Important Notice / Change of location for the FEHBlog

The FEHBlog is being integrated into our law firm's refreshed website. The FEHBlog is pleased as punch to announce that his law firm's name has changed from Ermer Law Group to Ermer & Suter, PLLC.  Check out the new website and please continue to follow the FEHBlog there. This will be the final FEHBlog post on blogger. Wordpress ho.

Fascinating charts

Check out the Peterson-KFF series of charts on how U.S. healthcare spending has changed over time, which was posted on December 20, 2019. The website explains

This chart collection explores recently released National Health Expenditure (NHE) data from the Centers for Medicare and Medicaid Services. These data offer insight into changes in health spending over time as well as the driving forces behind spending growth.

Yes indeed. 

weekend update

As Americans return to full work weeks following the holiday season, Congress begins the second session of the current 116th Congress here in the Nation's capital.

On Friday, according to the Volokh Conspiracy, the intervenor defendant, appellant States and House of Representatives filed separate requests for expedited review of the Fifth Circuit's decision in the Texas v. United States decision holding the Affordable Care Act's individual shared responsibility provision / mandate unconstitutional.  As you will recall, the Fifth Circuit directed the lower court -- Northern District of Texas -- to carefully reevaluation its December 2018 decision that the ACA is inseverable from the unconstitutional individual shared responsibility responsibility. The petitioners seek to short circuit this step by taking the case to directly to the Supreme Court. For what it's worth, the FEHBlog expects the Supreme Court to decline this request in order to allow the record to more mature before high court review.

Govexec.com reports that

In a report dated Dec. 19 and released on the Office of Personnel Management’s website last week, the President’s Pay Agent, which is a board comprised of Labor Secretary Eugene Scalia, Office of Management and Budget Acting Director Russell Vought and OPM Director Dale Cabaniss, greenlit a series of recommendations from the advisory Federal Salary Council. Chief among them were the creation of a new Des Moines, Iowa, locality pay area, and the addition of Imperial County, Calif., to the Los Angeles locality pay area.

The inclusion of these new regions is “subject to rulemaking,” meaning OPM must act over the course of the next year to finalize the additions. The pay agent also approved the salary council’s recommendation that officials should consider human capital indicators when weighing regions’ requests to be granted a locality pay area despite not meeting the established criteria for inclusion.

The Wall Street Journal reports today that while antibiotic manufacturers have adequate government funding to research superbug antibiotics, the commercial market for these drugs is insufficient to support manufacture.

Washington has taken notice of the problem, but near-term action remains unlikely. The Disarm Act, short for Developing an Innovative Strategy for Antimicrobial Resistant Microorganisms and introduced in Congress in 2019 (HR 4100 and S 1712), would have Medicare pay for certain antibiotics in full. Despite bipartisan support for the bill, executives worry its progress could be hindered by impeachment proceedings and the coming election.

Disappointing.

Thursday Miscellany

Fierce Healthcare offers a bunch of snippet forecasts on the future of healthcare in 2020. For example

We have a lot of hospital beds in brick-and-mortar institutions and we’re going to move to community- and home-based sites of care, which is more convenient for the patient. Consumers are demanding easier access to services.

The telehealth capabilities and sensors that we can put into the home now, these devices are not just gadgets but good enough for diagnosis and treatment. And we’re going to see more security risks so we need to redouble our efforts to make sure data is protected and data integrity as well. If data is altered, that can be worse than if the data were deleted.”

— John Halamka, M.D., president, Mayo Clinic Platform

The Wall Street Journal reports today that 

More than 60 [prescription] drug makers raised prices in the U.S. on Wednesday, according to an analysis from Rx Savings Solutions, which sells software to help employers and health plans choose the least-expensive medicines. The average increase was 5.8%, according to the analysis, including increases on different doses for the same drug. The average is just below that of a year ago, when more than 50 companies raised the prices on hundreds of drugs by an average of more than 6%, according to the analysis.

The CPI-U increased by 2.1% over the period November 2018 to November 2019.

Healthcare Dive informs us that

• Hospital consolidation is associated with poorer patient experiences and doesn't improve care, according to a study published Thursday in the New England Journal of Medicine, refuting a common provider justification for rampant mergers and acquisitions.
• The study funded by HHS' health quality research division, the Agency for Healthcare Research and Quality, found that acquired hospitals saw moderately worse patient experience, along with no change in 30-day mortality or readmission rates. ​Acquired hospitals did improve slightly in clinical process, though that can't be directly chalked up to the results of an acquisition, researchers found.
• It's further evidence that bigger isn't always better when it comes to hospitals, and adds onto a heap of previous studies showing provider mergers lead to higher prices for commercially insured patients.

No bueno. 

HHS announced on Monday that 

West Georgia Ambulance, Inc. (West Georgia), has agreed to pay $65,000 to the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) and to adopt a corrective action plan to settle potential violations of the Health Insurance Portability and Accountability Act (HIPAA) Security Rule. West Georgia is an ambulance company that provides emergency and non-emergency ambulance services in Carroll County, Georgia.

West Georgia stepped into hot water when it reported a data breach to OCR as required by law.

Happy New Year!

The FEHBlog is pleased to announce that the name of his law firm has changed from the Ermer Law Group PLLC to Ermer & Suter, PLLC.  Jason Suter has been the FEHBlog's partner since 2014 and it's high time that he got due recognition. Soon the FEHBlog will be available on our renamed firm's refreshed website (which should be launched in the new few days.)  Our staff is writing a TPRS Blog on our refreshed Third Party Recovery Services site, which is up and running.. 

Final FEHBlog post of 2019 / the 2010s

When the decade began, we were enmeshed in Congressional actions which lead to the enactment of the Affordable Care Act in March 2010. From a health policy perspective, this has been the ACA's decade for better or for worse.

The FEHB Program celebrated its 60th anniversary in 2019. The FEHBP which was once a fairly uncomplicated program, was burdened -- like other group health plans -- with ACA obligations and uniquely with new OPM initiatives, such as the agency's plan performance system. The decade ended with a ray of sunshine created by the repeal of the ACA's health insurer and Cadillac taxes and a well deserved raise for federal employees.

Will the FEHBP see its 70th anniversary or will be it folded into a Medicare for All arrangement in the 2020s?  Time will tell, but the FEHBlog bets that the FEHBP will see 2030. Let's hope that we all do.

For a longer trip down memory lane, check out this Becker's Hospital Review article.

Fun fact to know and tell, as CNBC reports, the 2010s were the only decade in American history without an economic recession.

Happy New Year.

PCORI Funding Extended

The Affordable Care Act created, and required health insurers and plans to fund, a Patient Centered  Outcomes Research Institute.The FEHBlog thinks that the PCORI duplicates the work of existing government agencies, such as AHRQ.  He also cannot understand why the cost of PCORI was not spread over other segments of the health care industry. The ACA provided PCORI with health plan / insurer funding through this year. Some thought that this meant the annual PCORI funding obligation would end. Those observers must not work inside the Beltway like the FEHBlog does. So the FEHBlog was not surprised to learn today that the FY 2020 final spending bills extended the current funding system for PCORI over the next ten years. As the same bills repealed the ACA's health insurer and Cadillac taxes, this is a small price of health plans and insurers to pay. Hopefully, the fruits of the PCORI will be on display in the next decade.

Weekend update

Congress remains out of town until next week.

Readers may recall that the health insurer trade associations had requested the Department of Health and Human Services to extend by at least 90 days the comment period o the proposed out of pocket cost transparency rule applicable to health plans. Fierce Healthcare reports that the Department has granted a 15 day extension through January 29, 2020.

Health Payer Intelligence brings us up to date on health insurer efforts to take social determinants of health into account. The FEHBlog expects this effort to continue to grow over time.

CDC Updates

According to Medscape, the Centers for Disease Control ("CDC") are finding that our country. is encountering a rough flu season. There is still time to get the vaccine.

The CDC released the first national estimates of diabetes occruing in the Hispanic and Asian communities in our country. 

The percentage of adults living with diagnosed and undiagnosed diabetes varied significantly by race/ethnicity and among Hispanic and non-Hispanic Asian subgroups. Broadly, the age-sex-adjusted percentage of adults living with diagnosed or undiagnosed diabetes was 22% in Hispanics, 20% in non-Hispanic blacks, 19% for non-Hispanic Asians and 12% for non-Hispanic whites.

The United States is an increasingly diverse nation, as Hispanics and non-Hispanic Asians collectively now account for 23% of the US population and are expected to account for 38% by 2060, according to Census dataexternal icon. According to researchers, these groups may be at higher risk for type 2 diabetes due to genetic, lifestyle and environmental factor

The CDC also released new reports on lung injuries related to vaping (EVALI) last Friday.  The reports "confirm a decline in emergency department (ED) visits related to EVALI. The findings also reinforce the link between Vitamin E acetate and EVALI and describe risk factors for EVALI rehospitalizations and deaths after hospital discharge; as such, CDC recommends that health care providers treating EVALI patients provide follow-up soon after hospital discharge."  The CDC continues to advise:

• E-cigarette, or vaping, products should never be used by youths, young adults, or women who are pregnant.
• Adults who do not currently use tobacco products should not start using e-cigarette, or vaping, products. There is no safe tobacco product. All tobacco products, including e-cigarettes, carry a risk.
• THC use has been associated with a wide range of health effects, particularly with prolonged and frequent use. The best way to avoid potentially harmful effects is to not use THC-containing e-cigarette or vaping products.
• People with ongoing problematic marijuana use that causes significant impairment or distress should seek evidence-based treatment by a healthcare provider.

Finally, we learn from Health Affairs that while pediatric mortality rates have decreased in our country since 1999

Throughout the [CDC's 1999-2017]  study period and across all age groups, rural children experienced higher mortality rates than their urban peers. Among rural children, non-Hispanic black infants and American Indian/Alaska Native children were particularly at risk. To reduce unnecessary rural pediatric and adolescent deaths, we recommend ongoing surveillance of rural children’s health accompanied by policies targeting the leading causes of death in this population: unintentional injury and suicide.

End of year planning

Yesterday the President signed an executive order implementing the Congressionally approved federal employee pay increase for the 2020 calendar year. Federal News Network explains why and by how much the pay raise depends on the employee's work location.

FEHBP Open Season changes take effect on January 1 for annuitant enrollees and the covered family members and on the first day of the first full pay period in January for employed enrollees.  In 2020, that Open Season effective date for employees falls on Sunday January 5. 

The Journal of Accountancy helpfully outlines the federal tax changes made by the final FY 2020 spending bills.

The Society for Human Resource Management discusses the Internal Revenue Services overhauled W-4 form which employees use to calculate tax withholding.

Jingle Bells

Modern Healthcare discusses the status of surprise billing legislation.

Months of debate on how to protect patients from out-of-network charges at in-network facilities culminated in an eight-day period when a bipartisan, bicameral proposal with White House support came together, but ultimately fell short. Some observers aren't so sure that a compromise exists anymore.

"Ultimately, the leadership decided that with unresolved disagreements between the committees of jurisdiction, more time was needed and surprise billing would be reserved for the must-past May health extenders vehicle," a Democratic leadership aide said. 

Here's a FEHBlog brainstorm exempt bills not eligible below the arbitration threshold from the law's pricing provisions. See how the law works with larger bills first.

Healthcare Dive discusses the latest legislative activities on this front.

The House Energy and Commerce Committee is expanding its investigation into surprise billing practices by calling on some of the nation's largest insurers and physician staffing firms to provide information and documents on the practice, lawmakers said Thursday. 

The Senate Health Education Labor and Pensions Committee also is participating in this investigation. Those two committees have been cooperating in the development of the key bipartisan surprise billing proposal, S. 1895.

Health IT Security reports that

An explanatory statement included with the Congressional Appropriations Agreement directs the Office of the National Coordinator to work with private sector initiatives focused on the development of a national strategy to improve patient identification across the healthcare sector.

The appropriations bill left out language that would allow the Department of Health and Human Services to use public funds for the development of a national patient identifier. For the last 20 years, the ban has been included in every appropriations bill, despite language in HIPAA that directs HHS to develop a unique patient identifier.

The FEHBlog recalls that the same provision was included in the FY 2019 appropriations legislation. A national payer identifier would help push interoperability forward.

Tammy Flanagan, writing in Govexec, answered questions related to the five year rule that allows retiring federal employees to carry their coverage into retirement with the full government contribution. Check it out.

Happy Holidays.

Weekend update

Congress is out of town until January 7, 2020. The President has signed into law the final two spending bills and the defense authorization act for fiscal year 2020 whose provisions the FEHBlog has been discussing over the past few weeks.

In an interesting development, according to Forbes, the prescription benefit managers, Express Scripts, which insurer Cigna owns, and Prime Therapeutics which a group of Blue Cross licensees owns, have formed a partnership.

The three-year collaboration is “designed to deliver more affordable care for clients and their members by enhancing pharmacy networks and pharmaceutical manufacturer value.” The collaboration will allow Prime’s member Blue Cross health plans to gain leverage through Express Scripts’ buying clout and large pharmacy network."

The Wall Street Journal included a heartbreaking healthcare story over the weekend.

When she was in her early 30s, Katy Mathes decided to check her cancer risk. A genetic test showed a mutation on a BRCA gene, which significantly raises a person’s lifetime risk of developing hereditary breast or ovarian cancer. 

Thirteen people in the family got tested—her mother, her sister, cousins and aunts. Eleven had the mutation. Almost all did their testing with Myriad Genetics Inc., which introduced the first BRCA tests in 1996. 

“I treated my test results like the Bible,” said Ms. Mathes, now 37, an elementary-school art teacher in Colorado. “There was no questioning the report.” 

Ms. Mathes, who has one child, decided she would have no more. To reduce her cancer risk, she underwent surgery to remove her ovaries and fallopian tubes. So did her younger sister, their mother and four other relatives. Ms. Mathes and her sister also had double mastectomies. 

This year, their mother sat them down at the table of their parents’ winter home in Florida. Two weeks earlier, her genetic counselor had called. The lab was no longer sure the variant is a significant problem. 

The article explains how many variables are at play in these genomic tests. Patients should be better educated about the risks of misdiagnosis.  If you have not done so, read Russ Roberts' interview with Adam Cifu MD about being a medical conservative on the Econtalk podcast. (You can read the interview or listen to it at the link.)

[W]e need to slow down at this point. We need to think about the evidence behind what doctors are offering patients. And we need to consider the cost/benefit of this.

N.B. In addition to being the FEHBlog's birthday, this is his 2700th post since 2006.

Reflections on the week

Wow what a week this has been. Congress repealed three Affordable Care Act taxes that raised or promised to raise the cost curve -- the medical device tax, the health insurer tax, and the high cost employer plan (or Cadillac) tax.

The FEHBlog has read pieces bemoaning the loss of tax revenue. The only one of these taxes to generate revenue was the health insurer tax which only served to increase health insurance premiums often subsidized by the government. The medical device tax appeared as if it never would be implemented while the Rube Goldbergesque Cadillac tax has been delayed twice If the Cadillac tax had taken effect it would have driven employers out of healthcare, which may have been the ACA's objective. The Trump Administration has created a life raft for employers in such circumstances by creating individual coverage health reimbursement accounts.

The Fifth Circuit's decision in Azar v. Texas has ruffled feathers. The FEHBlog dearly hoped that the Supreme Court would strike down the Affordable Care Act in 2012 and then again in 2015. The FEHBlog is not a fan of massive legislation like the ACA that's enacted by only one party. He thought that if the Supreme Court struck down the law the Republicans who controlled the House at the time would work with the Democrats to create a more sensible law. The Supreme Court did not cooperate and in retrospect that's OK because the Republicans were not able to repeal and replace the ACA when they controlled the House and the Senate in 2017.  The FEHBlog does not want to see the courts take a pick axe to the ACA. He would like see Congress make changes and that has been happening.

The FEHBlog does not consider the Fifth Circuit's decision to strike down the individual shared responsibility provision to be a big deal standing alone because the provision had become a nullity since Congress zeroed out the individual shared responsibility penalty at the beginning of this year. As the FEHBlog has pointed out, the FEHBP ran smoothy without a coverage mandate and with a ban on preexisting condition limitations since its inception in 1960. CMS reported today that exchange enrollment has been stable in 2017, 2018, and 2019. Meanwhile the Trump Administration has created new coverage options like the short term plans and it sought to help build exchange enrollment with the individual coverage HRAs.

About a year ago, the FEHBlog was impressed by this academic analysis of the Azar case. The upshot was that removing the individual mandate straightens the constitutionality of the entire law.

The Fifth Circuit'also decided to remand the case to the lower court for reconsideration of the impact of striking the individual mandate on the remainder of the statute. The FEHBlog ran across a 2011 federal court decision from Virgoan holding the ACA's individual mandate unconstitutional whole preserving the remainder of the statute. That's the proper outcome here and the FEHBlog is confident that we eventually will get there.

Thursday Miscellany

The Senate joined the House of Representatives in passing by wide margins the two final FY 2020 spending bills (HR 1158 and 1865).  The President is expected to sign the bills. Govexec.com discusses the impact of the bills on federal agencies including OPM. Congress is now headed out of town for the holidays.

On the Health and Human Services Department front this week --

• HHS laid out a framework for importing prescription drugs from foreign countries in a proposed rule. 

"The NPRM would allow states and certain other non-federal government entities to submit importation program proposals to the FDA for review and authorization. An importation program could be co-sponsored by a pharmacist, a wholesaler, or another state or non-federal governmental entity. Referred to as Section 804 Importation Programs, these programs would be authorized by the FDA to manage the importation of certain prescription drugs that are approved in Canada and also meet the conditions in an FDA-approved drug application. Eligible prescription drugs would have to be relabeled with the required U.S. labeling prior to importation and undergo testing for authenticity, degradation, and to ensure that the drugs meet established specifications and standards. Notably, these programs would also have to demonstrate significant cost reductions to the American consumer."

The FEHBlog is dubious of drug importation proposals.

• HHS also proposed to revise the framework for improving the supply of human organs, particularly kidneys, for transplantation.  That is a worthy objective.

The health insurer Humana has cut a deal to purchase its own prescription benefit manager according to Health Payer Intelligence.

Enclara Healthcare’s focus is on chronic disease management and care coordination for patient populations with complex needs. As such, Humana intends to leverage this partnership in order to expand its care coordination and comprehensive care approach, especially in the areas of hospice care and mail order pharmacy procedure. 

Part of Enclara’s strategy when tackling complicated healthcare needs involves real time data and predictive analytics collected and parsed by advanced technologies. Humana intends to employ this strength to improve its “technology stack” for home healthcare pharmacy services. In particular, Humana mentioned that it will be looking to develop and improve its enhanced mobile medication management and EHR data. 

Beckers Hospital Review reports that the Leapfrog patient safety group has named its top 100 hospitals in the U.S., none of which are located in the FEHBlog's home state of Maryland. What about yours?

Forbes reports that Anthem, the second largest U.S. health insurer, "has started to use blockchain technology to help patients securely access and share their medical data. The company plans to roll out the feature, which is in pilot testing now, to groups of members in the next few months. All 40 million members will have access to it in the next two to three years, according to company officials." Groovy,

In closing, two tidbits that caught the FEHBlog's eye -- a New York Times article that diaries the nighttime efforts of an emergency room doctor and a Fortune article projecting 25 ideas that are expected to shape the next decade.