I am very proud to have participated in this informative, interactive training. It has already been very helpful to my work with patients in the hospital.
One of the things the training touched on was that HIPAA, the law that protects your privacy in regards to who you want your health information shared with, is often quoted as being the reason that your authorized representative cannot get answers to their questions when they are advocating for you. This week I had an experience that exemplified how this misuse of HIPAA can really hurt the patient.
My client, who was recently admitted to an assisted living facility from her home in another State and therefor did not have a signed NYS Health Proxy Form, was taken to the hospital after a fall. She did not want to go to the hospital, but her daughter was going with her, so we felt she should at least have it checked out. Before the daughter was asked anything about the patient’s health history, the hospital administered a shot of Haldol, an anti-psychotic. The daughter was shocked to see her mother in a catatonic state, especially since her mother’s diagnosis of Parkinson’s and prior hallucinations, which had been under control with medication, would have indicated that this type of drug should never have been administered.
The catatonic state lasted for weeks, with the doctors saying we should consider long term care placement in a nursing home. With advocacy from the daughter, who also happens to be an elder law attorney, and myself, we convinced the hospital physician to put in for a psychiatric evaluation. It was my feeling that the patient could benefit from a full discussion about medications that could balance her Parkinson’s medications with other medications for her confusion. The psychiatrist agreed that her confused state was much improved from the catatonic state she had been in upon being admitted. He suggested that we try other treatments quickly with the goal being to discharge the patient as soon as possible to normalize her surroundings. We left the hospital agreeing all around that this was the plan and even provided a commitment from a rehabilitation facility that they had a bed ready for the patient.
Two days later, thinking that the treatment had been underway and wondering when the patient would be transferred to the rehab facility, I received a call from the physician saying that he didn’t feel comfortable accepting the daughter and my verbal approval for the treatment and therefore, instead of proceeding as directed by the psychiatrist, he had gone to the legal department at the hospital. No treatment had been initiated. He now said that he would not proceed without speaking to the patient’s son, because since there was no Health Care Proxy Form he did not want to take my or the daughter’s approval to administer ADVIL, a commonly used over the counter medication for pain. This was ridiculous, first because the son had not been involved in the discussions with the doctors, and because the doctor had withheld beneficial treatment from the patient for some technicality which had already been approved by the daughter and in the presence of the psychiatrist and myself. This was especially egregious because the patient herself had been able to state her daughters full name and that I was the friend who was helping her.
We finally had to get the son on the phone to give his approval for his sister and I to make all necessary decisions for his mother. Not to mention that when we first wanted to talk to the doctor, he kept us waiting for two hours, and only came when we demanded to see the in-charge nurse who paged him, but taking direction from the training I had just completed, my next call would have been to the hospital administration to put in a complaint, or even a letter to the Department of Health.
Here is the section of the HIPAA law that talks about the problem, as shown on the US Dept of Health and Human Services https://www.hhs.gov/hipaa/for-professionals/faq/488/does-hipaa-permit-a-doctor-to-discuss-a-patients-health-status-with-the-patients-family-and-friends/index.html
The HIPAA Privacy Rule at 45 CFR 164.510(b) specifically permits covered entities to share information that is directly relevant to the involvement of a spouse, family members, friends, or other persons identified by a patient, in the patient’s care or payment for health care. If the patient is present, or is otherwise available prior to the disclosure, and has the capacity to make health care decisions, the covered entity may discuss this information with the family and these other persons if the patient agrees or, when given the opportunity, does not object. The covered entity may also share relevant information with the family and these other persons if it can reasonably infer, based on professional judgment, that the patient does not object. Under these circumstances, for example:
- A doctor may give information about a patient’s mobility limitations to a friend driving the patient home from the hospital.
- A hospital may discuss a patient’s payment options with her adult daughter.
- A doctor may instruct a patient’s roommate about proper medicine dosage when she comes to pick up her friend from the hospital.
- A physician may discuss a patient’s treatment with the patient in the presence of a friend when the patient brings the friend to a medical appointment and asks if the friend can come into the treatment room.
Even when the patient is not present or it is impracticable because of emergency circumstances or the patient’s incapacity for the covered entity to ask the patient about discussing her care or payment with a family member or other person, a covered entity may share this information with the person when, in exercising professional judgment, it determines that doing so would be in the best interest of the patient. See 45 CFR 164.510(b). Thus, for example:
- A surgeon may, if consistent with such professional judgment, inform a patient’s spouse, who accompanied her husband to the emergency room, that the patient has suffered a heart attack and provide periodic updates on the patient’s progress and prognosis.
- A doctor may, if consistent with such professional judgment, discuss an incapacitated patient’s condition with a family member over the phone.
In addition, the Privacy Rule expressly permits a covered entity to use professional judgment and experience with common practice to make reasonable inferences about the patient’s best interests in allowing another person to act on behalf of the patient to pick up a filled prescription, medical supplies, X-rays, or other similar forms of protected health information. For example, when a person comes to a pharmacy requesting to pick up a prescription on behalf of an individual he identifies by name, a pharmacist, based on professional judgment and experience with common practice, may allow the person to do so.
November 4, 2018
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President Obama has written a letter to plead his case for keeping the Affordable Care Act in tact. The Dems continue to say that the Republicans don’t have a plan for replacement, however that is not strictly true. They do want to keep the pieces of legislation that are popular, like children staying on the parents plans and coverage for pre-existing conditions, and maybe even subsidies for low-income workers. But, other than that, the main idea they have is to do away with the mandates on employers and individuals. That is the popular idea that got Trump elected. However, their plan for accomplishing all this is to keep it in the hands of the insurance companies. Here’s where both party’s plans will always fail. To put it into a nutshell, here is the great Don McCanne of Physicians for a National Health Plan.
Comment by Don McCanne
The negative consequences of repealing the Affordable Care Act without replacing it with measures that address some of the problems that ACA was designed to fix have been well publicized. President Obama is right to warn us about repealing ACA without replacing it. But the full story is more complex.
Although the Republicans are moving ahead with including repeal of ACA in the budget reconciliation process, we do not have any details about what is being repealed nor when the repeal would actually take place, if ever. And the Republicans have no clue as to what their replacement would be, especially since it is obvious that their favored proposals such as health savings accounts and selling insurance across state borders would not effectively address the deficiencies that would be recreated by repeal.
Of greater concern, President Obama’s warning about repealing without replacement misses the bigger picture. ACA only tweaked our dysfunctional financing system when we needed comprehensive reform.
Obama touts ACA measures that supposedly saved money by replacing quantity with quality, but, in fact, such measures have not had even a negligible impact on overall cost containment. What they have done is to increase administrative complexity and waste, resulting in an epidemic of physician burnout.
He touts the increase in the numbers of individuals insured, but ignores the deterioration in quality of the coverage through the increase in financial barriers to care, especially high deductibles, and the impaired access that is resulting from expanded use of ever narrower provider networks.
He expresses regret that guaranteeing coverage to individuals with preexisting disorders requires a very unpopular individual mandate to purchase insurance (to prevent adverse selection), and yet he remains silent on the fact that social insurance programs such as Medicare are extremely popular and they rely on automatic coverage instead on an individual decision on whether or not to comply with a mandate.
He repeats the tag line that he used when he rejected single payer reform: we need to “build on what works and fix what does not.” Yet ACA patched only a few problems but did not begin to address the major deficiencies of our health care financing infrastructure, especially those resulting in profound administrative waste. ACA provided tweaks when we needed a new infrastructure.
And then – Primum non nocere – First do no harm. A system in which people are suffering, going broke, and sometimes even dying, is a system which is doing great harm. Reform should not be slogan driven. It should be built on what really does work to actually reduce harm. A single payer national health program – improved Medicare for all – does precisely that.
January 6, 2017
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Everyone’s heard the news about problems with the Affordable Care Act and Obamacare. Hillary says expand it and Trump says Repeal and Replace. The NY Times article this weekend is a great example of how misinformation and disinformation is still alive and well. Thanks to Physicians for a National Health Plan’s Senior Health Policy Fellow Don McCanne, M.D, we are sharing this analysis of the article, so that you can reply, when you are told, “I read it in the paper.”
http://www.pnhp.org/news/quote-of-the-day
The New York Times
October 27, 2016
The Best Way to Save Obamacare
By Jacob S. Hacker
The Affordable Care Act has faced a rocky six months. First, major national insurers scaled back their participation, leaving about one in five people buying coverage through health exchanges with only one plan to choose from. Then this week, the Obama administration announced that exchange plans would post an average premium increase of more than 20 percent (though most enrollees would be insulated from the full increase by subsidies for their coverage).
As someone involved in the debate over the Affordable Care Act from the start, I don’t find these unhappy events all that surprising. From the outset, I’ve argued that without a public option — a Medicare-like plan that would be available to all Americans buying health insurance — insurance competition would dwindle and premiums would skyrocket. Now that they have, it’s time to do now what we should have done then: take the simplest route to a more stable and affordable health care system.
Critics of the public option are convinced it’s a one-way ticket to single payer (the government alone provides coverage). History suggests the opposite: The public option isn’t a threat to a system of broad coverage through competing private plans. Instead, it’s absolutely critical to making such a system work.
We’re already heading toward single payer in sections of the nation — only it’s a private plan doing the paying. Next year, five states will have only one insurer in their exchanges, the online marketplaces set up to allow uninsured Americans to buy subsidized coverage. Nine more states will have just two insurers.
The diminishing number of choices doesn’t just hurt consumers; it also makes it harder for regulators to use antitrust tools to push back against this consolidation. Who wants to be the official accused of causing an insurer to leave the exchanges? It’s a perverse equation: As the number of insurers goes down, the leverage they have over regulators goes up.
These problems are what motivated proposals for a public option in the first place. Major parts of the country lacked enough insurer competition to keep costs in line, especially with rapidly consolidating providers. And the proposed alternatives to a public option, like the insurance “co-ops” eventually included in the 2010 law, did not have the bargaining power and reach that a Medicare-like plan would have (and most of them have since gone out of business).
The argument by public-option supporters wasn’t that it would or should replace private insurance. It was that having a public plan as a benchmark and backup was essential to make competition among private plans work. The models we have of successful competing health plans have a public or quasi-public option. That’s true in Medicare, where private plans operate alongside the traditional program. And it’s true in the federal employees’ health system, where a majority of enrollees choose Blue Cross-style nonprofit plans that are overseen by the government to ensure they remain viable.
Having a public plan alongside private plans won’t merely ensure that everyone has a choice. It will also pull more people into the system, creating a broader pool for all the plans. In polls conducted in 2009 and 2010, substantial majorities of Americans said they would feel better about being required to have coverage if they had the choice of a public plan.
A public plan is attractive in part because it can offer a broader network of providers. As exchange plans increasingly move toward very narrow networks, this would be another enormous draw — especially for more affluent consumers who have so far shunned the exchanges.
The public plan can also improve the overall system. Medicare has pioneered innovations in reimbursement, and it has improved hospital quality by imposing new penalties for readmissions. A public option could build on these breakthroughs and extend them to Americans under Medicare age.
The biggest advantage of the public plan, however, is its greater ability to restrain prices. As rapidly as the insurance market is concentrating, medical providers are consolidating faster, driving up prices and creating huge differentials even within regions. Medicare hospital reimbursements vary much less — and they’re typically much lower. As a result, Medicare has experienced slower per-person cost growth than private plans, particularly in recent years.
On the other hand, private plans are much better poised to develop integrated systems that closely monitor outcomes for a smaller circle of providers. Just as in Medicare, public and private plans can complement each other as they compete.
The public option is an ambitious policy. But it’s not hard to explain or advocate for — Americans love Medicare — and it has the potential to build powerful grass-roots support. Pressure from a coalition of left-leaning groups led by the Progressive Change Campaign Committee (a group that fought for the public option in 2009) has encouraged 33 Senate Democrats, including the party’s leadership, to call for a public option. President Obama has started advocating for it again, and Hillary Clinton has embraced it.
Republicans have actually shown how it can be done. Changes in Medicare pushed by President George W. Bush in the 2000s created more competition between public and private plans and guaranteed a fallback public option for prescription drug coverage.
This year, Senate Republicans, providing another lesson, passed legislation that repealed the Affordable Care Act through the budget process, which isn’t subject to a filibuster. (President Obama vetoed it.) If that’s possible under the budget rules, creating a public option should be, too — especially since it could reduce the deficit by tens of billions of dollars a year.
If things keep going as they are, Americans are certain to demand greater regulation of private plans to make them operate more like public plans. Instead, we should make them compete with a public option.
Jacob S. Hacker, a professor of political science and director of the Institution for Social and Policy Studies at Yale, is an author of “American Amnesia: How the War on Government Led Us to Forget What Made America Prosper.”
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Comment by Don McCanne
Jacob Hacker deeply believes in a better America for all of us. As a political scientist, he understands the difficulties of moving the process in that direction. During the health care reform process, he recognized the lack of political feasibility of enacting a single payer Medicare for all program, but, with good reason, he decided that a public option – offering the option to purchase Medicare instead of private insurance – was feasible. In fact, it almost happened. Since so many problems still exist six years after enactment of the Affordable Care Act (ACA), we should listen to Jacob Hacker to see what he has to recommend.
First, let’s go back and look at the process that led up to ACA. The dysfunction in our system had become unbearable – runaway costs, too many uninsured and underinsured, preventable financial hardship and physical suffering continued – something had to be done. The policy and political communities understood the superiority of single payer Medicare for all, but the politics were polarized. It was decided that the feasible approach would be for the Democrats, who were in control, to lead by supporting the Republican proposal of building on the existing system. Although the progressive community initially was disappointed, they decided that the only feasible approach was to join the (ACA) bandwagon, especially when it included the public option that many thought would eventually transform into a single payer system once the public realized how much better government insurance was compared to private insurance. Although the process emasculated the public option, one Senator was able to block it altogether.
Fast forward to today. After six years, the feasible approach has not turned out so well. Yes, many more now are covered, but little realized how much insurers could still innovate, for their own benefit, in a more regulated environment. To make premiums affordable, plans had to be offered with a lower actuarial value – accomplished by increasing the deductibles and offering credits and subsidies for lower income individuals (which left middle income individuals more exposed to medical debt). But many did not realize the rapidity and intensity with which the insurers would jack up the deductibles. And now the policy of high deductibles is corrupting the part of the market they were trying to protect – the employer-sponsored plans. Also they wanted to protect the “gains” of managed care, which really is not much more than negotiating lower rates for provider panels in exchange for granting them exclusivity. Once again, most did not anticipate the rapid move to ultra-narrow networks that serve the insurers so well while impairing access for their enrollees. Higher deductibles and narrow networks can hardly be described as successes of ACA since most people are worse off.
So now we are again facing the same political dilemma. Do we embark on a process to establish single payer Medicare for all, or do we take the politically feasible route of enacting a public option which would fix our system by requiring private insurers to complete with a vastly superior public plan, or so they would have us believe? Well, the decision has already been made. The progressive community is already totally on board with the public option. The tragedy is not so much that on this path we will end up with a public plan that will be only one more feeble player in the dysfunctional market of private plans, but rather that we will, once again, have walked away from single payer, perhaps for decades, because of this meme about lack of political feasibility.
So let’s look more closely at what Jacob Hacker has to offer in his truly sincere effort to cure our health care system.
* From the outset, I’ve argued that without a public option — a Medicare-like plan that would be available to all Americans buying health insurance — insurance competition would dwindle and premiums would skyrocket.
The insurance industry’s control of Congress would prevent a public option that could out-compete the private plans. Our traditional Medicare program is already being out-competed by the private Medicare Advantage plans because Congress has continued to support policies that give the private plans an unfair advantage while rejecting measures that would provide the much-needed expansions in the currently deficient package of Medicare benefits. That’s why Medicare must be improved before we consider it as a program for all of us.
* Critics of the public option are convinced it’s a one-way ticket to single payer (the government alone provides coverage). History suggests the opposite.
Currently we are being inundated with threats from the conservatives that if we enact a public option it will lead to the left’s dream of a single payer system. Yet the progressives have jumped on board precisely because they believe a public option will lead to their dream of a single payer system. Yet Hacker now says that history suggests the opposite. He says that the public option is not a threat to a system of competing private plans. Will the progressives really be satisfied with perpetuation of the current dysfunctional system as long as the few who buy their plans through the exchanges will be able to choose a feeble public option?
* We’re already heading toward single payer in sections of the nation — only it’s a private plan doing the paying. Next year, five states will have only one insurer in their exchanges.
Yes, so many plans have pulled out that there is only one private insurer left in many of the exchanges. But it is sad to see Hacker characterize these lonely private plans as single payer when the highly dysfunctional multi-payer system remains in place. He understands the single payer model better than most, yet his passion for the public option model drives him to play rhetorical games that glibly dismiss the true meaning of single payer (though he may actually be threatening the conservatives with this bastardized form of “single payer”).
* The diminishing number of choices doesn’t just hurt consumers; it also makes it harder for regulators to use antitrust tools to push back against this consolidation.
Politicians and the policy community are fixated on market competition as a means of controlling costs, yet Nobel laureate Kenneth Arrow half a century ago explained to us how markets do not work in health care. The United States has relied more on markets than other nations and we have the highest costs that has only brought us mediocrity. A publicly administered single payer system is much more effective at controlling costs throughout the system.
* A public plan is attractive in part because it can offer a broader network of providers.
Can it? Since the public option is just another player in a market of private plans, it would be funded by premiums rather than taxes. As the provider panels are increased the premiums would have to be increased since they can no longer offer exclusivity, making the public option less competitive, not to mention that broader panels would be attractive to patients with greater needs. Death spiral?
* Medicare has pioneered innovations in reimbursement, and it has improved hospital quality by imposing new penalties for readmissions. A public option could build on these breakthroughs and extend them to Americans under Medicare age.
Current Medicare innovations such as ACOs, MACRA, MIPS, and APMs have not proven to be very effective and are causing grief amongst the health care professionals. Besides, private insurers also adopt Medicare innovations, but only those that have been proven to be effective.
* The biggest advantage of the public plan, however, is its greater ability to restrain prices.
If the differential between public and private prices is too great, providers will reject the public programs in favor of the private. Many physicians will not accept Medicaid payments because of the low payment rates, especially specialists. Having a ticket to a public option is not very helpful if there is no one there to care for you.
* Pressure from a coalition of left-leaning groups led by the Progressive Change Campaign Committee (a group that fought for the public option in 2009) has encouraged 33 Senate Democrats, including the party’s leadership, to call for a public option. President Obama has started advocating for it again, and Hillary Clinton has embraced it.
Point made on the contention that the progressives are jumping on board.
* This year, Senate Republicans, providing another lesson, passed legislation that repealed the Affordable Care Act through the budget process, which isn’t subject to a filibuster. (President Obama vetoed it.) If that’s possible under the budget rules, creating a public option should be, too.
If a public option can pass only by squeaking it through in the reconciliation process, that doesn’t say much for expecting broad support in a divided Congress and a divided nation.
* If things keep going as they are, Americans are certain to demand greater regulation of private plans to make them operate more like public plans. Instead, we should make them compete with a public option.
Uwe Reinhardt has frequently said that a system of competing private plans – like they have in Switzerland – can work if they are very heavily regulated. Yet an OECD/WHO report on the Swiss system revealed that they still have many of the problems that we have in the United States. So keeping private plans in the system is still a problem. Instead of making them compete with a public option, we should get rid of them and establish our own single public plan.
Feasible? Is it really better to just give up and perpetuate uninsurance, underinsurance, high costs, high deductibles, narrow networks, inequities, financial hardships, impaired access, and more physical suffering and even deaths? What’s not feasible about trading all that in for a system that works?
PNHP’s Senior Health Policy Fellow Don McCanne, M.D. writes a daily health policy update, taking an excerpt or quote from a health care news story or analysis on the Internet and commenting on its significance to the single-payer health care reform movement.
October 31, 2016
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