ON MEDICINE: States Are The Laboratory Of Democracy

By SUSAN ADELMAN, MD
As the endless dispute about reforming healthcare drags on in Washington, the participants might want to note two articles that appeared in the daily AMA Morning Rounds on February 9, 2018:

The first references several state-requested innovations to Medicaid:
Quoting the Congressional Quarterly, “in addition to work requirements,… several states “want to impose time limits on how long people can stay on the program.” A couple of states “want to roll back their Medicaid expansions to cover fewer people,” and still others would like “to require drug testing or limit the list of prescription drugs they’ll pay for…”

The press already has reported on some of these proposed work requirements. As an example, The Washington Post reported on January 11 that 10 states are requesting federal permission to impose work requirements on able-bodied adults who are enrolled in Medicaid.

The second AMA article highlights the significant observation that enrollment in state-run ACA programs is up, and enrollment in Healthcare.gov programs is down:
“…A majority of the states which manage their own ACA exchanges “saw more people sign up in 2018 than last year, while 29 of the 34 states that rely on the federal government to promote enrollment saw their sign-ups fall,” according to data unveiled by the National Academy of State Health Policy. The article says 11 of the 17 state-based marketplaces had higher enrollment, while the 34 states which use HealthCare.gov had an average decline of 5.3 percent.”

Ah. Programs run by states seem to be more popular than the one run by the federal government. Interesting.

The famous U.S. Supreme Court Justice Brandeis once wrote that “the states are the laboratory of democracy.” And so it seems to be. Instead of being solely promulgated from on high, innovative experimental programs for healthcare delivery are percolating up from below. Some of these will fail. Some will succeed. And we will learn from both.

There is another relevant development. The Jan 30 New York Times reported that “Amazon, Berkshire Hathaway and JPMorgan Chase — announced on Tuesday that they [will] form an independent health care company for their employees in the United States.” This is stunningly consistent with some of the proposals that we made when I was on the AMA Council of Medical Service 20 years ago. Our idea was that, in addition to employer-based healthcare, healthcare coverage could be organized by neighborhoods, churches, unions and any other combination of like-minded people. While the proposed mega-group above still would be employer-based, it would be quantitatively different from a group that is limited to employees of one machine shop.

In Germany and several other countries in Europe, healthcare plans are called krankenkassen, which might be translated roughly as healthcare ‘cash boxes.’ As it happens, these often are organized according to religious denomination, a notion better suited to European culture than ours. While we would not organize healthcare in exactly that way, the idea is one that could be adapted, as the CMS recognized.

So the ideas keep rolling out. In short, perhaps we might benefit from a little less grandstanding in Washington and a little more experience with experiments in our 50 states as we fumble our way to an improved healthcare system.

Dr. Adelman is a past president of the Wayne County Medical Society and Michigan State Medical Society as well as past member of the AMA Board of Trustees. Now retired from the practice of pediatric surgery, she is the author of The Rebel: A biography of Ram Jethmalani.

IN MY OPINION: The New Medicine, Be Careful

By ALLAN DOBZYNIAK, MD
Could it be that medical care is now taken for granted? Are the fantastic technologies, miracle drugs, futuristic hospitals, and finally even doctors now simply viewed as facts of nature, things that were always there and will always be there? Is there the expectation that doctors will forever improve the quality of life and add years to it?

Could it be possible that government intervention into healthcare was the origin of the concept that patients need do nothing to earn their medical care and even presume perfection and cures? All they needed to do was wish it, demand it, and the government would decree that it happen. Could this thinking now be leading to the rise of a generation of patients who expect medical treatment and cures as a right simply because they wish it?

Was it not in the recent past considered above all important for physicians to have the ability to think and judge, to consider the countless variables and options relevant to the individual uniqueness of each patient, process the sum total of the information and render his or her decision? Of course physicians appreciate there are general approaches to the work-up and treatment of a variety of illnesses captured in so called “evidence based medicine,” with algorithms and protocols generalized from population groups. But if new physicians are taught excessive reliance on such protocols or if compliance with them is demanded, does this not inhibit clinical judgement? Do knowledge, experience and even intuition no longer have a role? Isn’t every patient an individual, and aren’t all protocols and algorithms based on the average typical case? It is actually quite easy to standardize statistical protocols, but not at all easy to standardize patients.

Such protocols were introduced as “helpful suggestions,” but they have now become rules firmly attached to the system. Hopefully the degree to which young doctors are being trained to follow protocols is not resulting in such a degree of command and control that this approach is now considered normal. To have such a system mandating physicians to devoutly comply with mandates demanding adherence to guidelines and protocols that excludes creative medical thinking must compromise diagnostic and therapeutic excellence. This will, as well, crush the pride and individualism characteristic of physicians. Such a profession will have a diminishing attraction for the brightest students. MACRA, ACO’s, hospital compliance mandates, EMR’s, all of which increase physicians work in many non-productive and aggravating ways, are filled with more and more guidelines, protocols and mandates.

The power of hospital administrators, insurance company executives, government bureaucrats and other power brokers that increasingly control physicians’ fates have imposed such fear in physicians that “keeping one’s mouth shut” has become the rule.

So we now have a clash between government and the expectations it has indoctrinated into a growing populace with the medical profession and its 1500 year traditional culture. There is little to indicate that physicians can win or even mount a competitive effort. If the “practice” of medicine, a craft, is replaced by obedient protocol followers, a profession will have been replaced by just another occupation. What a pity.

Some will hate the quote of Dr. Hendricks in “Atlas Shrugged” simply because the philosophical novel was authored by Ayn Rand, but I think it worth quoting anyway. “Let them discover the kind of doctors that their system will now produce. Let them discover, in their operating rooms and hospital wards, that it is not safe to place their lives in the hands of a man whose life they have throttled. It is not safe, if he is the sort of man who resents it – and still less safe, if he is the sort who doesn’t.”

LANSING LINES

State Permanently Yanks Nassar’s Medical License, Docks Him $1M

The state April 6 permanently revoked the medical license of Larry Nassar and fined him $1 million, making it the largest fine ever issued by a health professional or occupational board in the history of the Michigan Department of Licensing and Regulatory Affairs (LARA), according to the department.

Nassar, the former physician for Michigan State University and team doctor for U.S.A. Gymnastics, has been sentenced to federal prison on child pornography possession charges. He was sentenced to state prison on numerous counts of criminal sexual conduct, stemming from his sexual abuse of hundreds of women, often under the guise of medical treatment.

The state’s Board of Osteopathic Medicine and Surgery initially revoked Nassar’s license on April 25, 2017, based on LARA’s order summarily suspending Nassar’s license and an administrative complaint filed in January 2017.

The permanent revocation stems from Nassar’s convictions, outlined in January 2018 administrative complaint filed by the Attorney General’s office on behalf of LARA.

The $1 million fine is to be paid to the state after all restitution, criminal fees and fines, and civil judgments Nassar is ordered to pay have been fully satisfied.

Supreme Court Asked To Review Healthy Kids Dental Contract

MCNA is taking its fight challenging Michigan’s procurement process of the Healthy Kids Dental contract to the state’s Supreme Court.

MCNA filed March 29 an appeal seeking to reverse the Michigan Court of Appeals decision dismissing the dental provider’s lawsuit against the state over what it calls the “unlawful award” of a $659 million Healthy Kids Dental contract to Blue Cross Blue Shield.

“We are taking this fight to the state’s highest court because the citizens of Michigan deserve a full accounting of how taxpayer dollars are being spent, and to shine a light on a deeply flawed and highly political bidding process that has undermined Michigan’s stated commitment to transparency and competitive bidding,” said Carlos Lacasa, MCNA’s vice president and general counsel.

“It is our hope that when Supreme Court justices review the facts of this case, they’ll see the fatal flaws in the state’s procurement process, which favors political clout over experience and results,” he added.

MCNA filed two lawsuits in January. The first alleges the state’s Department of Technology, Management and Budget showed “blatant favoritism” in awarding the contract and the second alleges multiple violations of the Freedom of Information Act.

The state sought to dismiss the case, but Ingham County Judge William Collette said at a February hearing he wanted more information and ordered a state official be deposed over the contract award. Collette’s decision came after an attorney for the state admitted, but couldn’t explain why, the state allowed BCBS to change its bid.

In mid-March, however, the Michigan Court of Appeals dismissed MCNA’s lawsuit without explanation.

MCNA has added prominent lawyers Clifford Taylor, a former chief justice of the Michigan Supreme Court, and John Bursch, former Michigan solicitor general, to its legal team as it prepares to argue its case before the state Supreme Court.

“The primary legal issue is straightforward and of great importance to Michigan taxpayers,” Bursch said. “The Court of Appeals said that MCNA has no right to seek judicial review of state procurement decisions. But Michigan law says that an aggrieved party may appeal ‘any’ decision of ‘any’ state agency.

“MCNA simply wants its day in court. Without that day, no court will ever be able to look beyond the curtain in a procurement decision,” he added. “Taxpayers are entitled to that transparency.”

Shirkey Gaining Support On Healthy Michigan Boilerplate Change

Two key lawmakers said today they are supportive of Sen. Mike Shirkey’s attempt to effectively require beneficiaries of Healthy Michigan to pay more in co-pays and annual premiums if they don’t move out of the expanded Medicaid program to the individual insurance market after four years.

Both chairs of the appropriations subcommittees overseeing the Department of Health and Human Services (DHHS) budget said they like the idea of inserting a provision in the Fiscal Year 2019 spending plan to clarify that Michigan’s 2013 Healthy Michigan law required recipient buy-in and that’s not what they see is happening.

Instead, Rep. Ned Canfield (R-Sebewaing), a medical doctor by profession, said two-thirds of recipients don’t pay their contributions and 60 percent don’t pay their fair share of co-pays.

“I don’t think that was the intent of the law these men and women thought they were passing,” Canfield said. “I believe the Legislature that passed Healthy Michigan did a brilliant job of displaying how we can help people and then help them out of Medicaid.”

Healthy Michigan is the 2013-passed Medicaid expansion program pushed by Gov. Rick Snyder that only passed a reluctant Republican-controlled Legislature after then-Rep. Shirkey and Sen. Roger Kahn (R-Saginaw) required DHHS to get two waivers.

The first required the expanded population of those making between 100 and 133 percent of the federal poverty level to contribute 2 to 5 percent of their income for service. The second required this population to pay up to 7 percent of their income after four years or find insurance on the health exchange.

But a reluctant Centers for Medicare and Medicaid Services under President Barack Obama was among the reasons the waiver ended up getting implemented in a way that nobody is getting moved off the benefit, Shirkey said.

“I believe the Department had some headwind, but I also believe it’s not in the nature of the Department to design a system by which people go off the benefit,” Shirkey said.

The result is that the program is not running consistent with statute and either the program needs to change or the statute. Neither Shirkey or Sen. Pater MacGregor (R-Rockford), chair of the Senate DHHS Appropriations Subcommittee, said they’re interested in changing the statute.

“What we passed in 2013 and what we’ve implemented is running in opposite directions,” MacGregor said. “Something needs to change.”

For MacGregor, the point is not about saving the state money, it’s about encouraging able-bodied recipients to begin training for the numerous skilled trades available in Michigan’s job market.

“I see this as a win-win,” he said.

He also noted Healthy Michigan was designed to push recipients to lead healthier lives. He’s not sure that’s being pushed either.

Shirkey said he understands that as it’s currently being run, moving the expanded Medicaid population to the health insurance exchange would cost more money, but that’s because the program isn’t being run the way the law intended.

“The department has to resubmit the waiver so it aligns with the statute,” Shirkey said.

Sen. Curtis Hertel (D-East Lansing), a Democratic member on the DHHS Appropriations Subcommittee, said he’s not convinced Shirkey is barking up the right tree with the boilerplate addition.

Hertel commended Shirkey for the courage it took to move the Healthy Michigan program in 2013, but the law is written vaguely and is open to interpretation.

“If you don’t believe the Department is following the statute, there’s a process for that and that’s the courts,” Hertel said. “This is up for interpretation, but I don’t think a new legislature can interpret the meaning of an old Legislature and then try to put in boilerplate what a different law means.”

While Shirkey was in the room when the law was written, that doesn’t mean it’s “his baby,” Hertel said.

“So while I have an enormous amount of respect for Sen. Shirkey and the work he did on the law, I think saying that his interpretation is the right interpretation gives him a lot more power than I’m comfortable with him having,” he said.

Asked about earlier this month about Shirkey’s concerns and if the state intended for this to unfold the way it has with the way it crafted the waiver, DHHS spokeswoman Lynn Suftin said the transition to the exchange is being implemented in compliance with federal law.

In addition, Sutfin said Shirkey “has made us and the Governor’s office aware of his concerns and our legal teams are reviewing.”

Analysis: State Saves $2.5M From 3K People Keeping Healthy MI Coverage

Of the 13,550 people warned they could be moved from Healthy Michigan to a plan on the federal health insurance exchange, 27 percent of them have jumped through the hoop necessary to keep their Healthy Michigan coverage.

If the rest of that original group of people do not complete their health risk assessment (HRA), one analysis has the state paying potentially up to $6.4 million more in costs associated with moving those folks to the commercially-priced health insurance exchange market.

If all 13,550 people from that original cohort had opted against the HRA, that could’ve cost the state $8.9 million if they had all moved over to the federal insurance exchange, meaning at this point the state has staved off $2.5 million it might have had to pay otherwise.

The $6.4 million cost estimate—calculated with help from the Michigan Association of Health Plans’ analysis of health insurance exchange premium prices—is on track with what the Michigan Department of Health and Human Services has already asked for in additional spending this year.

The state requested $6 million for this year to cover what it says is half of the year’s costs in the transition. Of that, $345,000 would come from the General Fund. The Legislature has not yet considered the supplemental request.

However, another 1,451 letters were issued in March to people who have been on Healthy Michigan for at least one year and who had not completed the HRA. And the state expects to send out about 1,500 letters each month, said DHHS spokesperson Lynn Suftin.

As of March 22, there have been 3,777 people who were contacted in the first group who have done the HRA, meaning they keep their Healthy Michigan coverage.

Due to a variety of factors, it’s going to cost the state more to have this population of Healthy Michigan beneficiaries move over to the marketplace than to just stay on Healthy Michigan.

But to figure out how much that could be, MIRS sought out estimates of the average cost of a Healthy Michigan plan, as well as the costs of plans provided on the federal exchange.

Dominick Pallone, executive director of the MAHP, analyzed the non-tobacco prices for health insurance products sold on the individual market exchange, based on a list of plans provided by the Michigan Department of Insurance and Financial Services.

From that, the aggregate average of monthly premiums was estimated at $385.25 per month, according to Pallone’s analysis.

In comparison, Pallone said a rough composite estimate of Healthy Michigan is around $330 per member, per month.

From there, the difference between Healthy Michigan and a commercial plan on average would be roughly $55 per month in additional costs for taxpayers, Pallone said.

So that $55 multiplied by 12 months and by the number of people from that original group of people notified—9,773 people—who have not completed an HRA produces the estimate of $6.4 million.

The state’s match rate for Medicaid is 6 percent, so about $387,010 of those estimated costs would need to come straight from the GF.

But that $6.4 million gross cost estimate is a moving target, given the fact that people may be completing their HRAs and thus able to stay with Healthy Michigan—albeit with more cost-sharing.

That, and a new batch of people newly eligible for the transition to the exchange will be contacted each month by DHHS.

So the number of people who complete their HRAs will impact how much it will cost to transition folks over to the federal exchange.

It’s not clear yet how many people will complete their HRAs. It’s also not clear how many people will eventually become eligible to transition over to the marketplace from Healthy Michigan.

The Healthy Michigan program has more than 687,000 people enrolled in total.

Lansing Lines is presented in cooperation with MIRS, a Lansing-based news and information service.

Buried In The Budget Bill Are Belated Gifts For Some Health Care Providers

By SHEFALI LUTHRA
When President Donald Trump signed the last-minute budget deal into law earlier this month, the news coverage emphasized how the bill boosted military funding, provided tens of billions in disaster aid and raised the debt ceiling.

But buried deep in the 652-page legislation was a repeal of a limit on Medicare coverage of physical and occupational therapy. It received little public attention, but to the American Physical Therapy Association, this headline was decades in the making.

The group had spent 20 years lobbying to reverse a component of the Balanced Budget Act of 1997, which would have limited patients to $2,010 worth of occupational therapy a year, and another $2,010 of physical therapy and speech-language pathology. Each time the limit was about to kick in, APTA managed to postpone its implementation — sometimes for just months, sometimes for another year or so.

Justin Moore, APTA’s CEO, quit his job as a physical therapist in Missouri and moved to Washington, D.C., in 1999 specifically to lobby Congress full time about staving off these so-called therapy caps. He recalls recruiting thousands of physical therapists to protest on Capitol Hill, long hours lobbying in congressional offices and eleventh-hour victories to keep the cap from taking effect.

Just hours after Trump signed the sweeping bill, Moore joked: “I’ve got to figure out what to do next,” celebrating the victory with cupcakes in his Virginia office.

It’s a story of one long-fought battle, marked by legislative twists and convolutions, procrastination and budgeting witchcraft. But it provides a window into the bizarre world of the way much of health care financing gets done in Washington — as an afterthought and via backroom negotiations.

“This is a miniature version of what we also have as the inefficiencies of health policy and health care,” said Thomas Miller, a resident fellow at the conservative American Enterprise Institute, a Washington think tank. “We do a lot of things that burn up resources and energy, and we treat them as a big deal, and that tends to keep you down in the trenches, shooting at things in front of you and not looking at the larger picture.”

In their enthusiasm to pass a budget this month, Congress included permanent dissolution of the therapy caps — 277 pages into the bill. The bill contained several other measures meant to placate medical constituencies by fulfilling their financial requests: for instance, forestalling payment cuts to so-called Disproportionate Share Hospitals, which treat higher proportions of low-income patients, and continuing a payment bump to certain rural home health providers.

An Arbitrary Amendment

The therapy cap came as an amendment to the 1997 budget bill, part of a “big push to reform entitlements,” recalled Katherine Hayes, health policy director at the D.C.-based Bipartisan Policy Center, who worked at the time for Rhode Island Republican Sen. John Chafee, then the chair of the Senate subcommittee on health care.

Its inclusion was somewhat arbitrary — “an assignment … to get some savings in the health sector,” recalls Sen. Ben Cardin (D-Md.), who at the time was a junior member of the House Ways and Means Committee, where the proposal originated.

Others recalled some concern that Medicare was paying too much for physical therapy and a hope that limiting coverage might help control these costs.

Since lawmakers “had to reach the target [for savings], it went into the package. Once it went into the package, it was enacted and became law,” said Cardin, who has introduced numerous bills over the years attempting to repeal the caps.

Almost immediately, backlash came from a small but impassioned therapy contingent, willing to devote the bulk of its lobbying resources to this one issue, with effect. Lawmakers on both sides of the aisle balked when it came to actually implementing the caps.

Over the years, that resistance translated into Capitol Hill rallies, starring speakers such as Maine Republican Sen. Susan Collins, who would wear and remove baseball caps — metaphorically “lifting the cap,” Moore recalled. It also meant full-court-press phone-a-thons from the nation’s physical therapy community, calling on Congress to extend the delay, usually by attaching legislative language to whatever must-pass spending bill or health care funding measure was moving through the pipeline.

The therapy lobby kept the legislative patches going, but efforts always stopped short of a full repeal, many recalled. This solution allowed lawmakers to have it both ways: They did not have to take a generous popular benefit, physical therapy, away from voters. But they continue to support a budget amendment aimed at taming runaway spending.

“For a number of years, we thought [the cap] was not a thoughtful approach,” said Cybele Bjorklund, who worked from 1995 to 2015 as a Democratic staffer in Congress. “Many Republicans also realized pretty early on this was not good policy. But again — nobody wanted to then pay to get rid of it.”

And so, sidestepping imposition of the therapy cap was achieved by adding the delay into a hodgepodge of small health initiatives, known as the “extenders,” which are addressed every few years. In 2006, Congress switched from delaying the cap to simply allowing for easy exceptions for patients who needed therapy beyond the stipulated limits.

On the balance sheet for the budget bill that passed this month, the nonpartisan Congressional Budget Office estimated the permanent therapy cap repeal will cost more than $6 billion over the next decade.

A Few Hiccups And, Ultimately, Repeal

The ups and downs of the therapy cap provision kept APTA in business — providing fodder to mobilize their members and resulting in increasing lawmakers’ interest in a permanent deal, Moore said. Political gamesmanship and partisan bickering resulted in brief lapses — in late 2003, for a month in 2006 and in early 2010 — when lawmakers failed to patch together a bill in time.

Meanwhile, the estimated cost of forestalling or mitigating therapy caps grew more expensive each time around.

An effort to incorporate repeal of the caps into the 2010 Affordable Care Act failed, partially, Bjorklund recalled, because Democrats wanted the sweeping health law as a money saver. That meant every penny counted, and even a few billion dollars represented deadweight.

In 2015, a proposed Senate amendment to a larger bill on doctor payments again would have ended the therapy caps. It was ruled out of order after falling two votes short of a motion to waive concerns about its relevance.

That exhaustive 20-year effort laid the groundwork for this month’s deal. When Bjorkland heard that therapy caps could be on the table for this year’s budget bill?

“I remember saying, ‘Please, just get rid of it, will you? Finish it off!’” she said.

Kaiser Health News is an editorially independent program of the Henry J. Kaiser Family Foundation, a nonprofit, nonpartisan health policy research and communication organization not affiliated with Kaiser Permanente. http://www.kaiserhealthnews.com

Engler Moves To Fire Osteopathic Dean

In an email letter to members of the Michigan State University Board of Trustees, the university’s new interim president, John Engler, reports he wants to fire Dr. William Strampel, Dean of the Osteopathic Medical School since 2002, for his role in the Larry Nassar case.

The President’s recommendation, after five days on the job, requires an affirmative vote of a faculty hearing committee to reverse his tenure.

Strampel has been on medical leave since last December.

According to an MSU news release, he was accused of not following-up on the medical procedures he asked Nassar to follow after a joint FBI and campus police department investigation into sexual abuse allegations concerning Nassar.

The release quoted Strampel as saying he did not “see the need to follow up to ensure” Nassar complied with the recommendations to use a rubber glove and have another adult in the room during his medical exams.

“William Strampel did not act with the level of professionalism we expect from individuals who hold senior leadership positions, particularly a position that involves student and patient safety,” wrote Engler. “Further allegations have arisen that question whether his personal conduct over a long period of time met MSU’s standards. We are sending an unmistakable message today that we will remove employees who do not treat students, faculty, staff, or anyone else in our community in an appropriate manner.”

Engler added that he hopes the “courageous survivors” of Nassar’s abuse “will see this as an unmistakable indication that things are changing quickly at Michigan State.”

This story presented in cooperation with MIRS, a Lansing-based news and information service.

Former U-M Pediatric Doc Charged With Child Pornography

A former University of Michigan-affiliated pediatric rheumatologist who was investigated for having sex with a patient is facing federal child pornography charges, according to a federal complaint unsealed Feb. 12.

Mark Franklin Hoeltzel, 46, stood mute—meaning a not guilty plea was entered for him—in front of U.S. District Magistrate Judge Elizabeth A. Stafford. He is charged with receipt of and possession of child pornography. He faces up to 20 years in prison if convicted as charged.

U.S. Assistant Attorney General Mollie O’Rourke asked that Hoeltzel be immediately detained, which Stafford granted.

Defense attorney Raymond Cassar said he demanded the hearing to argue for his client’s release because he believes Hoeltzel, who had returned from treatment out of state when he was arrested, is not a risk of flight nor is he a risk to the community.

“He was coming back into the state when they arrested him and the government knew that; we had made arrangements for him to come back,” Cassar said. “The biggest reason I want to get him out on bond is to get him back into treatment here in Michigan.

“That’s important for him. The treatment he’s undergoing is important for him. It’s important for his growth and to address the charges,” added Cassar, declining to elaborate on the treatment. “Mark Hoeltzel is a good man. He’s never been in trouble before and I need to remind all . . . readers he is presumed innocent. We are looking forward to our day in court.”

Cassar did not speak about the specific allegations except to acknowledge the charges.

The complaint, filed in U.S. District Court in Detroit, said the investigation began Dec. 4 when Ann Arbor law enforcement learned the state’s Department of Licensing and Regulatory Affairs (LARA) was investigating the Ann Arbor doctor “for having a sexual relationship with a female patient.”

That investigation lead to a search warrant of Hoeltzel’s Ann Arbor home on Dec. 11 where investigators seized a flash drive that contained about 210 images of child pornography and a Dell laptop that contained about 94 images of child pornography, according to a complaint authored by U.S. Homeland Security Investigations Special Agent Michael MacBride, who noted that the images contained about 71 unique files between both devices and the rest were duplicates.

The files, created or accessed between 2008 and May 17, 2017, contained primarily images of minor females with their genitals exposed “in a lascivious manner,” according to the complaint.

Hoeltzel’s patient told authorities in December that she had been treated for rheumatoid arthritis for years and that at age 18 the doctor sent her a text message instructing her to make an appointment with him, according to court documents.

The patient told authorities that during the first appointment, Hoeltzel “grabbed her from behind, pulled her butt into his groin, and rubbed his erect penis on her” and they “engaged in regular and frequent sexual acts” at his clinic and her home, MacBride’s complaint noted.

The complaint further alleges that Hoeltzel discussed his 12- to 15-year-old patients with the woman, describing the teens as “hot.” The woman also said Hoeltzel spent “many occasions” with her at his clinic engaged in sex acts and not providing medical treatment.

MacBride’s complaint describes the complainant as a “vulnerable” person who has a “chronic debilitating condition, which causes her to have a dependency on narcotic prescription pain medication in addition to mental health diagnoses.”

In January, Attorney General Bill Schuette’s office said Hoeltzel began texting the woman, then 17, after he saw her at the clinic when she received treatment from another doctor. Hoeltzel transferred the patient’s care to himself.

Schuette’s office also said Hoeltzel exchanged emails and online messages with an 11-year-old patient he met at a U-M Arthritis Camp in 2004. The exchanges lasted through 2006, and were “flirtatious and suggestive” messages, which the girl’s mother reported to the Arthritis Foundation, who was responsible for the camp.

After the mother reported it, university officials required Hoeltzel to undergo a “boundaries course,” according to the complaint.

As of Monday, Hoeltzel has not been charged in connection with the relationship with his patient or in connection with the allegations about the 11-year-old child.

MacBride said a LARA investigator also reviewed Hoeltzel’s prescriptions for his patient and determined that he prescribed narcotics “beyond and outside of recommendations for a patient” with the woman’s diagnoses.

LARA suspended Hoeltzel’s medical license on Dec. 21 on U-M initially suspended Hoeltzel, whose employment was later terminated.

Jake Jacobson, director of public relations for Children’s Mercy Hospital in Kansas City, Missouri, confirmed Monday that the hospital warned Hoeltzel’s former patients there that he had been accused of sexual misconduct with two Michigan patients.

Hoeltzel worked for the Missouri hospital between 2007 and 2013.

Jacobson said the hospital began a “thorough internal investigation” in late January when it learned about the allegations against Hoeltzel in Michigan. He could not say whether any patients reported misconduct by the doctor nor could he say whether the investigation includes allegations of child pornography.

Cassar said he was not aware of the Children’s Mercy investigation.

This story presented in cooperation with MIRS, a Lansing-based news and information service.

COMPLIANCE CORNER: State OIG Initiating Aggressive Pharmacy Inventory Audits

By SARAH HILLEGONDS
Recently, we have received reports that the Michigan Department of Health and Human Services (MDHHS) Office of Inspector General (OIG) is conducting aggressive audits of pharmacies that concentrate on invoice and inventory records. In most cases, the targets of these invoice and inventory audits are independent pharmacies. According to the OIG, the purpose of inventory audits is to ensure that a pharmacy is not billing Medicaid for more drugs than it purchased. But the methodology utilized by the OIG is susceptible to error, resulting in inaccurate overpayment demands, and there are questions as to the legality of these types of audits prior to July 1, 2015. This article will explore the legal framework governing inventory audits and one of the many legal defenses being raised by pharmacies subject to recoupment as a result of this type of audit.

Pharmacies, like any other healthcare provider, are required to comply with various federal and state laws, as well as state policies as a condition of participation in the Medicaid program. The OIG relies on authorities contained within the Medicaid Provider Manual, as well as its general powers under the Social Welfare Act, 400.1 et. seq., and Executive Reorganization Order 2010-1, MCL 333.26368, to perform inventory audits.

While the OIG has broad powers to conduct audits and recoup funds paid in excess to which a pharmacy is entitled, its power is tempered by notice requirements. MDHHS is required to provide notice to each provider of a change in policy or procedure affecting providers, MCL 400.111a(6). “[A] person is not required to resort to, and shall not be adversely affected by, a matter required to be published and made available, if the matter is not so published and made available.” MCL 15.241. Documents that are required to be published and made available to the public by a state agency include “written statements that implement or interpret laws, rules, or policy, including but not limited to, guidelines manuals, and forms with instructions, adopted or used by the agency in the discharge of its functions.” Id.

On June 1, 2015, pharmacy providers received notice of a new proposed policy, MSA 15-15, which required pharmacies to maintain various records, including invoices, manufacturer and/or wholesaler sales records, distributor delivery records, inventory transfer records, and provider payment records, to support the quantity of goods paid for by Medicaid during the audit period. Under this policy, failure to maintain these records would result in recoupment of pharmacy funds. MSA 15-15 was characterized as an “addition” to pharmacy audit policy to support the ability of the Department to recover funds where there is insufficient documentation of inventory and purchase histories. Prior to MSA 15-15, the Medicaid Provider Manual did not explicitly provide that failure to maintain invoices, manufacturer and/or wholesaler sales records, distributor delivery records, inventory transfer records, and provider payment records would result in recoupment.MSA 15-15 went into effect on July 1, 2015, and was incorporated into the Pharmacy chapter of the Medicaid Provider Manual in subsection 19.2— an entirely new subsection— on October 1, 2015. Although subsection 19.2 has only been in effect since July 1, 2015, the OIG has relied on this section to support audits of pharmacy invoice records from the last seven years.

Outside of subsection 19.2, the OIG is utilizing general policies applicable to all providers to support inventory audits prior to July 1, 2015. The “Record Keeping” section of the General Information for Providers chapter of the Medicaid Provider Manual requires all providers, including pharmacies, to maintain certain fiscal records for a period of seven years. One type of fiscal record that must be maintained is purchase invoices for items offered or supplied to the beneficiary. Medicaid Provider Manual, General Information for Providers, §§ 15.1 and 15.6; See also MCL 400.111b. However, this general policy does not require pharmacies to maintain the other types of documents listed in subsection 19.2, including manufacturer and/or wholesaler sales records, distributor delivery records, inventory transfer records, and provider payment records, and it does not provide that failure to maintain these records will result in recoupment.

Thus, pharmacies hit with overpayment demands by the OIG are challenging the results of inventory audits before July 1, 2015 on the ground that, prior to that date, the Pharmacy chapter of the Medicaid Provider Manual did not provide that failure to maintain the comprehensive list of documents identified in subsection 19.2 would result in recoupment. This issue is currently under review by Administrative Law Judges in the Michigan Administrative Hearing System.

Notwithstanding any potential legal defenses that may exist, Pharmacies should take inventory audits by the OIG very seriously. There could be devastating financial consequences if a pharmacy fails to maintain the documentation listed in subsection 19.2 of the Pharmacy chapter of the Medicaid Provider Manual for a period of seven years. For additional information, please contact a Wachler & Associates attorney at 248-544-0888.

Sarah Hillegonds is an associate attorney at Wachler & Associates, P.C. Ms. Hillegonds practices in all areas of healthcare law and devotes a substantial portion of her practice to representing health care entities in the defense of RAC, Medicare, Medicaid and third-party audits. Ms. Hillegonds also represents healthcare providers in licensing matters.

 

ON POINT WITH POs: Wanted: A Connected Network Of Michigan Upstreamists Focused On #SDOH

By EWA MATUSZEWSKI
The upstreamists are coming! The upstreamists are coming! If you know what I’m talking about, I’ll consider you a loyal follower of this column—or someone who is already attuned to the social determinants of health (#SDOH). In my October 2017 column, I discussed a call to action on #SDOH and cited the upstreamist term used by Rishi Manchanda, MD, a physician and public health innovator who has worked in South Central Los Angeles and advocates for incorporating #SDOH into primary care.

I couldn’t be more excited to announce that Dr. Manchanda will be coming to Michigan (for the first time!) when MedNetOne joins with the Oakland University School of Health Sciences on Wednesday, April 18 to present a day-long symposium at OU on #SDOH, Better Upstream Health for Better Downstream Care. Dr. Manchanda will be joined by healthcare innovator Paul Grundy MD, MPH, who just stepped down after a stellar career as IBM’s Global Director of Healthcare Transformation and is considered the “godfather” of the Patient Centered Medical Home.

A quick review: social determinants of health may include:
• Economic resources, including access to jobs that provide a living wage
• Safe workplaces and safe neighborhoods
• Quality of schools and availability for advanced education and training
• Clean and safe water, air and food
• Positive support systems through home and family relationships and extended social interactions

The broad spectrum of factors comprising #SDOH can make it challenging to know where to begin when managing health crises that arise as a result of inadequate understanding of the role #SDOH play in overall health and quality of life. To this end, Better Upstream Health for Better Downstream Care is an important event – but not only for those directly involved with providing healthcare and administering healthcare programs or organizations. It’s planned as a community event to engage the healthcare community, legislators, local and state leaders, business decision makers and concerned citizens who want to be part of the solution for holistic healthcare that addresses the role that #SDOH play in overall health and wellness.

Tragically, we have all seen how #SDOH has played out in Flint and with other social and environmental disasters. This conference is a call to action to identify new opportunities for innovative programs and cross-sector partnerships to drive change across and between social services and health systems and help galvanize current and potential upstreamists as part of the solution. No one person or organization can do this alone. With more upstreamists in the community we can enhance and target efforts to raise awareness of -and act on- #SDOH in the broader public health conversation. Upstreamists investigate and aim to resolve the root cause of illness or lingering ill health; they don’t necessarily treat symptoms. Although physicians can certainly be upstreamists, as Drs. Manchanda and Grundy have already shown, we also need a greater reach and buy-in. We need pharmacists, clinicians, community health workers, social workers, behavioral health specialists, public health experts and public interest attorneys. We also need students like those at OU’s School of Health Sciences and other academic disciplines, including liberal arts, engineering and computer science, to be thinking of new ideas and innovations that address #SDOH.

It’s a new era, and we need all hands on deck to make measurable change through multi-disciplinary initiatives. Please join us on April 18 and help Michigan launch an upstreamist community network.

To register for the event or for sponsorship information, visit https://www.oakland.edu/shs/healthology/. If you want to help Michigan be a leader in developing upstreamists, contact me at ematuszewski@mednetone.net

ON MEDICINE: The Girl And The Doctor

By SUSAN ADELMAN, MD
In the age of Larry Nassar, in the era of #metoo, what is a girl to think? What is a doctor to think? What are the rules these days? From the standpoint of doctor-patient relations, the fallout from the Larry Nassar case could be toxic for medical care.

First, how are doctors trained? When young people graduate from medical school and enter practice, traditionally they take the Hippocratic Oath, either as originally written, or as updated. The Oath has two salient sentences. The first is: “I will use treatment to help the sick according to my ability and judgment, but never with a view to injury and wrong-doing.”

The other pertinent sentence is “Into whatsoever houses I enter, I will enter to help the sick, and I will abstain from all intentional wrong-doing and harm, especially from abusing the bodies of man or woman, bond or free.” Both of these promises are intended to prevent the doctor from engaging in self-serving behavior that is not in the best interests of the patient.

One more principle is taught to all medical students: “First do no harm,” often quoted in the original Latin: Primum non nocere.

It is assumed that the young doctor understands these admonitions. If not, he or she has no business practicing medicine. Then, after entering practice, if he or she is found to be in violation of these precepts it is up to the profession first to take appropriate action. All or almost all medical institutions have – or should have – mechanisms for reporting and acting on possible abuses. It goes without saying that any that do not have such protocols need to develop them, stat. Further, in every state our profession maintains very successful Physician Health Plans for dealing with treatable physicians who have psychiatric issues. For those who are not amenable to treatment, the Board of Medicine in every state is empowered to remove the license of any physician whose behavior is criminally harmful to patients. Beyond that, the legal system is the obvious place for addressing egregious and dangerous behavior.

What can we tell patients so they will feel secure the next time they visit a doctor? This is more complicated. Without medical backgrounds, they may not know exactly what constitutes appropriate practice and what does not. Some already fear doctors and misinterpret the reason for a legitimate pelvic exam. As a result, the doctor, intimidated by fear of the patient’s reaction, fears touching the pelvic area, even when it is entirely appropriate. Doctors today are required to have a third person present, but patients will remember that this did not protect young girls in the examining room of the crafty Larry Nassar. According to newspaper reports, he was able to conceal what he was doing even from a concerned parent.

So what are the rules that will make patients and doctors comfortable? The internal examination of any woman who ever has been sexually active is perfectly appropriate when performed in order to rule out or treat pathology in the gynecologic area. This exam also is performed in order to identify and document sexual abuse in a young girl of any age. To reiterate, in this case an invasive exam is done, with gloved hands and in the presence of a female observer, when a medical condition of the female genitalia is suspected or treated. There are very few indications for performing such an exam on girls who have never been sexually active. There is no indication at all for an internal exam to be performed without gloves. Note: The physician must be aware that in some cultures an internal exam is considered a violation of a girl’s virginity, thus possibly impairing her chance of marriage in the future.

Beyond the routine adult gynecologic exam, babies and young children may come to the doctor because of a diaper rash, an accident or other problems that warrant careful examination of the perineum, and sometimes it is necessary to perform visual inspection of the vagina using a small scope or speculum. Normally such examinations are performed by a pediatrician, pediatric surgeon, pediatric urologist or other qualified specialist. Whether or not to perform routine examinations on sexually active minors is another question, one that requires physicians to make a judgment call.

It is almost impossible to think of any indication for a sports doctor, orthopedic surgeon or any similar specialist to perform any internal examination on a girl of any age, unless possibly in the context of major surgery to treat serious trauma, cancer, other dramatic illness, or birth defects.
Doctors need to inform their patients in advance of their intention to perform examinations of the perineum, and they need to explain the rationale. Patients need to be reassured that when they go to a doctor they will be treated with respect. And, as the Larry Nassar case has shown us, when they suspect they are being mistreated, they should voice their concerns immediately.

If the doctor is able to explain the questioned procedure in a way that makes sense, that should be the end of it. If not, the patient or family should take the concern to the referring doctor or, if that is not feasible, to the institution that employs the doctor. The popular #metoo meme may help empower patients to do just that today.

What we must avoid is for patients to fear doctors and doctors to fear patients. If we need to put up the Hippocratic Oath in our offices, so be it. If we need to create and post our own office rules for examinations so patients can read them, so be it. If we need to take an extra moment to explain what we are doing, so be it. Patients need to be reassured that they will be safe when they visit the doctor and that their next doctor will not turn out to be another Larry Nassar.

LEGAL LEANINGS: As Telemedicine Soars, Reimbursement For Telemedicine Services Slowly Evolve

By MARKI STEWART
The use of telemedicine has soared in recent years, as new technologies develop and consumer demand for instant access to healthcare increases. Indeed, the telemedicine market is expected to grow to $113.1 billion by 2025, at an estimated compound annual growth rate of 18.8%. It is expected that at least 7 million patients in the United States will access telemedicine services in 2018, a sharp increase from 2013, when the estimated number of telehealth patients was fewer than 350,000. Despite this momentous growth, reimbursement continues to be a key obstacle for telemedicine providers. However, reimbursement rules by various payors are slowly expanding to cover more telemedicine services.

Medicare remains one of the most restrictive payors for telemedicine services, with exceptionally limiting reimbursement rules. With some exceptions, Medicare will pay for a telemedicine encounter only when the patient is located in a rural area and present at an eligible originating site, the service must be delivered by one of eight eligible professionals and the modality must be real-time, interactive, and face-to-face (thus prohibiting “store and forward” telemedicine technologies), with a limited number of available codes. Notably, Medicare recently changed its coding for telemedicine services, eliminating use of the “GT” modifier traditionally used to indicate that the service was provided via telemedicine; in its place, Medicare has created Place of Service Code 2, which should be used in the place of the former GT modifier. A list of Medicare’s rules, restrictions, and codes for telemedicine encounters can be found at: https://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNProducts/downloads/TelehealthSrvcsfctsht.pdf. Despite Medicare’s reluctance to shed its restrictive reimbursement rules, several drafts of legislation have been proposed to expand Medicare payment for telemedicine services, typically targeted to particular conditions and disease states. Accordingly, Medicare payment restrictions may soon be eased, albeit gradually.

Contrary to Medicare, Medicaid plans are generally more liberal in reimbursing a variety of telemedicine services. According to www.medicaid.gov, Medicaid views telemedicine as a “cost-effective alternative to the more traditional face-to-face way of providing medical care . . . . As such, states have the option/flexibility to determine whether (or not) to cover telemedicine; what types of telemedicine to cover; where in the state it can be covered; how it is provided/covered; what types of telemedicine practitioners/providers may be covered/reimbursed, as long as such practitioners/providers are ‘recognized’ and qualified according to Medicaid state/regulation; and how much to reimburse for telemedicine services, as long as such payments do not exceed Federal Upper Limits.”

Currently, 48 state Medicaid programs offer some type of coverage for telehealth services. The Center for Connected Health Policy has compiled a survey of each state’s Medicaid reimbursement rules for telemedicine, with hyperlinks to each Medicaid program’s rules, available at http://www.cchpca.org/state-laws-and-reimbursement-policies. Michigan’s Medicaid program currently reimburses for a variety of live video encounters, including inpatient consults, outpatient consults, psychiatric diagnostic procedures, training services, end stage renal disease-related services, behavioral health and substance use disorder treatment and education services. Although Michigan’s Medicaid program typically requires the patient to be located at an eligible original site, which includes physician or other provider offices, a patient may be treated from home for behavioral health therapies. Further details can be found in Michigan’s Medicaid Provider Manual, available at http://www.mdch.state.mi.us/dch-medicaid/manuals/MedicaidProviderManual.pdf.

Commercial payors vary with respect to payment for telemedicine services. State “parity” laws may require a health plan to pay for telehealth services, and a minority of states require health plans to pay the same amount for telehealth services as if the treatment had been provided in-person. However, many payor contracts omit specific terms relating to telemedicine payment, perhaps unintentionally. Physicians need not be passive in hoping that a private health plan will pay for telemedicine services. Providers can get ahead of a telehealth payment dispute by requesting key terms for telemedicine reimbursement when payor contracts are first negotiated and signed. Providers should make their contracting team aware of what telemedicine services are available to their patients, so that they can request specific terms for the telemedicine modalities used by that provider in their negotiations. Knowledge of your state’s parity law can and should be used in negotiations with payors as well (although a parity statute is not required to negotiate reimbursement). Additionally, Medicare Advantage coverage for telehealth is a potential area for growth, as Medicare Advantage plans recognize the positive outcomes and lower costs for telemedicine services, and can benefit greatly from those cost savings.

Finally, telemedicine providers need not be restricted to the intricacies of Medicare, Medicaid and private health plan reimbursement rules, which frequently conflict. Telehealth providers can find other ways of generating revenue for its services, including providing services for a flat rate or an hourly rate charged directly to patients. Many patients are willing to pay a reasonable out of pocket amount for the convenience of telehealth services, provided the rate is fair market value and meets other state-specific rules.

With some advance planning and knowledge of the reimbursement rules for the specific telemedicine modalities used in their practice, providers can develop a workable plan for generating telemedicine revenue. For more information on telemedicine reimbursement issues, contact Marki Stewart at Dickinson Wright.

Marki Stewart is an attorney in Dickinson Wright’s Healthcare Practice group. Her practice focuses on healthcare regulatory and transactional law, with extensive experience regarding federal and state fraud and abuse laws, including Stark and the Anti-Kickback Statute, HIPAA, electronic health records, business transactions, joint ventures, physician recruitment, and Accountable Care Organizations. Marki has specialized knowledge of the unique legal issues surrounding telemedicine, including licensing issues, credentialing, privacy, and security.