 20% to 40%. 

I wrote about how this will be the only mechanism that has a meaningful chance of saving private healthcare in America back in 2020 here: America will dramatically change the way it provides health care by 2030

I recently wrote about the financial imperative of evaluating this process now, here: The fiduciary imperative of reference-based pricing: A legal and financial analysis.

And I was recently interviewed on the Armstrong and Getty Radio program, discussing this here.  

Step 3:  In conjunction with your move to a self-funded RBP platform, you then must also take control of your pharmacy coverage via a direct contract with a pharmacy benefit manager (PBM) or one of the newer consortiums that aggregate numerous employers under one set of contract terms to maximize the pharmacy discounts and rebates for you, not an insurer.  This move alone reduces your pharmacy bill by 25% to 50%.  

An Inconvenient Truth

Or should I say a "problematic" reality in the parlance of one of today's most overused buzzwords?  Okay, I'm making myself nauseous again. 

If your broker is not talking to you about what I call the HealthCost Revolution of: 

  1. Getting off of first-dollar insurance plans (i.e. moving to HRAs or HSAs); 
  2. Evaluating RBP; and 
  3. Getting your Rx out of the carrier world and into a direct PBM contract...

You need to fire them.  Period.  Hard stop. 

I've been an attorney for 23 years and a full-time insurance broker for 21.  The required education and licensing for brokers are hysterically ludicrous.  In most states, it takes a one-week course and a junior-high education to become a licensed broker.  Carrier influence dominates that process as agents-to-be are taught that they have an equal obligation to their carrier and policyholder.  Future agents are trained that this is some sort of collaborative cuddle fest in which carriers, employers, and employees all sit around campfires, roast marshmallows, hold hands and sing Kumbaya. 

Oof.  I need to step away for a bit.  Why do I insist on making myself so sick?  

I recently created this meme for my team members after a carrier emailed us, explaining that the carrier did not expect me or my team to market my employer's policy this year, as asking for quotes every year is not the "best way to proceed."  

Ha! Best for whom?  

Yes, they are that brazen.  They do not partner with you and are not your friends.  Their job is to maximize revenue, and that means maximizing your premium.

Here is the reality.  Every one of those three steps in the HealthCost Revolution reduces premiums and adds heaping piles of work to your broker's plate.  The broker will be giving themselves a pay cut while requiring much more work and expertise.  In fact, probably only about 5% to 10% of brokers in the West are qualified to install and manage a self-funded plan, as HMOs have been so dominant in the West that few brokers have had the opportunity to learn what they need to effectively manage this process. 

I can hear some of you out there saying, "That's why we don't pay our broker a commission; she is on a fee basis." 

To this, I respond, okay, great.  At best, you've capped their pay and will be asking them to do much more work to install this protocol.  Most likely, you are paying your broker a fee and allowing your carriers to also collect the commission that should be going to your broker.  Yep, Obamacare created that double-dip trap as well.  I wrote how and why that happened years ago here. 

As a lawyer, my training is to protect my client (policyholder) in all cases.  I scoff at the "equal duty to carrier and employer drivel" and act solely as my employer's advocate.  Asking a broker to be the prosecutor, public defender, and judge in one proceeding is a bad joke. 

Our healthcare system is a convoluted, byzantine myriad of corruption.  I cannot stand by and refrain from screaming from the rooftop.  Don't get me wrong.  There are plenty of fantastic people in the healthcare system.  In fact, I know that the vast majority of them are there for the right reasons.  They want to help people.

But even good people cannot save a corrupt system.

That's right; it’s corrupt.  I used to say it was broken, but it is not.  It is designed this way.  We didn't end up here by accident.  If you doubt me, let me repeat: 

  • Since 2009 the S&P 500 is up 422%. 
  • In that same time, five of the largest health insurer stock prices are up an average of 1,921%. 

The healthcare industry represents the largest employer and the largest lobbyist in the United States, spending $700 million lobbying legislators and regulators every year.  It makes up 18.2% of the U.S. economy.  At its highest levels, it is loaded with the shrewdest operators you can imagine.  It uses artificial intelligence and massive data analytic tools to vacuum up every conceivable detail about every one of us, as I recently wrote about here: WeaponizingHIPAA privacy

Furthermore, it is important to note that officials responsible for managing federal agencies tasked with supervising the United States healthcare system frequently transition from their governmental positions to leading roles in the very corporations they once regulated. The term for this phenomenon is "revolving door," which refers to the movement of government officials between public sector roles and private sector positions, often within industries they previously regulated. This repugnant twist enables them to capitalize on their expertise, influence peddling, and skillfully manipulate the governance system for the benefit of their new employers. Recently, The Survival Podcast highlighted this phenomenon through a thought-provoking illustration. Employing humor as a coping mechanism for such prevalent absurdity is essential; without the ability to find levity in these situations, I’d struggle to maintain my sanity.

A light-hearted look at the most recent Revolving Door “swingers.” For a sobering look at the hundreds of these taking place in D.C. visit Open Secrets.

In summary, it is crucial to understand that health insurers do not serve as your friends or allies. When Chief Financial Officers delegate the responsibility of managing health insurance expenses—which frequently rank as the second or third largest cost for employers—to Human Resources departments, they are neglecting their fiduciary duty to minimize costs in a reasonable manner. Human Resources professionals typically lack the legal expertise of attorneys and the financial acumen of finance executives, which further underscores the importance of involving the appropriate personnel in managing these critical expenses.

It is imperative that American businesses take decisive action to reduce healthcare costs by utilizing the innovative tools at their disposal and engaging the most competent consultants or brokers to aid them in this process. Failure to do so could result in the collapse of the employer-based healthcare system, leading to the implementation of a minimal, Medicaid-for-all arrangement. Under such a system, individuals with the means would acquire supplementary coverage, while those without would face extended wait times for necessary care and elective procedures. This will, in turn, prompt the departure of more top-tier providers from the system (5).

It is essential to emphasize that this scenario envisions Medicaid for all, rather than Medicare. Despite the government's willingness to employ quantitative easing measures, injecting trillions of dollars into the economy at a moment's notice, Medicare remains prohibitively expensive—even for a nation with a $32 trillion debt and no hesitation to take on more.

Concluding on a lighthearted note, I would like to share two more memes. As the adage suggests, "A picture is worth a thousand words," so allow me to present an additional 2,000 words of insight.

It's time to tighten up your health plan. 


(1) Malcolm K.  Sparrow, a professor at the Kennedy School of Government at Harvard University whose book License to Steal is a classic in the field, thinks that Medicare’s fraud-related losses may run “as high as 30 to 35 percent” of its budget.  From Chapter 12 in Overcharged: Why Americans Pay Too Much For Health Care, by David A.  Hyman and Charles Silver. 

(2) The following is an excerpt from the same book.  It is an anecdotal example of just how corrupt our prescription rules and practices are: 

Why do so many eye doctors use pricier Lucentis when cheaper Avastin is available? You guessed it: Medicare pays physicians a lot more for using Lucentis.  A 2013 Washington Post article explained the finances. 

Under Medicare repayment rules for drugs given by physicians, they are reimbursed for the average price of the drug plus 6 percent.  That means a drug with a higher price may be easier to sell to doctors than a cheaper one.  In addition, Genentech offers rebates to doctors who use large volumes of the more expensive drug. 

Got that? Medicare pays doctors far more for administering Lucentis than Avastin to patients with wet macular degeneration because Genentech charges more for the former than the latter.  Six percent of $2,300 is $138; 6 percent of $60 will barely buy you a white chocolate mocha at Starbucks.  Genentech then sweetens the deal by giving doctors who use large amounts of Lucentis discounts that the doctors get to keep.  It’s easy to see how Medicare put taxpayers and seniors on the hook for $1.2 billion in payments for Lucentis in 2012.  The hard part is explaining why many doctors, to their credit, continue to use Avastin.  The cost to taxpayers and elderly patients could be much higher. 

(3) I write "employer and employee" here to not confuse folks needlessly while making a different point.  But make no mistake; employees pay for every nickel of this.  We often fail to acknowledge this reality because, on its face, an employer generally deducts 10% to 50% of our healthcare premium and then pays the rest of the bill to the carrier monthly.  However, every single penny comes from an employee's compensation.  If the employer were not forced to fund those dollars into healthcare, that remuneration would be provided to employees in the form of pay, other benefits, time off, or efficiencies resulting in job/employment growth, etc.  This is covered expertly in Chapter 1 of Marshall Allen's book, Never Pay the First Bill

(4) The same phenomenon exists for providers (doctors) as well as facilities, but the problem with providers is not nearly as pronounced as it is with facilities.  Roughly 80% of a plan's claims occur with providers, but 80% of costs are generated via the high-cost services occurring in facilities (primarily hospitals). 

(5) America is projected to have a shortfall of 139,000 physicians by 2033, representing 13% of U.S. providers.

Tuesday, May 2, 2023

Why Your Health Insurer Doesn’t Care About Your Big Bills (Yeah It's Obamacare)

 From Marshall Allen at ProPublica

Turns out, insurers don’t have to decrease spending to make money. They just have to accurately predict how much the people they insure will cost. That way they can set premiums to cover those costs — adding about 20 percent for their administration and profit. If they’re right, they make money. If they’re wrong, they lose money. But, they aren’t too worried if they guess wrong. They can usually cover losses by raising rates the following year.

Frank suspects he got dinged for costing Aetna too much with his surgery. The company raised the rates on his small group policy — the plan just includes him and his partner — by 18.75 percent the following year.

The Affordable Care Act kept profit margins in check by requiring companies to use at least 80 percent of the premiums for medical care. That’s good in theory but it actually contributes to rising health care costs. If the insurance company has accurately built high costs into the premium, it can make more money. Here’s how: Let’s say administrative expenses eat up about 17 percent of each premium dollar and around 3 percent is profit. Making a 3 percent profit is better if the company spends more.

It’s like if a mom told her son he could have 3 percent of a bowl of ice cream. A clever child would say, “Make it a bigger bowl.”

Wonks call this a “perverse incentive.”

“These insurers and providers have a symbiotic relationship,” said Wendell Potter, who left a career as a public relations executive in the insurance industry to become an author and patient advocate. “There’s not a great deal of incentive on the part of any players to bring the costs down.”

Wednesday, April 19, 2023

Scouring your PHI from Everyone, Everywhere, All at Once

My latest is now up over at BenefitsPRO

You come to work one day, and notice Susan is not there. Nobody knows what happened to her, and everyone appears oddly tight-lipped about her absence. Finally, you and your coworkers are told she has taken a leave of absence. No other details are given. Attorneys, corporate compliance officers, and human resource personnel have been properly coached as to the myriad of stringent health privacy rules in the workplace, and everyone is rightfully paranoid.

I am reminded of an eccentric law professor I had who relished saying, “No good deed goes unpunished,” whenever discussing the inevitable unintended consequences of legislation or contract terms.

But after 22 years of HIPAA Privacy, I am not even sure the main impetus behind its passage was ever a good deed – at least not for those who have weaponized its use against employers.

The Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule was designed to protect individuals’ medical records and other personal health information. However, the latest practices by health insurance carriers raise serious concerns about how they circumvent these rules to maximize premiums. ...

I spent some time with Armstrong and Getty this morning, discussing this story and the hidden tax built into all of our employer plans due to Medicare and Medicaid's chronic inefficiency and underpayment.


Thursday, April 13, 2023

1 in 5 California Hospitals is in Danger of Closure

California hospitals are in serious trouble due to:
  • The misguided government prohibition against non-COVID care during the pandemic;
  • Overall inflation;
  • And chronic underpayment from Medicare and Medicaid (only covering about 75 cents on the dollar of actual costs).
The underpayment then forces employer plans to pay absurdly high prices (224% of Medicare in last year's study) to make up for the fact that many hospitals can't survive on government reimbursements.

When Medicaid (Medi-CAL) first passed, it was designed to cover the lowest 2% of wage earners. It now makes up 80% of patient volume at many of these rural hospitals, and about four in ten Californians are born into it. That's what you call mission creep at its finest.

As Patty Maysent, the CEO of UC San Diego Health, explains, "[t]here are hospitals all around the state ... that are two, three or four months away from running out of cash."

There are answers! Employers need not suffer through this. I've written about this extensively. Here are a couple of good starting points:
  1. The fiduciary imperative of reference-based pricing: A legal and financial analysis; and
  2. America will dramatically change the way it provides health care by 2030

Wednesday, April 12, 2023

The Fiduciary Imperative of Reference-Based Pricing: A Legal and Financial Analysis

This is my latest; it can be read in full over at BeneftsPRO

Abstract: This article examines the fiduciary obligation of CFOs, VPs of HR, and other health and welfare plan fiduciaries under the Employee Retirement Income Security Act (ERISA) to evaluate Reference-Based Pricing (RBP) in the context of their health insurance plans. The article argues that, given the federal government's endorsement of RBP and its proven efficacy in reducing employer costs and expanding participant options, it is now virtually impossible for a plan fiduciary to lawfully discharge their duties in accordance with ERISA without at least considering the implementation of RBP.


The landscape of American healthcare has undergone significant transformations in the past decade, with the emergence of numerous innovations and cost-saving measures. The most impactful development is the rise of Reference-Based Pricing (RBP), a pricing model proving to be a game-changer for employer-sponsored health insurance plans. This article argues that, given the demonstrated benefits of RBP, CFOs, VPs of HR, and other plan fiduciaries under ERISA are now under a fiduciary obligation to evaluate the potential incorporation of RBP into their health insurance plans – at least with respect to employers that are large enough to consider particularly self-funding their health plans. 

I. Fiduciary Obligations Under ERISA

ERISA imposes a fiduciary duty on plan administrators to act solely in the interest of plan participants and beneficiaries and for the exclusive purpose of providing benefits and defraying reasonable expenses of administering the plan. To fulfill this duty, fiduciaries must adhere to certain principles, including prudence, diversification, and adherence to plan documents.

The duty of prudence requires fiduciaries to act with the care, skill, prudence, and diligence that a prudent person would use in a similar situation. This duty is not merely a passive obligation; rather, it compels fiduciaries to actively engage in the management and oversight of plan assets, constantly seeking opportunities to enhance the value and cost-effectiveness of the plan.

Donovan v. Bierwirth, 680 F.2d 263, 271 (2d Cir. 1982) emphasizes the importance of fiduciaries acting with prudence and diligence in managing ERISA plans:

In every case charging breach of ERISA fiduciary duty, ... the central inquiry is whether the fiduciary has acted 'with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.'

... Full story at BenefitsPRO

Sunday, April 9, 2023

Social Security will be Unable to Pay Full Benefits a Year Earlier Than Expected

Implications/Opportunities for Employers:

  1. Attract and retain talent through enhanced retirement benefits: As concerns about Social Security's long-term sustainability grow, employers can differentiate themselves by offering attractive retirement plans, such as 401(k) matching or pension plans. This can help them attract and retain top talent who are looking for financial security in their retirement.
  2. Encourage longer careers and phased retirement: Employers can capitalize on the potential need for older workers to continue working by offering flexible work arrangements, such as part-time or remote work, to keep experienced employees engaged and productive. This can help employers maintain a skilled workforce and benefit from the knowledge and expertise of older employees.
  3. Financial education and planning: Employers can provide resources, seminars, or workshops on financial planning and retirement savings to help employees better prepare for their financial future. This can lead to increased employee satisfaction and loyalty, as employees appreciate the support in navigating a potentially uncertain financial landscape.
  4. Promote a culture of saving and financial wellness: Employers can encourage employees to save and invest for their retirement by offering financial wellness programs and incentives for participating in retirement savings plans. This can help create a financially savvy workforce that is better prepared for the future.
  5. Collaborate with policymakers: Employers, as significant stakeholders in the retirement landscape, can use their influence to advocate for policy changes and reforms that address the Social Security funding crisis. This can help protect both their employees' interests and their own long-term business interests. 
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Are Employers Selecting Affordable Healthcare Benefits?

Healthcare costs in the US continue to rise, with employers paying over $13,800 per employee for healthcare in 2023. McKinsey predicts that healthcare spending could take up as much as 75% of discretionary income for those making less than 200% of the federal poverty level. 66% of employees say the cost of receiving care through their current health plan is too expensive, and over half feel that their care is more expensive than expected in the last year.

Arizent's research shows that 70% of employers believe they offer the best possible benefits, but 68% feel that their benefit design is limited by their budget. Employers who describe themselves as innovative are more likely to offer digital health tools and family-building benefits, while most agree on the importance of evaluating benefit offerings each year.

The most commonly delivered benefits are health, dental, and vision insurance, and paid sick leave, but employees desire benefits related to gym access, nutrition support, wellness activities, mental health support, chronic condition support, and family-building assistance.

Telehealth sees high utilization rates, with 72% of employees have participated in some form of virtual care appointment in the last 12 months, while mental health support, family-building assistance, and paid parental leave are used less. Healthcare navigation services are on employers' radar, with nearly 80% of employers motivated to include them to provide a better employee experience, improve health outcomes, and reduce costs.

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Saturday, March 25, 2023

Shred Me! One Man's Intriguing Response to Super Size Me (Eating Only McDonalds Patties for 2-Months Straight)

You may recall that in "Super Size Me," documentarian Morgan Spurlock explored the effects of consuming a diet consisting solely of fast food from McDonald's.  He decided to eat only McDonald's food three times a day for 30 days while following certain rules like always accepting the option of "supersizing" his meals whenever offered. He documents the effects of this diet on his physical and mental health, as well as on his weight and general well-being.

The film received critical acclaim and sparked public discussions about the health impacts of fast food, leading to changes in the fast-food industry, such as the introduction of healthier menu options and the discontinuation of the "supersize" option in some fast-food chains.


Throughout the film, medical professionals monitored Spurlock's weight and blood health. At the start of the experiment, Spurlock weighed 185 pounds with a body mass index (BMI) of 23.2, which is considered healthy. 

After just a few days of consuming only fast food, Spurlock began to experience negative health effects. He gained a significant amount of weight, and his BMI increased to 25.5, which is considered overweight. By the end of the experiment, he had gained 24.5 pounds, and his BMI increased to 30, or obese.

In addition to the weight gain, Spurlock's blood health also deteriorated over the course of the experiment. His cholesterol levels increased by 65 points, and his liver function tests showed signs of damage akin to that of an alcoholic. He experienced dramatic mood swings, headaches, and decreased energy levels. He would get flat-out hangry when he'd gone more than a few hours with his Mc-y-D fix, and then upon diving into a Big Mac, he'd be as mollified as a heroine junking staving off the demons.  

But did Spurlock prove that all fast food is unhealthy, or did he highlight the deleterious effects of highly refined carbohydrates, the industrial byproduct of seed oils, and the chemical cocktail of preservatives? 

One of the most intriguingly disturbing parts of the documentary was when Spurlock purchased an order of McDonald's fries and kept them in a container for 10 weeks to see how long they would last without molding or decomposing.  He stored the fries in the container at room temperature and did not add any preservatives or chemicals to the fries. He also did not open the container or disturb the fries in any way.  After 10 weeks, Spurlock checked the fries and found that they had not molded or decomposed whatsoever.  

Well, I think we have our answers, as this chap loses weight, experiences no loss in athletic performance (rock climbing), and generally maintains similar blood health (with a remarkable improvement in triglycerides). 

If you want to skip to the results, jump to the 45-minute mark and just watch for about 20 to 25 minutes. Petty staggering how well things turned out.