The current issue of the American Health Lawyers Association’s Connections magazine features an article I co-authored with fellow AHLA health lawyer, Jody Joiner, on the impact of social media use in health care.

The article, Risky Business: Treating Tweeting the Symptoms of Social Media (PDF version), is featured in the March 2010 issue of AHLA Connections (Vol.14, No. 3, March 2010), a health lawyer magazine for the health and life sciences law community.

We provide background context on the use of social media tools by health care providers, address why we think health lawyers need to understand social media, and explore some of the legal implications as social media and the law intersect. The article ends with practical guidance to health care providers and organizations on implementing policies emphasizing the appropriate use of social media.

You can peruse the complete digital edition of the March 2010 AHLA Connections (Vol. 14, No. 3, March 2010). AHLA members should also check out the article in this issue on the recently launch Health Law Wiki. Great to see AHLA adding a wiki resource for members to share their expertise and experience in the complex and ever changing health care legal and regulatory world.

Special thanks to the AHLA Connections staff for allowing Jody and I the opportunity to write the article and for their great editorial assistance.

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Someone should do a poll. The question: should politicians base their votes based on polls or on their own judgment and belief? There was a time when I think the general consensus might have been in favor of politicians standing for something in spite of the prevailing wind. Now it’s clear that the answer is whatever the politician wants it to be at the time.

Exhibit One: I’m at the National Association of Health Underwriters Capitol Conference in Washington, DC. This morning the general session featured lawmakers (from both parties) including Representative Mike Pence, part of the Republican Leadership in the House. Representative Pence, a former radio talk show host, is articulate and bright.

One of his arguments for why President Barack Obama’s health care reform package should be defeated, however, was that polls show Americans oppose the health care reform the legislation. This point has been made frequently and consistently by many Republicans and opponents of the President’s reforms.

Interestingly, this line of reasoning was not brought up when, late last year, during the debate over reforming how banks and other financial institutions are regulated. The financial reform bill passed without a single Republican vote. I assume Democrats made the argument during the debate that Republicans should support the legislation because polls show the public supports such reforms. (Interestingly, when individual components of the health care reform package are surveyed, voters tend to favor them).

So apparently many politicians believe lawmakers should cast their vote in accordance to the polls when the polls coincide with the pre-existing position of the politicians, but should vote their conscience when the polls disagree with their pre-existing position. (Note: a pre-existing position is different than a pre-existing condition. Just so we’re clear).

Legislating by responding to polls is a dangerous path. It subjects legislating to the passion of the moments. The Founding Fathers were aware of the dangers of this approach, consciously creating layers of checks and balances to prevent this outcome (a fact Representative Pence noted in arguing for subjecting health care reform to a 60-vote super-majority in the Senate). If our representatives in Washington are simply supposed to cast their vote in accordance with the latest polls we could save a lot of money by simply replacing all 535 members of Congress with the folks at the Gallup Organization.

But that’s not what most Americans want most of the time. Instead, Americans expect their representatives to debate, deliberate and use their best judgment. After all, we generally consider those who stand by their principles statesmen; those who base their votes on the latest survey results we consider mere politicians.

There’s a lot wrong with President Obama’s health care reform plan. Opposing it because of the latest survey results is a lousy reason. Instead, lawmakers who determine the package will do more harm than the status quo, should vote against it. Representatives who conclude the reforms are an improvement over the status quo should vote for it.

It’s really as simple as that. No polling required.

Filed under: Barack Obama, Health Care Reform, Healthcare Reform, Politics Tagged: Mike Pence
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Martin Memorial too mum: Hospital staff violated privacy of shark victim, an article from the Palm Beach Post. The article highlights the impact ubiquitous mobile devices with cameras are having on our society and the potential liability risks associated with the use/misuse of these devices by health care employees.

The article indicates that various hospital employees took photos of a shark bite victim when he arrived in the emergency room. The article discusses the action taken by the hospital in response to the incident. Another article indicates that the photos were emailed to others.

This type of situation is a nightmare for hospital administration, the privacy officer and legal counsel. The effort and investigation that likely went into figuring out who took photos, where those photos went and the procedure for recapturing/removing the photos from the various sources was time consuming and expensive (both in $$ and reputation) for the hospital.

As such, this incident provides a good example for training and reeducating health care employees on patient privacy issues. Health care employees and professionals must always remember to start from a framework of protecting the health and privacy of their patients. As the use of mobile devices with cameras and social media tools becomes more ingrained in our every day lives — the ability for private information to be captured, transferred and spread in a viral fashion has become much easier. Caution must be used and this case highlights the importance of retraining staff and highlighting the importance of protecting your patient’s privacy.

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Just some random thoughts while we see if the Democrats can muster enough votes to enact health care reform. None of them are worth a separate post (and may not be worth being in any post), but I thought I’d clear the decks before the real fun starts over the next few weeks.

It’s Franken’s Fault: If health care reform fails I blame Senator Al Franken. Elected by a mere 206 votes, Senator Franken became the 60th Democratic vote, the super-majority the caucus needed to overcome, in theory, any Republican filibuster. This enabled President Barack Obama and Democratic leaders in Congress to treat health care reform as a Democrats-only endeavor. Yes, Senator Max Baucus tried to work out a compromise with a few Republicans (and actually got one of them to vote for the Senate Finance bill). But liberals in the party and in the land of pundits were constantly and consistently pushing reforms to the left.  For example, Democrats insisted health care reform include a government-run health insurance plan far longer than would have been the case if they lacked a super-majority. Want proof? The public option fell to the wayside within 58 hours of the loss of their super-majority.

Of course, liberal Democrats had already made the mistake of believing that all Democrats think alike. Proud to be the party of inclusion, they forgot that they had included moderates and conservatives into their ranks. They somehow thought they could get Senators Ben Nelson, Joe Lieberman, Blanche Lincoln and other centrists to go along with the liberal wish list for health care reform. Having a super-majority masked this illusion. So if 104 Minnesotans had voted the other way, who knows, health care reform might have passed months ago.

Republicans Will Vote to Keep the Sweeteners.  Republicans hate being called the Party of No, but they’ve earned the epitaph. They seem to have adopted a political strategy that Democrats can achieve no victories. Whether that’s to embrace the Tea Party advocates who want the federal government to go away, acquiescence to Rush Limbaugh who is on record saying he wants President Obama to fail, or, who knows, a sincere expression of their public policy beliefs, the outcome is they act in near lockstep to defeat any proposal with the Administration’s finger prints on it. Which may create an interesting spectacle: Republicans voting to preserve the Cornhusker Kickback and the Louisiana Purchase.

These are among the legislative sweeteners added to the Senate health care reform bill to gain the support of Senators Ben Nelson and Mary Landrieu. And to deprive President Obama of a victory on health care reform Republican may need to defeat legislation to repeal them. Here’s why:

Under the legislative dance Democrats are likely to use to pass health care reform, the House will pass the Senate’s version health care reform bill. Since the Senate bill already passed that legislation – with a super-majority no less, House passage sends it directly to the President’s desk for his signature. At the same time Democrats will introduce legislation aimed at modifying the Senate legislation to, among other provisions, repeal the sweeteners, bribes, backroom deals, whatever you want to call them. Among those “other provisions,” by the way, are a number of items on Republican’s health care reform wish list. To deny Democrats the a victory on health care reform, Republicans may have to defeat the clean-up legislation – a vote to keep the sweeteners and to defeat their own reform proposals. The word “ironic” comes to mind – along with many others.

Politicians Need an Asterisk Projector. President Obama likes to say that “If you like your current health insurance you can keep it.” Well, in theory maybe. For awhile perhaps. But even in the short-term there’s a huge caveat: there’s no guarantee you can keep your health insurance in the current health insurance system and the reform bills do nothing to change that. When employers changes coverage, their employees change coverage. Whether they want to make that change or not. If a carrier drops a particular health plan in the individual market, insureds have to choose another plan. So when President Obama makes this pronouncement, he should project an asterisk over his head to cover these contingencies.

When Republicans condemn Democrats for even thinking about using the reconciliation process to pass the health care reform clean-up legislation discussed above they should project an asterisk. That’s because they were very happy to pass tax cuts a few years ago using the reconciliation process. So what Republicans mean when they oppose reconciliation is that they’re for it when it’s helpful to them and they think it’s un-American when it’s not.

For a Rookie He’s Gotten Pretty Far. Regardless of what you think of President Obama’s ideas or his tactics, you have to give him credit for getting further with health care reform than any of his predecessors. Pretty impressive for someone who was a State Senator just five years ago.

Whether It’ll Make Things Better or Worse is A Guess. Of course, it would be nice if the health care reform package he may get through was better than what will emerge from Congress, but let’s face it: no reform proposal would be popular. This is one of those issues in which there are no popular options. Everyone recognizes the status quo can’t endure. Everyone knows every proposal to fix the system is gravely flawed.

My first political mentor, Cathy O’Neill, used to say, however, “The test of whether to vote for something is not whether it’s perfect, but whether it’s better than what we’ve got.” When it comes to health care reform, however, there’s no way to know if a particular bill will make things “better” or not. The system is too complex. The opportunity for unintended consequences is too great. It’s likely only comprehensive reform can fix the system, but there’s no way to truly understand what comprehensive reform will accomplish until well after it’s implemented. Not a reassuring prospect, but it’s reality.

We’ve Only Just Begun.  Let’s say health care reform passes. That’s just the start. States and regulators will need to interpret and implement the reforms. Future Congress’ may seek to change or repeal the bills. Yogi Berra is supposed to have said, “It’s not over until it’s over.” When it comes to health care reform, “It’s not over even when it’s over.”

Filed under: Barack Obama, Health Care Reform, Healthcare Reform, Politics Tagged: Ben Nelson, Blanche Lincoln, Mary Landrieu, Max Baucus, Senate Finance Committee
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File this under “Better Late Than Never” but the drum beat aimed at focusing attention on the need to constrain medical costs in America continues.

Earlier this week I wrote about Sacramento Bee columnist Daniel Weintraub’s posting a reality check for California lawmakers that all the insurance carrier bashing they’re enjoying will do little to address the rising cost of health care. That post also reported on Warren Buffet’s advice to the president to do much more to rein in costs.

Then, yesterday, President Obama indicated he’ll be incorporating into the legislation he’ll be proposing later today some of the medical cost cutting ideas put forward by Republicans during last week’s bipartisan health care reform summit.

And the beat goes on. CNN has been reporting this week on extraordinary and wasteful costs in America’s health care system. $140 for a single Tylenol pill? $1,000 for a toothbrush anyone?

Some of the unnecessary expenses are mistakes made by the hospital that slip past health insurers’ claim examiners (a Georgia patient billed for 41 bags of IV solutions for an emergency room visit that lasted two hours in which just one bag was used). But some of the outrageous expenses are intentionally designed “to make up for lower payments the government pays through Medicare and Medicaid.”

The CNN report goes on to cite, however, a Pricewaterhouse Cooper’s Health Research Institute finding that $1.2 trillion of health care spending in the United States – roughly half – represents waste. This analysis includes in the definition of waste defensive medicine, preventable hospital readmissions, medical errors, and unnecessary emergency room visits. (The Congressional Budget Office has estimated that 30 percent of America’s health care spending is wasted or spent on low-value services using a less broad definition of waste.

There hasn’t been this much talk focused on the need to reduce medical costs since Dr. Atul Gawande wrote about the difference in Medicare spending experienced in two Texas cities, McAllen and El Paso. That was right before attention shifted to the misbehavior of demonstrators during Congressional Town Hall meetings and the debate in Washington pivoted to health insurance reform rather than health care reform. And I am not suggesting that the need to focus on medical cost containment undermine efforts to reform health insurance company behavior where that’s necessary.

Nor am I saying that the health care reform bill the President will put forward today does enough to attack skyrocketing medical care costs. But it will be a start. And it will do more than the proposal he unveiled last week or those previously passed by the Senate and House of Representatives. And that’s a good thing. Let’s just hope it’s the beginning of the effort to reduce health care costs and not the end of it.

Filed under: Barack Obama, Health Care Reform, Healthcare Reform, Politics Tagged: Atul Gawande, Daniel Weintraub, medical cost containment, Peter Orszag, Warren Buffet
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President Barack Obama is scheduled to announce his final health care reform package tomorrow (Wednesday). This is the version of reform the President hopes Democrats in Congress will embrace and enact through a process that would side-step the inevitable Republican filibuster of health care legislation. Passage is far from assured. There are still several parliamentary maneuvers available to the GOP to slow the legislative process down. And it’s unclear whether Democrats can muster a majority behind any single bill to pass health care reform even if no super majorities are required.

Yet there are indications Democrats could be successful. For example, the House passed its health care reform bill by the slimmest of margins – 220-215 – last November. Only one Republican voted for the bill and he has indicated he won’t bolt his party again. Given that 218 votes are need to pass legislation in the House, this doesn’t give Speaker Nancy Pelosi much room for error. However, according to the Associated Press, “at least nine of the 39 Democrats” who voted against the health care reform bill in November are now “undecided or withholding judgment until they see Mr. Obama’s final product.”

That same Associated Press story also reports that the President is thinking of incorporating four Republican proposals raised during the bipartisan health care reform summit last week. These are: 1) using investigators disguised as patients to uncover fraud and waste; 2) increasing payments to Medicaid providers; 3) strengthening and expanding Health Savings Accounts; and 4) expanding the medical malpractice reform pilot programs already in his bill.

It’s not that the President thinks including these provisions increases the likelihood of any Republicans supporting his health care reform legislation. But it would provide Democrats with a useful talking point during the firestorm that would follow passage of reform legislation by a simple majority vote in the Senate. Democrats will be able to say something along the line of “We met with Republicans and had an open mind, even incorporating some of their cost saving ideas into the final package. And our package already included several provisions Republicans had supported now or in the past. Their unanimous opposition, consequently, obviously reflects politics more than policy so we had to find away around the filibuster. What we did was fair, legal and within the rules.” Or something along those lines.

What all this means is that there’s still several chapters to go in the never-ending story that is health care reform.

• Will Democrats find a way to bring health care reform votes to the floor of the Senate?
• Will the House vote first or wait until after the Senate takes action (if it ever does)?
• If a vote is taken, will there be sufficient votes to actually pass a bill?
• If Congress does enact health care reform legislation, how soon after the President signs it into law will it take before the first law suit is filed?
• Which party will suffer at the polls this November for the the procedural games both have played?

And on and on. Stay tuned.

Filed under: Barack Obama, Health Care Reform, Healthcare Reform, Politics Tagged: filibuster, health care reform summit, Nancy Pelosi, reconciliation
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That health insurance carriers were ascending to the throne of political piñata in the health care reform debate has been apparent for some time now. Last July President Barack Obama began referring to health care reform as health insurance reform. A couple of weeks later Speaker Nancy Pelosi described insurance companies as “almost immoral” for opposing the creation of a government-run health plan. That insurance companies were to be cast as the villains was pretty much inevitable. People like and trust hospitals and doctors much more than health insurance carriers. And pharmaceutical companies, while profiting far more from health care than medical carriers are a bit removed from people’s daily experience. The reality is the only group Americans trust less when it comes to health care reform than insurance companies are Republicans in Congress.

Compounding the situation the health insurance industry has had atrocious timing. America’s Health Insurance Plans (AHIP), the industry’s trade organization, released a report warning that health care reform plans being considered by Congress would dramatically increase medical insurance premiums for many Americans. The message was hardly welcomed by Congressional Democrats, but what infuriated them was the timing. The Senate Finance Committee was about to vote upon the closest lawmakers had come to a bipartisan agreement (meaning at least one Republican voted for it. The vitriol the report inspired went far beyond its substance.

Then there’s the timing of recent rate increases in the individual health insurance market. While Anthem Blue Cross’ individual market increase first captured the public – and lawmakers’ attention – it’s now clear several carriers have levied double-digit premium increases in multiple states in both the individual and small business market segments. Many political observers believe that these rating actions breathed new life into flagging reform efforts.

But the 24-hour news channels and other media along with their innumerable pundits need fresh meat. Their job is to keep people watching (or reading) so the commercials don’t run together. There’s only so many ways you can use “insurance company” and “venal” in the same story before it gets old. Insurance company bashing will continue, but there are signs that serious attention may be given to aspects of America’s health care system reform beyond insurance markets.

Consider: Daniel Weintraub is one of California’s most respected journalists. In addition to reporting for and providing opinion pieces to the Sacramento Bee he maintains an excellent blog on health care issues, HealthyCal.org. In the past, Mr. Weintraub has been hard on insurance carriers. Nor is he a fan of the health care status quo in this country. So it must have been a surprise to even him when he wrote a post that makes clear that bashing health insurance companies is not the same as enacting meaningful health care reform.

Mr. Weintraub begins his post citing the political travails California insurance companies face in the state today, ranging from separate investigations by Attorney General Jerry Brown and Insurance Commissioner Steve Poizner to a host of legislative hearings led by lawmakers who, like the Attorney General and Insurance Commissioner, are seeking higher office in this election year.

While noting the entertainment value of this spectacle and recognizing that “it might actually produce information relevant to the health care debate,” Mr. Weintraub makes clear that “health insurance company profits and administrative costs remain a relatively small factor in driving the cost of coverage skyward. The biggest reason that health insurance is getting more expensive,” he continues, ”is that health care is getting more expensive.”

The post includes a useful pie chart describing national health expenditures as broken down by the US Centers for Medicare and Medicaid Services. Of the $2.3 trillion on health care Americans spent in 2008, $159 billion (approximately seven percent) “went to private insurers after deducting all the costs they pass through to the doctors, hospitals and other health care providers.” Put another way: “health care costs nearly doubled between 1998 and 2008, increasing by 96 percent. If we had eliminated private insurance companies in 1998, and assuming they provide no benefit in managing costs, health spending still would have increased by 83 percent during that decade.”

None of this means that health insurance companies and their behavior should be ignored nor their misdeeds forgiven. But as Mr. Weintraub notes, “when this election year is over and the current political bash-fest comes to an end, the core costs of health care will still be there, and chances are they will still be rising.”

That a respected journalist is noting that attacks on health insurance companies are diverting attention from other serious issues with America’s health care system is significant. But he’s not alone. According to Politico.com, Warren Buffett is advising President Obama “to scrap the health care bill and start over” because the legislation “does not focus on controlling costs.” (He went on to say that he’d vote for the Senate bill as opposed to maintaining the status quo).

President Obama and his allies will argue that their legislation does attack rising costs – and they have some evidence to back their claim. But few could honestly say it goes far enough. And while good starts are important, the question is whether the Administration and Congress have the political will to follow-up with meaningful cost containment measures.

Attacks on the health insurance industry will continue. Every drama needs a villain and in this particular theater, carriers are the bad guys. But that folks like Mr. Weintraub and Mr. Buffet are calling out politicians for failing to more fully address the most critical issue undermining America’s health care system – runaway medical costs – is an encouraging sign.

Filed under: Barack Obama, Health Care Reform, Healthcare Reform, Politics Tagged: Daniel Weintraub, government health plan, HealthCal.org, Jerry Brown, medical cost containment, Nancy Pelosi, Steve Poizner, Warren Buffet
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A warm welcome to fellow AHLA member and health law blogger, Kathie McDonald-McClure.

I just ran across her blog, HITECH Law Blog. She focuses the blog on health information technology, privacy and security and the blog was named after the HITECH Act. Looks like a great addition to the health law blogosphere.

Ms. McDonald-McClure is a member of the Health Care Services Team at Wyatt Tarrant & Combs, LLP in Louisville, KY.

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