Although various electronic health records (EHRs) have different features, nearly all seem to have alerts for potential problems with drug prescribing. It’s one thing that many believe that EHRs do very well. However, a recent study warns that when it comes to opioids and benzodiazepines, we shouldn’t always assume such alerts work as intended.
A majority of Americans prefer greater regulation of prescription drug prices, meaning government intervention to lower them.
But don’t count on a single policy to address a nuanced problem.
“All low-priced drugs are alike; all high-priced drugs are high priced in their own way,” Craig Garthwaite, a health economist from Northwestern University’s Kellogg School of Management, wrote with a colleague.
Outside of a few government programs — like Medicaid and the Veterans Health Administration — low-priced drugs are alike in that competition is the sole source of downward pressure on prices. When many generic versions of a brand-name drug enter the market, competition can push their prices 80 percent below the brand price, or sometimes even more.
In contrast, high-priced drugs lack competition for various reasons, “not all of which imply our goal should be to reduce prices,” Mr. Garthwaite said.
Many, many studies have associated better and more education with better health outcomes? But which way does the causality go? Do people attain more education because they’re healthy? Or maybe those who are in an economic position to attain education also tend to be able to afford good healthcare? We’re here to sort out the studies.
That’s the headline of a new piece of mine in the Atlantic. It focuses on the oral argument before the Fifth Circuit in Texas v. United States, and the apparent willingness of two Republican-appointed judges to entertain seriously the notion of invalidating the entire ACA.
How did it come to this? What the hell is going on?
The explanation is rooted, I think, in a sort of Know-Nothingism that’s taken hold in some corners of the conservative legal movement. This Know-Nothingism is a cancerous outgrowth of textualism, a method of statutory interpretation to which most Republican-appointed judges now subscribe.
Though I have my quarrels with textualism, its key insight is correct: close attention to statutory text really is the best way to discern a law’s meaning. As sophisticated textualists understand, however, reading the text doesn’t mean we must ignore what Congress meant to accomplish. To the contrary, as Caleb Nelson (himself a textualist) has explained, “judges whom we think of as textualists construct their sense of objective meaning from what the evidence that they are willing to consider tells them about the subjective intent of the enacting legislature.”
Yes, staunch textualists resist calls to use legislative history—statements of legislators, committee reports, and the like. They also think it’s inappropriate to invoke a statute’s generic purpose (“save the whales,” “protect investors”) to twist its plain meaning. But they still look to a wide array of statutory and contextual evidence to excavate “subjective intent”—to identify the problem that Congress meant to solve and the means it chose to solve it. “A fair reading of legislation,” Chief Justice John Roberts wrote in Obamacare’s last brush with death, “demands a fair understanding of the legislative plan.”
The Know-Nothing judge, however, like a 1970s French literary theorist, denies we can ever know what Congress really means to do when it passes a law. And why should we care, anyhow? Intentions aren’t laws. If assigning the most literal interpretation to a statute’s text subverts what Congress intended, so be it. The Know-Nothing judge consoles herself with the fable that all she’s doing is applying the law. She’s not an activist. You are.
Read the whole thing here!
The Trump administration has put forth a rule change for immigration saying that if an immigrant gets one of a number of benefits from the government, it could lead to their being denied legal permanent residency or entry to the US. Will such a rule lead to some immigrant parents disenrolling their families from safety-net programs? How will this affect children? We’ve got data.
Submission deadline for abstracts: August 12, 2019
Sponsored by the Robert Wood Johnson Foundation
Health Services Research (HSR) and the Robert Wood Johnson Foundation (RWJF) are partnering to publish a 2020 Theme Issue on Drivers of Health, to be co-edited by me and David Nerenz, PhD.
The Theme Issue will include cutting-edge work that illuminates drivers of health and on health and social/health care system interventions that promote health. For this Theme Issue, we invite studies, evaluations, and policy analyses that use rigorous scientific research methods to illuminate the causal relationships between social and health care system factors that affect hard health outcomes, including mortality, as well as broader measures of quality of life and well-being.
We encourage work from a variety of disciplines, including health services research, medicine, nursing, pharmacy, public health, sociology, social work, economics, political science, anthropology, history of science, and others. We also encourage work that cuts across disease categories or focuses on very prevalent, high-impact diseases. Though we will consider work focused on populations and programs outside the United States, we encourage authors to discuss lessons drawn from it for the United States and potential implications for United States health care or social policy.
A July 10 STAT article began:
A trio of key White House advisers on Tuesday hinted for the first time that they could support a progressive proposal to cap price increases for certain medicines, speaking at a closed-door Capitol Hill briefing of Republican senators.
That trio includes HHS Secretary Alex Azar and Domestic Policy Council Director Joe Grogan. The proposal, offered by Senator Wyden according to STAT, would cap Medicare drug price growth to that of the Consumer Price Index.
This is intriguing! I’d love to know more, but there is “an agreement with [Senate Finance Committee Chairman Chuck] Grassley not to divulge details to reporters before negotiations are complete.” Phooey!
A July 9 article in The Hill included that
Drug companies would have to pay money back to Medicare if their prices rose too quickly.
Some GOP senators say that approach is akin to price controls, which are anathema to many Republicans.
This is exactly the kind of pushback I’d expect, but it is not a good argument. The government, in regulating drug manufacturers, granting monopolies, and subsidizing drug coverage, is aleady in the price and market control (or support!) business.
Former FDA Commissioner Scott Gottlieb (now a member of Pfizer’s board of directors) reacted to the Hill article in a Twitter thread:
Thread: In near term, this could actually be *inflationary* as, right now, overall net drug price increases have fallen below CPI for first time. This could lock in CPI WAC price increases across entire portfolios. CPI could be automatic floor and ceiling https://t.co/OWJu50BEqo
— Scott Gottlieb, MD (@ScottGottliebMD) July 9, 2019
Congress should require that drug companies selling drugs into Part D rebate any price increases above consumer inflation to Medicare, to offset the program’s taxpayer-funded subsidies.
The above is all I’m aware of about the Medicare drug price growth cap proposal. It seems like an idea that deserves more discussion, no?
Yesterday, the Fifth Circuit heard oral argument in Texas v. United States. It was pretty brutal: consistent with the reporting, the two Republican-appointed judges on the panel appeared receptive to the argument that the Affordable Care Act should be declared invalid. (The Democrat-appointed judge was silent.) Just how receptive is hard to say, and it’s always hazardous to read too much into oral argument. But it’s safe to say that the ACA’s defenders had a tough day in court.
Much of the argument turned on fairly arcane questions about the scope of district court’s judgment. Does it apply nationwide or only in the red states? Does it matter that the court entered only declaratory relief and no injunction? Do the answers to those questions affect the rights of California and the other blue states to intervene and appeal?
These are the kinds of questions that might matter a lot to a judge who has to write an opinion invalidating all or part of the ACA. For anyone else, however, I think they’re a distraction. If the panel holds that all or part of the ACA is invalid, this case is likely headed to the Supreme Court. Out of respect for a co-equal branch, the Trump administration will adhere to the Supreme Court’s judgment across the whole United States, even if no injunction is entered and the judgment in a formal, technical sense only binds the plaintiffs who brought the suit.
So set that aside. Turning to standing, neither Judge Elrod and Judge Engelhardt appeared troubled about whether the red states could bring the lawsuit. And they were downright hostile to the argument that the ACA should be understood to leave people a choice about whether to buy insurance. Doesn’t the law say that people “shall” buy coverage? And doesn’t Congress know how to repeal or amend a law when it wishes to?
The judges listened respectfully when the lawyer for the House of Representatives patiently explained that the Supreme Court has authoritatively interpreted that language to give people a choice about whether to buy insurance or not. And Marty Lederman is right that the argument is embarrassing on its own terms. But they appeared unmoved.
Naturally, then, the judges spent a lot of time discussing whether the mandate could be severed from the rest of the law. Judge Engelhardt didn’t think it could, and referred repeatedly to King v. Burwell, where Chief Justice Roberts explained that the individual mandate was part of a comprehensive scheme to regulate the private insurance markets. Engelhardt didn’t seem to mind that Roberts was talking about an enforceable mandate, not toothless one. Nor was he moved by the argument that Congress, in 2017, was perfectly free to revisit Congress’s prior judgment that the individual mandate was essential to the ACA’s operation.
Judge Elrod’s questions also reflected antipathy to the project of taking “a blue pencil” to legislation: how could the courts possibly know what Congress would have done had it known that the naked mandate was unconstitutional? She even expressed openness to the insane argument that maybe some members of Congress who voted to repeal the penalty thought, “Aha, this is the silver bullet that’s going to undo Obamacare.”
At times, however, Elrod seemed dubious that the entire ACA had to go—wondering, for example, whether the part about menu labeling in chain restaurants had to be invalidated. And, towards the end, she raised the possibility of remanding the case to Judge O’Connor, perhaps with instructions for him to take another crack at severability.
That said, it’s not at all clear what guidance Elrod would offer to O’Connor. Should he excise only those parts that regulate the individual insurance market, including the protections for people with preexisting conditions? Or also the entire private insurance market, even as to employer-sponsored coverage? What about the Medicaid expansion? The Medicare cuts? The Part D doughnut hole? The biosimilar program?
Still, a remand for greater clarity on the scope of the judgment—to whom does it apply? can’t some parts of the ACA be severed?—may be in the cards. That wouldn’t preclude the parties from asking the Supreme Court to immediately review the Fifth Circuit decision. But it might affect the Court’s willingness to take the case. At least some of the justices won’t relish the prospect of hearing a case about the invalidation of the ACA in the heat of the 2020 presidential election. Maybe they’d prefer to wait to hear what Judge O’Connor says.
But now I’m getting ahead of the facts. I don’t know how the Fifth Circuit will dispose of the case, and there’s still a chance that the court will conclude that the plaintiffs lack standing or that the toothless mandate can be severed from the rest of the Act. It does seem to me, however, that yesterday’s argument went about as badly as it could’ve gone. Instead of scoffing at the frivolousness of the red states’ legal arguments, two judges on the panel appear open to holding that the ACA is wholly or partly invalid. We could be in for a long, bumpy ride.
If you try to use Medicare Advantage, figuring out which doctors are available (and where) can be exceedingly difficult, if not impossible.
Medicare Advantage is the government-subsidized, private alternative to the traditional public Medicare program. It has had strong enrollment growth for years.
That growth has received a boost from the Trump administration, which has sent emails to people using Medicare to promote how much more coverage they could get for less money from private plans. Missing from those emails, however, is a mention of one big limitation of those plans: Many cover far fewer doctors than the traditional program.
That may not be a problem if you can find a plan that includes doctors you prefer, or if you can find covered doctors in convenient locations.
But that isn’t often the case, as government audits of Medicare Advantage plan directories show. The Centers for Medicare and Medicaid Services, which oversees the program, found that nearly half of entries had one of three problems: address errors, incorrect phone numbers, or doctors who were not accepting new patients. In 2017, the Department of Justice reached a settlement with two Medicare Advantage plans over charges of misrepresentation of their networks to regulators.
Other research reveals that Medicare Advantage provider directories are relatively poor sources of information. For example, a study published in the American Journal of Managed Care found that Google was more accurate.
“Directory accuracy is hard,” said the study’s lead author, Michael Adelberg, a former senior Health and Human Services regulator in Washington and now a leader of health care strategy for the Faegre Baker Daniels law firm. “But when a consumer joins a plan to get to a doc in the directory and then cannot, that consumer has a very legitimate beef.”
(I was a co-author on the study, along with Daniel Polsky, a health economist with Johns Hopkins, and Michelle Kitchman Strollo, a vice president and associate director of NORC’s health care department at the University of Chicago.)
Research indicates that the malpractice system in the United States doesn’t do a lot to deter malpractice. There are several recent studies about malpractice that look at how many doctors have malpractice claims against them, and what happens to their careers after they have a problem.