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Teaching Hospital Update - March 26-30, 2012


Email Alert

March 30, 2012

By Amy Kaufman*

Justices Meet Today to Vote on Healthcare Case

While the rest of us have to wait until June, the justices of the U.S. Supreme Court will know the likely outcome of the historic healthcare case by the time they go home this weekend.

After months of anticipation, thousands of pages of briefs, and more than six hours of arguments, the justices will vote on the fate of President Barack Obama's healthcare overhaul in under an hour Friday morning. They will meet in a wood-paneled conference room on the Court's main floor. No one else will be present.

In the weeks after this meeting, individual votes can change. Even who wins can change, as the justices read each other's draft opinions and dissents.

But today's vote, which each justice probably will record and many will keep for posterity, will be followed soon after by the assignment of a single justice to write a majority opinion, or in a case this complex, perhaps two or more justices to tackle different issues. That's where the hard work begins, with the clock ticking toward the end of the Court's work in early summer.

The late William Rehnquist, who was Chief Justice for nearly nineteen years, has written that the Court's conference "is not a bull session in which off-the-cuff reactions are traded." Instead, he said, votes are cast, one by one in order of seniority. The Friday conference also is not a debate, says Brian Fitzpatrick, a Vanderbilt University law professor who worked for Justice Antonin Scalia ten years ago. There will be plenty of time for the back-and-forth in dueling opinions that could follow.

Mark Sherman, Justices Meet Friday to Vote on Healthcare Case, Boston Globe (March 29, 2012).

Study: Pay-for-Performance Did Not Reduce Deaths in Medicare Pilot Program

A large Medicare pilot program that paid hospitals more if they consistently administered certain medications and vaccinations, provided appropriate counseling for people with heart conditions, or hit other quality targets did not reduce the number of patients who died within thirty days of admission to the hospital, a study published online Wednesday by the New England Journal of Medicine found.

The results are "sobering," the authors wrote. The program served as a model for a major national initiative being rolled out this year.

Such pay-for-performance programs have been central in efforts to change how healthcare is paid for, shifting from a system that pays doctors for each test or treatment to one that rewards them for keeping their patients healthy. These kinds of incentives are the right path forward, but the formula needs tweaking, said Dr. Ashish Jha, associate professor of health policy at Harvard School of Public Health and lead author of the study. "The question is, what do you pay for?" he said. "What are the performance measures? That part we haven't figured out . . . We have not come up with the right set of metrics to focus on."

The study looked at mortality rates among more than six million patients treated over six years at 252 hospitals involved in the Premier Hospital Quality Incentive Demonstration. The program tied up to 2% of Medicare payments to performance on thirty-three quality measures, including two related to mortality. Most assessed how consistently hospitals carried out recommended treatments, tests, and preventive careso-called process measures. The patients were treated for heart attack, heart failure, or pneumonia, or had bypass surgery.

The mortality rates were compared with those at thousands of other hospitals that publicly reported performance on the same measures but were not part of the payment program. The authors found that deaths declined in both groups but at similar rates, even among those hospitals considered poor performers at the start of the program.

Participation in the Premier program improved process measures at Springfield-based Baystate Health, and that was the central focus of the program, not outcomes, said Dr. Evan Benjamin, chief quality officer. Baystate, one of three Massachusetts hospitals that participated, did see a drop in deaths from heart attacks during the program, he said.

The national program and the Premier program are not identical. But, starting this fall, the Centers for Medicare & Medicaid Services will use thirteen measures to determine distribution of about 1% of hospital payments. Many were pulled from the Premier program, including whether discharge instructions are given to people who have heart failure, a blood culture is performed in the emergency department before antibiotics are administered to patients with pneumonia, and clot-busting drugs are quickly delivered to patients having a heart attack. The national program also includes surveys of patient satisfaction.

Chelsea Conaboy, Study: Pay-for-Performance Did Not Reduce Deaths in Medicare Pilot Program, Boston Globe (March 29, 2012).

Toobin: Obama Healthcare Reform Law "in Grave, Grave Trouble"

A top legal analyst predicted Tuesday that the Obama Administration's healthcare reform legislation seemed likely to be struck down by the U.S. Supreme Court.

Jeffrey Toobin, a lawyer and legal analyst who writes about legal topics for The New Yorker, said the law looked to be in "trouble." He called it a "trainwreck for the Obama Administration."

"This law looks like it's going to be struck down. I'm telling you, all of the predictions, including mine, that the justices would not have a problem with this law were wrong," Toobin said Tuesday on CNN. "I think this law is in grave, grave trouble."

Toobin's observation came on the second day of oral arguments at the Supreme Court over the constitutionality of the Patient Protection and Affordable Care Act of 2010.

Earlier that day, Supreme Court Justice Anthony Kennedy, who could be the deciding vote on whether to uphold the law, told Solicitor General Donald Verrilli that there appeared to be a "very heavy burden of justification" on aspects of the law, according to The Wall Street Journal. Toobin described Kennedy as "enormously skeptical" during the arguments Tuesday.

Senate Majority Leader Harry Reid (D-NV) said tough questions from the justices did not indicate how the Court would rule and took to task a legal analyst who said otherwise. "I've been in court a lot more than Jeffrey Toobin and I had arguments, federal, circuit, Supreme Court, and hundreds of times before trial courts," Reid said. "And the questions you get from the judges doesn't mean that's what's going to wind up with the opinion."

Daniel Strauss, Toobin: Obama Healthcare Reform Law 'in Grave, Grave Trouble', The Hill (March 27, 2012).

Healthcare Rivals Battle for Patients in Pittsburgh

Trish Wyckoff is struggling with stage-four breast cancer, but now the fifty-three-year-old Pittsburgh resident has another worry: a possible divorce between the hospital system that is treating her, the University of Pittsburgh Medical Center (UPMC), and Highmark Inc., the health insurer that pays for her care. If the two companies can't agree, she fears she won't be able to keep seeing the doctors who she believes are keeping her alive.

"We are absolutely stuck in the middle," she says. "This is a really scary time."

In Pittsburgh, the acrimonious battle between Highmark, the region's most powerful health insurer, and UPMC, the dominant healthcare provider, is drawing national attention as a test case on the impact of consolidation in the healthcare industry.

At the heart of the dispute is Highmark's effort to acquire a financially troubled local hospital group, West Penn Allegheny Health System, as the centerpiece of what it says will be a lower-cost and more-efficient healthcare operation. UPMC, which has its own insurance arm as well as nineteen area hospitals and 3,240 doctors, says it doesn't want to bolster a company it now considers a direct rival. It has vowed not to sign a new contract to treat patients covered by Highmark, which would mean those patients generally would pay high out-of-network rates to use UPMC hospitals and doctors.

Anna Wilde Matthews and John W. Miller, Healthcare Rivals Battle for Patients in Pittsburgh, Wall Street Journal (March 27, 2012).

Pharma Scales Back Drug Samples to Physicians Offices

Pharmaceutical companies have slashed their sales rep force by about 30% from a high of 105,000 five years ago, according to industry figures. And as the number of detailers has fallen, so has another hallmark of pharmaceutical marketing: drug samples.

Drugmaker spending on the samples that drug representatives leave behind in physician offices has gone down by 25% since 2007, said Cegedim Strategic Data (CSD), a global pharmaceutical market-research firm that surveys a rotating panel of 2,300 U.S. physicians to generate its industry-wide estimates. In 2007, drugmakers spent nearly $8.4 billion on samples. That figure fell to about $6.3 billion in 2011, the most recent data available.

The number of detailer visits that included samples has dropped even faster, decreasing 35% from 116 million in 2007 to seventy-six million in 2011, CSD said.

Some doctors are noticing the difference.

"Just last week, I asked my assistant, 'Do we have this drug?' and she said no. We're also out of five other things that we commonly use," said Tanya Kormeili, MD, a dermatologist in Santa Monica, CA. "I left a message for all the reps, and I haven't heard back. This is something that is more recentwe actually have to call them to come in and bring in samples. They come in, and it's five little boxes. We used to get massive amounts of creams to the point where they'd go bad."

Samples are especially important for patients trying a new dermatological treatment to see how effective or well-tolerated it is, said Kormeili, who has a solo practice but splits overhead costs with two other dermatologists. She has turned to prescribing generics for patients who have trouble affording brand name products and otherwise would have been given samples. But generics can have their downsides, she said.

"Some of the generic antibiotics, for example, are harsh on the stomach, and you have to take them twice a day," Kormeili said. "The branded products are slow-release, so you don't have to remember to take them twice a day. And in dermatology, some of the creams make all the difference. The older ones are more irritating to the skin, and patients may only use them two or three times a week when they should be using them everyday."

Kevin B. O'Reilly, Pharma Scales Back Drug Samples to Physicians Offices, Am. Med. News (March 26, 2012).

More Doctors Work Part-Time, Flexible Schedules

Wilfred Watkins, MD, and Jennifer Shu, MD, are at very different points in their careers, but they share the same desire, as do many of their peersthey don't wish to work full-time. Watkins, seventy-seven, has chosen to work part-time rather than retire. Shu, who is in her early forties, doesn't want a full-time position so she can have the freedom to spend more time with her two young children and write books.

"I worked part-time long before children. For me it was quality of life," said Shu, who works three-quarters time with a fourteen-physician pediatrics practice in Atlanta. "There are things I want to do outside of medicine."

A survey released March 12 by Cejka Search, a physician search firm based in St. Louis, and the American Medical Group Association found that Watkins and Shu have plenty of company. In 2011, 22% of male physicians and 44% of female physicians worked less than full-time, up from 7% of men and 29% of women from Cejka's 2005 survey. The 2011 survey covered 14,366 physicians in eighty practices, which had from three to more than 500 doctors each.

Two of the fastest-growing physician demographicsmen near the end of their careers, like Watkins, and women at the beginning or middle, like Shuare the most likely to demand part-time or flexible work schedules, according to experts in physician recruitment.

The physician population rose 60%, from 615,421 to 985,375, between 1990 and 2010, according to the American Medical Association, with the male population getting older and the female population getting younger. During that period, the number of male physicians older than sixty-five grew 109%, from 87,941 to 184,064. Meanwhile, the number of male physicians younger than forty-four declined, down 44,000 to 201,507 in 2010.

The number of female physicians younger than forty-four grew by 109%, from 75,214 to 157,588. The fastest-growing physician demographic also is the smallest in numberwomen older than forty-five.

Victoria Stagg Elliott, More Doctors Work Part-Time, Flexible Schedules, Am. Med. News (March 26, 2012).

*We would like to thank Amy Kaufman, Esquire (Nashville, TN), for providing this week's update.

AHLA Teaching Hospital Updates are intended to provide quick summaries of cutting-edge issues of interest to teaching hospitals and their counsel. Additional information and more in-depth coverage on these topics may be available from AHLA Health Lawyers Weekly and appropriate AHLA Practice Groups.

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