Kicking it up a notch: Anti-kickback statute gets expanded . . . by the tax code

Starting on January 1, 2014, it is very likely that the federal anti-kickback statute (AKS) will directly apply to items and services covered by private health insurance, which it has never done before. Currently, the AKS applies to items and services furnished under health care programs such as Medicare, Medicaid (and similar programs), TriCare, and Veteran’s Administration (VA) benefits (and indirectly to items and services covered by private health insurance in certain circumstances).

Below is a brief look at what the AKS is, penalties under the AKS, why the new tax credit causes the AKS to be implicated in a wider range of items and services than it has been historically, and finally, the potential real-world impact of the change. If you’re familiar with the AKS already, feel free to skip to the “expansion” section below.

Executive Summary

January 1, 2014 is the effective date of a new refundable tax credit in the Internal Revenue Code (26 U.S.C. § 36B) that provides for direct payments from the federal government to private health insurance companies to cover at least some of the health insurance premiums for certain taxpayers with incomes under 400% of the federal poverty level. The Congressional Budget Office estimates (PDF) that this will describe about 8 million people in 2014, increasing to approximately 20 million people in 2022.* As explained below, under the explicit terms of the AKS, this almost certainly makes the items and services furnished under those health insurance plans subject to the AKS.

Because of how the tax credit is calculated and how AKS is enforced (discussed below), this also likely means that people and organizations in the health care industry—including landlords for health care providers—should treat the AKS as applicable to all items and services, regardless of whether they are reimbursable by Medicare, Medicaid, subsidized private insurance, or unsubsidized private insurance. Health care providers and their suppliers who deal exclusively with private-pay patients and do not accept any insurance whatsoever are less likely affected for patients under their direct care, but will still need to be careful about referral arrangements. 

What is the AKS?

The AKS, very generally, is a federal law that penalizes “whoever” offers, pays, solicits, or receives “any remuneration” in exchange for patient referrals or the furnishing, receiving, or recommendation of items or services even partially covered by a “Federal health care program” (FHCP) to which the government even partially makes direct payments. 42 U.S.C. § 1320a-7b(b)(1), (2).

And yes, “whoever”, really means “whoever”: from doctors, to nurses, radiology clinics, laboratories, pharmacists, pharmaceutical sales representatives, delivery drivers, custodial staff, landlords for health care items and service providers, and even patients; likewise, “any remuneration” really means “any”: from season tickets to baseball games, to envelopes full of cash, a landlord charging higher rent to a doctor (as compared to an accountant) for an office across the street from a hospital, a physical therapist waiving copayments for patients, or even a pharmacy giving out coupons for $0.50 off of a movie ticket. 

In the more than 40 years of the existence of the AKS and its predecessors, there has never been a minimum threshold for an FHCP’s partial coverage of an item or service, the government’s partial payment to an FHCP, or the amount of “remuneration” at issue: a fraction of a penny for any of those purposes is theoretically enough to implicate the AKS. See https://oig.hhs.gov/fraud/docs/safeharborregulations/072991.htm (search for de minimis).

AKS (and other) penalties

The penalties for violating the AKS are stiff: a felony conviction plus up to a $25,000 fine, five years in prison, possible exclusion from being reimbursed for providing items or services to anyone enrolled in an FHCP, plus assessment of additional “civil monetary penalties” (CMPs). CMPs are also applicable in certain broader situations and will be the subject of another post. 

On top of that, the AKS explicitly provides that any claims filed that result from an arrangement that violates the AKS are now automatically deemed “false claims”, which brings additional penalties under the False Claims Act (FCA). See 42 U.S.C. § 1320a-7b(g). There are some additional FCA-related issues that will be discussed in a future post.

Finally, the AKS explicitly does not require any specific intent to violate it—meaning that you only need to be aware that you're doing something, but you do not need to know that that “something” is prohibited by the AKS. The AKS also explicitly provides that you don’t need to know that the AKS even exists to be guilty of violating it. So if you are involved in any way with delivering or receiving health care items or services, now, more than ever, you ignore the AKS at your peril. See 42 U.S.C. § 1320a-7b(h).

AKS expansion beyond its historical reach

The AKS directly applies only to items and services services furnished under FHCPs, which are commonly—yet not entirely accurately—understood to mean programs such as Medicare, Medicaid (and similar programs), TriCare, and the VA.

So, what is an FHCP? An FHCP is defined by statute as:

any plan or program that provides health benefits, whether directly, through insurance, or otherwise, which is funded directly, in whole or in part, by the United States Government (other than the health insurance program under chapter 89 of title 5 [of the United States Code])...

42 U.S.C. 1320a-7b(f)(1) (emphasis added). An FHCP also specifically includes Medicaid and Title V and XX programs. See 42 U.S.C. § 1320a-7b(f)(2); 42 C.F.R. § 1001.2.

The “health insurance program under chapter 89 of title 5”, is otherwise known as the “Federal Employees Health Benefits Program”, or FEHBP. The FEHBP is the private health insurance program for federal civilian employees, under which the federal government makes direct payments to health insurance companies to cover part of the premiums for eligible beneficiaries. The applicable statute and regulations specifically exempt only the FEHBP from the definition of FHCP, implying that the FEHBP would otherwise be included in the AKS’s definition of an FHCP.

Starting January 1, 2014, 26 U.S.C. § 36B (enacted by Pub. L. 111-148 § 1401) provides a refundable tax credit for individuals whose health insurance costs exceed certain thresholds as a proportion of income. It is not clear whether this credit alone would cause these individuals’ insurance to become an FHCP (my view: likely yes, because the credit is issued specifically to subsidize health insurance premiums, but this will be fully explored in yet another future post), but coupled with how this credit is paid on behalf of taxpayers (below), and without a specific statutory exception, in my view it almost certainly makes certain private health insurance qualify as an FHCP under the AKS.

42 U.S.C. § 18082(c)(2)(A) (enacted by Pub. L. 111-148 § 1411) provides that the Secretary of the Treasury shall make “advance payment” in the amount of the applicable credit “to the issuer of a qualified health plan” on a monthly basis to cover partial health insurance premiums on behalf of eligible taxpayers. See also 26 C.F.R. § 1.36B-2 (affirming the Secretary’s decision to make monthly advance premium payments).

Because the government makes direct payments to private health insurers, anyone who has government-subsidized insurance through those insurers is enrolled in a “program that provides health benefits ... through insurance ... which is funded directly, in whole or in part, by the United States Government” and which is not described in Title 5, Chapter 89 of the US Code. Assuming that “payment . . . to the issuer of a qualified health plan” from the Treasury is equivalent to “funded directly” by the Government—and without serious contortions of the English language, that seems to be a fair assumption, particularly given the specific exclusion of only the FEHBP from the definition of FHCP, but no specific exclusion for advance premium payments from the definition of FHCP—the AKS applies.

Still, how can one be sure of whether a health insurance plan or benefit qualifies as an FHCP? A question was recently raised on an American Health Lawyers Association email list that I moderate about whether the federal government maintains a public list of FHCPs to which the AKS applies. One benefit of such list would be that if the government maintained such a list, people could definitively know whether or not they are subject to the AKS.

The answer appears to be that there is no such official list, and the government presumably has little incentive to maintain such a list. Why? Two reasons: 1) The AKS is intentionally broad, so publishing a list might implicitly narrow its possible scope of enforcement in a manner not authorized or intended by Congress; and 2) The definition of FHCP is so broad that it is really only feasible to explain what an FHCP is not, as shown by this flow chart (start in the bottom left):

This makes the advance premium payment issue essentially a two-step inquiry (putting aside the tax credit offered to taxpayers without advance premium payments, and assuming that we are not discussing the FEHBP): 1) Is that insurance “any . . . insurance . . . other than” the FEHBP? Yes. 2) Through advance premium payments to health insurers, does the government directly pay for any portion of health insurance or health care? Yes. Therefore it is an FHCP and the AKS is directly implicated. 

For those who may be interested in seeing a non-exclusive list of other programs that likely qualify as FHCPs (with one exception), it is available here: 42 U.S.C. § 14402(d) (prohibiting federal funding for assisted suicide). However, that list is not specifically incorporated into the AKS, so it is best to not rely on the list for anything other than its stated purpose.

Interesting, but what does this mean in the real world?

One problem for anyone involved in patient care is that the Treasury’s advance premium payments can fluctuate on a monthly basis with respect to any person depending on their income; that is, the Treasury could make payments in some months, but not others. Because under the AKS’s definition of FHCP, the advance premium payment makes the applicable insurance program an FHCP, it is not possible to tell who is or will be enrolled in an FHCP at any given time. Therefore, because of the high stakes involved in violating the AKS, it may be appropriate to treat all privately-insured patients as if the advance premium payment is being made on their behalf, and thus, as if they are enrolled in an FHCP. This would mean that any items or services furnished to them or their health care providers or suppliers would be treated as subject to the AKS.

What does this really mean, in practice, though? Honestly, probably not much for health care items and services providers who already serve or treat a mix of Medicare, Medicaid, etc., and privately-insured patients: they probably already are (or at least, should be) treading lightly around AKS issues because of the AKS’s longstanding indirect applicability to private insurance benefits.

The AKS currently indirectly applies to private insurance benefits in certain circumstances because the Office of Inspector General (OIG) of the Department of Health and Human Services (HHS), the entity responsible for enforcing the AKS, has consistently explained for many years that any remuneration arrangement related only to private insurance benefits that could possibly influence FHCP referrals or other business would likely implicate the AKS as well. See https://oig.hhs.gov/fraud/docs/advisoryopinions/2000/ao00_8.pdf; https://oig.hhs.gov/fraud/docs/advisoryopinions/2012/AdvOpn12-06.pdf. Specifically, the OIG has relatively consistently declined to extend “safe harbor” protection to remuneration arrangements that apply to privately-reimbursable items and services but “carve out” FHCP-covered items and services, meaning that OIG is essentially reserving the right to pursue penalties at any time for remuneration arrangements subject to “carve outs”.

If this stance is any guide, then although the AKS will directly apply only to items and services reimbursable by subsidized private insurance, by extension, it should indirectly apply also to items and services reimbursable by unsubsidized private insurance, because of the potential influence on subsidized referrals.

Therefore, for people or organizations who do not typically deal with currently-recognized FHCPs, e.g., physicians in independent practices that don’t participate in Medicare, Medicaid, or similar programs, the advance premium payment system should be cause to seriously and thoroughly evaluate all of their business and referral relationships.

Remaining questions

There are many remaining questions about potential exceptions, the full scope of the changes, and effects in conjunction with related laws. Stay tuned...

* See Table 3. These figures are the sum of the “Exchanges” population less “Number of Unsubsidized Exchange Enrollees”.

© 2013 Alex M. Hendler. All Rights Reserved. This post is not legal advice. Please consult an attorney to discuss you particular facts or circumstances.

Getting ACOld shoulder, or how a carrot becomes a stick: ACO Proposed Rule could negatively affect non-ACO health care providers

As described in a previous post, PPACA section 3022 (a.k.a. Public Law 111–148 § 3022, or § 1899 of the Social Security Act, to be codified at 42 U.S.C. § 1395jjj) authorizes the formation of Accountable Care Organizations (ACOs) to implement a Medicare “shared-savings program” (MSSP).  At the risk of contributing to all the noise around ACOs, below are some observations about a “proposed rule” issued by the Centers for Medicare and Medicaid Services (CMS) on April 7, 2011, and how the rule as currently proposed could have some negative consequences for entities that do not participate in an ACO, particularly when this proposed rule is considered in conjunction with other pre-regulatory activity. 


When reading below, please remember that the bulk of this post relates to a proposed rule, and that if you are truly concerned about possible consequences, it is absolutely worth submitting comments on the proposed rule. 

So, what's an ACO?

As proposed by CMS, ACOs would generally be groups of health care providers that are centered around primary care physicians, and Medicare beneficiaries would be “assigned” to them to allow the government to monitor health care quality and cost. Note that this post discusses only the PPACA Medicare ACO concept, and does not address possible future private sector ACOs (which could nevertheless take strong cues from the Medicare ACO concept). 

The MSSP will essentially pay ACOs to: 1) Reduce the overall cost of care provided to Medicare beneficiaries; 2) maintain or improve the quality of that care; and 3) provide quality data to Medicare. MSSP payments could in some cases be significant: Up to 10 percent of what the reimbursement would be for a similar group of patients not assigned to an ACO. However, CMS’s current proposed rule could significantly affect an organization even if it does not participate in an ACO. How? Read on....

The ACO/MSSP program must by law start on or before January 1, 2012. Various government agencies responsible for regulating ACO activities, including CMS, have issued proposed regulations or official requests for comment on how to implement the ACO/MSSP program, as described in more detail below. It is likely (although not explicitly stated by statute or the proposed rule) that quality data collected through the ACO/MSSP program may be used to influence future Medicare payment policy, and the program could to some degree serve as a model for private payer reimbursement policy changes. In fact, the FTC and Department of Justice request for comment on antitrust issues (see below) suggests this latter possibility.

This post addresses four main issues below: Current regulatory activity around ACOs, who can form an ACO, how Medicare beneficiaries are assigned to it, and how an ACO gets paid (along with potential ripple effects). 

Why all the exposition? Well, without it, the main point here—i.e., that if the proposed rule gets implemented as currently proposed, ACOs could become some sort of “carrot stick” to entice Medicare-enrolled health care providers to join ACOs, then essentially force all the others who haven't to join them—wouldn’t make much sense (but if you’re already familiar with the proposed rule, please skip ahead to “The Stick” below). So, let’s dive in.

Current Regulatory Activity

Regulators from the Department of Justice (DOJ), Federal Trade Commission (FTC), and Internal Revenue Service (IRS) have issued “requests for comment” on possibly modifying enforcement of antitrust laws for certain Medicare ACO operations and collecting input on potential implications for tax-exempt organizations. Substantively responding to these requests for comment could result in improved clarity about the legality of operating ACOs, which could contribute to making their operation more efficient in the future. Written responses to the DOJ, FTC, and IRS requests are due on or before May 31, 2011. See http://www.gpo.gov/fdsys/search/pagedetails.action?granuleId=2011-9466&packageId=FR-2011-04-19&acCode=FR for the FTC and DOJ request for comment; see http://www.irs.gov/irb/2011-16_IRB/ar07.html for the IRS request for comment.

CMS and the HHS Office of Inspector General (OIG) are also soliciting comments on how they should execute their statutory authority to waive application of various civil and criminal laws that would otherwise apply to—and thus, make illegal—many ACO operations. See 76 Fed. Reg. 19655 (April 7, 2011); http://www.gpo.gov/fdsys/search/pagedetails.action?granuleId=2011-7884&packageId=FR-2011-04-07&acCode=FR. Comments on those issues are due by June 6, 2011 at 5 p.m. EDT.

CMS has also issued a proposed rule to implement the MSSP on or before January 1, 2012. See 76 Fed. Reg. 19528 (April 7, 2011), available at http://www.gpo.gov/fdsys/search/pagedetails.action?granuleId=2011-7880&packageId=FR-2011-04-07&acCode=FR. Comments on the proposed rule are due by June 6, 2011 at 5 p.m. EDT. 

The bulk of comments below address CMS’s proposed ACO/MSSP rule. 

Who can form an ACO, and how would it be organized?

As described in PPACA and CMS’s proposed rule, ACOs would be organizations consisting of at least primary care physicians and other practitioners (the proposed rule would limit these other practitioners to physician assistants, nurse practitioners, and clinical nurse specialists), and may be integrated health systems, hospitals that employ primary care physicians and other practitioners, physician and practitioner group practices or networks, joint ventures between hospitals and physicians and other practitioners, or other arrangements authorized by CMS. See Social Security Act § 1899(b)(2) (to be codified at 42 U.S.C. § 1395jjj(b)(2)).

The currently proposed structure of an ACO is relatively flexible, but ACOs would need to meet a raft of legal, organizational, financial, administrative, and record-keeping requirements that with few exceptions would likely make them more complex than existing practices. See Proposed 42 C.F.R. § 425.24, 76 Fed. Reg. at 19654. As provided by PPACA, ACOs will be required to enter into a three-year agreement with CMS to operate as ACOs.

CMS’s proposal to “assign” beneficiaries to an ACO

Unlike an HMO, under an ACO, beneficiaries would be free to use any Medicare provider they choose, and beneficiaries would not enroll an in ACO: CMS would assign them to one. CMS is proposing a relatively complex process to assign beneficiaries to ACOs, but it is essentially based on where each beneficiary gets the “plurality” of his or her primary care services as measured by the aggregate Medicare allowed amounts paid on behalf of that beneficiary for certain HCPCS codes specified in Proposed 42 C.F.R. § 425.4. Aside from the hopefully improved quality of care, beneficiaries would likely not even notice that they have been assigned to an ACO until they have been told so. Similarly, under the current proposed rule, the only way for a beneficiary to get out of an ACO is to get a “plurality” of his or her “primary care” services from a physician who does not belong to an ACO.

By statute, ACOs need to serve at least 5,000 beneficiaries, and CMS is proposing penalties if ACOs serve fewer than 5,000 beneficiaries during a year. See Proposed 42 C.F.R. § 425.6, 76 Fed. Reg. at 19645. ACOs would also be required to notify beneficiaries that the ACO’s “providers” (generally, Part A health care providers) and “suppliers” (generally, Part B health care providers) are participating in an ACO.

Calculating “shared savings” payments


The Carrot

To calculate MSSP payments, CMS is proposing to look at Medicare expenditures for each ACO’s patients at the beginning of an ACO agreement and adjust that amount every year to account for Medicare expenditure inflation; this is called the “benchmark”. The proposed rule suggests this is a per-capita figure, but for simplicity, we'll use it in the aggregate sense here, because that is how CMS will effectively use it to calculate MSSP payments and remittances to CMS. The benchmark is designed to project what the average expenditures would be for a similar patient group outside of an ACO. See Proposed 42 C.F.R. § 425.7, 76 Fed. Reg. at 19645–6 (there are also some other adjustments and calculations, but they’re too complicated to be relevant here). 


The proposed rule provides that if the total cost of care—for all services, not just primary care—for an ACO’s patients falls below the benchmark in a given year of the ACO’s agreement with CMS, then the ACO may be eligible to receive a “shared savings payment” at the end of that year. If the total cost of care is above benchmark, then (with several exceptions) the ACO may need to pay CMS the difference between the benchmark and the cost of care (a “loss”). 

Generally, CMS is proposing two “Tracks” to participate in the MSSP as an ACO. “Track 1” would allow an ACO to not assume any risk for increased costs in years 1 or 2 of an ACO agreement (called the “one-sided model” in the proposed rule), but would limit “shared savings” payments to 7.5% of the benchmark. In year 3, this would increase to 10%, but the ACO would also be liable to CMS for up to 5% of the benchmark if costs go significantly above the benchmark (this is called the “two-sided model”). Under “Track 2”, the maximum payment in each year of the agreement would be 10% of the “benchmark”, but the ACO could be liable for up to 5%, 7.5%, and 10% of the benchmark if costs go significantly above the benchmark in years 1, 2, and 3, respectively (i.e., it’s under the “two-sided model” the whole time). After completing its first agreement, an ACO may only participate in Track 2 in the future. In both Tracks, “loss” payments would be payable to CMS in full within 30 days of CMS assessing them.

The proposed rule goes into substantially more detail about how the benchmarks, savings, and losses are calculated, and there are many hoops to jump through to get the maximum payment, as well as minimum loss and savings thresholds to trigger savings or loss payments, but here’s the upshot: Under the “one-sided model”, an entity could get up to 50% of its “shared savings” plus any extra payments, net 2 percent of the benchmark. For (fictionalized) example, in Track 1’s “one-sided model” period, for an ACO with an aggregate benchmark of $100,000, to get the maximum 7.5% payment of $7,500 the ACO would need to meet all quality requirements—and there are many—in the proposed rule and demonstrate savings of 17% over the benchmark (i.e., (($17,000 - $2,000) * 50%) = $7,500; see 76 Fed. Reg. at 19613, 19646–7). However, if 41% or more of the ACO’s beneficiaries visit a rural health clinic (RHC) or federally-qualified health center (FQHC) at least once in the year upon which payment is based, the ACO would get a 2.5 percentage point bonus ($2,500 in this case) above the quality-adjusted savings it earned and would only need to demonstrate 12% savings over the benchmark (i.e., (($12,000 - $2,000) * 50% = $5,000) + $2,500 = $7,500; see id.).

Under the “two-sided model” (i.e., year 3 of Track 1 or all of Track 2) with the same hypothetical $100,000 benchmark, to get the maximum 10% payment ($10,000), an ACO would get up to 60% of its “shared savings” for meeting all quality measures and other requirements, and would therefore need to demonstrate 16.67% savings over the benchmark ($16,667 * 60% = $10,000; no “net” requirement and a higher savings ratio), or only 8.33% of the benchmark if 41% or more of its beneficiaries visit an RHC or FQHC at least once in the year upon which payment is based, which results in a 5 percentage point bonus (i.e., (($8,333 * 60%) = $5,000) + $5,000 = $10,000). 

The Stick (or carrotstick if you prefer)

All sounds good (or at least marginally so) so far, right? Well, here’s the rub: under CMS’s proposed rule, as noted above, although beneficiaries are assigned to an ACO based on primary care services only, with no minimum threshold for a quantity of primary care services, CMS is proposing that “savings” and “losses” will be computed based on all care furnished to a beneficiary, regardless of where the beneficiary receives that care. 

Thus, under the proposed rule, primary care physicians that belong to an ACO could have a strong incentive to not refer patients to facilities or specialists outside of the ACO or that they view as inefficient. The proposed rule would penalize ACO primary care physicians for dropping “at risk” patients, but it does not per se prevent ACO primary care physicians from changing their referral patterns. 


Granted, under current law (CMP/AKS/Stark; take your pick), directing referrals to specific people or groups to maximize one’s own revenue would likely be very problematic (essentially, the physician would get a kickback from the ACO for referring a patient to a specific entity; ACOs would pay kickbacks to health care providers who withhold certain care, etc.), but much of what an ACO is supposed to do would likely be problematic under current law, which is one reason that CMS and OIG are soliciting comments on how to carve out exceptions that would allow ACOs to lawfully operate. Bear in mind, however, that if physicians cannot direct their referrals to other health care providers in their ACOs or other providers they view as efficient, the entire purpose of the ACO system would be undermined and ACO physicians would risk losing a substantial mount of money. Thus, it is likely that these sorts of preferred referrals would need to be carved out for the ACO program to have any chance of success.


This is all well and good if you intend to join an ACO and take on all the administrative responsibilities and financial risk. However, the problem is that if you’re a health care provider and you’re not in an ACO or don’t plan to join one, the ACO program is not a carrot so much as a stick. Why is that? 


If you’re a health care provider and you don’t join an ACO, you run the risk of losing referrals from ACO physicians in the area unless you reduce the amount you charge Medicare for each patient. If you do that without joining an ACO, however, you lose out on the bonus payments, which could help recover some of the reduction in Medicare reimbursement (which could get promptly eaten up—or surpassed—by administrative costs unless the ACO is large enough, but that's another story). 

Conclusion

So, what to do about all of this? Tell CMS what you think. Almost everything above comes from a “proposed rule”, meaning that it’s just a proposal. CMS wants and needs your input. If you are concerned about the issues raised here, responding to the CMS/OIG fraud and abuse request for comment as well as commenting on the CMS ACO reimbursement rule would likely be a good way to help CMS and OIG strike a balance between achieving the aims of ACOs and protecting beneficiaries from unscrupulously directed care. Instructions for submitting comments are in the Federal Register notices linked to above. 

When preparing comments, it may help to consider the following: CMS is statutorily authorized to determine how to assign beneficiaries to ACOs (see 42 U.S.C. § 1395jjj(c)) or to use “other” payment models (see 42 U.S.C. § 1395jjj(i)(3)), so comments on this proposed rule could, theoretically, help CMS decide how to adjust the beneficiary assignment process and/or remove or limit the negative incentive to refer outside of an ACO or to fail to join an ACO.


If you have a lawyer you work with on a regular basis for regulatory issues such as this, I would encourage you to work with him or her to draft and submit comments that make sense for you. If you don't have someone like that, please contact me, and I may be able help you find the right person to help you address your concerns.

All that said, where Medicare goes, other payors often follow. Thus, although the full impact of ACOs is unknowable at this stage, responding to the proposed rule and other requests for comment could not only directly affect how ACOs are implemented for Medicare, but could influence private reimbursement for years to come.

© 2011 Alex M. Hendler. All Rights Reserved.

No mere "mandatectomy" for PPACA/HCERA: Off with their heads!

On Monday, Jan. 31, Senior U.S. District Judge Robert Vinson in the Northern District of Florida ruled that the "individual responsibility" tax penalties (the so-called "individual mandate") of PPACA/HCERA (collectively, the "Act") are unconstitutional as written. Furthermore,  he held that because the "mandate" cannot rationally be severed from the rest of the Act, the whole mess of a law needs to be thrown out and Congress needs to start over. Ilya Shapiro offers a comprehensive take on the decision here, along with a link to the decision itself.

I've finally had a chance to read through the decision, and it's a good read in general; a particularly good read when you consider that it's a court decision. If you ever need a primer on the history and evolution of Commerce Clause jurisprudence, this is a great place to start. 

Judge Vinson fully accepts the "inactivity" argument against the "mandate", which is the rather myopic—and perhaps legally correct, albeit not economically correct—view that because someone makes a present decision not to purchase health insurance, this is economic "inactivity", and the future economic impact of potentially uncompensated care can only be regulated once it actually occurs or is imminent. That is, it appears that Judge Vinson would have no legal problem with a law that financially penalizes an uninsured person who goes to the hospital and can't afford to pay, but there is a big legal problem with prospectively penalizing that person.

Clearly, this stance does not work for an insurance system, which relies on people paying into the system before they get sick or injured, but that is really not the judge's concern: His concern is whether Congress has the power to compel people to do this or face immediate financial consequences (his answer is no, at least not the way they did it here). Judge Vinson also firmly rejects the notion that health insurance and health care are in any way "unique", and thus the same rules that apply to any other activity (or "inactivity") should apply here; the rules being that Congress can regulate only "activity", and this is not it, no matter how "unique" it might be. 

(Whatever the merits of his Commerce Clause analysis, Judge Vinson is 100% wrong in footnote 14 about young people not being able to buy scaled-down "catastrophic" insurance plans:  PPACA § 1302(e) (124 STAT. 168) explicitly provides for this; this mistake is certainly not a dealbreaker in terms of the opinion's overall validity, but it certainly reveals that we all make mistakes, as I'll discuss a bit below.)

Of course, this decision will be appealed, but there are some other important issues worth noting:



A tax is a tax is a tax. Unless it's not....

As much as it pains me to admit it, I may have been wrong about there being a lack of Constitutional issues with the "mandate." As Mr. Shapiro and Judge Vinson have noted, courts have so far universally rejected the assertion that the PPACA § 1501 penalty provision (as amended by PPACA § 10106 and HCERA § 1002) is a "tax" (see also p. 4, n. 4 of Judge Vinson's decision). So what, exactly, is wrong with calling this thing a "tax"?

As I have freely admitted, I am by no means a tax scholar, but some researchers have very cogently and convincingly explained that the "penalty" imposed by the law acts more like a "capitation tax" than an income tax because it potentially imposes an obligation upon a taxpayer to pay per-person dollar amounts, and as such, the Constitution demands that it must be "apportioned" among the States, which it isn't (i.e., the amount of total tax collected from residents of any given State is not related to the State's population as a proportion of the national population). Thus, if the government successfully argued that the "penalty" were a tax, it would be almost necessarily conceding its unconstitutionality.

However it seems that Congress would be fully within its rights to levy a 100% income tax, then refund it to people to reward behavior that it deems desirable. This already happens to some extent with the mortgage interest deduction, hybrid car credits, and child tax credits. Of course, a 100% income tax would be politically ruinous and people would storm the Capitol with pitchforks plastic forks and torches flashlights (welcome to the post-9/11 world...).

Thus, if Congress had, for example, enacted an across-the-board income tax increase (not very popular in an election year) or imposed a new "excise tax" (like Medicare or Social Security) then offered refundable tax credits roughly equivalent to—or perhaps even identical to or exceeding—the amount of the new tax paid, less the penalty amounts currently in the Act, this would almost certainly be a "tax". For example, the following would probably be legally (if not politically) acceptable: enact a 2.5 percentage-point income tax increase for every taxpayer in every bracket, refund all of it to everyone as a tax credit, but reduce the credit by the greater of $[X] per person in the household who does not have qualifying insurance or the entire 2.5 percent.

This is functionally almost indistinguishable from the Act as it is currently written, but formally, the difference is enormous. The bottom line seems to be this, based on the materials I've read on the topic: Congress can tax your income and give the money back for whatever reason it wants, e.g., if you buy a hybrid car, a home, or health insurance, or you have a child; Congress cannot, however, simply take money from you if you choose not to buy a hybrid car, a home, or health insurance, or have a child. This latter bit seems to be what is happening here, and I'm coming around to the idea that Congress should not be able to do this outside the income tax regime.

A major benefit of requiring this sort of coercive regulation—and I do mean that in the nicest possible way—to go through the income tax wringer is that not only does this give Congress the clear authority to act, but Congress will likely think very, very carefully about it before doing anything. Few constituents would ask their Representative or Senator to support a tax hike. Which leads us to....

Political Compromises?


Earlier versions of the Act contained a "severability" clause, meaning that if a court struck down any portion of the law, Congress would intend for the rest of it to go forward, but Congress dropped this clause before passing the law. See pp. 66-68 of Judge Vinson's opinion.

Why drop the clause? The bill likely could not have gotten endorsement from key supporters unless linked to the "mandate", e.g., insurers would never have gone along with the bill without the "mandate," which makes perfect sense.

In any event, the government in this case argued—quite honestly—that large portions of the Act could not function as intended without the individual mandate. Judge Vinson therefore reasoned that if the individual mandate is unconstitutional as written, all the portions of the Act that rely upon it must therefore be discarded; because the Act is so big and complicated, he reasoned, it goes beyond the judge's role to pick and choose which provisions are inextricably bound to the "mandate" and which are not, so he threw out the whole thing. Yes, that's right, all of it.

Was this the best way to go? That depends what he was trying to accomplish, but you have to admit that this is one surefire way to bump this controversy to higher courts.

How to fix it

Now that the midterm elections are over, Congress could likely head off the leading potential Constitutional problem (although I'm sure that people vehemently opposed to the bill will look for others) with a comparatively simple bill to do the following:

1) Amend the Act to add a severability clause. This is not foolproof, but it could help prevent the whole law from being thrown out if courts find another problem with one of its provisions.

2) Repeal the "individual responsibility" penalty provisions (PPACA § 1501 and amendments thereto). Despite my earlier argument that these are functionally equivalent to Constitutionally-permissible taxes, after becoming more familiar with the case law and scholarly research, the formal difference is dramatic, and possibly even insurmountable.

3) The hard part (politically): Institute a new income or excise tax, say, a flat rate of 2.5 percentage points of taxable income (i.e., the maximum current "penalty" as of 2014), and set aside the proceeds in a trust fund that helps subsidize uncompensated care or the purchase of insurance for those otherwise unable to afford it.

4) The slightly easier part: Amend PPACA § 1401 (26 U.S.C. § 36B) to expand the existing refundable tax credits for qualifying insurance coverage to completely wipe out taxpayer's tax liability under the new tax if they purchase qualifying insurance or are unable to afford qualifying insurance. For those able, but unwilling, to get insurance, reduce the refundable credit by an amount equal to what the § 1501 penalty (as amended) would have been, not to exceed the amount of the new tax. This is analogous to the mortgage interest deduction or the child tax credit, the only possible twist being that instead of receiving an larger deduction or credit for engaging in desired behavior, someone would be receiving a smaller credit for engaging in undesired behavior. This would likely still be controversial, but substantially less so than the current situation.

Conclusion

There is no guarantee that any of this would be politically or legally feasible, but in my view these fixes would moot the Commerce Clause issue upon which this and other "mandate" cases are based, putting the Act on considerably more solid footing and allowing implementation to go forward.

Why should implementation go forward? The Act is far from an ideal solution to the complete market failure we have had in the health care/health insurance industries, but it is a step towards some meaningful reform. Hopefully politics will not continue to impede progress in that direction. 


© 2011 Alex M. Hendler. All Rights Reserved.

A rose by any other name: ACOs to receive kickbacks for reducing short-term Medicare expenditures

Let’s start with the basics:

“ACO” stands for “Accountable Care Organization”. This is a new type of entity designed to allow the government to pay kickbacks to certain organizations that provide health care to Medicare patients, as authorized by §§ 3022 and 10307 of the Patient Protection and Affordable Care Act of 2010 (“PPACA”), a.k.a. Pub L. 111-148, a.k.a. H.R. 3590 ENR, a.k.a. the “health care reform” law. (This is a lovely example of PPACA amending itself; for even more “fun”, check out § 10309, all its references, and the additional amendments made by the Reconciliation Act, Pub. L. 111-152).

At its core, an ACO is a “group[] of providers of services and suppliers”—in Medicare-speak, that’s (very) generally hospitals, nursing homes and similar facilities, and doctors or other professional practitioners—who can get kickbacks from Medicare for incurring lower than average costs to treat their Medicare patients. Of course, the statute gets a bit more specific on eligible “providers ... and suppliers”, goes into a bit more detail than “average”, and it doesn’t call the payments “kickbacks”, but that is the gist of the program, which is due to start in 2012. (Note: The ACO model seems likely to run afoul of civil and criminal statutes that prohibit kickbacks and certain referral arrangements, but Congress has authorized HHS to “waive” the application of those statutes to allow ACOs to operate. This will likely begin to get sorted out over the next 16 months or so in the regulatory process that is scheduled to begin in the fall of 2010.)

Like any good government program, the ACO payment arrangement has an appropriate euphemism: the “shared savings program.” Why? Because the Medicare program saves money on patient treatment and shares some of that money with doctors and hospitals.

How does an ACO work?

For (a very basic) example, person A with diabetes and a heart condition visits an ACO doctor 3 times in a year, and person B with diabetes and a heart condition sees a “regular” doctor 5 times in a year; both A and B have the same outcome (let’s assume that neither A nor B go into a diabetic coma or have a heart attack).

The ACO and Medicare split the difference between the cost of treating A and the cost of treating B. That is, the ACO doctor gets paid for 3 visits, and the ACO gets paid some portion of the difference between 3 and 5 visits. The exact ratio, as well as some additional conditions, will start to be determined by regulation within the next 16 months or so. The doctor treating B would still get paid for 5 visits, assuming the visits were not “not reasonable and necessary” (the statute that authorizes all Medicare reimbursement is written in the double negative) and met other coverage criteria.

So, why would a doctor choose to join an ACO, if he or she might get paid less (in the short run) for treating the same kind of patients?

There are other components to the “shared savings program” that may help explain. Medicare will only pay the “shared savings” to an ACO that meets certain to-be-determined “quality” standards, which require Medicare to collect patient outcome data from the ACO. Thus, Medicare gets data on patient outcomes that it will (one hopes) use to adjust payment policies to encourage health care provider behavior that leads to better outcomes; you could look at this as Medicare paying a consulting fee to efficient health care providers for data on best practices. You could also look at it as a kickback for skimping on care, but these are ACOs, not HMOs, right? Well, maybe; we’ll get to that in a bit....

In the meantime, what’s in it for the ACOs? Medicare will likely “assign” patients to them, so the ACOs have a built-in referral source (which raises some interesting issues that the coming regulations will almost surely address). This means that the ACO members may see higher volume than they otherwise would. That is, theoretically, ACOs could treat more people less often, resulting in an overall increase in revenue.

One potentially exciting aspect of the program is that Medicare would finally be allowed to step into the 20^th century: ACOs will be encouraged to use practices such as “telehealth”, that is, telephone and video (e.g., Skype) conversations with patients. Medicare generally only pays for those now if you, as a patient, are physically present in an area so remote that there is likely no telephone or internet service, and happen to be named Yossarian. (I exaggerate slightly, but under current law, it is exceedingly rare for Medicare to pay for “telehealth” services). The “shared savings program” also encourages “remote monitoring” (e.g., check your blood sugar at home, electronically send results to your doctor), for which Medicare does not currently pay at all.

These technologies can, theoretically, cut down on the need for costly office visits, so patient A, above, might only actually physically see the ACO doctor one time a year, and the ACO would split the difference with Medicare for the difference between 1 office visit and 5 office visits—again, ratio TBD, but add that up over a few hundred patients, and now you, as a doctor or hospital, are quite possibly doing less work for more money, not to mention keeping your patients healthier.

What’s not to like?

Well, that’s just the first part. The rest, hidden down in PPACA § 10307, adds some interesting wrinkles.

The “shared savings” payments under § 3022 were designed to be made based on actual projected savings, but § 10307 authorizes a a “partial capitation” model, where ACOs are “at risk for some or all” of the services furnished to its patients under Medicare Parts A and B. This could be limited to ACOs that are “highly integrated systems of care” or are “capable of bearing risk”, which raises the question: What is a group of hospitals and/or doctors that is a highly integrated system of care that is capable of bearing risk? It sounds quite a bit like an HMO to me.

Granted, these latter two conditions are not “requirements”, but Medicare is authorized to make them requirements in order to make these payments to an ACO. There is also a statutory cap on the capitated payments to prevent a political disaster similar to the one in which Part C plans were getting paid more per patient than the average Medicare Part A & B patient cost the Medicare programs. CMS has also—so far, informally—stressed that unlike an HMO, patients would not be required to go to the ACO for care, which raises some other questions about how “savings” could be reliably measured.... Congress has also given CMS carte blanche to implement “any payment model that the Secretary determines will improve the quality and efficiency of items and services furnished” without incurring additional program expenditures.

Stay tuned for further developments and examples of how the ontolawgy™ platform can help to navigate the coming ACO regulatory system. If you have specific questions or would like a demonstration, please contact me via http://ontolawgy.com or Twitter.

© 2010 Alex M. Hendler. All Rights Reserved.

PPACA your bags, we're headed to Taxes

Now that the Patient Protection and Affordable Care Act (PPACA) has been signed into law, what, specifically, does PPACA do, tax-wise? Let's take a look at the so-called "individual mandate".

Very briefly, under PPACA, you (generally) will be subject to a financial "penalty" if you don't buy or otherwise get health insurance. Some people are not happy about this. Let's look at the law first, and then what people are saying about it.

What the law actually does

Under the current (pre-reconciliation) version of PPACA, specifically, § 1501, which will add § 5000A to the Internal Revenue Code, starting in 2014, for each month you do not have health insurance you must pay a nominal "penalty" of about $8 a month, ramping up to $62.50 per month in 2016 and thereafter. Generally insurance premiums are much higher than that, so this does not provide much incentive to purchase insurance coverage.

Fortunately, PPACA § 10106 addresses that problem: "Section 5000A(b)(1) of the Internal Revenue Code of 1986, as added by section 1501(b) of this Act, is amended to read as follows...." Pardon me? Instead of enacting what you meant to enact, you enact something else, then amend it? In the same piece of legislation? We'll get to that later.

I'll summarize to spare you the pain of reading it yourself: Under PPACA's amendment to its own new § 5000A of the Internal Revenue Code, you would pay either the average nationwide monthly premium, or the greater of a fixed dollar amount or 2% of your income (fully phased in in 2016), if that amount is less than the average nationwide monthly premium. (HR 4872 would make further adjustments to this formula). In fake algebra: penalty = lesser of (average premium or (greater of (fixed dollar amount or percentage of income))).

Alternatively, you could just buy health insurance and not worry about it; if you can't afford insurance, you're likely eligible for a subsidy.

Without ascribing any motive to Congress, there are some potentially interesting things happening here. If Congress is adding a new legal provision, why add the provision in full, then amend it in the same bill? Doesn't this approach just double or triple (or more) the work of someone trying to find out what the law is? Briefly: Yes.

At least one benefit is that this approach conveniently embeds the legislative history within the Act itself, which can aid future inquiries into congressional intent should any litigation arise. Perhaps it could also allow an offending provision to be more easily severed in case of a constitutional or other legal issue. As for other benefits, it could help prepare people for the frustration and confusion of driving in Washington, D.C., or serve as a component of cognitive stimulation therapy—I'm guessing they weren't intentionally headed in those directions, though....

Another potentially interesting issue is Congress's choice to impose a "penalty" under the tax code for failing to purchase insurance, rather than impose a tax and exempt people from that tax if they purchase insurance. Potato, potahto, you might say—it is the same result. That is, unless you are a red-State Attorney General up for reelection this year. Which brings us to....

What people claim the law does

The New York Times recently published an article describing how various State Attorneys General plan to sue to enjoin implementation of provisions of PPACA that these officials allege force people to buy insurance. (See also the Washington Post's opinion piece). The Times article indicates that various constitutional law scholars suggest that these challenges will "amount to no more than a speedbump" on the way to implementing PPACA for a variety of reasons, one of which is that the penalty payment is tied Congress' taxing power authorized by the Constitution.

For the originalists out there, the 16th Amendment to the U.S. Constitution reads:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

The Times article describes legal scholars' views that the Supreme Court has very broadly construed Congress's "power to lay and collect taxes". Congress has been doing this for Medicare for more than 40 years: If you're employed by someone else, you currently pay a 1.45% tax on your income from that employment; if you're self-employed, it's about 2.9%. Under PPACA, if you make more than $200,000 in employment income per year (or $250,000 if you file a joint return), you will pay an extra 0.5% of your income, starting in 2013.

Clearly, that is a tax, and it funds insurance (Medicare Part A). It differs from the PPACA penalty in several respects: 1) This is a mandatory payment to the government; and 2) there's no guarantee that you'll actually become a beneficiary of the system (you and the Medicare program both need to survive until you're 65 or sufficiently disabled). Apparently, these Attorneys General have no problem with Medicare. They seem to accept that the government can make you pay taxes to support a government insurance program that you may never use, but they don't seem to accept that the government can give you a choice: pay tax penalties or purchase private insurance that you could use today.

What is the reasoned basis for this objection? I don't have an answer, but PJ O'Rourke asks a similar question, implying that if the Attorneys General (he singles one out, but I won't) wanted to be ideologically consistent, they would be pushing for a single-payer health care system, like the one we had for sailors more than 200 years ago.

I do not pretend to know enough about the intricacies of the Internal Revenue Code or income tax jurisprudence to opine on Congress's motives for implementing this provision via a "penalty" rather than a "tax", however, based on the plain text of the bill itself and the other provisions surrounding it, imposing a penalty under the tax code does not seem substantially different from directly imposing a tax. Admittedly, neither "tax" nor "penalty" appear to be explicitly defined within the Internal Revenue Code or the Constitution—although we can all agree that both are money that must be paid to the government and are not attached to a criminal offense (i.e., they are not fines).

In case of any doubt about the penalty's status as a "tax", enter the Commerce Clause (U.S. Const. Art. 1 § 8 cl. 3): Congress explicitly incorporated "findings" (see PPACA § 1501) indicating that health insurance and health care services constitute "interstate commerce", and that the penalty is a way to regulate that commerce. So, not only is it a "tax", but it also regulates interstate commerce (at least, Congress intends for it to do so). Belt with suspenders, anyone? If you're curious, U.S. v. Morrison, 529 U.S. 598, 608-09 (2000), presents a good overview of Congress's (very) broad power to regulate interstate commerce; I am no Constitutional scholar, but the penalty provision seems to be well within that power.

The Post's opinion piece (see above) does raise an interesting point, however: "the individual mandate extends the commerce clause's power beyond economic activity, to economic inactivity".

It would be a more interesting point if it did not rest on such shaky ground: 1) The penalty is functionally indistinguishable from a "tax" (see above), and thus, does not necessarily emanate from the Commerce Clause; and 2) the statement incorrectly assumes that people who don't buy insurance don't have an economic effect on health care. For example, if an uninsured person goes to an emergency room to get primary care treatment, and doesn't pay the bill (PDF), that person is engaging in economic activity by causing the emergency room to incur expenses, which then get passed on to paying customers (patients, rather). Sounds like commerce to me. The "penalty" imposed by PPACA is designed to discourage or offset that negative economic activity. Similarly, if the uninsured person does pay, clearly, that is economic activity. Perhaps I'm missing something, but does anyone see a legitimate Constitutional issue here?

Thoughts, comments?

© 2010 Alex M. Hendler. All Rights Reserved.

Health care reform: Cost savings, but at what cost?

On March 11, 2010 the Congressional Budget Office released an “Updated Estimate of Budgetary Impact” for the Senate-passed version of H.R. 3590. Some highlights and analysis follow.

“CBO and JCT [the Joint Committee on Taxation] now estimate that, on balance, the direct spending and revenue effects of enacting H.R. 3590 as passed by the Senate would yield a net reduction in federal deficits of $118 billion over the 2010–2019 period.”

How does it do that? According to the CBO’s analysis, the bill would cut Medicare Fee-for-Service payments by about $186 billion over the next 9 years, reduce Medicare Advantage payments by about $118 billion, and reduce Medicare and Medicaid DSH payments by about $43 billion over the same period, plus about $82 billion in other savings.

OK, so the government is going to spend less money, but that won't cover all the costs. According to the CBO's analysis, the bill would also substantially increase government revenue through a set of taxes and fees, including an excise tax on certain high-cost health insurance plans (good for about $149 billion through 2019), federally-based reinsurance and risk-adjustment "collections" ($106 billion), "fees" from "certain manufacturers and insurers" ($101 billion), "additional hospital insurance tax" ($87 billion), "other" revenue provisions ($77 billion), penalty payments ($39 billion), and what appears to be a halo of "associated effects of coverage provisions on revenues" ($57 billion).

This is an incomplete list of all the budgetary impacts, but there are other non-government costs that could be significant.

The CBO has provided a very handy itemized section-by-section list of projected budgetary impact, and has projected very little (if any) budgetary impact for the "quality improvement" (i.e., the goal of spending less money for better care) and "program integrity" (i.e., reductions in fraudulent or "abusive" payments under Medicare and Medicaid) provisions of the bill.

Of particular interest to some entities may be new administrative reporting requirements. The CBO is projecting that Title VI, Subtitle A of the bill (§§ 6001–6005) would have little (if any) impact on government revenues. What the CBO has not—and indeed, cannot have—accounted for is the likely burden that these requirements may place on health care providers. Section 6001 would introduce rather complex conditions that must be met to ensure a physician's compliance with the "Stark Law" (Social Security Act § 1877/42 U.S.C. § 1395nn) if the physician has had (as of February 1, 2010) an ownership or investment interest in a hospital. This provision is applicable to physicians who treat Medicare patients.

Section 6002 would require drug, device, biological, or medical supply manufacturers to publicly disclose on a government-run website any "payment or other transfer of value" to physicians by the manufacturers. Manufacturers and "group purchasing organizations" would also need to report any physician "ownership or investment interest" in such entities. With penalties of between $1,000 and $10,000 for each untimely unreported "ownership or investment interest" or "payment or transfer of value" (capped at $150,000 "with respect to each annual submission of information"), and between $10,000 and $100,000 for a "knowing" failure to submit the information (capped at $1,000,000 "with respect to each annual submission of information"), manufacturers and group purchasing organizations should take notice. Furthermore, it appears that the annual caps are applicable only to each physician or covered individual or entity whose interest must be reported, rather than the total of all reportable interests or payments. So if an entity has many physician investors, the penalties could multiply rather quickly: all the more reason to scrupulously report the information. Again, this provision is applicable to entities that sell product/services to Medicare patients.

Section 6003 would require a physician subject to the Stark Law, when making certain referrals for radiology services, to "inform the individual in writing at the time of the referral that the individual may obtain the services for which the individual is being referred from [someone other than the prescribing doctor or group practice] ... and provide such individual with a written list of suppliers ... who furnish such services in the area in which such individual resides". If this provision goes into effect, physicians with in-house radiology capabilities should very carefully review their radiology referral/prescription forms and procedures. They would likely also need to build (or access) a geographical database of radiology providers, likely by zip code, to facilitate the "written list" component of the provision. Free? Not for the physician. Applicable to Medicare patients? Of course.

These are just a few examples. The bill would also introduce other significant administrative reporting requirements for distributors of drug samples, pharmacy benefit managers, and nursing homes, all of whom provide services to (are you seeing a pattern here?): Medicare patients.

Although all this reporting will likely increase the transparency of some of the more opaque institutions in the health care world, there can be no doubt that these new provisions would increase administrative costs. No one in the history of health care has responded to increased administrative costs by voluntarily lowering fees charged to patients.

However, because the health care providers subject to these reporting provisions are by definition providing Medicare services, and Medicare services are the biggest item on the chopping block, these providers would by law almost certainly receive less for each unit of care provided to their patients. It is a rare person who happily does more of the same work for less money, so how much would this really cost? In other words, would there be fewer doctors or nursing homes willing to take on Medicare patients? Probably. How many fewer? How would this affect the quality of care? That depends on the quality and efficiency of the systems available to help Medicare providers comply with these requirements. What would this do to the cost of care provided to other patients? The money to pay for this has to come from somewhere.

Comments? Questions?

© 2010 Alex M. Hendler. All Rights Reserved.

Brace yourself for "dense reading of the most tortuous kind"

Well, not here, I hope, but I thought I should warn you about it. With reports coming in that the House may pass the Senate health care bill with a simple majority and move it to reconciliation in the Senate for a simple majority vote, it seems that meaningful debate on the big issues is essentially over (though the partisan sniping shows no signs of letting up); there may be a few minor tweaks here and there, and some issues may be carved out and addressed separately.

If the bill is going to survive in roughly the same form in which the Senate passed it (i.e., likely its best hope for survival), then it is going to present a number of challenges to those who want to understand and implement it, as suggested in a previous post.

The first step in analyzing it is looking at the current laws that it would amend. Among the laws the bill would amend is the Social Security Act, which, among other things, governs Medicare and Medicaid. The bill would make significant changes to how Medicare and Medicaid are funded and reimburse for services. The U.S. Court of Appeals for 4th Circuit has characterized this body of law rather colorfully:

There can be no doubt but that the statutes and provisions in question, involving the financing of Medicare and Medicaid, are among the most completely impenetrable texts within human experience. Indeed, one approaches them at the level of specificity herein demanded with dread, for not only are they dense reading of the most tortuous kind, but Congress also revisits the area frequently, generously cutting and pruning in the process and making any solid grasp of the matters addressed merely a passing phase.

Rehabilitation Ass'n of Va. v. Kozlowski, 42 F. 3d 1444, 1450 (4th Cir., 1994)

"Surely," you might think, "this must be judicial hyperbole." I can assure with great confidence that it is not.

For example, below is a simplified (and rather incomplete) 1-degree semantic map of the term "physician" as it appears in Section 1861 of the Social Security Act, based upon analytical information available on the ontolawgy™ platform. By "1-degree", I mean that the map tracks only direct relationships among element within a system, i.e., A -> B and relationships that A and B share with other elements.


On the right are the terms that require understanding of the term "physician" or that one must understand to understand the term "physician". On the left are the legal provisions—only within Section 1861—that are in some way related to the term "physician". Each of the lines in this diagram represents not only that a relationship exists between elements in the system, but also actually describes what the relationship is. Think of each line as a thought that a lawyer would need to have—consciously or not—in order to actually understand what a term or statutory provision means.

In some instances, it may require 4 or 5 "thoughts" to fully understand the relationship among the elements. The ontolawgy™ platform tracks those thoughts and places them into a searchable database.

If that's a "simplified" map, what does an unsimplified map look like? Well, because you asked so nicely, here's a 2-degree map; it tracks relationships beyond the first degree. For example, A -> B is a 1-degree relationship. A -> B -> C is a 2-degree relationship; the map also tracks common relationships among A, B, or C:


If these diagrams don't look particularly helpful to navigate or understand the law, don't worry: They're not supposed to be (at least not when presented as static images). They are supposed to represent the complexity and interconnectedness of elements of the law and to demonstrate the difficulty that a mere mortal lawyer might encounter when researching Medicare and Medicaid issues.

Now before you jump to any conclusions about the intellectual prowess of lawyers, remember that this diagram just relates to the term "physician" as used in Section 1861 of the Social Security Act. It does not address the term as it may appear in the other 108 sections of Title XVIII of the Social Security Act, nor does it address the term as it might be used in the context of Medicaid, nor in any of the millions of words (no exaggeration) of regulations, rules, Medicare and Medicaid manuals, and other statements of official policy. It may also help to bear in mind that Medicare and Medicaid regulate considerably more than just physicians.

I submit that anyone who can keep track of all of this in his or her head either has a beautiful mind or an unusual affinity for toothpicks. Let's just say that I don't have a little shed out back and I eat with a knife and fork....

© 2010 Alex M. Hendler. All Rights Reserved. No claim to original government works.

An Escherian Dilemma: Health Insurance Access or Health Care Cost?

Access to health insurance is an important problem, as is evident from one insurer's recent announcement that it would raise premiums by up to 39 percent. Improving access to insurance seems to have been the main focus of most health care reform legislation to date, but there is more to the story. According to the insurer that is proposing to raise its rates, the cost of medical equipment and services is the reason behind its proposed premium hike.

Given the dramatic increase in health care expenditures over the last several years, there is no doubt that limiting the growth rate of medical expenditures is extremely important to do. To see why, just take a look at some of the scariest sites on the internet: The Congressional Budget Office's Health page, and the Centers for Medicare and Medicaid Services National Health Expenditure Data page.

If you are not familiar with the CBO, it does some impressive and eye-opening work. If you are at all interested in how the government is proposing to spend your money, take some time to review the CBO's site. The site includes a number of interesting documents relating to health reform efforts, and CBO (thankfully) has the freedom to demystify some of the more confusing language. For example, in one analysis, the CBO notes that the Senate's health reform bill would actually increase the deficit, while nominally preserving the solvency of the "Health Insurance" (that is, Medicare Part A) "trust fund" that has been projected to be bankrupt by 2017.

So, which should be addressed first, access to insurance or the cost of health care itself? Like almost everything involving paying for health care, the only clear and simple answer is that there is no clear and simple answer: This is a chicken that hatches out of its own egg. Are there any M.C. Escher devotees who want to try their hand at drawing that?

(On another note, here are some interesting additional perspectives on what it would mean to repeal the antitrust exemption for health insurers. Although most of the experts in that article suggest that repealing the exemption would have little, if any effect on the health insurance market, there is only one surefire way to find out what it would do....)

© 2010 Alex M. Hendler. All Rights Reserved.

Brobdingnagian, Leviathan, or just plain enormous?

It is hard to pick an adjective to describe the (finally) published version of the Senate's amended health care bill, a.k.a. H.R. 3590.EAS. For a bill that started off as a few paragraphs to extend the first-time home buyer's tax credit to certain overseas members of the military, it has—in line with one of my earlier predictions—morphed into a beast that weighs in at about 2.4 kilopages (2,407, to be exact, not counting two superfluous pages at the end). I have not yet had a chance to read it, but with the election of Scott Brown to the late Senator Kennedy's seat in the Senate, it would probably not be the best use of time, the general consensus being that his election limits the likelihood that the Senate's version of the bill would survive unscathed a conference with the House.

That said, below are some potentially interesting statistics on the bill that the Senate passed (much of it based on automated analysis):

• Size

As a plain text file, it is about 2.5 MB;

The official PDF of the bill is about 4.3 MB;*

The table of contents is 16 pages long;

The bill is approximately 16,000 lines long;

It contains approximately 379,638 words.

• Complexity

It has 441 Sections of its own;

It adds 173 new Sections to existing law;

I doubt there is any religious significance, but that amounts to 614 sections altogether (one more than the number of commandments commonly held to exist in the Hebrew Bible), a fact that might be interesting to certain factions that oppose this legislation;

It makes approximately 912 amendments to existing law;

It mentions the "Social Security Act" 706 times;

It mentions the "Public Health Service Act" 284 times;

It mentions the "Internal Revenue Code" 195 times;

It mentions the "Employee Retirement Income Security Act" (also known as ERISA) 25 times.

• Money

It contains 360 dollar signs;

It mentions numbers in unrounded millions (i.e., xxx,000,000) approximately 206 times;

It mentions numbers in billions rounded to millions (i.e., xxx,xxx,000,000) approximately 39 times;

Of those 39 times, it mentions numbers in unrounded billions (i.e., xxx,000,000,000) approximately 26 times.

What is the point of reporting all these numbers? Merely to point out that the bill is big, complicated, and addresses numbers of a size more typical of biology, chemistry, physics, and CMBS balance sheets. Why is is so big and complicated?

Unfortunately, the straightforward solutions to the problem of securing universal health insurance coverage (i.e., mandate individual insurance purchases through imposition of a new income tax, refunded in part through vouchers to pay for such insurance, in part to subsidize insurance for those who could not otherwise afford it; get rid of preexisting condition exclusions; completely remove the federal antitrust exception for health insurance), are, for the most part, political non-starters.

While some of the complexity in health reform legislation may stem from earmarks or other concessions to bring certain legislators on board, I submit that a larger part comes from attempting to reach the same results as above in such convoluted—sorry, "creative"—ways that politicians can try to explain their way around the outcome in a manner that would allow them to get reelected.

There are some hints of what a "pared-down", passable bill might do, and while it could be a start, if that is what Congress ultimately does, it is still quite far from where we need to be, i.e., universal (but not necessarily unified, i.e., "single payer") coverage.

So, is Scott Brown's election a good or a bad thing for "health reform"? With that, I leave you to Federalist No. 10 and your own conclusions:

A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good.

*Your numbers may differ; my operating system reports sizes in megabytes as if 1 MB = 1000KB; some systems reports sizes as if 1MB = 1024KB; technically, the latter definition is called a "MebiByte", but few people actually use that term.

© 2010 Alex M. Hendler. All Rights Reserved.