Rights to the Bits and Bytes in Your EHR

Back in 2001, right before the HIPAA privacy rules took effect, I wrote a law school student note entitled “The Emergence of the Health Care Information Trust.”  Pretty heady, and perhaps a bit Pollyanna-ish, stuff.  In the note I argued that to pull the hidden value of disparate health care information out of the islands of digital data that had been forming throughout the health care system, some form of clearing house for patients, with strong fiduciary obligation to individual patients participants, needed to emerge.  In fact, because of HIPAA’s soon to be finalized privacy regulations, without patients expressly vesting rights in something like a health care data aggregator,  it would be very difficult (if not impossible) to use the information commercially for purposes other than directly for healthcare treatment, payment, operations and certain research.  Further, the value in that data would not be able to accrue to the individual any other way.  My concept was to allow use of patient data, with defined limitations set by the patient, with micropayments to patients for such patient approved use by anyone seeking to access the aggregated data.

Anyway, the eight years since I wrote the article, I am not sure where the health care data market is going.  But there are some services that seem to be starting to emerge as potential aggregators.  Most notably, both Microsoft and Google have been taking initiatives in the area.  Of course, Microsoft and Google are not what I had projected; but it probably makes more sense in hindsight that the two biggest IT juggernaughts would be making headways into this this very young market with unknown potential.  If anything, the ability to pull good, useful and linkable health care information (except maybe healthcare claims data) is a monumental problem, and true electronic medical records are, at best, still in their infancy.  So, also, the immediate possibilities of wide-scale transfers to such aggregators.

One of the obvious limitations, even if and when health record data is transferable without impossibly difficult transactional barriers and costs, is the fact that the privacy regulations are really set up to address patient rights in principally paper records.   So, even if you wished to transmit electronic data to an aggregator service (be it my concept of a Healthcare Information Trust or, for that matter, Google or Microsoft), there are no express provisions addressing this.

So I found it interesting when I read about “A Declaration of Health Data Rights.”  In it, the organization specifically makes mention to access to records in “computable form.”  Also, in reading about the initiative in the NYT’s Bits blog, I took particular note that both Microsoft and Google have a role in it.  Ah, this makes some sense now.

For what its worth, the group desires:

A Declaration of Health Data Rights

In an era when technology allows personal health information to be more easily stored, updated, accessed and exchanged, the following rights should be self-evident and inalienable. We the people:

1. Have the right to our own health data

2. Have the right to know the source of each health data element

3. Have the right to take possession of a complete copy of our individual health data, without delay, at minimal or no cost; if data exist in computable form, they must be made available in that form

4. Have the right to share our health data with others as we see fit

These principles express basic human rights as well as essential elements of health care that is participatory, appropriate and in the interests of each patient. No law or policy should abridge these rights.

via HealthDataRights.org.

Filed under: Health Law, HIPAA, Electronic Health Record, Health Law, HIPAA, LinkedIn

No Country for the Public Plan Option

In today’s The Health Care Blog, Jeff Goldsmith provides remarks in an article entitle No Country for Old Men, which, perhaps, should be called “No Country for the Public Plan Option.”  An interesting read with some observations about the systemic risks for a public plan option and the challenges its proposal presents to political success for healthcare reform this time around.  After significant discussion, Mr. Goldsmith concludes “[r]ather than wasting scarce political capital on the public plan, health reformers need to focus on hospital and primary care physician payment reform, expanding Medicare coverage for the almost 11 million uninsured boomers and sensible design of a federal health insurance exchange.   It isn’t going to take a miracle to get this important public task done, just focus and discipline.” The Health Care Blog: No Country for Old Men.

Filed under: Health Law, Payment, Reform, Health Reform, LinkedIn

Recent scenes from the ISS – The Big Picture – Boston.com

Bad Astronomer frequently links to The Boston Globe’s period “The Big Picture Show.”  These pictures are breathtaking and take a look.  All are from taken from the International Space Station and show an eruption of Sarychev Peak Volcano (spectacular), the waning gibbous moon through the Earth’s atmosphere, Mt. Fuji and other amazing shots.  Note that most of the detail shots also have a googlemaps link.  Recent scenes from the ISS – The Big Picture – Boston.com.  Here’s a lower resolution of the eruption:

Filed under: Personal Posts, Astronomy, Fun

Reform Moves Stir Talk of Bundled Payments | BNET Healthcare Blog | BNET

A BNet article, Reform Moves Stir Talk of Bundled Payments, discusses healthcare reformers’ conceptualizing bundling payments to align physician and health system/hospital outcome interests.  The article has a number of cites to other reports, discussions and administration statements.  It also points out what I find facinating about the trend — what did not occur in the 1990s may be coming through healthcare payment reform today.   But are today’s integrated delivery systems (and the regulatory environment) prepared for risk in any format other than PPS payments?

All of this reminds some observers of the rapid formation of integrated delivery systems during the ‘90s, when many hospitals and physicians were circling the wagons to fend off the expected onslaught of capitated managed care plans. That never materialized in most places, but many systems retained all or some of their employed primary-care physicians. Now, partly in expectation of healthcare reform, they’re also stepping up their hiring of specialists.

“The handwriting is on the wall,” Bill Jessee, MD, president and CEO of the Medical Group Management Association, tells BNET. “The push is going to be towards more integration of physicians, hospitals, home health, and other services. And Medicare or a private insurer may put the provider at risk, instead of the insurer being at risk. It’s not explicit, but it’s implicit in a lot of the reform discussions that that’s the direction they’d like to move. The bundled payment demonstrations are a manifestation of that.”

via Reform Moves Stir Talk of Bundled Payments | BNET Healthcare Blog | BNET.

Filed under: Comparative Effectiveness Rearch, Health Law, Payment, Reform, Economics, Health, Health Law, Health Reform

Who are the Uninsured?

Back in 2005, I co-authored an article with Richard Stuhan, a partner at Jones Day.  The article was primarily about the concerted and misguided  efforts to sue non-profit hospitals for their alleged failure to provide charity care.  The plaintiffs contended that such provision of charity care was a legal obligations of 501(c)(3) tax exempt entities.   These suits, while striking the public policy cord concerning the plight of the uninsured and the inflation of health care costs and charges, were based upon ill conceived legal theories and, accordingly,  failed miserably.  But they probably were a precursor of congressional interest in charity care provided by non-profit hospitals and health systems — which is currently playing out and has resulted in some significant changes, most notably the new Form 990s.

One of the items we briefly discussed in that article, an issue that should be a major large part of the health care reform debate, is the scope of the health care insurance (or, more particularly, uninsured) problem in the United States.  Who accounts for the uninsured figures and why are they uninsured is critical to forming the debate about solutions.  The debate, I would think, is fundamentally different if a substantial portion of the uninsured could afford insurance or could access other forms of insurance (SCHIP, Medicaid, etc.), but decide for personal reasons not to obtain insurance or face administrative, educational or transactional barriers to signing-up for federal or state-sponsored insurance programs for which they would otherwise be eligible.   Circa 2003, the uninsured level was approximately 45 million, but a very significant portion of this populations was either eligible for federal or state programs or were from households that were significantly above the federal poverty level and could, technically, afford insurance.

Periodically, this issue has popped up with one study or another discussing the scope of the uninsured problem — addressing who are they, why are they not insured.   Of course, with this new round of health care reform, the issue of the uninsured should be front in center in the debate.  Recently, a report was issued entitled WHO ARE THE UNINSURED? An Analysis of the Characteristics of Americans Without Health Insurance by the Employment Policies Institute.   This seems to be a fairly politicized organization that has written studies before that have been scorned by some.   So, with that disclaimer and taking the study with a grain of salt, its conclusions are still notable. Assuming its numbers are correct, approximately 43% of the 2006 18-64 year-old uninsured are in households at greater than 2.5x the federal poverty limit.  This is not inconsistent with previous studies I had seen and I would think could be fact checked.

By no means does this take away from the significant and troubling 47% who are involuntarily uninsured.   But the number of individuals and households that have the means to, but choose not to, purchase health care insurance is important to the current debate.  What impact does this very significant portion of the uninsured have for risks of adverse selection, individual/employer mandatory coverage requirements, the level FPL subsidies and other components of healthcare reform bills being proposed.

Filed under: Health Law, Reform, Health Law, Health Reform, LinkedIn, Public Health, Public Policy

World Bank and H1N1 Economic Forecast

In a follow-up to one of my prior posts (Birds or Pigs?; Pigs Have It), I spotted (thanks to the WSJ Health Blog and Bloomberg) that the The World Bank issued a recent report on the global recovery, entitled Global Development Finance: Charting a Global Recovery.  In it it discusses the potential impact of H1N1 on economic recovery, estimating that by next season the impact of H1N1 is likely to be at least as severe as the Hong Kong Flue of 1968-69.  It also cites other studies to give a range of potential impact on world-wide GNP between 0.7% and 4.8%.   The impact on Mexico, where H1N1 has had a severe effect on tourism and has shut down large sectors of its economy at the start of (or at least the realization of) the outbreak, has been severe.  Estimates are a second quarter 2009 decrease in that country’s output by appoximately 2.2%.

Simulations of the potential economic and human costs of a global pandemic undertaken for the 2006 Global Development Finance report in the context of avian influenza (Burns, van der Mensbrugghe, and Timmer 2006, 2008) suggest that the costs of a global influenza pandemic could range from 0.7 to 4.8 percent of global GDP depending on the severity of the outbreak. The lower estimate is based on the Hong Kong flu of 1968–69, while the upper bound was benchmarked on the 1918–19 Spanish flu. In the case of a serious flu, 70 percent of the overall economic cost would come from absenteeism and efforts to avoid infection. Generally speaking, developing countries would be hardest hit, because higher population densities, relatively weak health care systems, and poverty accentuate the economic impacts in some countries.

Filed under: Health Law, Personal Posts, Public Health, Economics, Health Law, Pandemic, The Great Recession

Autopsies of War Dead Reveal Ways to Save Others – NYTimes.com

An interesting article in the NYT about CT scans of our departed troops.  The use of the data has led to practical applications.  For example, after noting that tubing to inflate collapsed lungs was not long enough due to the larger size of many of the troops, new protocol were adopted for longer tubes – perhaps saving lives.  Of course, also, better information on armor for troops may have saved lives.

This reminds me of a puzzler on one of the Car Talk shows on NPR (if you are uninitiated, take a listen, Tom & Ray have a lot of fun, but they know there stuff).   The puzzler is about British bombers in WWII and engineering decisions concerning how to armor their undersides in face of anti-aircraft fire.  Quite similar in a way, despite the application in an entirely different war.

Autopsies of War Dead Reveal Ways to Save Others – NYTimes.com.

Filed under: Personal Posts, Personal

Variations in Healthcare Spending – Anchor-Tenant Theory and Fraud and Abuse?

The New Yorker recently had a very interesting expose discussing one of the fundamental economic challenges of healthcare reform.  (Gawande, Atul, The Cost Conundrum: What a Texas town can teach us about health care, June 1, 2009).  Peter Orszag gave a presentation last year at the American Health Lawyers meeting in San Franscisco that I was able to hear.  Mr. Orszag, President Obama’s budget director and formerly head of the Congressional Budget Office, has observed repeatedly (and is quoted in this article as saying) that “[n]early thirty per cent of Medicare’s costs could be saved without negatively affecting health outcomes if spending in high- and medium-cost areas could be reduced to the level in low-cost areas.”  He, and many healthcare economists’ observe, that there is a tremendous amount of variation in healthcare spending throughout various regions of the country that simply cannot be explained after controling for demographics, illness indexes/cases mixes, cost indexes and other similar factors.  And, most importantly, outcomes are no better in higher spending areas.

This New Yorker article paints a narrative story surrounding this frequent observations by looking at case of McAllen, Texas.  McAllen has the particular notoriety of having the highest per capital Medicare spending in the nation.   I think it is an important read for healthcare counsel because of some of the author’s tangential commentary linking McAllen’s higher per capita spending with a culture that could have support higher incidents of fraud and abuse.

According to the article, McAllen spends (using 2006 data) approximately $15,000 per Medicare enrollee.  This is more than twice of what El Paso, Texas, with very similar demographics and population factors, pays.  It is also more than twice what the region surrounding the Mayo Clinic spends.  Ironically, the per capital Medicare spending is more than McAllen’s per capita income.

The New Yorker author discusses this fact with some local physicians who have no idea of this distinction for their community:

One night, I went to dinner with six McAllen doctors. All were what you would call bread-and-butter physicians: busy, full-time, private-practice doctors who work from seven in the morning to seven at night and sometimes later, their waiting rooms teeming and their desks stacked with medical charts to review.  Some were dubious when I told them that McAllen was the country’s most expensive place for health care. I gave them the spending data from Medicare. In 1992, in the McAllen market, the average cost per Medicare enrollee was $4,891, almost exactly the national average. But since then, year after year, McAllen’s health costs have grown faster than any other market in the country, ultimately soaring by more than ten thousand dollars per person. “Maybe the service is better here,” the cardiologist suggested. People can be seen faster and get their tests more readily, he said.  Others were skeptical. “I don’t think that explains the costs he’s talking about,” the general surgeon said. “It’s malpractice,” a family physician who had practiced here for thirty-three years said. “McAllen is legal hell,” the cardiologist agreed. Doctors order unnecessary tests just to protect themselves, he said. Everyone thought the lawyers here were worse than elsewhere. That explanation puzzled me. Several years ago, Texas passed a tough malpractice law that capped pain-and-suffering awards at two hundred and fifty thousand dollars. Didn’t lawsuits go down? “Practically to zero,” the cardiologist admitted. “Come on,” the general surgeon finally said. “We all know these arguments are bullshit. There is overutilization here, pure and simple.” Doctors, he said, were racking up charges with extra tests, services, and procedures.  The surgeon came to McAllen in the mid-nineties, and since then, he said, “the way to practice medicine has changed completely. Before, it was about how to do a good job. Now it is about ‘How much will you benefit?’ ”

via Annals of Medicine: The Cost Conundrum: Reporting & Essays: The New Yorker.

What is the basis for the higher per capita Medicare spending?

To determine whether overuse of medical care was really the problem in McAllen, I turned to Jonathan Skinner, an economist at Dartmouth’s Institute for Health Policy and Clinical Practice, which has three decades of expertise in examining regional patterns in Medicare payment data. I also turned to two private firms—D2Hawkeye, an independent company, and Ingenix, UnitedHealthcare’s data-analysis company—to analyze commercial insurance data for McAllen. The answer was yes. Compared with patients in El Paso and nationwide, patients in McAllen got more of pretty much everything—more diagnostic testing, more hospital treatment, more surgery, more home care.  The Medicare payment data provided the most detail. Between 2001 and 2005, critically ill Medicare patients received almost fifty per cent more specialist visits in McAllen than in El Paso, and were two-thirds more likely to see ten or more specialists in a six-month period. In 2005 and 2006, patients in McAllen received twenty per cent more abdominal ultrasounds, thirty per cent more bone-density studies, sixty per cent more stress tests with echocardiography, two hundred per cent more nerve-conduction studies to diagnose carpal-tunnel syndrome, and five hundred and fifty per cent more urine-flow studies to diagnose prostate troubles. They received one-fifth to two-thirds more gallbladder operations, knee replacements, breast biopsies, and bladder scopes. They also received two to three times as many pacemakers, implantable defibrillators, cardiac-bypass operations, carotid endarterectomies, and coronary-artery stents. And Medicare paid for five times as many home-nurse visits.

The author discusses the high utilization and costs with various hospital executives, who, like the physicians interviewed, also do not know that McAllen is the most expensive place in the country for Medicare beneficiaries.  The executives of the hospitals, to the author’s belief, authentically did not know their peculiar notariety and, not even recognizing it as an issue, had no truly thoughtful responses as to why it might be.

Local executives for hospitals and clinics and home-health agencies understand their growth rate and their market share; they know whether they are losing money or making money. They know that if their doctors bring in enough business—surgery, imaging, home-nursing referrals—they make money; and if they get the doctors to bring in more, they make more. But they have only the vaguest notion of whether the doctors are making their communities as healthy as they can, or whether they are more or less efficient than their counterparts elsewhere. A doctor sees a patient in clinic, and has her check into a McAllen hospital for a CT scan, an ultrasound, three rounds of blood tests, another ultrasound, and then surgery to have her gallbladder removed. How [are the hospital executives] to know whether all that is essential, let alone the best possible treatment for the patient? It isn’t what they are responsible or accountable for.  Health-care costs ultimately arise from the accumulation of individual decisions doctors make about which services and treatments to write an order for. The most expensive piece of medical equipment, as the saying goes, is a doctor’s pen. And, as a rule, hospital executives don’t own the pen caps. Doctors do.

The article suggests, with only a little explanation, that the variation between communities such as McAllen and, in contrast, El Paso or other lower cost regions (with at least the same if not better quality institutions) might be due to an  “anchor tenant theory of economic development.”  Certain markets develop their own economic character, similar to how a mall may be defined by its anchor tenant.  So, the theory goes, certain “anchor tenants” in a market may allow, for example, the development of regional specialization (e.g., biotechnology development in certain cities – Boston, San Franscisco and not in others with similar apparent resources).   Twisting this model a bit, the author posits that the entrepenurial focus of physician medicine in McAllen, changing from the 1990s to present, may be a significant part of the increase in costs.  McAllen was near the median in per capita spending a decade ago.  Importantly, the author then goes on to point out anecdotal evidence of some serious antikickback statute violations — solicitation by certain unnamed physicians of medical directorships in exchange for referrals to hospitals and home health agencies.

This linkage — which is not well developed by the author — is nonetheless a beware moment.   If higher per capita Medicare spending is linked by government enforcement agencies as a proxy for potential higher rates of fraud and abuse behavior, one might see a new horizon for focusing fraud enforcement .  Perhaps this is a stretch – but an interesting linkage is being made here by the author.  It is all the more important due to the prestige of the publication and that the fundamentals of this story find their genesis in the economic theory of healthcare inflation that is the focus of leaders within the current administration.

The author goes on to make a fairly classical example of the challenges of asymetical information in healthcare coupled with the fee-for-service basis of physician payments:

Providing health care is like building a house. The task requires experts, expensive equipment and materials, and a huge amount of coördination. Imagine that, instead of paying a contractor to pull a team together and keep them on track, you paid an electrician for every outlet he recommends, a plumber for every faucet, and a carpenter for every cabinet. Would you be surprised if you got a house with a thousand outlets, faucets, and cabinets, at three times the cost you expected, and the whole thing fell apart a couple of years later? Getting the country’s best electrician on the job (he trained at Harvard, somebody tells you) isn’t going to solve this problem. Nor will changing the person who writes him the check.

The author aruges that changing the payor (i.e., government plan competitor, single payor system) will not change this problem.  Even putting the consumer on the hook through medical savings accounts or high deductible plans won’t solve it (if a physician recommends a cardiac bypass, is the patient going to negotiate with the cardiologist, radiologist, anesthesiologist, cardiothoracic surgeon and hospital over expense or the scope of the procedure?).

Then the author suggest that only flipping the economic model might fix this.  The author isn’t quite specific in how this might be accomplished, although he goes to length to contrast the McAllen “anchor-tenant” model with other “anchor-tenant” models of healthcare (e.g., Mayo), suggesting this is the crux of the problem – what kind of medical care provision culture the United States will be developing based upon the economic incentives that are established by insurance payor systems we perpetuate or change through reform.  Not by who cuts the check.

This is worth the read because it sets a story narrative for the harder data Mr. Orszag and others have frequently discussed as healthcare reform is debated.

Filed under: AKS, Comparative Effectiveness Rearch, Health Law, Reform, AKS, Conflicts of Interest, Economics, Health Reform, LinkedIn