What Does the 11th Circuit Decision Mean?

(Originally posted on the National Physicians Alliance blog, August 15, 2011)

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Last Friday, the 11th Circuit Court of Appeals struck down the individual mandate included in the Patient Protection and Affordable Care Act (PPACA). Conservative opponents of the law have claimed this as a blow for liberty, while the PPACA's liberal supporters believe this ruling will be overturned. At the end of the day, though--and all politics aside--what does this decision actually mean?

Timothy Jost, writing in the Health Affairs Blog, points out the decision's limited impact in this post. First of all, it is important to note that the decision does not actually rule the entire law unconstitutional. This opposes other courts' decisions stating that without the individual mandate, the rest of the law was also void; that the individual mandate was not severable from the the rest of the law. The 11th Circuit's decision states that the rest of the law can stand, even without the mandate. Politically, this would be a difficult position (health insurance companies might not be so willing to move forward on eliminating preexisting conditions and such without the increase in customers the mandate would bring) and the law will be harder to fund, but the law fundamentally is sound. So, this is not a finding against the PPACA itself. At best, opponents of the law can point to the fact that one piece of it was struck down by the court. The decision also lets stand the proposed expansion of Medicaid, something the plaintiffs wanted the appeals court to invalidated.

The Incidental Economist writes in this excellent post that:

"The most you can say is 'two judges decided the individual mandate is unconstitutional under the Commerce Clause, but would have been constitutional if it had been more explicitly designed as a tax. The rest of health care reform is constitutional.'"

This in-depth analysis of the decision notes that the individual mandate was eliminated because of the fear that if purchasing health insurance was required, then the government could force Americans to buy any other product. (As an aside: I think this argument is fatuous: so long as we have mandated care--at least ER care--and our care is paid for by insurance, then requiring all Americans to pay for their own care by buying insurance is clearly different from purchasing any other product out there.) Further in the Court's decision, there are many examples of what would have been constitutional...including a carrot-and-stick approach to encourage coverage, strengthening penalties on those without coverage etc. This does not seem to be a vigorous rejection of the individual mandate.

At the end of the day, the 11th Circuit's opinion really just means that the Supreme Court will essentially have no choice but to hear the inevitable appeal: with divided circuit decisions, and with the fact that the government will be filing the appeal, a hearing in front of the Supreme Court seems inevitable. Now, it is just a matter of when.

Virginia Organizing's Annual Grassroots Gathering

Yesterday, I attended Virginia Organizing (on Twitter at @VAOrganizing)'s Grassroots Gathering.  I live-tweeted the workshop I attended, focused on working with the media and messaging, and comments from Wendell Potter regarding the importance of healthcare reform.  You can read through the transcript below.

Do physicians need *more* contact with PhRMA and medical device makers?

(Originally posted on the National Physicians Alliance blog, July 24, 2011)

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I suppose I should not be surprised, but there is a new organization that opposes the current movement to separate physicians from pharmaceutical (PhRMA) and medical device industry money.  While many of us feel that these medical industries have too much influence on physicians, the Association of Clinical Researchers and Educators (ACRE) apparently feels that these worries are exaggerated and that industry money is necessary to promote medical device and medication  innovation.  In its recent meeting, ACRE positioned itself as doing important and necessary work that would not have been done without industry funding and engaged a patient panel (including at least one celebrity) to support their position. Reviewing ACRE's website, the group takes issue with what they call the "anti-industry movement" and calls on lawmakers to find new ways to enhance researcher and physician ties with industry.

Interestingly, I could not find any information on ACRE's website describing who funds the group.  This creates doubts in the group's authenticity.  This blog post provides some additional background on ACRE, and describes the positions taken in the past by one of the group's leaders.

According to the ProPublica Dollars for Docs database, it appears that ACRE's leadership has received over $125,000 as personal payment for services provided to PhRMA and medical device makers.  This number does not include any research support they might have received from industry.  Is it possible that this financial support could affect these physicians' perspectives on this issue?

In the meantime, keep an eye on the Physician Payment Sunshine Act (pdf) that was passed as part of the Patient Protection and Affordable Care Act (PPACA) passed last year.  This law will require disclosure of any physician gifts greater than $100 in a year and will make public any payments (including research support) provided to physicians from PhRMA and medical device makers.  It will be interesting how this disclosure affects physician/industry connections, and what actions organizations such as ACRE might take to delay or weaken the law.

A Reminder why Vaccines Matter

Created by: Medical Coding Career Guide

#SaveGME to Save Primary Care...and Reform GME to Save our Healthcare System

As I wrote in my last post, graduate medical education (GME) funding is threatened by proposed cuts to Medicare funding.  This is because Medicare provides money to training hospital to pay for GME positions and, if Medicare funding is cut, then training hospitals will review the perceived value of these GME positions.  It is possible, or even likely, that this would result in drastic and harmful changes to GME training--and primary care training programs would likely be the hardest hit.  The Accreditation Council for Graduate Medical Education (ACGME) has listed possible outcomes if Medicare funding for GME is reduced (pdf).  These include closing residency programs (especially in those hospitals that have only one program) and re-purposing those GME slots to more profitable or more prestigious positions, seeking industry support (from PhRMA or medical device makers) to pay for programs, increasing the debt burden on students interested in primary care, etc.

This is absurd.  If these changes were to take place, then we would be threatening our nation's health care system for decades to come.  We already are facing a shortfall of nearly 33,000 primary care doctors in the next few years (pdf).  How would reducing GME funding to primary care training improve this situation?  We already know that students' debt burden can discourage them from pursuing primary care careers.  How would increasing this debt burden improve this situation?  There is increasing understanding that PhRMA and other industry contacts influence how physicians practice.  How would making GME dependent on industry funding improve this situation?

The answers, obviously, is that reducing federal funding for GME will not solve anything.  Instead, it will reduce the number of new physicians--and, more importantly, the number of primary care and family physicians--at the very moment we urgently need to be training MORE physicians.  In his Dr. Synonymous blog, Pat Jonas demonstrates just how bad the situation is, and how bad it could get.

The fact that the proposed Medicare cuts would disproportionately impact primary care and family medicine programs will cause much deeper and longer lasting harms than might be suspected: Barbara Starfield's work has shown that INCREASED primary care IMPROVES outcomes while DECREASING costs in health care systems.  This is exactly what we are supposedly aiming for.  Meanwhile, evidence continues to mount showing that increased use of subspecialty reduces care coordination and would stand to increase costs.  So, as we look to decrease funding to GME and as training programs cut or cancel family medicine and primary care training slots in favor of subspeciality positions, we will reduce our system's ability to provide coordinate, safe, and cost-effective care while increasing the costs and fragmentation of care.

There are a number of ways that this crisis could be addressed.  One of the easier answers would be to ask states to help support community-based family medicine and primary care training programs.  The problem is that states continue to face major budget shortfalls of their own, and most are in no position to help.  In Virginia, the state has actually been CUTTING the budget line item that supports community-based family medicine training programs...and the programs narrowly avoided more cuts in the last fiscal year.

So, we know that we need to produce more physicians overall and that we have a critical and urgen need to produce more primary care physicians.  We cannot expect states to step up...and we do not want industry to pay for GME training...and we cannot expect residents to pay tuition for their training.  Fortunately, there are other options, but we need to act:

1. Call on Congress and the White House to remove Medicare cuts from current budget discussions.  Although the current GME funding mechanisms are flawed, they are better than the alternatives.  Click here to find your Representative, click here to find your Senators, and click here to contact the White House.  Insist that Medicare funding be preserved as is, and that cuts to Medicare not used to make a political point.
2. If you are a member of the American Medical Association, push to get this organization to support preserving funding for primary care slots as a priority--not just preserving GME funding overall.  We don't need more dermatologists or radiologists right now.  We need more primary care internists and pediatricians...but mostly we need more family physicians.  The AMA has not stood by primary care in the past (as evidenced by the recent outcry against the AMA's RUC), but this is a time when the AMA's support for family medicine training needs to be clear, loud, and aggressive.  Dr. Kevin Bernstein, on the Future of Family Medicine blog, makes the case as to why we need to save family medicine GME training.
3. Once the threatened cuts are avoided, we need to change the way that community-based GME slots are funded.  We need to separate GME funding from hospitals, and provide funding directly to those institutions and residency programs providing accredited GME.  This funding should be separated from Medicare, so that our current situation does not recur.  Dr. Mike Sevilla makes this case on his Family Medicine Rocks blog--and points out how GME cuts would harm community physicians...and the communities and patients they care for.
4. We need to rethink how we fund GME overall.  We know we have a national shortage of primary care physicians, and that there is no shortage of a number of other procedure-based subspecialties.  Why, then, are we still funding programs that a) do not meet a national need and b) make money on their own?  If a hospital can bill for their cardiology fellow's cardiac catheterizations, and the fellows increase the number of catheterizations their facility can perform, does the hospital really need GME funds?  No doubt they like those funds, but do they need them?  In a time when we are required to make difficult decisions and reduce the costs associated with health care, one option could be to put money where it will have the most value.  Increased funding for primary care--including robust loan repayment or loan forgiveness programs and enhanced GME funding--could improve care, reduce care fragmentation and reduce costs by addressing our primary care workforce imbalance.

Ben Miller has written how much GME funding matters to our current healthcare system.   If GME funding for family medicine programs is cut, then the likely response will be to reduce the numbers of GME slots for family medicine training.  This will perpetuate--and, over time, worsen--the current crisis in our nation's primary care workforce.  We would be producing fewer primary care physicians than we do now...and what we do now is already grossly insufficient.  Instead, medical students will find GME training slots in subspecialty care, and we will train more high-tech subspecialists.  This will increase fragmentation of care, and will increase healthcare costs (and reduce efficiencies) over time.

If we do not save GME funding for primary care, we will weaken our healthcare system's foundations...and these foundations will continue to weaken as we move forward.  Eventually, when the foundation is riddled with enough holes, then the system will collapse.  We could sit and wait until that happens...but we must not.  We must address this issue now, to prevent short-term harms, and we can rework the system to make it sustainable heading forward.  Otherwise, we will find ourselves picking up the pieces after our healthcare system--already the most expensive among developed nations, while producing lackluster results--after it finally fails.

Another reason to preserve Medicare funding: we *NEED* more doctors

(Originally posted on the National Physicians Alliance blog, July 10, 2011)

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If the Patient Protection and Affordable Care Act (PPACA) remains the law of the land after its inevitable Supreme Court review, then an estimated 34 million Americans will gain access to health insurance.  Once they have access, they will seek to establish medical care: perhaps to get a physical, to get care for chronic diseases, or to help figure out a symptom or problem.

However, when those newly-insured would-be patients go and seek to establish care with a physician, they will find a major roadblock: the Association of American Medical Colleges (AAMC) is predicting that between this increase in the insured population and the continued increase of Medicare-eligible Americans, the United States will find itself short nearly 63,000 physicians.  Nearly one-half of this shortage (33,000) is expected to be in primary care specialties. (PDF)  In its report, the AAMC calls for increase in residency training slots to address this coming crisis.

At the same time, part of the current budget debate includes making significant restrictions to Medicare funding as a way to try and balance the books.  As I noted before, Rep. Paul Ryan has proposed a budget that would drastically change how Medicare is run, and some in Congress are calling for Medicare cuts as part of any deal to increase the national debt ceiling (and prevent defaulting on our national debt).

As difficult as these two issues are separately, there is a connection: Medicare funding pays for majority of physicians' post-medical school training.  In other words, medical school graduates who continue their training to specialize in most fields--primary care or subspecialty--will be paid for from Medicare funds.  So: any cuts to Medicare will reduce our nation's ability to train new physicians, at the very time when we desperately need to train new physicians.

I mentioned earlier that the AAMC is calling for an increase in residency training slots.  Now the Accreditation Council for Graduate Medical Education (ACGME) is calling attention to the terrible results cutting Medicare funding for residency graduate medical education (GME) could have: (pdf)

• Institutions with only one GME program--often primary care, often in community settings, often involved in direct patient care, and often rural--would risk losing their programs if they cannot find other ways to fund them.
• Institutions with more than one program may opt to redistribute GME training slots away from primary care and toward income-generating programs and more procedure-focused such as specialized surgery, cardiology, etc.
• Institutions seeking to find new funding for GME slots may look to the pharmaceutical and medical device industries to help make ends meet.  Given the harm that can result from such industry connections, it might be argued that training in this environment would not produce the best physicians.
• Residents and others in GME programs may be charged tuition (instead of being paid) for furthering their education, which may worsen the pull away from the very primary care specialties we desperately need.
• Residents' learning environments, work hours, and supervision could be impacted, as expected GME funding to make training safer and more effective would no longer be forthcoming.
• The increased pressures on residents--financial, workload, etc--could result in more residents choosing not to complete their training.

We already face a crisis in our physician workforce, and we will face enormous problems providing health care if Medicare funding is reduced as part of a political deal.  But put the two together: an urgent need to train more physicians, and cuts in the very training programs we need...and the potential long-term damage is even more frightening. The potential harm is even more alarming when you consider the current need to increase our  primary care workforce, and the fact that these GME cuts stand to disproportionately harm those GME programs.

The ACGME is calling for attention and for action, as is the AAMC.  All of us--physicians, patients, families, friends, constituents--need to be doing the same.

Call your representatives in Congress, or write them, or e-mail them.  Use this link for the House, and this link for the Senate.  The message must be clear: Medicare cuts are unacceptable.  They will deprive our nation's citizens of the care they need now, and they imperil healthcare access for all of us--for decades to come.

Rep. Ryan's Budget Plan Increases Support for the PPACA

(Originally posted on the National Physicians Alliance blog, June 12, 2011)

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Recently, the Patient Protection and Affordable Care Act (PPACA) health care reform law received increased support from a surprising source: from the Republican Party.

As you know, Republican Representative Paul Ryan submitted a budget proposal that included major changes to Medicare.  In short, Rep. Ryan's plan would change Medicare from its current structure to a voucher-based plan in which the government would provide subsidies for the cost for seniors to purchase private health insurance.  Although this is similar to the mechanism the PPACA will use to provide access to health insurance for most Americans (providing subsidies to allow those who cannot afford to by insurance on their own), it is a major change from Medicare's current structure.

Rep. Ryan's plan to change Medicare is widely unpopular.  74% of seniors oppose it, as do 54% of conservatives.  But Rep. Ryan's plan has had another outcome he likely did not intend: it has increased public support for the PPACA.

In a recent poll (PDF), the Herndon Alliance found that when respondents heard about Rep. Ryan's plan the rate of support for the PPACA rose 3%, from 42% to 45%.  I realize 3% is not a large number, but considering how evenly split public opinion has been on the PPACA I believe this number is interesting.  In this case, once people understood the extreme nature of what the House Republicans are aiming to do in "reforming" Medicare, the reasonable and common-sense reforms embodied in the PPACA become more appealing. The poll also found that voters were concerned that Rep. Ryan's proposal would reverse the PPACA reforms that would prevent insurance companies from denying care due to preexisting conditions. Finally, significant majorities of those polled opposed the impact Ryan's budget would have on Medicare (54% oppose the Ryan plan) and Medicaid (63% were very concerned about the impact on nursing home residents).

The poll results included more indications that the supposed public opposition to the PPACA's reforms is overblown: only 42% of respondents want the law repealed, only 39% want the PPACA defunded, and of the 58% of Americans who do not support the law fully 10% of them would have wanted the law to go farther than it did.  Only 43% of the public felt that the PPACA went to far while 47% felt the reforms were appropriate or should have gone further.

Once again, we another poll reveals that a plurality of Americans oppose repealing or defunding the PPACA and that many feel the law should be given a chance or should have been extended.  Once the public hears about the destructive ideas the PPACA's opponents and congressional Republicans would put in its place, the more the public supports the PPACA.

This is why we need to stay active and vocal, and need to continue speaking up in defense of the PPACA and its goal of fair access to care for all: because the alternatives would be disastrous.