Waiting area in a doctor's office

Churntables: A Look at the Record on Medicaid Redetermination Plans

By Cathy Zhang

The COVID-19 Public Health Emergency (PHE) expires at the end of this week, with Department of Health and Human Services (HHS) Secretary Xavier Becerra expected to renew the PHE once more to extend through mid-July.

When the PHE ultimately expires, this will also trigger the end of the Medicaid continuous enrollment requirement, under which states must provide continuous Medicaid coverage for enrollees through the end of the last month of the PHE in order to receive enhanced federal funding. This policy improves coverage and helps reduce churn, which is associated with poor health outcomes.

After the PHE, states can facilitate smooth transitions for those no longer eligible for Medicaid by taking advantage of the full 12- to 14- month period that the Centers for Medicare & Medicaid Services (CMS) has established for redetermining eligibility.

In August 2021, CMS released guidance giving states up to 12 months following the end of the PHE to redetermine whether Medicaid enrollees were still eligible and renew coverage. Last month, CMS released new guidance specifying that states must initiate redeterminations and renewals within 12 months of the PHE ending, but have up to 14 months to complete them. The agency is encouraging states to spread its renewals over the course of the full 12-month unwinding period, processing no more than 1/9th of their caseloads in a month, in order to reduce the risk of inappropriate terminations.

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Person in nursing home.

Struggles Over Care Will Shape the Future of Work

By Andrew Milne

The future of work will largely be the future of care work. Health care is rapidly becoming the largest employer in the U.S., expanding to serve the fastest growing demographic, aging seniors. As a lawyer for seniors in need of free legal services, I see my clients struggle to access care made scarce by the for-profit care industry’s understaffing and underpaying of workers attempting to meet the growing need. The future of work and of aging will be shaped by struggles over care from both giving and receiving ends, perhaps against those profiting in between.

Recall that the first COVID-19 outbreak in the U.S. spread between nursing homes. These facilities, like most nursing homes, are for-profit businesses that pad their margins by cutting labor costs. The resulting understaffing has deadly effects in normal times. The pandemic intensified those effects, as underpaid care workers, forced to work at multiple facilities to survive, unintentionally spread the virus between facilities.

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Empty nurses station in a hospital.

The AMA Can Help Fix the Health Care Shortages it Helped Create

By Leah Pierson

Recently, Derek Thompson pointed out in the Atlantic that the U.S. has adopted myriad policies that limit the supply of doctors despite the fact that there aren’t enough. And the maldistribution of physicians — with far too few pursuing primary care or working in rural areas — is arguably an even bigger problem.

The American Medical Association (AMA) bears substantial responsibility for the policies that led to physician shortages. Twenty years ago, the AMA lobbied for reducing the number of medical schools, capping federal funding for residencies, and cutting a quarter of all residency positions. Promoting these policies was a mistake, but an understandable one: the AMA believed an influential report that warned of an impending physician surplus. To its credit, in recent years, the AMA has largely reversed course. For instance, in 2019, the AMA urged Congress to remove the very caps on Medicare-funded residency slots it helped create.

But the AMA has held out in one important respect. It continues to lobby intensely against allowing other clinicians to perform tasks traditionally performed by physicians, commonly called “scope of practice” laws. Indeed, in 2020 and 2021, the AMA touted more advocacy efforts related to scope of practice that it did for any other issue — including COVID-19.

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Physical therapist helps person in wheelchair.

Balancing Patient Rights and Costs in Medical Malpractice Claims

By John Tingle and Amanda Cattini

The issue of the high and increasing costs of clinical negligence (medical malpractice) in the National Health Service (NHS) in England has long been a contentious one. There are common themes in the debate. The economic arguments supporting reform explain that the NHS is spending a considerable amount of money out of its health budget on malpractice claims, which otherwise could be put into front line health care services.  While the economic arguments are important, others contend that the patient’s voice must be heard more widely in the reform debate. They emphasize that it is important to look deeper as to what compensation means to victims of clinical negligence, and caution against unnecessarily fettering patients’ reasonable pursuit of claims.

Two recently published reports provide several key perspectives on these issues.

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DUQUE DE CAXIAS,(BRAZIL),MAY,20,2020: doctors take care of patients with covid-19 and an intensive care unit (ICU) at hospital são josé specialized in the treatment of covid-19.

A Novel Approach to Crisis Standards of Care

By Stephen Wood

The provision of scarce resources such as intensive care unit (ICU) beds, antivirals, and ventilators during this pandemic has been an ongoing topic of discussion. Repeatedly, states and hospital systems have considered implementing crisis standards of care, which establish triage protocols for scarce resources.

Though crisis standards of care are meant to provide an ethics-based approach to the complex process of allocating scarce health care resources, in reality, they fall short.

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Up close shot of an orange prison jumpsuit

Prison Health Care is Broken Under the Medicaid Inmate Exclusion Policy

By Sarah Wang

Incarcerated individuals need health care, but punitive policies make securing access to care particularly difficult among this population, which numbers about 2.1 million as of 2021.

As a first step to protecting incarcerated individuals’ right to health, Congress should repeal the Medicaid Inmate Exclusion Policy (MIEP).

The MIEP, established in 1965, prohibits Medicaid from covering incarcerated individuals, despite any prior eligibility. Through the MIEP, two populations are affected: first, jail inmates, defined as those convicted or accused of a crime, and second, prison inmates, defined as those convicted or awaiting trial. In other words, both convicted individuals and those still presumed innocent are stripped of their access to the federal health insurance program for low-income individuals.

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Field hospital in NY during COVID-19 pandemic.

Systemic Failures Need Systemic Solutions: COVID-19 and Macromedical Regulation

By Barak D. Richman and Steven L. Schwarcz

Among the many failures to mitigate the harm from COVID-19 in the U.S. has been the failure to meet surging demand for inpatient care. Hospital bed shortages, overwhelmed intensive care nurses, and scarcities of needed medical equipment have been embarrassing but constant features of the American health care landscape. A nation that spends nearly one out of every six dollars on health care should get much, much more for its money.

Though there is much blame to go around — and many insightful commentators have already allocated culpability — we observe that a significant regulatory deficiency has contributed to the nation’s failure to meet population health needs. This is the failure to regulate our hospitals holistically, as part of a comprehensive health care system.

Existing health care regulation focuses almost exclusively on regulating individual components of the health care industry. This existing regulation lacks the capacity to address how those components work together as a system — a system in which deficiencies in one component adversely impact the performance of the other components. We should not view hospitals as individual providers that treat individual patients. Instead, they are part of a larger safety net that needs to expand capacity when emergencies arise. Today’s pandemic destabilized hospital care because hospitals were neither coordinated nor managed systemically in order to meet population demands.

In Macromedical Regulation, 82 Ohio State Law Journal 727 (2021), we address the nation’s systemic failure to contain an infectious contagion, and we offer solutions by deriving lessons from the 2008 financial contagion. We contend that health care regulation must also include what we call “macromedical” regulation: regulation that focuses on protecting the stability of the health care sector as a system of interconnected parts.

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A male pharmacist is examining a drug from a pharmacy inventory.

HHS’ New Prescription Drug and Health Care Spending Rule

By Cathy Zhang

Today, the Department of Health and Human Services — alongside the Department of Labor, the Department of the Treasury, and the Office of Personnel Management — published an interim final rule requiring health insurance plans and issuers on the marketplace to report data on prescription drug and health care spending to the three Departments.

This rule is part of a series of rules issued by the Biden Administration to implement Title I (No Surprises Act) and Title II (Transparency) of the Consolidated Appropriations Act, 2021.

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Busy Nurse's Station In Modern Hospital

Call Your Senator and Help Give Doctors a Break

By Jacob Madden

Want to help make a big change for our nation’s overworked doctors? Call your senator and tell them to hire more.

In March of this year, Senators Robert Menendez (D-N.J.), John Boozman (R-Ark.), and Chuck Schumer (D-N.Y.) introduced S.834, the Resident Physician Shortage Reduction Act to confront the country’s growing shortage of doctors.

The proposed legislation will increase the number of resident physician positions supported by Medicare by 2,000 each year from 2023 to 2029, for a total of 14,000 newly supported positions.

This legislation could make a small but significant dent in the nation’s physician shortage. By 2034, the Association of American Medical Colleges expects a shortage ranging from 17,800 to 48,000 primary care physicians, and 21,000 to 77,100 non-primary care physicians. Take both worst-case scenarios, and we are short 125,100 doctors.

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Blister pack of pills, but instead of bills dollar bills are rolled up in the packaging

What Democrats’ Drug Pricing Plan Means for Consumers

By Cathy Zhang

At the start of the month, Democrats announced a new drug pricing plan, detailed in the House’s Build Back Better Act (H.R. 5376). In the immediate short term, the drug pricing plan has enabled the $1.75 trillion bill to go forward through the House. If ultimately enacted, it will generate savings for consumers, some more directly than others, and at a more modest pace and magnitude than many had hoped.

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