Below is a guest post from fellow health care blogger, Val Jones, M.D, on the topic of the new Medicare “never events.” For other recent posts by Dr. Val - check out the recent Dr. Val sightings at Suture for a Living.

I will be the first to respond to Dr. Jones’ plea for answers from health lawyers. Daily I deal with health care provider clients, including hospitals, and help them to understand, interpret and practically implement health care regulations. As a part of the process we work together to understand the regulations, assess potential risks, legal implications, etc.

Dr. Jones’ post points out the practical difficulty faced by hospitals — limit the number of falls that occur in their facility or face non-payment for services. I’m not going to pass judgment on the reasons and process developed for implementing these new regulations because I have little historical background on the drafting of the regulations.

Do we want hospitals to have a 0% patient fall rate? Yes. Is it possible, probably not. Not all falls are preventable. I suspect the question of what is a preventable fall will be a topic of discussion and debate (with legal consequences) as the regulation is implemented. Also, personally I would have liked to have seen CMS take a “carrot” vs. “stick” approach to incentivizing hospitals to reduce the number of falls and other “never events.” On a positive note, this type of regulation implements a process that links providing quality care with the amount of reimbursement.

Like most health care regulations, part of the problem is understanding the regulation. The world of health care regulation has become so complex that it is almost impossible for the average health care provider to understand the regulations. Just finding the regulations can be a task. For example, the details on the “never event” regulations were published in the midst of a 2,140 page regulation.

The new “never events” regulations were issued as a part of the Medicare Hospital Inpatient Prospective Payment System (IPPS) FY 2009 and went into effect for discharges occuring on or after October 1, 2008. To learn more about the regulations read the CMS press release and the final rule (regulations starting at page 290 and comments/responses at page 352). You can also find more information on the CMS’ Hospital-Acquired Conditions site.

Both Republican Senator John McCain and Democratic Senator Barack Obama have put forward substantial healthcare reform plans. They both seek substantial changes in the current system. That they take starkly different approaches reveals a great deal about how their view of the current system and what they perceive the role of government to be in overcoming them. That both health care reform plans are dramatically flawed would seem to be of great concern, but probably isn’t. After all, these are just starting points and whatever new health care system emerges from Washington in the next few years is likely to be significantly different than either of these plans regardless of which candidate is elected.

As I’ve noted previously, the two plans are campaign promises, meaning they are more an expression of the candidates’ attitudes towards reforms than a blue print for legislation. That both starting points are flawed should be of concern, but is neither fatal nor devastating. They are, after all, just starting points.

Interestingly, the biggest flaw in each plan is the mirror image of the other. Senator McCain would encourage consumers to buy coverage in the individual market, assuming their employer isn’t providing health insurance, by offering tax credits — $2,500 for an individual and $5,000 for a family. While this would help many Americans buy coverage, there’s no requirement imposed on health plans to accept them for coverage (although there might be high risk pools under his plan for those turned down by carriers). Senator Obama, on the other hand, requires health plans to accept all applicants, but he fails to require everyone to purchase medical insurance. As has been demonstrated time and again, this is a sure path to higher premiums. Just look at New York and New Jersey where carriers must sell, but consumers need not buy, coverage. The premiums there are twice that in California.

Each health plan has other problems. Senator McCain would allow carriers to shop for the most lenient jurisdiction in which to file their plans, then impose this lack of regulation on other states. It’s competition without representation that is sure to result in consumer distress, political shenanigans that would embarrass an earmark addict, and undermine the credibility of the system.

Senator Obama, on the other hand, wants to create a government-run health care program to compete with private plans. The idea is to increase fair competition, but the result will be anything but fair. When the umpire picks up a bat, he’s rarely called out on strikes. Similarly, when the government competes in a market it regulates, the playing field is invariably tilted in favor of the government. The danger inherent in Senator Obama’s approach is that the government program, given unfair advantages, will squeeze out the private sector. The result will be a government-run system imposed on the nation without the accompanying debate such a policy shift warrants.

At Tuesday’s presidential debate in Tennessee expect to hear a great deal about their health plans. They’ll both be eager to dive into specifics about their own program — and to describe the failings of the other side’s plans. There will be heated exchanges concerning taxes and government takeovers. There will be fierce arguments over regulation versus goverment getting out of the way. As you watch, keep one thing in mind: none of it matters all that much.

Come November 4th one of these candidates will win. Come January 20, 2009 the winner will be sworn in as President of the United States. Unless there’s a miracle, the economic situation will push back meaningful efforts on healthcare reform for at least a few months. Yes, there will be a team put in place with orders to produce a meaningful plan within, let’s say, 100 days. But the real work of shaping the reforms could be delayed several months or a couple of years depending on the nation’s economic health.

Most importantly, once the plan is put forward, it will be changed profoundly by Congress and the new Administration as they respond to the public policy advice and political pressure of the nation. Some form of health care reform is likely to emerge before the next presidential election. Hopefully the major flaws in what’s currently on the table will be addressed — ideally without introducing new and bigger problems.

Posted in Health Care Reform, Health Insurance, Healthcare Reform, Politics, Presidential Election   Tagged: Barack Obama, John McCain, presidential debate