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Thursday, December 1, 2016

The Price is Right (wing, that is)

"A Bad Dude?"

President-elect Donald Trump has named Representative Tom Price, MD (R-GA, former orthopedist) to be the next head of HHS. Given that the GOP now controls the Senate (as well as the House), his quick confirmation is assumed (in the absence of some smoking gun dirt emerging, which seems unlikely). Price derisively calls the PPACA ("ObamaCare") "Government-Run Healthcare," notwithstanding that it's really just a huge insurance reform law with a few haphazard QI "pay for performance" pilots thrown in. Private market providers and private 3rd party payment intermediaries (mostly pre-2009 incumbents) remain in firmly place.

Nonetheless, Representative Price is the leader of the "Repeal and Replace" Tea Party faction, and his crosshairs go well beyond just ObamaCare -- all the way to outlawing women's reproductive rights.

e.g., from NBC News:
A Medicare war is coming. What will Trump do?
An interesting thing happened in the 2016 presidential race: There was no big fight over the politics of Medicare, seniors, and entitlements -- like there was in 2010, 2012, and 2014. (The reason why was due to Donald Trump's promise not to touch entitlements, as well as the Clinton campaign's effort to go after Trump on temperament, not policy.) But with Republicans in charge of the White House and Congress come Jan. 20, and with House Speaker Paul Ryan's long-awaited effort to privatize/voucherize/restructure Medicare, entitlement politics are coming back. "Between this nomination of an avowed Medicare opponent [Trump HHS pick Tom Price] and the Republicans here threatening to privatize Medicare, it's clear that Washington Republicans are plotting a war on seniors next year," incoming Senate Democratic leader Chuck Schumer recently said, per Politico. The biggest unknown, however, is whether President-elect Trump goes along with Ryan's plans.
Trump's "I'm not going to cut Medicare" vs. "Modernize Medicare"

On the one hand, Trump declared that he wouldn't touch Social Security or Medicare. "I'm not going to cut Social Security like every other Republican, and I'm not going to cut Medicare or Medicaid," he said in a May 2015 interview, which is still featured on his campaign website. On the other hand, Trump's transition website includes this sentence on health-care policy: "Modernize Medicare, so that it will be ready for the challenges with the coming retirement of the Baby Boom generation - and beyond." Trump joining Ryan's Medicare efforts could achieve a long-standing conservative goal, but open up the GOP to some mighty political attacks from Democrats in 2018 (including that Trump broke his promise on Medicare and entitlements). Or Trump blocking Ryan could uphold his promise on entitlements, especially with the kinds of voters who won him the election, but it would produce a significant fissure inside the GOP and conservative movement (which Democrats could still exploit). This will be one of the most important storylines to watch next year...
Price is the author of H.R. 2300 (pdf), his long-in-the-oven and ready to serve up "Repeal ObamaCare" bill, the "Empowering Patients First Act of 2015").


Courtesy of STATnews:
More than a third of Rep. Tom Price’s $15 million in campaign donations over the past 13 years have come from health care interests, which he would be responsible for regulating as head of HHS. (Miami Herald)
From The Atlantic:
Although Price’s selection is the clearest signal yet of the direction Trump intends for his replacement of Obamacare—defunding Obamacare subsidies, cuts to Medicaid, expanded high-risk pools, health savings accounts tax breaks, and continuous coverage requirements for pre-existing conditions waivers—now that he’ll be outside of Congress, Price won’t have the authority to simply end Obamacare on his own. Enacting his apparent preferences for diminishing public insurance for children and denying care for elderly people who can’t afford co-pays requires legislative authority. Until a bill comes along that changes the structure of the Affordable Care Act or dismantles it, Price cannot act unilaterally on his stated desires to end it.

But Price can exercise some of the broad powers of the secretary’s office right away to make the ongoing effort to implement Obamacare more difficult, even if some of those provisions survive what is expected to be a rapid move in Congress to repeal it. For one, the text of the ACA was noted—and derided—for its thousands of references to the secretary of HHS in sections known as the “secretary shall” clauses, which placed quite a bit of the burden on the department itself to determine the final shape of several reforms...
"The Secretary shall..."
[T]he text of the ACA was noted—and derided—for its thousands of references to the secretary of HHS in sections known as the “secretary shall” clauses...
Y'know, kinda like these:
...the Secretary shall establish a program for making payments to providers of qualified health insurance (as defined in section 36B(e)) on behalf of taxpayers eligible for the credit under section 36B...

(f) ADMINISTRATION.—The Secretary shall provide for the administration of this section and may establish such terms and conditions, including the requirement of an application, as may be appropriate to carry out this section...

‘(d) CERTIFICATION PROCESS AND PROOF OF COVERAGE.—The Secretary shall establish a process under which individuals are certified as eligible for payment under this section...
Those are three of the 14 "Secretary shall" clauses in Price's brief bill (243 pages, double-spaced, line-numbered, with 2-inch margins).

The word "Secretary" appears 86 times in H.R. 2300 in a number of referential contexts. One expects many, many more "Secretary shall" directives will be in any final passed and enacted ACA repeal bill (in particular in light of the fact that Rep. Price will be the "Secretary"). While this Atlantic writer seems to think such was an anomaly of the PPACA, it's actually a staple of legislation.

In fairness, it's worth noting that the 974 page enacted PPACA (single-spaced, 2-inch margins, no line numbers) contains 866 "Secretary shall" phrases. But, only 21 of those extend to the CFR regulatory purpose "Secretary shall, by regulation..." e.g.,
‘‘(1) IN GENERAL.—The Secretary shall, by regulation, provide for the development of standards for the definitions of terms used in health insurance coverage, including the insurance-related terms described in paragraph (2) and the medical terms described in paragraph (3).
Pick any law at random. Search and tally "Secretary shall." 13 matches in "The Patriot Act." 14 matches in Federal Election Campaign Law.

And so forth.

Was discretionary regulatory delegation as set forth in the PPACA excessive? An outlier? It's not at all clear to me. Moreover, such legislative language is an Article I function.

In the final days of the 2016 Presidential race, Donald Trump claimed that he would "eliminate 3/4 to 80% of federal regulations." He went shortly thereafter on to also assert that “for every one new regulation, two old regulations must be eliminated.”

To which I responded in a comment at THCB:
Which simply reflects his utter ignorance of and indifference to the way statutory federal regulation works.

From the Congressional Research Service, June 17th, 2013:

“Federal regulation, like taxing and spending, is one of the basic tools of government used to implement public policy. Although not as frequently examined as congressional or presidential policy making, the process of developing and framing rules is viewed by some as central to the definition and implementation of public policy in the United States.

Regulations generally start with an act of Congress, and are the means by which statutes are implemented and specific requirements are established…”

“…are the means by which statutes are implemented…”

Statutes tell us the “what” and the “why.” The ensuing regulations tell us the “who,” “how,” and “when.” The business analogies are the “Policies and Procedures” we all equally hate (and frequently ignore).

Moreover, I count no fewer than 17 federal laws that govern the CFR process itself.

But, I know they don’t teach Article I at the Trump® University Skool of Law.
I made the same point on a recent prior KHIT post:
...Trump has no clue regarding "regulations." He claims he will just get rid of 75 to 80% of all federal regulations. First of all (beyond the fact that doing so is the purview of Congress, not the President), an apt analogy to law and regulation is the corporate "policies and procedures" we also all hate.

Laws tell us "what" and "why," and subsequent regulations tell us "who," "how," and "when" (the operational details). Regulations at the federal level are published in draft as Federal Register proposals, which undergo a prolonged period of public review and comment before they are finalized. Moreover, they cannot exceed the scope of the parent law. To the extent they do they are very quickly challenged in court and either overturned or scaled back. The various stakeholder groups are vigilant with respect to proposed regulations. We may not like the volume and complexity of them, but that's simply a function of the way legislation works in a nation of 330 million people.

I have worked in highly regulated environments for 30 years. EPA, NRC, OSHA, OCC, FDIC, and HHS. In my last job, I was the team lead on our staff for writing policies and procedures that were compliant with HIPAA medical privacy and security regulations covering our statewide Nevada Health Information Exchange. I know a thing or two about how this stuff works.

It's maddeningly tedious and complicated and imperfect. But, human affairs get regulated one way or another.

You want polluted water and air, toxic drugs, unsafe vehicles, poisoned foods, airplane crashes routinely?

Fine, do away with regulations.
As noted by the Congressional Research Service, some regulations can be eliminated via the stroke of the Presidential pen (e.g., those enacted via prior "Executive Orders"), but, the bulk of federal regulation is -- as I have described above -- statutory in nature. Requiring statutory revision or elimination.

Finally, apropos of this section, every state in the union promulgates statutory-based regulations in equivalent fashion. "Eliminating regulations" might have a nice unreflective rhetorical ring to it, but the phrase is simplistically unreflective nonetheless.

A physican contributor over at THCB is positively gushing over the selection of Tom Price (and beat me out of the box with the title play on words).
The Price Is Basically Right

Recently, President-Elect Trump selected Rep. Tom Price, MD to lead the Department of Health and Human Services.  Suffice it to say, this signals Mr. Trumps’ resolve and commitment to definitively repealing and replacing.  Dr. Price has already sunk his teeth into health care reform, having proposed alternative healthcare solutions in every Congressional session since 2009.  As a physician myself, I am delighted at the prospect of having another doctor at the helm of HHS. The last physician to lead HHS was Louis Sullivan, MD as part of the administration of George H.W. Bush.  Having a physician, who can understand the needs of physicians and patients, representing both in health policy decision making at the federal level gives everyone the best chance for meaningful and successful health care reform...

with him wholeheartedly.  His socially conservative stances have angered many; he is pro-life, votes against insurance coverage for women’s health issues, additional funding of CHIP (Children’s Health Insurance Plan), and LGBT issues.  However, the more I struggle to stay afloat in independent practice, the less these differences of opinion actually matter.  Sylvia Burwell and I probably agree on Womens, LGBT, and childrens’ health issues, but my bleeding heart, ironically, has worsened my chance for survival in a career I love.  Reality is what brought this very liberal physician to advocate a different approach to healthcare reform...
Pretty accurate, concise summary of the principal prospective aspects of H.R. 2300 as currently proffered. Suffice it to say that I disagree with the exuberant conclusions.


Re-posting a section of my prior post "Treat the numbers instead of the patient?"


A long read by Trudy Lieberman (paywalled, but may be viewable once by non-subscribers):

“Don’t Touch My Medicare!”
Is the beloved program on its last legs?

...The Medicare Modernization Act poked yet another hole in Lyndon Johnson’s fraying compact. It called for wealthier beneficiaries—people with incomes above $85,000 if single or $170,000 if married—to pay higher premiums for Part B benefits. The provision moved through Congress with “unexpected support from some Democrats,” the New York Times reported. As the law neared final approval, though, the Times noted that AARP, the UAW, and liberal Democrats, including Senator Edward Kennedy, viewed some of its proposals as a “dangerous first step in turning Medicare from a universal social insurance program into a welfare program.”

In a sense, the conservative assault on Medicare is two-pronged. On the one hand, there is a drive to privatize. On the other, critics hope to rebrand Medicare as a variety of welfare. The former Hill staffer says that the Republicans have “been on a very consistent march for decades now. They basically want to get rid of the entitlement and want everything means-tested.” Means-testing—that is, basing eligibility for benefits on whether a person has the means to do without that help—saves billions for the government. But it would also make Medicare into the equivalent of food stamps or Medicaid. And that, of course, is the objective.

So far, privatization remains the more politically correct solution for Medicare’s financial shortfalls. These are real, at least potentially. In large part, they have been caused by the lack of serious cost controls, and exacerbated by the influx of millions of baby boomers needing medical services. Even the government’s attempts at cost control introduced during the Reagan era failed to permanently curb medical inflation. Indeed, containing the prices charged by the doctors, hospitals, drug makers, nursing homes, and home-care agencies that rely on the Washington gravy train has been an almost impossible task. The 2003 prescription-drug law, for example, prohibits Medicare from negotiating the prices it pays for drugs. “There are obstacles statutorily and politically,” says former Medicare administrator Don Berwick. “We can’t negotiate for purchasing, in one of the largest insurance systems in the world. The moneyed interests are calling the shots.”

Many of those moneyed interests sell health-care technology, which has long been a major cause of exploding costs. Richard Foster, who was Medicare’s chief actuary from 1994 to 2013, describes the situation: “As long as there’s an automatic market for new technology, even if it’s not any more effective, cost growth will keep going up.” In fact, Medicare has historically not considered cost effectiveness when deciding whether to cover new drugs and technologies...
Read all of it. Of particular interest to me these days, given that my wife and I are now Medicare benes. More broadly, this kind of policy stuff is every bit as important as clinical science, process QI, biotech, and health infotech. The finest clinical capability on earth is of nil utility if it's increasingly out of reach financially.
Policy stuff is every bit as important as clinical science, process QI, biotech, and health infotech. The finest clinical capability on earth is of nil utility if it's increasingly out of reach financially.

As currently drafted, there's not much of radical substance in Rep. Price's H.R. 2300 pertaining to Medicare specifically. See SEC. 117. PROVISIONS RELATING TO MEDICARE, pretty much a half page. There's also the somewhat more substantive SEC. 901. GUARANTEEING FREEDOM OF CHOICE AND CONTRACTING FOR PATIENTS UNDER MEDICARE.

Dr. Al Agba states that "People on Medicaid, Medicare, and Tricare, could opt to buy private insurance."

Why anyone -- particularly Medicare benes -- would want to do that escapes me. Unless the forthcoming legislative provisions will be so onerous as to eviscerate Medicare to the point where it's really just one more penurious, care-obstructive "welfare" program. House Speaker Paul Ryan has long made no secret of his wish to turn the big federal civilian entitlement programs (Medicare and Social Security) into means-tested spend-down-to-penury welfare programs (which may still be a bridge too far politically, in light of the 3rd-rail mega-wattage of the huge 65+ cohort).
 "Keep yo' Gubmint hands off my Medicare!"
An interesting, if anxious year awaits. Maybe we should all just sing my ObamaCare song.


More from THCB. Margalit having a bit of Buyer's Remorse?
Something Not So Terrific

The brand new President Barack Obama, whether wittingly or not, invested his entire political capital in reforming health care in America. He gambled and he lost, not because he had nefarious intentions, but because he left the gory details to a corrupt Congress and a shady cadre of lying and conniving technocrats, ending up with something vastly different from what he campaigned on. From everything I’m reading now, Mr. Trump is about to walk in Mr. Obama’s footsteps, and if he does, the results will be unsurprisingly identical...
This week, President-elect Trump picked Rep. Tom Price, a former orthopedic surgeon, to be the next Secretary of Health and Human Services, and Dr. Price is a man with a plan. The plan is to replace Obamacare with age adjusted, tax credits and HSAs, while making the same model available to employers, Medicare and Medicaid too. People would use the tax credits to buy a catastrophic health plans across state lines, and deposit the difference in their HSAs to cover routine health care. Sounds good until you realize that the tax credits proposed by Dr. Price are ridiculously low and would cover less than half the cost of a catastrophic insurance plan. Now, it is possible, that once all Obamacare protections are removed, trashy little health plans, priced exactly the same as the tax credits, will return to the marketplace, but I seriously doubt that anything will be left over for HSA deposits. I’m willing to bet that the majority of employers will jump at the chance to extend the same parsimonious offer to their employees.

Once the Medicare modernization features of Dr. Price’s plan are also implemented and Medicaid gets cut and tossed into the lap of perpetually bankrupt states, America will finally achieve universal catastrophic health care. Let me dispel the bleakness for a brief moment though. Dr. Price’s plan has all sorts of great features for doctors. Malpractice insurance reform, freedom to provide cash services to Medicare beneficiaries, freedom to balance bill, some relief from regulatory burdens and a seat at the table for medical associations, are all included in the plan. It is also quite possible that physicians in non-catastrophic specialties will get to enjoy some well-deserved leisure time. I can’t imagine too many non-catastrophic customers, flush with non-existent HSA cash, banging on their doors...
But, wait! There's more!

From STATnews:
Liberal MDs are furious after top doctors group backed Trump’s pick for health secretary
By REBECCA ROBBINS @rebeccadrobbins

When Donald Trump this week tapped a surgeon-turned-congressman to run the Department of Health and Human Services, the nation’s largest physicians group swiftly endorsed the choice.

The blowback started almost at once.

Liberal doctors peppered the American Medical Association with furious tweets decrying the group’s endorsement of Representative Tom Price as a betrayal of patients and physicians. And by Wednesday night, 500 doctors had signed an online open letter titled “The AMA Does Not Speak For Us” started by the Clinician Action Network, a left-leaning advocacy group...
In that vein, posted at
The AMA Does Not Speak for Us

Yesterday, the American Medical Association (AMA) announced its support for the nomination of Dr. Tom Price for Secretary of Health and Human Services.
The statement highlights Dr. Price’s experience as a physician and legislator, citing his leadership in the development of health policies to “advance patient choice and market-based solutions.”

The AMA represents approximately a quarter of physicians in the US — a loud, but minority voice. It certainly does not speak for us.

We are practicing physicians who deliver healthcare in hospitals and clinics, in cities and rural towns; we are specialists and generalists, and we care for the poor and the rich, the young and the elderly. We see firsthand the difficulties that Americans face daily in accessing affordable, quality healthcare. We believe that in issuing this statement of support for Dr. Price, the AMA has reneged on a fundamental pledge that we as physicians have taken — to protect and advance care for our patients.

We support patient choice. But Dr. Price’s proposed policies threaten to harm our most vulnerable patients and limit their access to healthcare. We cannot support the dismantling of Medicaid, which has helped 15 million Americans gain health coverage since 2014. We oppose Dr. Price’s proposals to reduce funding for the Children’s Health Insurance Program, a critical mechanism by which poor children access preventative care. We wish to protect essential health benefits like treatment for opioid use disorder, prenatal care, and access to contraception...
UPDATE: And the hits just keep on comin'. More STATnews:
Birth control emerges as rallying cry against Trump’s pick for health secretary
By REBECCA ROBBINS @rebeccadrobbins

Reproductive rights activists opposed to Donald Trump’s nominee for health secretary have hit upon a potent rallying cry: the cost of birth control.

The campaign stems from a remark made back in 2012 by Georgia Congressman Tom Price, who this week was nominated to run Trump’s Department of Heath and Human Services. Back then, Price had joined other Republicans in a fierce fight to block an Obamacare mandate that insurers give women free access to contraception.

Price said the rule was unfair to religious employers who considered it immoral for birth control to be covered under the health plans offered to their workers —and also, wholly unnecessary, because no woman he knew of had ever had trouble getting contraception when she needed it...
There are many on the political right for whom the very concept of contraception is anathema. I'd like to know precisely where Tom Price stands on that aspect of the issue. Noting again what I posted on the topic of reproductive rights in a recent prior post:
With respect to human reproduction (in particular the "life begins at conception" canard), the contribution of the male begins and ends with the sperm's successful delivery of the polymer molecules comprising ONE copy of the male's DNA that constitute his 23 chromosomes. Everything that takes place thereafter, starting with the ensuing division process begun by the single cell sperm-fertilized ovum, is a function of the female's gestational biology. all of the subsequent biological reproductive effort, and all of the medical risk.

The assertion that [1] a fertilized ovum is instantly a "person," and, [2] men should be able to declare for themselves "equal reproductive rights" tantamount to a veto over what a woman does with her body once pregnant are the most ignorant and arrogant things I've ever heard. It has nothing to do with "reverence for the sanctity of life," it has everything to do with reverence for dominant male power. Period.

Moreover, take men out of the picture, just to advance the argument a step further. The notion that some women should be able to use the force of law to deny other women the right to control their biology is equally specious. For starters, it violates the Equal Protection clause of the 14th Amendment.
Tom Price on January 24th, 2011:
"Today, citizens from all across the country came to Washington to honor the precious gift of life. The March for Life movement has for nearly four decades given a voice to those who have no voice. It is a privilege to stand together with thousands of Americans in solidarity and faithful commitment to our solemn duty to protect and defend the lives of the most innocent among us."
Again, it's not yet clear to me where he stands on contraception per se. Will have to dig further.


As reported by Christina Cauterucci at Slate:
...The vocal Obamacare opponent, a Republican who’s represented a Georgia district since 2005, has established himself as a hardline anti-abortion, anti-contraception extremist during his time in Congress. During his first term, Price co-sponsored a piece of legislation called the “Right to Life Act,” which would have banned abortion in nearly every circumstance, potentially prohibited most types of contraception and in vitro fertilization, and stymied stem cell research.

The bill proposed vesting every zygote (“preborn human person,” the bill says) with all the rights of the Constitution from the moment of fertilization. This kind of “personhood” bill would mark the first step toward a draconian society that punishes women who terminate their pregnancies as if they were murderers, like the one an anti-abortion activist group is trying to establish in Florida. These bills provide no exceptions for rape, incest, or threat to a pregnant woman’s life, and would put control over women’s bodies—including, perhaps, what she ate, drank, or did while pregnant—in the hands of the state... 
Again, read my 2008 thoughts on this topic, on another of my blogs.

Turns out that Rep. Price is a "Personhood at Conception" guy. From his 2005 bill H.R. 618 (pdf):

"The moment of fertilization."

Never mind the clinical impossibility of determining that precise "moment" via which to link the criminal sanctioning of women. An utterly fatuous proposition.


From STATnews:
Trump win could boost movement to confer ‘personhood’ on fertilized eggs
By REBECCA ROBBINS @rebeccadrobbins
DECEMBER 9, 2016

he push to confer full “personhood” status on every fertilized human egg has been rejected by voters and lawmakers in state after state, including deep-red Mississippi.

But activists are cautiously hopeful that their cause could get a boost from Republicans who are about to assume leadership in Washington.

Georgia Representative Tom Price, who has been tapped by President-elect Donald Trump to run the Department of Health and Human Services, has twice co-sponsored federal legislation that would define fertilized human eggs as legal persons — a move that would outlaw not just abortion, but also potentially birth control pills and other common methods of contraception...
Nicely done, Rebecca.

More to come...

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