ON MEDICINE: Leaders Or Followers

The solution to healthcare’s costs and access problems is quite obvious. It has been repeatedly suggested that what is needed is a plethora of doctors. Of course this would lower cost and increase access. “Overpayment” of U.S. doctors would disappear as the market becomes oversaturated. Access to care would no longer be an issue as doctors compete for patients.

Only a few minor adjustments would be needed. Time and cost as barriers to manufacturing legions of new doctors could be rectified by eliminating the non-essential four years of college and the extraneous liberal arts courses. A year or so of several science courses in the local community college should suffice. Once in medical school, students could be indoctrinated to give up their rights and self-determination for the general good. Compromise as an approach to regulatory serfdom could be declared one of the most laudable qualities. The chorus of righteousness and the PR mumbo-jumbo of “openness,” “caring,” “sharing,” “community,” and “compassion” could be further integrated into the curriculum. Being taught to think like thinking machines would be pursued. Following the protocols and checking boxes in the myriad screens in the EMR to satisfy the masters of the very “moral” RVU invention would relegate thinking to mere coincidence.

These liberal arts degrees that teach future doctors to think critically, ask the right questions and effectively advocate for patients would be rendered antiques of the past. Can it really be justified to study philosophy, ethics, logic, humanities, ancient and modern literature, and history in a liberal arts curriculum? After all, the result might be the production of doctors who can think and who might also recognize what is good, true and even beautiful.

If a bounty of doctors would lower costs, one wonders why the greater density of physicians on the West and East coasts is far greater than in the interior of the United States, yet the costs of healthcare are much higher in these locations. Such facts should be ignored, even when knowing it is the price rather than the number of inputs into the system that creates the expense. Could it be that hospital administrators with, at most, a master’s degree having a median annual income of greater than $750,000 that contributes to hospital costs and the nasty economic price reality?

But maybe the compromise philosophy is not all that great either. If the goal is more control over physicians, no amount of compromise will ever be enough. Little by little, inch by inch, each small move seems like an insignificant compromise, only to wake up some day to the realization that you have compromised your rights away.

Once critical thinking has been discarded, the mushy consensus-driven group too scared of disagreement or power to speak truth to gibberish can feel secure and fulfilled as they follow the herd. The majority opinion coupled with peer pressure, even if such opinion is inaccurate or nefarious, can result in compliance with the group-think allure. Cognitive thought quite often produces one or few dissenters. If this caught on as the prevailing culture of physicians, members of the profession continuing to compromise, actually giving up and losing, might perhaps change. But of course physicians are never allowed to offend anyone, and they must give in. Why, because physicians’ morality as encompassed in ethics and professionalism has been weaponized against them. Never should passivity be confused with morality.

Just speculate on the state of the medical profession when the “dissenters” are finally silenced. Any remaining struggle between the profession and those who want to control it will be no more. This is an existential struggle whose outcome is still somewhat dependent on the choices physicians make, if they are still able.
Maybe then producing large quantities of the proposed “newly minted physician type” may not be the best answer.

LEGAL LEANINGS: Opioid Litigation Comes To Michigan

Michigan, like the rest of the country, suffers from an opioid epidemic. Every day, more than 100 Americans die from an opioid overdose. Some economists estimate that the opioid crisis has cost the U.S. economy more than $1 trillion since 2001 and is on pace to cost an additional $500 billion through 2020.

The profligate use of opioid pain relievers has contributed mightily to the epidemic. A few data points tell the story:

• About a quarter of patients prescribed opioids for chronic pain do not use them as directed.

• Roughly 4 out of 5 heroin users first abused prescription opioids.

• United States citizens consume about 80 percent of the world supply of oxycodone and almost all of the supply of hydrocodone

Predictably, lawyers and their clients have engaged the legal system to assign responsibility for the opioid epidemic. The wave of opioid litigation has reached Michigan. Opioid litigation, modeled largely on the tobacco lawsuits of the 1990s, has grown exponentially over the last few years. State and local governments initially targeted pharmaceutical manufacturers. Now, distributors such as McKesson and Cardinal have been sued. In 2017, more than 250 state and local governments sued organizations throughout the opioid supply chain, including manufacturers, wholesalers and distributors. Michigan has joined the cause. The number of Michigan cities and counties that have sued opioid manufacturers and distributers is growing. The list includes Detroit, Oakland County and Wayne County. Healthcare providers have reason to fear the opioid litigation wave. Plaintiffs’ attorneys will continue to look down the opioid distribution chain for new targets.

Michigan physicians and hospitals may well be next. Indeed, the next wave of opioid litigation is already building. A growing number of lawsuits against hospitals and physicians allege negligent opioid prescribing practices. The suits typically allege that a physician was negligent by overprescribing opioids or that hospitals failed to effectively monitor their physicians’ prescribing practices, thereby contributing to addiction and all of its dire consequences.

This trend will continue. The United States Department of Justice targets physicians believed to overprescribe opioids. DOJ has hired new federal prosecutors who focus exclusively on investigating and prosecuting healthcare providers who improperly prescribe opioids.

Physicians and hospitals should, of course, strive to improve prescribing practices because it is the right thing to do for patients. Moreover, providers should take concrete steps to protect themselves from the building wave of opioid litigation. Physician groups and hospitals should:

• Require specialized training for all opioid prescribers on the medical staff. Hospitals should assure adherence to Michigan’s new standards for prescribers.

• Ensure that monitoring and testing for appropriate opioid prescribing practices is an integral component of every compliance program.

• Develop a comprehensive screening tool to identify patients who may have a genetic or social predisposition for opioid addiction, or who have struggled with such issues in the past.

• Develop quality metrics related to opioid prescribing practices. Mine the data to identify and counsel outliers. Assume that the government is mining your data to find outliers among opioid prescribers.

• Adopt an effective patient education program related to opioids and the potential for addiction.

• Implement a protocol for patient intervention for those suspected of developing dependency or addiction.

Hospitals and physician groups should adopt evidence-based best practices for the prescription and management of opioids. While a number of tools are available, the Center for Disease Control and Prevention Guidelines for Prescribing Opioids for Chronic Pain is an excellent resource. The guidelines are summarized as follows:

1. OPIOIDS ARE NOT FIRST-LINE THERAPY. Non-pharmacologic therapy and non-opioid pharmacologic therapy are preferred for chronic pain.

2. ESTABLISH GOALS FOR PAIN AND FUNCTION. Clinicians should continue opioid therapy only if there is clinically meaningful improvement in pain and function that outweighs risks to patient safety.



5. USE THE LOWEST EFFECTIVE DOSE. Clinicians should use caution when prescribing opioids at any dosage, should carefully reassess evidence of individual benefits and risks when considering increasing dosage to more than 50 morphine milligram equivalents per day, and should avoid increasing dosage to 90 morphine milligram equivalents per day, or carefully justify a decision to titrate dosage to more than 90 morphine milligram equivalents per day.



8. USE STRATEGIES TO MITIGATE RISK. Before starting and periodically during continuation of opioid therapy, clinicians should evaluate risk factors for opioid-related harms.

9. REVIEW PDMP DATA. Clinicians should review the patient’s history of controlled substance prescriptions using state Prescription Drug Monitoring Programs (PDMP) data to determine whether the patient is receiving opioid dosages or dangerous combinations that put him/her at high risk for overdose.




There is no assurance that opioid prescribing physicians and hospitals won’t be sued in today’s rapidly developing litigation environment. They can, however, through the rigorous implementation of common sense policies, ensure that they have a defense.


Legalized Pot Goes To Ballot, House Opts Not To Vote
Not only did the House Republican caucus not have the votes to legislatively adopt and amend a citizen initiative to legalize recreational use of marijuana, House Speaker Tom Leonard (R-DeWitt) said June 5 he’s not convinced the state Senate really did either.

Senate Majority Leader Arlan Meekhof (R-West Olive), presented with polling showing recreational marijuana passing this fall, said he had 20 votes in the Senate to pass the marijuana legalization citizens initiative.

Had the House passed it June 5, the last day of the 40-day constitutional deadline, Meekhof pledged he would have, too, giving Republican lawmakers an easier shot at amending the proposal to better regulate “home-brew” marijuana businesses, potency restriction and possession amounts.

But the House didn’t have the votes. Inside sources project the chamber had about 40 and likely weren’t going to get any more. Democrats had presented a united front against the proposal and hardline conservatives philosophically opposed legalizing pot.

And Leonard questioned whether the Senate had the 20 votes to pass it anyway, despite Meekhof’s claims.

“I have to believe that if they had the votes to pass this, if they were serious, that they would have taken the vote. And they have yet to take a vote,” Leonard said. “. . . It is hard for me to believe that any leader who was serious about getting this passed, excuse me, adopting and amending this, when they never presented members with an amended version or showed us what that would look like.”

Meekhof spokesperson Amber McCann responded to the comment with, “If Speaker Leonard wasn’t such a fan of putting something on the board to fail, the Majority Leader would have felt more comfortable putting up a vote on marijuana that depended on passage in the House.”

McCann is referencing Leonard’s decision earlier this term to take a vote on an income tax rollback and auto insurance reforms without the needed votes to pass.

At least one House Democrat suggested June 4 that if Republicans had agreed to not to vote to approve the prevailing wage repeal initiative, he would be open to talking about legalizing marijuana.

But House Minority Leader Sam Singh (D-East Lansing) said nobody approached him about dealing. Even if they did, he said he suspects his asking price would have been deemed “untenable” by his Republican colleagues. Senate Minority Leader Jim Ananich (D-Flint), likewise, said nobody talked with him, but he wasn’t under the impression Republicans were interested in dealing away prevailing wage.

“I did not have any direct conversations,” Singh said. “Did some of my members have any conversations? That’s possible, but I think if there were serious, conversations somebody would come to me at a point in time. But they never did.

“I think it was always a conversation about trying to shape this in a way to help a small number of Republican donors run this industry,” Singh added. “I think that’s unethical and they knew they weren’t going to get Democrats.”

With no vote June 5 in the House or Senate to legislatively adopt the initiative put forward in a petition drive by Coalition to Regulate Marijuana Like Alcohol (CRMLA), the question now heads to the ballot. That means voters will get to decide in November whether to make pot legal here in Michigan.

That’s good news to some.

“We represent nine million people in this state and it shouldn’t be left to 110 legislators in the House of Reps and Senators,” said Rep. Robert Kosowski (D-Westland). “It should go to a vote of the people. That’s who we work for . . . It’s their voice. It’s their decision. Some people are telling me they want it. Other people are telling me they don’t. How can I represent my district if it is on both sides of this issue?”

Leonard is not pleased with the prospects of legalization going on the ballot and he said he will be encouraging people to vote against it.

“I’ve seen the problems that marijuana can cause,” Leonard said. “We have spoken to insurance companies who have been pretty clear that auto insurance rates as well as home rates are going to go up in the event that this passes. When I look at the fact that we are likely going to have more operating under the influence arrests, situations where people are being killed by those that are under the influence of marijuana, this is not a good thing for our state.”

He said that once voters are educated about the issue, it could be defeated at the ballot box in November.

CRMLA said that while it would have been happy to see its proposal adopted legislatively, it is confident voters “understand that marijuana prohibition has been an absolute disaster and that they will agree that taxing and regulating marijuana is a far better solution,” said CRMLA spokesperson Josh Hovey.

He said in a statement that the organization’s goal now will be informing voters about what is in the proposal.

“Multiple polls show that roughly 60 percent of Michigan voters want to see marijuana legalized and regulated but, as we saw with the legislative debates these past few weeks, there is still a lot of misinformation out there,” he said. “The fact is that our proposal is carefully written to be a model for responsible cannabis regulation and closely follows the medical marijuana licensing law passed by the state legislature in 2016.”

Since the deadline was June 5 for lawmakers to act, the deal was sealed when the House adjourned without acting. Republicans met for a short caucus before Leonard came out to announce to reporters there would be no vote.

The House was always the challenge for legislative adoption, with Leonard consistently being against the measure and publicly questioning whether there were not enough votes in the Republican caucus to adopt the initiative. Also, House Democrats were leery of taking action, consistently wanting the citizens to vote on the measure.

The Senate had stayed in recess through the afternoon in case House Speaker Pro Tem Lee Chatfield (R-Levering), the point person in the House, was able to put the votes together.

Much of the argument in favor of adopting the initiative legislatively was that it could be amended with a simple majority vote with regulations that exactly mirror those of medical marijuana. If the people adopt it, the Legislature could only adopt it with a three-quarters majority.

Judge Grants Preliminary Approval In Hep C Case
A federal judge gave class-action status to a lawsuit and preliminary approval to a settlement that calls for Michigan to begin providing Hepatitis C direct-acting antiviral medications to more Medicaid patients.

U.S. District Court Judge Denise Page Hood’s decision May 29 in the lawsuit, M.R. v. Nick Lyon, came after both sides submitted a joint motion requesting class-action status and the proposed settlement.

The court’s order identifies the class as any Medicaid recipient 18 and older diagnosed with Hepatitis C virus that can receive the anti-viral treatment. Dickinson Wright was the appointed class counsel.

Notices will be sent to class members, who have until July 17 to file a written response or request to testify at an Aug. 8 fairness hearing, which is a procedure to consider final approval of a settlement.

If no objections are received from a class member, the settlement agreement would go into full effect Oct. 1.

The lawsuit, filed April 14, 2017, alleges the Department of Health and Human Services’ current prior-authorization criteria for Hepatitis C treatment violates three provisions of the Medical Assistant Program, Title XIX of the Social Security Act, excluding qualified Medicaid recipients from medically necessary treatment.

According to court records, DHHS continues to deny the claims alleged, maintaining it has strong defenses. However, the state concluded it would be “desirable and beneficial” to settle the case, court documents noted.

Health Insurance Tax Cut Shoots Through Panel, Senate 
PPOs and their roughly 1.2 million customers would see an accumulative $18 million state tax cut under legislation that’s connected with the Health Insurance Claims Assessment (HICA) repeal bills that moved May 17. The bill creating the cut shot through a Senate committee after a seven-minute hearing and the full Senate May 23 hours later.

Sen. Jim Stamas’s (R-Midland) SB 1016 encompasses a deal made with industry, particularly Blue Cross Blue Shield of Michigan, and state officials, which more than offsets a rate increase non-Medicaid PPO customers were facing under the Insurance Provider Assessment (IPA) tax scheme create.

“We believe the combined claims tax elimination and premium tax reduction is an effective way to ensure that small businesses who offer PPO coverage see relief on the cost of health care, as approximately 70 percent of our small business customers choose PPO coverage,” said BCBSM Corporate Affairs Director Helen Stojic.

Budget Director John Walsh appeared with Stamas in front of the Senate Michigan Competitiveness Committee May 23 to show his support of the work the Legislature is doing on the subject, said spokesman Kurt Weiss.

“We still have some work to do when it comes to finding a long-term revenue solution for health care,” Weiss said. The administration’s support is critical since Gov. Rick Snyder historically has been resistant to poking holes in the state revenue stream without finding a way to pay for it.

The bill does not impact HMOs, something Dominick Pallone of the Michigan Association of Health Plans said he’d like to see addressed. The double taxation issue solved by SB 1016 is $400,000, meaning much of the $18 million benefit is welcomed tax relief.

“This creates a competitive change in the tax structure that impacts one side of our commercial insurers, which is something we’d like to see addressed,” Pallone said.

The bill lowers the current 1.25 percent premiums tax on commercial licenses to .95 percent in 2019. HMOs pay taxes based on the Corporate Income Tax (CIT) and not the premiums tax, so any relief involving those plans would need to be addressed in another section of state law.

Stamas said it is the intent of the legislature for PPOs to pass these savings on to businesses and individuals, although he conceded the legislation doesn’t specifically mandate it. Stojic said as nonprofit mutual insurers, any cost savings for Blue Cross PPO product is passed on to customers.

According to 2015 data, 57 percent of Michigan commercial insurance market is made up of self-insured plans that insure 3.2 million Michiganders. Another 27 percent is made up of large groups, 8 percent small groups and 7 percent individual plans. It is the three latter categories that take advantage of Preferred Provider Organizations or PPOs or HMOs, both of which have roughly 1.2 million covered customers apiece, according to Delany McKinely of the Michigan Manufacturers Association.

SB 1016 moved unanimously out of committee and 36-0 on the Senate floor after Republican leadership agreed to amend the rules for the bill’s hasty passage to the House. In related news, the House Michigan Competitiveness Committee May 23 reported out the IRA package—SB 0992, SB 0993 and SB 0994—unamended.

Folks Can’t Skirt Medicaid Costs With Spouse’s Money
A court can’t allow someone to receive all of their spouse’s income if Medicaid is paying the costs to institutionalize the spouse and there are some patient-pay obligations, the Court of Appeals ruled May 23.

In a published opinion May 22, the court said probate judges in St. Clair and Eaton counties could grant a monthly income to the non-institutionalized or “community” spouses of Joseph Vansach Jr. and Jerome R. Bockes, respectively.

However, the local courts don’t have “unfettered discretion” to gives an allowance that lets the spouse maintain his or her current lifestyle without regard to what it costs to keep the other spouse institutionalized, the three-judge panel ruled unanimously.

To do otherwise, the court’s panel found, is an abuse of discretion. In the Vansach and Bockes cases, the trial courts granted the community spouses 100 percent of their husband’s income.

Vansach and Bockes receive Medicaid benefits to cover a portion of their health care. Their spouses successfully sought a protective order under the law, claiming they lacked sufficient income to meet their needs.

DHHS opposed the petitions, asserting the wives sought a larger community spouse income allowance than allowed, which “would have the effect of decreasing the patient-pay amount” that their spouses contribute to their care.

According to Medicaid.gov, nursing home care, which ranges from $5,000 per month to $8,000 or more per month, can rapidly deplete savings accounts. In 1988, Congress enacted what is called “spousal impoverishment” provisions to prevent the spouse who still lives in the community from having little or no income or resources.

The appeals panel included Judges Peter D. O’Connell, Joel P. Hoekstra and Kirsten Frank Kelly.

State Leaders Press Feds On PFAS Risk
PFAS contamination of water supplies is on the minds of a growing number of Michigan elected officials and they are pushing the federal government to take more action on addressing the emerging contaminants.

Specifically, there’s a push for President Donald Trump’s administration to release a report that reportedly shows PFAS can affect human health at a lower level than previously thought, according to coverage provided by Politico, The Washington Post and others.

An agency within the U.S. Department of Health and Human Services was preparing to release this report, but emails revealed the U.S. Environmental Protection Agency and the White House were concerned about the public reaction to such a report.

That got some stern reactions from U.S. Sen. Debbie Stabenow (D-Delta Twp.) and U.S. Rep. Dan Kildee (D-Flint Twp.).

“Under Scott Pruitt’s EPA, there’s lots of talk, but little action,” Kildee said in a release. “Time and time again, Administrator Pruitt has claimed he is working to address harmful contaminants in drinking water like PFAS or lead, but his EPA continues to kick the can down the road on taking any real action to protect American families. It’s long past time for the Trump Administration to get serious about updating outdated drinking water and cleanup standards to protect public health.”

Kildee started circulating an email petition to urge disclosure of the study, while Stabenow unleashed a fundraising email on the topic, which said in part, “Scott Pruitt’s EPA and Trump Administration officials purposefully hid a report on the dangers of PFAS chemicals from the public.” She called for Pruitt’s resignation.

The unreleased report also caught the attention of Rep. Winnie Brinks (D-Grand Rapids), considering the PFAS concerns tied to Wolverine’s operations in west Michigan are close by.

She offered a resolution May 22 calling on the federal government to release it.

“Science should never be held hostage by special interest groups or by the politicians who are catering to them,” Brinks said in a statement. “Everyone in Michigan deserves to live free from the fear that our air and water is making them sick, but that won’t happen if scientific research is prevented from reaching the public.”

While those agitating haven’t gotten a report, they did get Pruitt and the EPA, hosting a “national leadership summit” in Washington, D.C., on the topic late in May.

It was there that the state’s PFAS Action Response Team set up by Gov. Rick Snyder called on federal officials to move forward with additional research and rulemaking on the contaminants, according to a press release issued by the Michigan Department of Environmental Quality.

“Today, we’re calling on EPA to move forward with additional research and rulemaking on PFAS, so we have sound science and clear regulations from which to continue our mission of protecting people and the environment from this emerging contaminant,” said DEQ Director Heidi Grether.

And the Michigan League of Conservation Voters, citing “continued inaction” at the federal level, implored state and local officials to “protect the 14 communities across Michigan grappling with PFAS contamination.”


Pediatrician Says Wells’ Action Helped State ‘Change Course’ In Water Crisis

A Flint doctor whose research helped expose the lead contamination crisis in Flint’s drinking water said it was the chief medical executive’s work that moved state officials “to change course” in the water crisis.

Dr. Mona Hanna-Attisha, a pediatrician with Hurley Medical Center and Michigan State University, said Dr. Eden Wells’ phone call to her in October 2015 got the state to relook at its results—which contradicted the doctor’s research—of lead blood levels in Flint’s children.

“It was her phone call and I think what she did at the state level to re-look at the data . . . that really got them to change course,” the doctor testified April 24 at day 15 of Wells’ preliminary examination. “I’m grateful she was able to look at the data and to realize we did have a problem. If not for her action, I think it, the attacks and denials, would have gone on much longer.”

Hanna-Attisha summed up Flint’s situation rather succinctly: “Flint had no democracy; money was the bottom line.”

Wells is charged with involuntary manslaughter, lying to a special police agent and obstruction of justice in connection with the legionnaires’ disease outbreaks that killed 12 people and sickened nearly 80 more.

Special Prosecutor Todd Flood called the state’s last witness when Wayne State University associate professor Dr. Paul Kilgore was released from the stand April 24. He said the state would rest its case against Wells if the defense agreed to documents he wants to enter as evidence.

After a break, Flood and defense attorney Steve Tramontin announced they reached an agreement on some of the documents, but not two, including an executive order about Wells.

Flood was expected to report how he would proceed on April 25 when the hearing continues with testimony from defense witnesses, including Dr. Jeffrey Band, former chief of infectious disease at Beaumont Hospital in Royal Oak.

The defense called Hanna-Attisha to the stand Tuesday and Tramontin wasted little time in getting to the point as he asked her what inspired her to look into the Flint lead issue.

Hanna-Attisha said her family was hanging out with a friend’s family when the friend, who worked for the U.S. Environmental Protection Agency, explained that corrosion control wasn’t being used in the Flint River and that could mean lead was in the water.

“That was the very first time, at my house, glass of wine in my hand that I heard lead in the water,” she said. “It’s already a form of environmental injustice; our kids in Flint already had higher lead levels and when I heard there was lead, I was kind of freaking out.”

Until that moment, the doctor said, she had heard the state’s reassurance that “everything was OK” and she believed it—until she heard there was lead in the water.

Concern propelled Hanna-Attisha to act and she contacted county health officials who told her water wasn’t their jurisdiction. She tried state officials, but she said she was “meeting road blocks at every level of government.”

The doctor then examined a small sample of Hurley patient records and saw an increase in the number of children with elevated lead levels. However, her sample was too small for scientific certainty so she expanded her sample size, which validated her prior results.

On Sept. 24, 2015, Hanna-Attisha held a press conference at Hurley hospital where she announced her results and urged people to take caution, especially those vulnerable to bacteria, such as the elderly with other health issues and children.

Hanna-Attisha said she was “happy” following the press conference, which she called “awesome,” because finally information was getting to the public, but it was a short-lived feeling.

“Quite quickly, I was attacked by the state,” she testified, specifically calling out former Michigan Department of Environmental Quality spokesman Brad Wurfel, who called the doctor’s work “unfortunate.”

Wurfel, who resigned in December 2015, later apologized for the remark.

Hanna-Attisha also said she was “attacked by several” departments, including the governor’s office, DHHS and MDEQ, but she and the hospital “fought back because we knew our science was right.”

And, it was Wells, the doctor said, who helped, in part by providing the data Hanna-Attisha had requested, but hadn’t received.

“I always found her to be responsive and if she didn’t know something she’d try to connect me to people who did,” Hanna-Attisha said. “I felt she was professional and responsive . . . She takes her work seriously. We’ve been able to do great things for kids throughout the state because of post Flint work.”

On cross examination, Flood, thanked Hanna-Attisha for “standing to make a wrong a right,” said even if Wells was helpful, at the end of the day she did nothing to stop what was happening with Flint’s water.

“Do you hear sirens, boots and the Department of Health coming here to solve the issue immediately?” Flood asked.

Hanna-Attisha replied: “It should have never gotten to that point. It should have stopped when that first mom raised the water bottle.”

As Flood attempted to get Hanna-Attisha to point the finger at Wells, she instead pointed it at herself, saying she should have seen it earlier and that the medical community was “by and large late to get involved” and she wished she had done so earlier.

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

As Proton Centers Struggle, A Sign Of A Health Care Bubble?

The Maryland Proton Treatment Center chose “Survivor” as the theme for its grand opening in 2016, invoking the reality-TV show’s tropical sets with its own Tiki torches, palm trees and thatched booths piled with pineapples and bananas.

It was the perfect motif for a facility dedicated to fighting cancer. Jeff Probst, host of CBS’ “Survivor,” greeted guests via video from a Fiji beach.

But behind the scenes, the $200 million center’s own survival was less than certain. Insurers were hesitating to cover procedures at the Baltimore facility, affiliated with the University of Maryland Medical Center. The private investors who developed the machine had badly overestimated the number of patients it could attract. Bankers would soon be owed repayment of a $170 million loan.

Only two years after it opened, the center is enduring a painful restructuring with investors poised for huge losses. It has never made money, although it has ample cash to finance operations, said Jason Pappas, its acting CEO since November. Last year it lost more than $1 million, he said.

Volume projections were “north” of the current rate of about 85 patients per day, Pappas said. How far north? “Upper Canada,” he said.

For years, health systems rushed enthusiastically into expensive medical technologies such as proton beam centers, robotic surgery devices and laser scalpels — potential cash cows in the one economic sector that was reliably growing. Developers got easy financing to purchase the latest multimillion-dollar machine, confident of generous reimbursement.

There are now 27 proton beam units in the United States, up from about half a dozen a decade ago. More than 20 more are either under construction or in development.

But now that employers, insurers and government seem determined to curb growth in health care spending and to combat overcharges and wasteful procedures, such bets are less of a sure thing.

The problem is that the rollicking business of new medical machines often ignored or outpaced the science: Little research has shown that proton beam therapy reduces side effects or improves survival for common cancers compared with much cheaper, traditional treatment.

If the dot-com bubble and the housing bubble marked previous decades, something of a medical-equipment bubble may be showing itself now. And proton beam machines could become the first casualty.

“The biggest problem these guys have is extra capacity. They don’t have enough patients to fill the rooms” at many proton centers, said Dr. Peter Johnstone, who was CEO of a proton facility at Indiana University before it closed in 2014 and has published research on the industry. At that operation, he said, “we began to see that simply having a proton center didn’t mean people would come.”

Sometimes occupying as much space as a Walmart store and costing enough money to build a dozen elementary schools, the facilities zap cancer with beams of subatomic proton particles instead of conventional radiation. The treatment, which can cost $48,000 or more, affects surrounding tissue less than traditional radiation does because its beams stop at a tumor rather than passing through. But evidence is sparse that this matters.

And so, except in cases of childhood cancer or tumors near sensitive organs such as eyes, commercial insurers have largely balked at paying for proton therapy.

“Something that gets you the same clinical outcomes at a higher price is called inefficient,” said Dr. Ezekiel Emanuel, a health policy professor at the University of Pennsylvania and a longtime critic of the proton-center boom. “If investors have tried to make money off the inefficiency, I don’t think we should be upset that they’re losing money on it.”

Investors backing a surge of new facilities starting in 2009 counted on insurers approving proton therapy not just for children, but also for common adult tumors, especially prostate cancer. In many cases, nonprofit health systems such as Maryland’s partnered with for-profit investors seeking high returns.

Companies marketed proton machines under the assumption that advertising, doctors and insurers would ensure steady business involving patients with a wide variety of cancers. But the dollars haven’t flowed in as expected.

Indiana University’s center became the first proton-therapy facility to close following the investment boom, in 2014. An abandoned proton project in Dallas is in bankruptcy court.

California Protons, formerly associated with Scripps Health in San Diego, landed in bankruptcy last year.

A number of others, including Maryland’s, have missed financial targets or are hemorrhaging money, according to industry analysts, financial documents and interviews with executives.

“In any industry that’s really an emerging industry, you often have people who enter the business with over-exuberant expectations,” said Scott Warwick, executive director of the National Association for Proton Therapy. “I think maybe that’s what went on with some of the centers. They thought the technology would grow faster than it has.”

In the absence of evidence showing protons produce better outcomes for prostate, lung or breast cancer, “commercial insurers are just not reimbursing” for these more common tumors, said Brandon Henry, a medical device analyst for RBC Capital Markets.

The rebellion by private insurers “is very, very good” and may signal the health system “is finally figuring out how to say no to low-value procedures,” said Amitabh Chandra, a Harvard health policy professor who has called proton facilities unaffordable “Death Stars.”

Proton centers are fighting back, enlisting patients, legislators and nonprofits to push for reimbursement. Oklahoma has passed and Virginia has considered legislation to effectively require insurers to cover proton therapy in more cases.

To make the finances work, hospitals are combining forces. The first proton beam center in New York City is under construction, a joint project of Memorial Sloan Kettering, Mount Sinai and Montefiore Health System.

Smaller facilities, which can cost less than $50 million, should be able to keep their rooms full in many major metro areas, said Prakash Ramani, a senior vice president at Loop Capital, which is helping develop such projects in Alabama, Florida and elsewhere.

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. https://khn.org/


Budget Only Pays DHHS Officials’ Wages If Feds Approve Medicaid Waiver

Department of Health and Human Services Director Nick Lyon and his fellow unclassified employees would only be paid next year if the feds approve Michigan’s Medicaid expansion waiver as Republican lawmakers argue it was written, according to a Senate subcommittee spending plan approved April 17.

Sen. Mike Shirkey (R-Clarklake) and DHHS Subcommittee Chair Peter MacGregor (R-Rockford) argue the “Healthy Michigan” waivers the federal government approved do not reflect 2013 law that requires beneficiaries to pay more in co-pays and annual premiums after four years on the program.

SB 0856 puts a firm four-year cap on the Healthy Michigan program and withholds unclassified employees’ salaries unless the program that expands Medicaid to those between 100 and 133 percent of the federal poverty line follows expanded requirements.

And if Lyon and his top lieutenants don’t make that happen, $294,000 in their salaries and wages doesn’t get appropriated.

“Sometimes departments need motivation in making sure we get the best product out,” MacGregor said.

MacGregor added that he anticipates further discussion with the administration, but as he sees it, the federal waivers that allowed for the creation of Healthy Michigan doesn’t follow the state law Republicans passed. Either the law has to change, the waiver has to change, or both.

In the meantime, Sen. Curtis Hertel Jr. (D-East Lansing) said passing the Senate DHHS Appropriations Subcommittee would effectively kick 10,000 Healthy Michigan recipients off the program and onto the exchange. Such a move would be a $60 million ($4 million General Fund) savings.

“You’re cutting them off health care is what you’re doing,” Hertel said.

Lyon attended the subcommittee hearing and had a lengthy chat with Shirkey after the Fiscal Year 2019 budget passed to the full Senate Appropriations Committee. Afterward, Lyon noted that this is the “opening round.”

“We have an approved waiver in place and there’s always room for improvement and negotiations,” Lyon said.

The budget is $123 million ($25 million General Fund) below the governor’s recommendation, but much of the reduction is based on a substantial drop in various caseload adjustments.

Other highlights from the $4.5 billion spending plan included:

– Another $10 million for local health departments to respond to public health threats

– The restoration of $8 million to counties the Governor had recommended cutting

– A $3 million increase for Centers for Independent Livings

– Another $3 million for aging community services

– A rejection of the governor’s $2-a-month rate increase for the Family Independence rate

– A requirement that certain new autism cases only qualify for state funding if the patient receives a second opinion.

Shirkey Looks To Align Medicaid, Food Stamp Work Requirements

After 16 years of waivers, the entire state of Michigan is expected to join other states in October by requiring able-bodied food stamp recipients work at least 20 hours a week, go through at least 20 hours of work training or volunteer to keep the benefit.

The Department of Health and Human Services announced this federal requirement is expected to go on line for the non-disabled between age 18 and 49.

Kent, Oakland, Ottawa and a few other counties started work requirements for food stamp recipients last year, since their unemployment rate fell below the point where they no longer qualified for the waiver.

The Supplemental Nutrition Assistance Program (SNAP) requirement, put in place under former President George W. Bush, was frozen in time during President Barack Obama’s tenure under the argument that the Michigan’s unemployment rate was too high. But with a Republican back in the White House and Michigan’s unemployment rate down in the 4- to 5-percent range, the types of waivers the feds are accepting are narrowing and Michigan has run out of rope.

The development is particularly relevant now that Sen. Mike Shirkey’s (R-Clarklake) Medicaid work requirement bill, SB 0897, cleared the full Senate and received its first hearing in the House Appropriations Committee May 2.

Buried inside the bill is a requirement that the upcoming food stamp-to-work program requirements mirror the reporting requirements for Medicaid recipients. The two social welfare programs would run parallel to one another with likely overlap as far as the recipients, or at least that is what Shirkey is envisioning.

One item that has not been changed yet is the 29-hour work requirement work requirement in Shirkey’s bill. The food stamp work requirement is 20 hours and the expectation is that Shirkey’s bill will be pared back to match that number.

Shirkey conceded to MIRS there would be some “bending” on the number of hours able-bodied recipients would have to work to maintain their benefits and he sees some “tweaking” of the language dealing with exemptions. Other than that, he said, there are no major outstanding roadblocks left.”

Mary Mayhew, senior fellow for the Opportunity Solutions Project and a leading contender to be the next governor of Maine, spoke to the Medicaid/food stamp connection between the two programs in today’s written remarks to the House Appropriations Committee.

“Before we can implement work requirements for able-bodied parents on Medicaid, we need to once and for all fully restore the work requirements for childless, able-bodied adults on food stamps/SNAP as a matter of basic fairness,” Mayhew said. “Michigan has been on a voluntary 16-year-old waiver of the federal SNAP work requirement. If this waiver were a person, it would be old enough to drive.”

Rep. Kim Lasata (R-Berrien Springs) has legislation, HB 5368, which makes the food stamp work requirement permanent with no more waivers.

Shirkey and other advocates see overlap between the two programs. If an able-bodied resident needs to work 20 hours to keep his or her food stamps, what is the big deal about working 20 hours to keep his or her Medicaid?

Gilda Jacobs, CEO of the Michigan League for Health Policy, doesn’t buy the argument there is much overlap. A Michigan resident could be on Medicaid for a variety of reasons, but not qualify for food stamps or need food stamps, she said. Also, there’s a cap on food assistance that is not applicable for the federal health care program.

“If you have a chronic disease, you have a chronic disease,” she said. “You can’t cap it. So, these are two different things that we’re talking about. I think you need to bifurcate these two issues, look at them separately.”

One of the more notable developments in the May 2 House Appropriations Committee meeting on SB 0897 was the appearance of Rep. Lee Chatfield (R-Levering) alongside Shirkey at the testimony table. Chatfield, like Shirkey, is the presumed next Republican leader of his chamber’s caucus.

Together, they presented a powerful message that this is something the Republican majority is serious about pushing before year’s end, at the latest.

“Sen. Shirkey and I have been in conversations about this for the last several months,” Chatfield said. “I have double blue-backed a bill with him and offered my assistance once his bill made it to our chamber.

“When you’re talking about the economy of our state and growing our workforce, it needs to be No. 1 in importance. It’s one of the chief way of accomplishing and continuing the comeback of our state.”

Shirkey told MIRS he has “no concerns” about being able to work with Gov. Rick Snyder on the remaining few issues he wants resolved in order to move the package.

“He’s not signed off on the legislation, but he has absolutely signed off with a commitment to get something done,” Shirkey reported, adding, “I’m very confident with my working relationship with our governor. This is of no concern to me whatsoever.”

Shirkey also said he thinks the governor wants to see the final numbers on the administrative costs associated with the jobs program. With the House Fiscal Agency pegging it at between $25 and $45 million he observed, “If we are even partly successful,” that will pump an additional $1 to $2 billion “into new economic activity into state coffers,” which far exceeds the cost to the state.

Jacobs said she thinks the GOP effort is driven by stereotypes and election year politics.

“There continues to be the stereotype that people who are on assistance are sitting at home watching TV and collecting benefits (and) it’s also an election year. People want to go home and say, ‘I moved people off their benefits’ . . . This is ideologically driven.”

Rep. Fred Durhal III (D-Detroit) added another wrinkle to the alleged GOP motivation, claiming it’s part of a “back door” effort to eliminate what’s left of the Affordable Care Act.

“This is another hidden agenda to put a knife into the ACA a.k.a. Obamacare because they failed at the federal level to do it” and now they have moved to the states to finish the job.

While Shirkey argued he is doing this to save the Medicaid expansion program Healthy Michigan, Durhal responded “those bills do nothing to save Healthy Michigan.”

House Appropriations Committee Chair Rep. Laura Cox (R-Livonia) explained the committee did not vote today because “we’re going to work to see if we can make this bill perfect enough for the governor to sign.”

Asked about the list of more than 20 social safety-net groups opposed to the legislation, with some saying it will hurt the poor, the Chair countered, “That’s not the intent of the bills and you know that.”

Lawsuit Claims DHHS Unconstitutionally Confines People In Psychiatric Hospitals

Two Michigan residents filed a federal lawsuit May 2 alleging the state’s Department of Health and Human Services and its psychiatrists and contractors kept them institutionalized rather than providing alternative appropriate treatment.

The lawsuit, filed in U.S. District Court on behalf of Darryl Pelichet and Bonn Washington, alleges DHHS “filed petitions for continuing treatment orders that were facially invalid and presented false or misleading testimony to Probate Court.”

It also alleges that DHHS’ policy to automatically file a petition in probate court for one year of involuntary hospitalization for every person who is found not guilty by reason of insanity has “caused an unknown number of Michigan residents, including plaintiffs, to spend years of their lives unnecessarily and unconstitutionally confined in state-operated psychiatric hospitals.”

DHHS spokesman Bob Wheaton said the department hadn’t seen the lawsuit as of late on the afternoon of May 3 and they do not generally comment on pending litigation.

Pelichet, 38, who has been diagnosed with schizoaffective disorder, was 24 when he punched a Farmington police officer during an acute psychotic episode.

Washington, 43, also has been diagnosed with schizoaffective disorder. In 2005, he assaulted a Washtenaw County sheriff’s deputy during a psychotic episode after new medication exacerbated his symptoms.

Both men were found not guilty of their individual crimes by reason of insanity and both were committed to the Center for Forensic Psychiatry for treatment.

Both Pelichet and Washington have responded to medications and both were eventually placed on “authorized leave status,” which allowed them to leave the Center, according to the court filing.

At various moments in their lives, however, DHHS petitioned the courts to re-hospitalize Pelichet and Washington for violating their contracts—which essentially placed them on probation or parole-like conditions—for testing positive for marijuana.

The court filing alleges both men were confined at a psychiatric hospital with “little-to-no” substance abuse treatment.

The court filing also alleges psychologist Charles Stern, who was an independent contractor with Walter P. Reuther Psychiatric Hospital, falsely testified that Pelichet refused to take his psychiatric medication and that he had been violent during his admission to the hospital.

A subsequent Office of Recipient Rights’ investigation confirmed Stern made “incorrect and misleading” statements, the court filing shows.

DHHS again filed a petition seeking to hospitalize Pelichet in October, but he successfully fought that order when a jury took less than 30 minutes to reject the petition.

In addition to Stern, the defendants listed included: DHHS Director Nick Lyon and Walter P. Reuther Psychiatric Hospital staff including director of psychology Lisa Medoff, director of social work Laurie Albert, chief of clinical affairs Hanumaiah Bandla, hospital director Mary Clare Solky and psychiatrist Aruna Bavineni.

Defendants also include seven members of the Center’s “NGRI Committee” and contractors Hegira Programs Inc. and Carelink Network Inc.

Physicians Pointing To Unintended Consequences In Sex Assault Reform Bills

Doctors might avoid certain exams if they become concerned those procedures could be confused with sexual assault, physicians told the House Law and Justice Committee April 24 as it continued its hearings on a series of sexual abuse reforms in the wake of the Larry Nassar case.

That could result in delayed treatment or unnecessary trips to specialists.

Family physicians are perfectly well trained to conduct pelvic exams, Dr. Betty Chu, president-elect of the Michigan State Medical Society, told the committee. But if they become uncomfortable conducting the procedure, they might send a patient to an obstetrician.

A doctor uncomfortable performing a rectal exam might send a youngster with stomach pain to the emergency room, where that same patient may wait several hours to be seen, Kalamazoo physician Dr. Glenn Dregansky told the committee. “That is something we would like to avoid,” he said.

“It frightens me that I could make a documentation error and face a felony,” Dregansky said. He pointed out that a failure to keep good records already is considered a violation of professional standards.

“I’m opposed to the whole criminalization of your record keeping. I think it is inane. I think it is stupid. And the criminalization of doctors for a failure to keep records is incredible to me,” said Rep. Rose Mary Robinson (D-Detroit).

The discussion was about bills that were on the agenda as the committee is working its way through a long series of bills regarding sexual assault reform.

But the doctors aren’t avoiding the issue.

“To your question, how do we prevent another Larry Nassar? I really don’t know, but he was a medical care provider. He was a physician. So, in my own opinion, I believe it is incumbent upon the medical profession to come up with some good ideas how to prevent that,” Traverse City pediatrician Dr. Robert Sprunk told the committee.

The committee took up three bills, HB 5539, which would add sexual assault and rape in to the OK2Say program and HB 5785 by Rep. Kim Lasata (R-St. Joseph), to add instruction about what constitutes sexual assault or dating violence into sex education program in public schools.

“From September 2014 to December 2017, OK2Say received a total of 10,734 tips. Of that total, 323 had been regarding sexting, 227 for sexual misconduct, 91 for sexual assault, and 82 for dating violence. So why specifically include sexual abuse, assault or rape? Because one in four girls and one in six boys will be sexually abused before they turn 18. Yet sexual assault and sexual misconduct combined represented less than 3 percent of the tips in 2014. And statistics show only 12 percent of child sexual abuse is ever reported to authorities,” LaSata told the committee.

Having sex education programs is optional in public school districts, but if they have it in the curriculum, they would have to include instruction on what a healthy relationship looks like.

That brought an objection from Rep. Martin Howrylak (R-Troy) and a tense exchange.

He said his family doesn’t believe in sex outside marriage, and if the instruction about what constitutes a healthy relationship contradicts that, it would violate a parent’s right to raise his child as he decides. LaSata countered that there is an opt-out clause in the bill.

Howrylak: “I understand that, but if I’m not fully aware of exactly what is being taught, ex post facto, I can’t tell the kid . . .

LaSata: “That is up to your school district. Do you know what is taught now in your school?”

Howrylak: “I’m telling you that you are adding something in here with my tax dollars that potentially can be in violation of what I believe is morally right.”

LaSata: “Then opt out.”

Howrylak: “Then don’t take my tax dollars. I’m asking you to fix your bill and stop arguing with me.”

LaSata: “Maybe you could send your kid to a parochial school.”

Rep. Stephanie Chang’s (D-Detroit) HB 5791 would require the Michigan Department of Education to develop age-appropriate information for school districts about how to recognize sexual assault, explain assault is not the victim’s fault, and explain what assistance is available and what actions victims can take. Chang said her bill is similar too, but different from those offered by LaSata.

Emma Ann Miller, a 15-year-old survivor of the Michigan State University scandal, testified in support of the bill.

“This legislation will hopefully not only give others a voice, it will educate them on what to say. It isn’t enough to have a voice, to have an opportunity to speak,” Miller said. “Simply accusing someone of sexual assault won’t be enough to garner action. One would think that it would. One would think that an accusation of sexual assault by a child would, or should, get a reaction like yelling fire in a crowded theater. But we know that isn’t true. We know from history that a child who accuses an adult of sexual assault will be a called a liar and many other worse things.”

Robinson noted to Chang that her bill addresses the victims of assault, but it doesn’t address the real problem, the predators.

Chang countered that she believed it would be problematic to try to identify potential perpetrators.

“We are not trying to address the real problem, the real elephant in the room. What do we know about the make-up of sexual predators? What triggers? Is it childhood abuse on the predator? Is it the environment? Is it genetic? Is it a chemical imbalance? None of these bills address what the real problem is. Everybody’s upset about Nassar, but who is Nassar? How did he become the monster? How did he become the person he became?” Robinson said.

Rep. Klint Kesto (R-Commerce Twp.), chair of Law and Justice, said the committee would be back at it Wednesday in a hearing after House session, the committee’s fourth hearing on the package in two weeks.

Lansing Lines is a cooperative feature presented by MIRS, a Lansing-based news and information service and Healthcare Michigan.

ON POINT WITH POs: On Upstreamists And Pharmacists, In The Continuing Conversation On #SDOH

I’m still not done talking about the Social Determinants of Health (#SDOH). On the contrary, I’m fired up even further after the April 18 gathering at Oakland University for the conference MedNetOne Health Solutions co-presented with the Oakland University School of Health Sciences: Better Upstream Health for Better Downstream Care.

Approximately 170 kindred spirits and current and future upstreamists gathered for a full day of discussing how Michiganders can take aim at some of the key drivers of poor health by supporting (and funding) activities that mitigate negative social realities earlier in the game. An example I like to use is an individual with Type 2 diabetes whose social determinants are few economic resources, inability to purchase testing supplies and insulin, limited access to affordable, healthy food and fractured or non-existent personal support systems. Upstreamists would be called in (and reimbursed) for efforts that work to prevent the sometimes deadly and often costly disease. More intervention is needed before a crisis hits –although I’d argue the crisis is already here.

Speaking of diabetes, this offers me another opportunity to turn the conversation to one of my favorite professions on the health care continuum – pharmacists. If you’ve read this blog with any regularity, you know I believe that pharmacists play a pivotal, and too often undervalued, role in patient care. I had the privilege of recently providing #SDOH training to 25 pharmacists who came from as far away as Muskegon to be part of the solution. They and their pharmacy colleagues are our boots on the ground, the upstreamists who invented the term without knowing it just by virtue of their role as a trusted, in-person or telephonic source for healthcare questions. They see individuals who receive their medications (many of which are for diabetes, asthma, hypertension) in traditional settings (rather than via the mail) and can often gauge general health and wellness through one on one conversation. We need them – and you – in our #SDOH community of professionals. They should be recognized as providers, but that’s a topic for another blog.

Someone asked me a few days after the #SDOH conference what my biggest take-aways were. Besides being invited to travel to Ireland and meet with healthcare leaders there by conference presenter Paul Grundy MD, MPH, (I had to decline the invitation), I want to revisit an idea presented by our conference keynote, Rishi Manchanda, MD, MPH. Rishi is a public health innovator who has worked in South Central Los Angeles and advocates for incorporating #SDOH into primary care. He shared his Upstream Strategy 3×3™, which is a quick matrix of solution strategies for #SDOH issues. The first (3) is the three levels of prevention: primary prevention, secondary prevention and tertiary prevention. The second (3) in the 3×3 is 1. Mapping clinical and community needs and resources. 2. Identifying interventions to improve care and health-related social needs for priority populations (example: diabetes and food insecurity) and 3. Choosing clinical-community partnerships to implement early win interventions. A matrix is not a solution but, in this case, it is a roadmap for where and when various upstreamist individuals and organizations can enter into the upstreamist intervention role. Let me know if you’d like a copy of the slide.

The engagement of the #SDOH conference is continuing through monthly conference calls among conference participants to exchange information and ideas. It’s spearheaded by MedNetOne; I’m telling you this not only because I want you to have access to upstreamists and their ideas –but because I want you to be part of the solution as well. And, in all honestly, because I want to be held accountable for keeping the momentum going to tackle #SDOH issues in Michigan. Your help – and watchful eye – would be much appreciated. If you want to be part of Michigan’s fledgling upstreamist community network, contact me at ematuszewski@mednetone.net

COMPLIANCE CORNER: Data Bank Guidebook Changes Lead To Increased Reporting

Wachler & Associates, P.C.

Hospitals have long been required to file a National Practitioner Data Bank (Data Bank) report on any health care provider’s voluntary surrender of clinical privileges if an investigation is underway or to avoid an investigation. In practice, the number of such cases that were reported was limited by the uncertainty and lack of sufficient guidance regarding which specific activities qualify as an “investigation” and when such an investigation officially commenced. However, the new adoption by the revised Data Bank Guidebook of an expanded description of what qualifies as a reportable investigation has resulted in increased reporting.

By way of background, the Data Bank is an alert system that collects and discloses certain adverse information about physicians and other health care providers. An adverse report to the Data Bank can significantly impact a health care provider’s reputation and career. State licensing authorities, hospitals and other health care entities, and professional societies search the Data Bank when investigating qualifications. A response that contains an adverse report can act as a permanent black mark and result in a denial of credentialing, loss or limitation of hospital privileges, loss or limitation of licensure, exclusion from participation in health plans, and increases in premiums or exclusion from professional liability insurance.

A Data Bank Guidebook is published to serves as a policy manual providing guidance to users on topics such as eligibility, querying and reporting requirements, and the dispute process. It was most recently revised in 2015, in part, to clear up any uncertainly regarding reporting requirements, including what constitutes an “investigation” and when one has commenced. According to the revised Data Bank Guidebook, the “[Data Bank] interprets the word ‘investigation’ expansively.” More specifically, it provides that “an investigation is not limited to a health care entity’s gathering of facts. An investigation begins as soon as the health care entity begins an inquiry and does not end until the health care entity’s decision-making authority takes a final action or makes a decision to not further pursue the matter.” However, the revised Guidebook does not provide a definition of the term “inquiry” or other sufficient guidance to clear up the ambiguity regarding the trigger event for an investigation. Nevertheless, this is a substantial departure from the previous interpretation as the purpose is to expand the description of what constitutes an “investigation” and a reportable surrender of privileges resulting in increased reporting.

Avoiding a Data Bank report is a central concern for many health care providers as a report can have serious professional and financial repercussions. As a result, hospitals and health care providers alike must become familiar with the expanded reporting requirements found in the revised Data Bank Guidebook to help understand when a report is required and how, if possible, one can appropriately be avoided. For additional information or assistance, contact Jesse A. Markos, Esq., of Wachler & Associates, P.C., at (248) 544-0888.

IN MEMORIAM: Heaven Hails ‘Handrail Harry’

Tim Bannister was a fun guy to have known. He even had a funny handle, “Handrail Harry,” based on his given name, Harry Bannister, and a play on words with bannister. In typical quirky fashion, “Tim” was also a nickname, the origin of which I never found out. He died April 9.

During the years I knew Tim, I often wished we were closer in age (he was 20-plus years my senior). I think given more time we would have had a blast serving clients, sharing ideas and enjoying our friendship.

I was regularly dosed with a small sample of that wished-for parity. Every client we met, including our last shortly before Tim’s death, placed him in his 50s. He was fit and looked healthy and bright-eyed, but he didn’t look particularly young. It was the energy and optimism he radiated that backdated Tim’s chronological age.

He never failed to greet me with a hearty, “Paulie, my boy!” whenever we met or talked on the phone. Even our final conversation began that way, although it quickly became apparent that was the extent of the energy he could muster.

Tim and I worked together for seven or so years, after a mutual friend brought him into a promotional project we were working on. A year or so after I bought this newspaper, Tim joined me as a business partner and handled advertising sales and business development roles. We had begun to expand and promote our services to a variety of clients and I often asked Tim to deliver tough news. Although I joked that he was much nicer than I was and people liked him better, it was true.

And so I’ll miss that creative synergy we had and projects that might have been. But I’ll miss most Tim’s warm friendship and the zest for life that buzzed and crackled off of him like a current.

Tim was a mentor to me, more personally than professionally. He rode a motorcycle and owned an inn. He ran for the county commission in his adopted hometown of Frankfort. He soldiered through his battle with cancer with grace and dignity. He wrote a column for our newspaper chronicling his experiences in treatment. He dealt with the indignities of a brutal disease without sacrificing his optimism and humanity.

He was a character, to be sure. I invited him over one Thanksgiving and he jetted off to connect with his girlfriend before we even got to dinner. If it were anyone else, I would have been offended. One Christmas he sent me drumsticks with little speakers in them, so when you tapped them on a hard surface they made amplified drum noises. He sent me offbeat political postcards. He got away with saying some off the wall things in conversations without offending.

Tim beat the first round of cancer, and I thought he would beat this latest round. We were exchanging emails and calls during that last week. I had seen Tim tired and weak during previous treatments and expected him to come back from this latest round with characteristic force of will.

Although I only knew Tim a few years, it felt like a lot more. Perhaps the saddest thing about Tim’s passing is that he would have made the most of extra years, and they would have been fun.

Rest well, my friend.

—Paul Natinsky

LEGAL LEANINGS: The Strength Of Cultural Competence

A 2017 Medscape survey indicated that over half of responding doctors had been sued for malpractice. The number one reason? Failure to diagnose a medical condition, given by 31 percent of respondents. Nearly half of doctors surveyed who were sued for malpractice spent between 11 and 50 hours in court, meetings with lawyers, or in other legal proceedings. And almost half of those surveyed stated that there was no triggering event and that they were taken by surprise by the malpractice claim.

Studies published in the Journal of the American Medicine Association, Lancet, and the Archives of Internal Medicine delved into the mindset of patients who filed malpractice claims using various methods, including questionnaires, deposition transcripts, and phone surveys. Four primary reasons emerged: 1) prevention of similar incidents in the future; 2) a desire for an explanation about a harmful incident; 3) financial renumeration for pain, loss, and/or suffering or to offset future care expenses; and 4) the need to hold a doctor accountable.

At the root cause of many of these malpractice claims is a breakdown in the relationship between the physician and the patient—typically due to problems with communication. Patients complained that doctors failed to listen to them, were not clear or open in their discussions, were dismissive of the patient’s or family’s perspective, and showed a lack of understanding for their concerns. The unifying theme that emerges from these dissatisfied patients is communication—the most crucial aspect of the interaction and relationship between doctor and patient. The researchers emphasized that if a relationship characterized by both trust and respect was initially established between patient and doctor, that patient was far less likely to sue—despite a doctor’s error in treating that patient.

The first step toward improving communication between doctors and patients is to determine which barriers might stand in the way. One such barrier is the challenge many doctors face in navigating cultural and societal differences among their patient populations. Michigan, like the rest of the United States, is rapidly diversifying. The U.S. Census Bureau reports that approximately 25 percent of Michigan’s population are persons of color. Almost 7 percent of Michigan residents are immigrants, whose top five countries of origin are Mexico, India, Iraq, China and Canada. And a recent Gallup poll indicates that 10 million Americans, or 4.1 percent of the population, identify as gay, lesbian, bisexual, or transgender.

So what can physicians do to strengthen their doctor-patient relationships and avoid malpractice claims? A starting point is to develop cultural competence, often defined as a set of knowledge, behaviors, attitudes, and policies that enable effective work in a cross-cultural environment. Here, culture is defined broadly to include the customs, beliefs, language, and perspectives of racial, ethnic, social, and religious groups. A culturally competent physician has the ability to work effectively within the particular context of a patient’s cultural practices, beliefs, and needs.

Prioritizing the development of cultural competence can improve communication across cultures. Research by the Commonwealth Fund and the Office of Minority Health demonstrates that training and education in cultural competence increases the quality of care provided to diverse populations. These outcomes show that a commitment to cultural competence training is well worth the investment. Taking initial steps toward developing or enhancing cultural competence does not have be overwhelming or intimidating. The following are a few ways that practitioners can begin to develop these skills:

1. Recognize and reflect upon one’s own cultural background. Our own assumptions, norms, and beliefs are as familiar as the air we breathe. But failing to recognize and gain awareness of our own background and assumptions makes it more difficult to recognize that patients arrive with their own. Take time to reflect upon your own background and culture and the ways in which they determine your perspective and norms.

2. Resist stereotyping. Making assumptions based on a patient’s culture or background prevents a physician from seeing that patient as an individual and developing a relationship based on trust and respect. Become aware of the expectations you may have that are based on background and culture.

3. Practice active listening. Cultural differences can make communication more difficult. Practicing active listening is an effective tool to ensure understanding and promote trust. Active listening is characterized by nonverbal signs that show engagement, as well as speech characterized by questioning, clarifying understanding, and summarizing.

4. Gain knowledge. Who are your patients? Learning about the populations that you serve and their needs, beliefs, and practices is invaluable information. Consider translating forms and having translation services available.

Developing cultural competence is a step toward improving not only communication with patients and delivery of health care services, but also preventing malpractice claims and reducing health care disparities.With benefits like these, training and education in cultural competence is an investment well worth making.