National Medicaid story cites TennCare issues

Most of you know that I've written a book manuscript on TennCare.  I've been struggling to get it published, but it has been used at Vanderbilt Law School as a text in a course.  Anyway, here is a national news piece on the dangers of cutting Medicaid, and it cites what happened in Tennessee when the state cut TennCare: 
http://www.huffingtonpost.com/2012/08/29/medicaid-health-care_n_1835101.html

I urge you to consider this piece and the real lives affected by Medicaid.  Often, it's the sick, the weary, the poor who are trampled on by the healthy and the wealthy.  Congress has already said that it is going to protect those most in need (and those who literally cannot protect their own interests against major companies because they are busy trying to stay alive).  Make sure that your vote this election doesn't act as a death knell to many of the neediest in America.

HHS Cutting Red Tape for Physicians

HHS announced this week that it's going to implement new electronic fund transfer regulations to help physicians deal with the amount of red tape they have to go through in order to be paid.  First, it's good to see things made easier for physicians.  They often work long, hard hours taking care of patients, and any extra energy they have shouldn't be wasted on unnecessarily difficult billing procedures.  Second, it's very good to see an overal savings being projected for health care costs.  I know from my research in Tennessee about the TennCare program, the additional administrative costs would sometimes force physicians out of practice or cluster them in larger practices, with the result being fewer physicians in smaller, rural practices.  By making the billing easier, the federal government is promoting the expansion of practices into less-populated regions, which, in turn, promotes regular, preventive care and good health in those regions.  Of course, the more people with better health care and with regular preventive care, the less health care will cost all of us.  Lots of downstream effects!

Obama administration issues new rules to cut red tape for doctors and hospitals, saving up to $9 billion

Health and Human Services (HHS) Secretary Kathleen Sebelius announced today the release of a new rule that will cut red tape for doctors, hospitals, and health plans. In combination with a previously issued regulation, the rule will save up to $9 billion over the next ten years. The regulation adopts operating rules for making health care claim payments electronically and describing adjustments to claim payments.

“These new rules will cut red tape, save money and ensure doctors spend more time seeing patients and less time filling out forms,” said Secretary Sebelius.
Studies have found that the average physician spends three weeks a year on billing and insurance related tasks, and, in a physician’s office, two-thirds of a full-time employee per physician is necessary to conduct these tasks. Many physician practices and hospitals receive and deposit paper checks, and manually post and reconcile the health care claim payments in their accounting systems. By receiving payments electronically and automating the posting of the payments, a physician practice and hospital’s administrative time and costs can be decreased.

The operating rules build upon industry-wide health care electronic fund transfer (EFT) standards that HHS adopted in January of this year. Together, the previously issued EFT standards and the EFT and electronic remittance advice (ERA) operating rules announced today are projected to save between $2.7 billion and more than $9 billion in administrative costs over ten years by reducing inefficient manual administrative processes for physician practices, hospitals, and health plans.

Operating rules include best business practices on how electronic transactions are transmitted and often target obstacles that physician practices and health insurers have with using electronic transactions. For instance, the rule announced today requires insurers to offer a standardized, online enrollment for EFT and ERA so that physicians and hospitals can more easily enroll with multiple health plans to receive those transactions electronically. The rule also requires health plans to send the EFT within a certain amount of days of the ERA, which helps providers reconcile their accounts more quickly.
Today’s rule, Administrative Simplification: Adoption of Operating Rules for Health Care Electronic Funds Transfers (EFT) and Remittance Advice Transactions were developed through extensive discussions with industry stakeholders. The rule adopts the Council for Affordable Quality Healthcare's Committee on Operating Rules for Information Exchange (CAQH CORE) Phase III EFT & ERA Operating Rule Set, including the CORE v5010 Master Companion Guide Template, with the exception of Requirement 4.2 of the Phase III CORE 350 Health Care Claim Payment/Advice (835) Infrastructure Rule. Collectively, these rules are referred to as the EFT & ERA Operating Rule Set.

The regulation announced today may be viewed at www.ofr.gov/inspection.aspx and will be effective upon its publication in the Federal Register on Aug. 10, 2012. The comment period closes on Oct. 9, 2012.

The compliance date for operating rules for the health care electronic funds transfers and remittance advice transaction is Jan. 1, 2014.

A fact sheet with technical information on the rule is found at http://www.cms.gov/apps/media/fact_sheets.asp.

We've been taking care of business . . .

It has been a long time since we last posted. Essentially, life got hectic. I finished my book on TennCare while also traveling around the country interviewing with universities as they offered my fiance positions. At the same time, I was planning my wedding (I got married on May 28th!) to my wonderfully intelligent, caring, spiritual, and handsome husband. We took Ella to the beach, and the newest picture is her with sand on her nose from the beach.

When I get some time later today, I will be posting on several of the newest issues in my mind (of course, I'll be citing The New Yorker, the periodical that captivates me, along with other references). Until I get to those, enjoy another picture of ella the dog . . .

This is Ella on the boardwalk at the beach in Alabama. We took a week's trip down there before my husband had to return to Philadelphia. Poor Ella was sick almost the entire trip, but she did have a good couple of days playing in the waves.

This is Ella with a dead squirrel she found in the road and brought home for me to bury. She was exceptionally proud of her find, and I had to tell her that squirrels do not come in the house. This squirrel is buried out back by the raspberry bush. I have two more she brought home that are buried in shallow graves in the front flower bed under the honeysuckle. We prayed for all three squirrel souls and blessed them.

Link and Excerpts from the Sixth Circuit Decision

OUCH! The Sixth Circuit really nails Judge Haynes:

http://www.ca6.uscourts.gov/opinions.pdf/10a0363p-06.pdf

Relevant portion of the opinion:

Defendants request that this case be reassigned to another judge. We grant the

request.

A number of aspects of this case inform our decision. First, the appearance of

justice is compromised. The district court’s view of the history of this litigation, as

outlined in the order from which defendants appeal, reflects a fundamental

misunderstanding of the import of certain key events in the case. Although the issues

raised by the motion to vacate the consent decree have nothing to do with defendants’

compliance or noncompliance with it, the district court thought it important to recount its version of the compliance history in great detail. It quotes at length from the decree itself, Judge Nixon’s 2001 order finding noncompliance, and Judge Nixon’s October

2004 order finding noncompliance. It also relies on Judge Nixon’s comments regarding

compliance in his February 2006 recusal order. Yet nowhere does the court mention that

Judge Nixon subsequently set aside the October 2004 order, that the parties jointly

requested that the order be set aside, that the findings and conclusions of that order had

been placed in jeopardy by the issues concerning ex parte communication by the court

with the special master (communication that arguably formed a basis for the order), or

that no ruling on plaintiffs’ 2004 motion for further relief has ever been made.

Additionally, the order reflects no recognition that, despite an effort at disclaimer, Judge

Nixon’s comments about compliance in the recusal order were largely a restatement of

his views expressed in the order that had been set aside. Instead, the district court’s

order simply treats the findings of the October 2004 order as unquestioned fact. The

district court also quotes at length from the report of the monitors it appointed. Although

this report has never acquired any evidentiary status in the case, has never been found

accurate, and has never been subjected to any adversarial process, and although

defendants’ objections to it remain pending, the report too is treated as unquestioned

fact. Even more seriously, the historical recitation regarding compliance is not included

merely as background. The court uses it as a part of its analysis of why plaintiffs have

privately enforceable claims under § 1396a(a)(43). For example, the court notes that

“[p]laintiffs’ outreach claims under Section 1396a(a)(43) are enforceable because more

than half of the 500,000 plus class members have been effectively denied outreach

services rendering their rights to EPSDT service worthless.” John B., 661 F. Supp.2d at

893 (M.D. Tenn. 2009). The opinion also contains a number of other inaccuracies

relating to defendants’ perceived lack of cooperation with the court, including its

references to defendants’ failure to prepare the IWP or IAP and defendants’ failure to

respond to the remedial plan prepared by the special master and attached by Judge Nixon

to the October 2004 order.

Beyond the order from which defendants now appeal, the orders issued by the

district court relating to discovery contain increasingly accusatory language directed atthe defendants. While discovery orders often require that a court make findings about a party’s cooperation or lack of cooperation during the discovery process and may

involve imposition of sanctions, such orders should issue in an atmosphere where all

parties are assured that the court has not formed preconceived opinions detrimental to

either side. The district court’s skewed view of the actual state of the record with regard

to defendants’ noncompliance with the consent decree creates an appearance that its

judgment could be flawed with respect to defendants’ compliance with discovery.

Second, the history of the case reveals an alarming lack of timely progress

toward resolving plaintiffs’ August 2004 motion for further relief and no progress at all

toward the ultimate resolution of this case filed in 1998. Defendants’ November 2006

motion to vacate the consent decree had been pending almost three years before a ruling.

Meanwhile, extensive discovery with no predictable conclusion has been ongoing, and

discovery skirmishes have consumed the district court’s time. The overall picture is one

of a case without direction or deadlines for resolution of primary issues. We are quite

aware that defense counsel have pursued a strategy of contention that contributessubstantially to the complexity of this litigation and creates challenges for the court. At the same time, complexity has in recent years also been a product of the scope of

discovery sought by plaintiffs and permitted by the district court. And responsibility for

moving a case forward lies primarily with the presiding judicial officer, rather than the

parties.

Third, we have found it necessary to intervene in the case to an unusual extent.

In June 2008, we granted a partial writ of mandamus—an extraordinary remedy required

to curb discovery extraordinary in its intrusiveness. The ruling on the motion to vacate

occurred only after another petition for writ of mandamus produced a directive to the

district court to respond as to why the writ should not be granted. And in February of

this year, we stayed all proceedings in the district court pending resolution of this appeal,

following more discovery disputes and unproductive turmoil in the district court.

In reassigning this case, we are mindful that such reassignments are rare and

should be made reluctantly. Solomon v. United States, 467 F.3d 928, 935 (6th Cir.2006). And we recognize the factors that govern whether such a request should be

granted: “(1)whether the original judge would reasonably be expected to have substantial

difficulty in putting out of his or her mind previously expressed views or findings,

(2) whether reassignment is advisable to preserve the appearance of justice, and

(3) whether reassignment would entail waste and duplication out of proportion to any

gain in preserving the appearance of fairness.” Id.

The first factor may well favor reassignment, given that the district court appears

to have held its misconceptions about the record for some time, but the second factor

quite clearly supports reassignment. And the case management difficulties we have

previously noted mean that a reassignment could hardly result in waste and duplication

that outweigh any gain. In fact, reassignment provides an opportunity to reduce waste

and move the case toward definitive resolution of the primary issues, as well as to

enhance the appearance of fairness.

We are mindful that as appellate judges, we cannot manage litigation as trial

judges do. But despite our recognition of our role, there are occasions when we must

intervene. The plaintiff class is certainly not benefitting from the pace of this litigation.

Nor are the taxpayers of the State of Tennessee, who have borne the costs of a special

master, monitors, implementation of the consent decree, attorneys’ fees for plaintiffs,

and fees and expenses of defense counsel. Public-interest concerns are present for all

parties. This situation combines serious management failures, fundamental misunderstandings that potentially prejudice defendants, and a developing adversarial relationship between the judge and the defendants. Here, the unusual decision to

reassign the case is justified.

We direct that the case be reassigned promptly to a judicial officer who can give

it the attention it requires. We are aware of a vacancy in the district court. If the need

to reassign the case within the district poses a hardship, the chief judge of the district

court may ask the chief judge of our court to make an appropriate designation. Upon

reassignment, the new judge should undertake to resolve the issues identified by this

opinion and also develop a schedule for determining any further relief to which theplaintiffs are entitled. Of necessity, the latter determination will require a review of the scope of current discovery and likely an insistence that the parties make choices about

discovery priorities in order to meet the court’s deadlines. Going forward, resolution of

key issues should govern progress in the case.

Sixth Circuit Ends the Antics of the District Judge

As I think I mentioned before, I am working with a professor at Vanderbilt on a project centered on TennCare (Tennessee's Medicaid program). We are currently writing an article we hope to have published in a law review journal. In this article, we describe the events of TennCare, from the environment before it was created to the current time. In the midst of its twenty-year history, it has been plagued by on-going lawsuits between enrollees and the State. In this morning's Tennessean (the Nashville newspaper), Anita Wadhwani, who I met several days ago, broke the news that the Sixth Circuit has ordered Judge Haynes, the local federal district judge, off of the John B. case. (see http://www.tennessean.com/article/20101203/NEWS01/12030342/TennCare+judge+ordered+off+case+over+delays++language for her article). The State brought the claim that Judge Haynes was biased against them (and the article points out that this seems to be the strategy of choice for the large law firm representing the State) in this particular lawsuit dealing with medicaid coverage for children. After review, the Sixth Circuit wrote that the "appearance of justice [has been] compromised" by Judge Haynes, in part because of the "increasingly accusatory language" he used towards the State lawyers. In addition, the order described the TennCare case as one of "unproductive turmoil" and "without direction or deadlines for resolution of primary issues." Ouch.

Strangely, Haynes is already the second judge on this case: the first judge, Judge John Nixon recused himself after State attorneys alleged he had improper communications about the case outside of the courtroom. The other two remaining judges in the Middle District of Tennessee have already cited conflicts of interest with the case, and they cannot serve as adjudicator.

From what I have learned in my research project, TennCare and all of its lawsuits are a veritable cess pool of different factions grousing and grappling for who they represent. The State has to be concerned with the big picture: all of the State's citizens, all the the State's uninsured, and the money. The Enrollees' attorneys tend to focus on the extremes of the TennCare population, and they seem to expect that money will come from somewhere. The providers seek payment for their services, and such payment has so often been lacking. The insurance companies managing the health care process are looking at keeping their companies afloat and cutting costs while also providing people with healthcare. As we point out in the article we hope to publish, the different factions are repeatedly talking past one another and reacting in knee-jerk fashion to their perceptions of what the other parties are doing. Such a method is not wise for sustainability.