Author: David Baratta

On March 30^th, the Blue Cross and Blue Shield Association released a report on their study of those who were newly insured in the private market thanks to ACA reforms – and found that they were sicker, and costlier, than previous enrollees. The report was used by Blue Cross and Blue Shield to explain the premium increases they have asked for, and which many insurance commissioners have approved.  Those offering Blue Cross plans are also asking for certain other aspects of the ACA, such as special atypical enrollment periods, to disappear so that insurance companies can better control when and who signs up for coverage.  It should be no surprise that Blue Cross and Blue Shield companies should want increased premiums and more predictable enrollment periods – 23 of those companies reported a collective $1.9 billion decline in earnings in the first three quarters of 2015 as a result of their inclusion in the ACA national exchanges.

The report analyzed health insurance for 4.7 million Americans across all 50 states that were newly enrolled in 2014 and 2015.  One aim of the study was to find out if the ACA provisions not allowing insurance companies to disqualify people for pre-existing conditions in fact resulted in a sicker group of insureds.  The study found, in fact, newly enrolled insureds had higher rates of high blood pressure, diabetes, depression, coronary artery disease, H.I.V. and hepatitis C.  Diabetes and hepatitis C, in particular, were found to be twice as common among new enrollees, and H.I.V. was more than three times as common.  However, even Blue Cross and Blue Shield recognized that the prevalence of these diseases will shrink in new enrollees as those diseases are treated or even prevented through the insureds’ new healthcare options.  Programs to prevent and treat diseases more effectively are already paying dividends as such programs see fewer hospital admissions, readmissions, and hospital infection rates.  Blue Cross and Blue Shield is using the report not only to justify its premium increases, but to espouse the need for better care management such as making sure those with chronic diseases continue to take their medicine, or that people take advantage of preventative care, like flu shots,  to prevent illnesses that require more expensive treatments.

Another aim of the report was focused on costs and medical service usage.  Among new enrollees, visits to doctors and other medical professionals was 26 percent higher and hospital admissions rates were 84 percent higher.  The increased medical service usage the study observed may also be a result of the policies being more comprehensive, another requirement for private marketplace policies under the ACA.  It could also be the result of new enrollees having put off medical care and making up for it upon being enrolled, which could mean the service usage could flatten out over time.  On the whole, medical costs for new enrollees were 19% higher than employer-based group members in 2014 and 22 percent higher in 2015.

However, increased cost, usage, and pre-existing condition prevalence may be a sign that the ACA is working.  Administration officials, for example, have stated that these figures are signs that healthcare is now reaching vulnerable populations that it had not before, which was the intent of the ACA.  Although costly, the ACA reforms have decreased the number of uninsured citizens and helped close the health insurance gap between lower and higher income Americans.

In early February, the Seattle Times reported on the case of David Morton, the face of a class-action lawsuit against private insurers Group Health and BridgeSpan Insurance.  In the case, Morton and others allege that the Washington state private insurers failed to pay for a new drug called Harvoni.  This drug not only treated Hepatitis C, but has the ability to cure it.  Group Bridgespan has already updated its policy to allow coverage of all Hepatitis C patients, while Group Health has expanded to coverage of those with lower levels of liver damage.

The insurance companies were limiting use of the drug, which costs more than $1,000 per pill or $95,000 for a 12-week course, to only those with a more “severe” infection.  Therefore, the class alleged that the decision by the insurance company was a cost-based one, not one of medical necessity.  This was further evidenced by the fact that other insurers in the state did cover the drug.

It is not only private insurers who are rationing the drug, but the Washington state Medicaid program (among others) which limits the use of the drug to people with the most severe fibrosis, or liver scarring.  This is despite the fact that the American Association for the Study of Liver Diseases (AASLD) espoused the benefits of the drug for all those with Hepatitis C.  This was a reversal of their previous recommendation which prioritized use of the drug with those of “greatest need” based on level of liver disease, due to the cost and availability of the drug.  The new recommendations from the AASLD have even been accepted by the Washington Insurance Commissioner, who is encouraging insurers to follow the guidelines as it considers what the standard of care should be.

However, not everyone is convinced of the drug’s effectiveness.  A report from the Center for Evidence-based Policy released in May 2014 evaluated the effectiveness of sofosbuvir, which is the active component in both Harvoni and another Hepatitis C drug called Sovaldi.  They noted that despite the claims of curing Hepatitis C, relapse is possible in patients who received a full treatment regimen.  Some figures suggest anywhere from a 5 to 28 percent relapse rate.

Two weeks after the case against the private insurance companies was filed, another case was filed, this time against the Health Care Authority (HCA), Washington State’s Medicaid provider.  Just as in the case against the private insurers, this one is alleging that cost – not medical necessity – is the determining factor in hepatitis drug coverage.  The Washington Medicaid Director, in a September letter to the U.S. Senate, estimated that it would cost $242 million just to cover the high risk patients.  If that coverage expanded to all Hepatitis C patients, it would balloon to $3 billion.

This issue has expanded well beyond Washington State.  All states across the country vary in coverage for the drug.  For example, Michigan has just decided to cover the drugs under its Medicaid programs while New York has decided to investigate the practices of its private insurers, and New Mexico begins to contemplate the financial effects of covering the medicine.  Even as far away as India, there are challenges to the patent itself in hopes of opening up more access to the drug.

A press release from the Centers for Disease Control and Prevention (CDC), a federal agency under the Department of Health and Human Services, is making national headlines for all of the wrong reasons.  The release, entitled “More than 3 million US women at risk for alcohol-exposed pregnancy,” appeared to have the best of intentions – proposing a number of best practices to help women prevent fetal alcohol spectrum disorders (FASDs) in their potential pregnancies.  In particular, the report notes that “Sexually active women who stop using birth control should stop drinking alcohol,” due to the fact that drinking while unknowingly pregnant can cause damage to the fetus.  However, many women viewed the report as insulting and another instance of the federal government having too much to say about women’s health choices.

The report starts by defining their at-risk population (which numbers 3.3 million) as women between 15 and 44 years old engaging in three practices: drinking, being sexually active, and not using birth control to prevent pregnancy. The report is not specifically about women who are actively trying to have a child, though the report notes that 3 of 4 women actively trying to have children also continue drinking.  The report is more about women who may become accidentally pregnant, and thus would unknowingly expose a fetus to alcohol.  From here, a number of contentions arise.

One contention is that the CDC is suggesting complete abstention from alcohol while the effects of limited drinking on fetuses is not a settled debate.  One response notes that it would be very difficult to do a study on the effects of alcohol on pregnancy because it would be unethical to conduct a double-blind experiment on pregnant women.  Furthermore, when limited studies have been done, there has been no link found between one to two drinks a week and fetal issues. Therefore, the recommendation of full abstention comes off as a pretense to otherwise try to control women’s behavior.

Another contention is that among the risks of alcohol consumption listed, the CDC included “injuries/violence” and “sexually transmitted disease.” As another response notes, there is a missing step in logic when one suggests alcohol consumption leads to violence and STDs. To say that puts all the onus on the woman for leaving herself open to such abuse, and not on those who would take advantage of someone who had been drinking.  There is no similar claim that men should also abstain from alcohol, whether actively using birth control or not.

Both responses recognize the ultimate goal of the report was noble – prevent FASDs. Furthermore, the report was lauded by some including the American College of Obstetricians and Gynecologists for its message of preventing FASDs. But by reducing women down to nothing but potential child-bearers, and saying nothing of the role men play in unwanted pregnancies or violence and STD spread, the CDCs ultimate point was lost on many.

A September report from the Government Accountability Office (GAO) found that while progress is being made in terms of electronic health records (EHR) interoperability, healthcare providers in the United States are still far away from full implementation.  Interoperability is the idea that different EHR systems would be able to pass information to each other.  The study primarily looked at 18 initiatives currently being engaged in by nonfederal stakeholders, although the study recognized the necessity of the federal government in EHR implementation.  In examining these programs, GAO found five challenges: “(1) insufficiencies in health data standards, (2) variation in state privacy rules, (3) accurately matching patients’ health records, (4) costs associated with interoperability, and (5) the need for governance and trust among entities, such as agreements to facilitate the sharing of information among all participants in an initiative.”  The study also found that a key to moving EHR interoperability forward will be the recognition by health care providers that it is a valuable tool for improving clinical care.

EHR implementation was mandated in 2009 by the Centers for Medicare and Medicaid Services (CMS) and the Office of National Coordinator for Health IT.  The initiative CMS began, known as “meaningful use,” was a three-phase-in-five-years program started in 2011 to encourage healthcare providers to begin using EHR.  The first stage focused on getting Medicare eligible healthcare providers to eliminate manila folders and replace them with standardized, electronic formats, which patients would have access to through an online portal.  In the second stage, Medicare eligible providers needed to meet a quota of 5% of patients being on EHR if that health care provider wished to qualify for the EHR Incentives Program (which is managed by CMS).  In 2014, when the second phase was supposed to end, 48% of Medicare eligible professionals and 65% of Medicare eligible hospitals met the phase 2 quota.  Due to the low numbers, the 5% quota has been extended until 2017, and in 2018 the quota will rise to 10%.

Additionally, there have been issues getting doctors and patients to accept EHR.  Patients who are relatively healthy are not all that interested in monitoring their health, and the programs are not overly consumer friendly for patients and doctors alike – often containing long drop down menus and producing documents up to 70 pages long. These issues are also impacting daily life for doctors.  In general, it takes much longer to input data into the system than it would a normal written record.  Doctors also worry that having their patients input their information into computer systems, rather than through discussions with doctors, could weaken interpersonal relationships between doctors and their patients.

Even in places where EHR implementation appears to be succeeding, like Massachusetts (which boasts over 80% acceptance among physician practices), other issues such as a multitude of EHR programs being available – and thus no standardization across healthcare providers – causes frustrations.  One healthcare provider noted a setup cost of $84,000 for their EHR system and related IT systems.  Some improvements are happening naturally.  In Massachusetts for example, 80% of healthcare providers are using one of seven EHR programs whereas before, there were as many as twenty.  Hopefully as the GAO report suggests, as the meaningful use program moves into the third phase in the coming years, interoperability becomes more of a focus.

On Monday, October 5^th, just a little over the week before the deadline, Governor Jerry Brown signed into California state law the End of Life Option Act.  The act would allow adults suffering from a qualified terminal illness to be prescribed a life-ending drug.  On September 14^th, the California Legislature passed the act, but it was unclear which way the governor would go.  The Bill passed forty-four to thirty-five in the Assembly, and twenty-three to fourteen in the Senate.  California is now the fourth state with such a provision alongside Oregon, Washington, and Vermont.

The bill is modeled after the Oregon Death with Dignity Act which provides a number of safeguards to make sure that the bill is not abused by patients or doctors.  The Oregon bill requires a written request that is signed by the patient and witnessed by at least two individuals who attest that the patient is capable, acting voluntarily, and not being coerced.  Both the attending physician and a consulting physician must agree on the diagnosis, prognosis, and capacity of the patient to make an informed decision.  If either physician believes the patient is suffering from a mental disorder or depression, the patient is referred to counseling and cannot receive the prescription until it is determined the patient is not suffering from impaired judgement.  The attending physician must also inform the patient of all of the risks of the prescription and feasible alternatives, which is a common component of informed consent.  Finally, in terms of timing, there has to be fifteen days between an oral request and the prescription being written and forty-eight hours between a written request and a prescription being written.  The California bill has all of these elements as well as a sunset clause, which requires the bill to be renewed after ten years.

The other source of inspiration for the bill was the story of Brittany Maynard, a 29 year-old resident of California who suffered from brain cancer.  She had been given a prognosis of less than six months to live, but since California did not have a law allowing for physician-assisted-end-of-life, she had to establish residency in Oregon to use their law.  Her story caught the attention of the nation, and is credited with re-igniting the conversation of physician-assisted end-of-life options in California and across the country.  Maynard actually spoke to Governor Brown three days before her death, urging him to support the cause.

Some of the fiercest opposition had come from religious groups and disability rights advocates.  They believed that the safeguards do not do enough to protect vulnerable populations – like the elderly, disabled people, and low-income individuals – from being pressured to avoid life-saving care.  A study in 2007 by the Journal of Medical Ethics actually found vulnerable populations no more likely to use the end-of-life option in the case of Oregon.  They examined the elderly, the disabled, women, the uninsured, people with low educational status, low-income people, and racial/ethnic minorities. The study actually came to the opposite conclusion – the most frequent users of the option were white, highly educated, wealthy, and under 85 years old.

A number of states should have a keen interest in yet another state passing death-with-dignity legislation.  Over the past year, sixteen states and the District of Columbia have introduced bills to their state legislatures for this right.  One such state – Montana – already allows death with dignity via the 2009 Montana Supreme Court ruling in Baxter v. Montana, where the Montana Supreme Court ruled that while there is no right to death-with-dignity, it is also not against the public interest and therefore not illegal. Despite this ruling, legislation that would codify this right has failed as recently as this past year.  The New Mexico Second Judicial District Court also ruled in 2014 that the state statute which makes physician-assisted-suicide a felony is not compatible with their state constitution, but that decision was overturned by the New Mexico Court of Appeals this past August. That case is set to be taken up by the New Mexico Supreme Court, and like all of the states mulling over their own death-with-dignity legislation – another state allowing it could create more momentum for future decisions.