Saturday, June 30, 2012

Political Implications of the Supreme Court Decision on Health Reform

Chief Justice Roberts is very smart, and quite possibly pretty sly as well. I have been reading through the Supreme Court's landmark decision on health reform (which like many others, I predicted wrongly). But after also reading many commentaries, including Charles Krauthammer's viewpoint on "Why Roberts Did It", and then seeing the reactions to the ruling I am beginning to see some Machiavellian possibilities in Chief Justice Robert's actions. I agree that he was looking to salvage the reputation of the court as a neutral arbiter, and that he is not a fan of the President nor the Affordable Care Act (ACA). But he may have found a way to appear fair, while also trying to do political damage to the legislation's supporters.

Regardless of the facts about the benefits or costs of health reform, a majority of Americans still favor repeal of the legislation. Those numbers rose in the run up to the 2010 elections and helped provide the shellacking the President received in the mid-term elections. The fact that the health reform law remains in place may end up hurting the president's chances for re-election more than helping them. Chief Justice Roberts certainly knows this is a possibility and could have slyly saved reform, only to ultimately try to ensure its death. I believe his hope is that the political process will undo the legislation. In his opinion he said, "Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices." [emphasis mine] Hearkening back to Justice Oliver Wendell Holmes and his philosophy of judicial restraint, who once said, "If my fellow citizens want to go to Hell I will help them. It’s my job." Roberts is basically telling the people to choose a new leader, and then crafting a decision that is sure to inflame the Republican base.

But regardless of the political implications, there is much in the rulings for conservatives to be quite happy about. The court rejected that the ACA is constitutional on the basis of the commerce clause, as proponents insisted. By writing the majority opinion with the liberals, and joining with the dissent of the conservatives on the commerce clause, the court has put a serious roadblock in front of government expansion. The limitation of Congressional power under the commerce clause imposed by the court is likely to have some far-reaching consequences. This marked the first time the court has put such a limiting principle on the commerce clause. As Tom Socca said, "By ruling that the individual mandate was permissible as a tax, he joined the Democratic appointees to uphold the law — while joining the Republican wing to gut the Commerce Clause."

So instead of being based on the commerce clause, the court found that the individual mandate to purchase insurance falls under Congress’s authority to tax. The opinion reads, "The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read." So according to the Supreme Court, the ACA constitutes a tax, which the President had repeatedly insisted it was not, despite this being one of the arguments his lawyer had argued before the court. It is now considered a tax according to the highest court in the land. This alone is the reason it has passed constitutional muster. And this will create a huge political problem for the President and his allies in Congress. Had the court ruled the mandate unconstitutional as I had expected, yet left the rest of the act intact, it would have effectively taken this issue off the table for the election. Roberts has allowed the law to stand while deftly turning it into a political weapon, and then quietly imposed serious limitations on regulatory powers under the commerce clause. All while looking like a hero to his strongest detractors.

And the court also ruled that the law’s expansion of Medicaid was unconstitutional. As Jonathan Cohn points out, "The justices didn’t strike down the Medicaid expansion altogether. But they insisted that states choosing not to expand coverage give up only the money that would have gone to covering the new populations. Those states would remain eligible for the funds that they already get, to cover people who already qualify for Medicaid under the old guidelines." This will certainly cause many of the 26 states who opposed the law to decline expanding their Medicaid program. Poor people who live in a state that refuses to expand its Medicaid program will find themselves boxed in, unable to obtain either Medicaid or subsidies for health insurance. This could become a very serious problem in maintaining support over the long run for the legislation.

Chief Justice Roberts has made clear that the future of healthcare will be determined at the ballot box. He undercut the main argument of expanding government power by using the commerce clause, and the court has now deemed health reform a tax, which is sure to drive the President's opponents to the polls (as well as open their wallets as the Republican Party brought in $4.2 million on Thursday alone from 42,000 donors). This will likely have a greater impact in certain congressional races, and perhaps won't affect the presidential outcome much. Let's face it, the economy is the number one issue this November, and health reform is not the main event. However, the budget and federal debt will certainly play into it, and I don't see much political upside for the President from the ruling declaring the mandate a tax. Roberts seems to have dealt with this issue in such a way that it is not such a clear cut victory for the President and supporters of the ACA.

Thursday, June 28, 2012


I'm still amazed people are continuing to retweet my incorrect tweet on SCOTUS ruling...
However, like many folks I have tended to trust CNN. However, they let us down...

BTW. the ACA was declared constitutional today...

Tuesday, June 26, 2012

Health IT Standards Committee and the NwHIN Governance RFI

Below is the outstanding presentation to the June 2012 meeting of the HIT Standards Committee from Dixie Baker on behalf of the NwHIN Power Team, which provides guidance and feedback to ONC for the development of objective criteria for evaluating the readiness of specifications for adoption as national standards, and the Privacy & Security Standards Workgroup which makes recommendations to the HIT Standards Committee on privacy and Security requirements that should be included in standards, certification criteria, and implementation specifications.

For anyone interested in the future of health information exchange, this is well worth watching...

Tuesday, June 19, 2012

A Forum on Transformation Through Innovation

Former Senators Bill Frist and Tom Daschle, co-chairs of the Bipartisan Policy Center's Health Project, and Former Tennessee Governor Phil Bredesen discussed information technology in healthcare at a conference Tuesday in Nashville on June 19, 2012. Senator Frist, of Nashville, was a heart and lung surgeon, and Governor Bredesen was an executive with a healthcare management company before entering politics. The Forum on Transformation Through Innovation was sponsored by the Nashville Health Care Council and the Bipartisan Policy Center. The focus was on policy in promoting greater coordination, efficiency and cost savings in healthcare.

"Policymakers and health industry stakeholders across the country and across the political spectrum understand the critical role that health IT plays in achieving better health, improved delivery of care and lower costs,” said Senator Daschle at today’s event. “While federal investment has been substantial, increased public-private collaboration and leadership is necessary to promote greater utilization of health IT."

There was also a panel moderated by Janet Marchibroda, chair of BPC’s Health IT Initiative, which included:

Aneesh Chopra, Former White House Chief Technology Officer and Senior Advisor, Health Care Technology Strategy, The Advisory Board Company

Bob Henkel, FACHE, President and CEO, Ascension Health, and Executive Vice President, Ascension Health Alliance

Jonathan Perlin, MD, President, Clinical and Physician Services Group and Chief Medical Officer, HCA

There was also a special showcase which featured five Nashville-based healthcare organizations presenting innovative technology solutions developed and implemented to improve the delivery of health care. The select innovators include:
  • Melinda Raymond, Healthways, Inc.
  • Jason Dinger, MissionPoint Health Partners
  • Bo Bartholomew, III, PharmMD Solutions, LLC
  • Ray Pinkston, MD, Sumner Regional Medical Center
  • Jack Starmer, MD, Vanderbilt University Medical Center

"The Nashville innovations featured today offer new ways to achieve high quality care at lower costs,” said Senator Frist. “If we can realign the interests of payors, doctors, nurses and patients’ interests, we will constructively transform the health sector. A sustainable health system will have enough doctors, nurses and other providers to care for all Americans in the right place at the right time with the essential tools and resources.”

Saturday, June 16, 2012

Supreme Court and Health Reform

Supreme Court ruling on health reform will not have huge impact

The Supreme Court will issue a decision on June 25, 2012 (possibly June 18) [Update: I was wrong. Ruling will be on Thursday June 28, 2012] concerning President Obama’s 2010 healthcare law, the Patient Protection and Affordable Care Act. The court is considering a series of questions to determine whether the law, or parts of it, are constitutional. I have written previously that it will be a close decision, 5-4 with Justice Kennedy as the usual swing vote. The court heard a series of arguments in March 2012 of three basic issues:
The likely outcome for this decision is that the Individual Mandate will be declared unconstitutional, this will be severable from the rest of the law (allowing other parts of the legislation to stand), and Medicaid expansion will be deemed constitutional. However, there are at least two of the law’s major provisions which rely on the mandate to help offset costs: Guaranteed Issue - health insurers must take all applicants; and Community Rating - they can't charge patients different rates based on health status or demographic characteristics. The court could also throw out these portions of the law or leave this issue for Congress to fix. I believe the court will leave this for our dysfunctional legislative branch to sort out, which will create some problems.

But overall I agree with Mark Bertolini, the CEO of Aetna, and his comments in a Wall Street Journal interview where he indicates that key health reform initiatives will continue despite the court's ruling.
"I would argue, on the Supreme Court case specifically, that the individual-coverage requirement, the guaranteed issue and community rating, are all things that needed to be fixed in regulation anyway. As they were structured, they were unworkable or weren't going to work the way they were intended. The Supreme Court case, from my perspective, is important in its constitutional role, but has far less impact on the Affordable Care Act than I think the American public and the political blogosphere is giving it."
UnitedHealth Group has also announced that it will continue to offer healthcare insurance protections that were included in the health reform law, no matter how the Supreme Court rules. Humana issued a similar statement saying that
"Regardless of how the U.S. Supreme Court rules on the federal health care reform law, Humana is committed to keeping in place important patient protections contained in the law, including health care reform’s restrictions on lifetime limits, rescission standards, appeals and external review processes, coverage for dependents on family plans to age 26, and preventive services with no cost sharing."
So how will the Supreme Court ruling effect the implementation of health reform? It appears not much at all really. The money allocated for innovations in care delivery and accountable care payment models will continue to drive us towards a system that pays for value and not volume. Providers will one day be able to get paid for what they do for a patient, instead of what they do to a patient. Private sector payers, along with CMS, will continue to use technology to support these new payment and delivery models. The momentum of change is irresistibly going to continue, and while it may be possible to make slight changes in direction, the ball is rolling and reform will continue.

The real battle over health reform will be fought in the budget process at both the federal and state level...

Thursday, June 7, 2012

Health Data Summit at the White House

Patient Access to Health Data Summit held at the White House

I was honored to participate in the Patient Access to Health Data Summit at White House on June 4, 2012 as a kick off event to  the the Health Data Initiative Forum. The meeting was a moderated discussion among an invited group of participants including developers, health plans, providers, EHR vendors, VCs, government representatives, patients and other experts. This expert roundtable was held with hopes to propel patient access to health data forward by identifying and prioritizing areas where technical standards and best practices are needed. The meeting attempted to reach the following stated outcomes:
  • Identify priority use cases and best practices that will advance consumer access to health data
  • Establish a process for addressing necessary standards activities
  • Galvanize participants to carry this work forward
We began with an inspiring talk from Farzad Mostashari, National Coordinator for Health Information Technology; followed by remarks from Todd Park, Chief Technology Officer of the United States;  Peter Levin, Chief Technology Officer, U.S. Department of Veterans Affairs; and Leon Rodriguez, Director, Office for Civil Rights. The ground rules for the event were very much like what participants in unconference style events like Foo agree to: they rely on courtesy and good sense, and operate under what's been called frieNDA. There is the expectation that if someone tells you something in confidence, you will respect that confidence as if it were told to you under NDA. Much of the free interchange that happens at Foo type events comes from people's confidence that they can tell each other things off the record.

That being said, there was some robust discussion that I will try to highlight. First the framework for the meeting was provided by hearing from some strong patient advocates with compelling personal stories. Hugo Campos, Regina Holliday, ePatient Dave deBronkart, and Nikolai Kirienko shared with the group and set the tone for the day. We also got to see Keith Boone's daughter receive her Walking Gallery jacket and I was very impressed by her intelligent and thoughtful words.

One point that was made very strongly is that patients have a right to their health data. The OCR is aggressively enforcing the right of every patient to:
  • Ask to see and get a copy of your health records from most doctors, hospitals, and other health care providers such as pharmacies and nursing homes, as well as from your health plan; and
  • Get the copy of your record in the way that you want – such as an electronic copy or a paper copy – if your plan or provider is able to do so.
They created this pretty cool video to explain these rights:
"The Right to Access and Correct Your Health Information"

It was great to hear the Director of the Office of Civil Rights, Leon Rodriguez speak about how important this issue is to his office and his office will contact any provider directly who does not comply with patient data access requirements. You can download a letter from OCR he provided at the meeting HERE. Having a legal framework for the technology discussion on how to engage patients and empower them through data access was very helpful.

There was a great deal of discussion of Blue Button, and how it has basically come to become a brand meaning patient access. Peter Levin from the VA highlighted the success of the program, and described it's evolution from ASCII text to more structured content, and CMS officials discussed how they are offering their beneficiaries a Blue Button to download their medical records from secure websites. A great many other data providers and data holders have also committed to Blue Button at But the priority use case identified was the ability to have health data automatically sent to a PHR or other data repository.  Patients do not want to keep going back and clicking the download button to get new information. The analogy was drawn towards not downloading and merging excel spreadsheets of banking information but having web applications that allow users to manage their finances by access to real time information from their accounts.

One technology project that sprung from the discussion is the idea of allowing automated Blue Button downloads based on trigger events and patient preferences. And not just the VA and CMS but private payers and vendors enthusiastically signed up for the project. I expect this work to show rapid results and am very excited about the possibilities. The Auto Blue Button project will explore both push as well as pull of CCDA possibly using OAuth. As Arien Malec tweeted this could be the easiest way to Stage Two Meaningful Use transmit requirements.

There will be some debate on what the best way is to accomplish this, and as the VA and CMS Blue Button are currently creating somewhat incompatible text files. There was some conversation around content standards and the workgroup will need to reach consensus and agree on specifications to move forward. I loved the idea raised of moving beyond "dumb ASCII text files." But I expect this project to gain early consensus, strong specifications, rapid pilot development, and broad adoption. Keep your eye on Auto Blue Button ~ this will be a game changer.

There was also long complicated discussion on patient identification, authorization and access. Aside from the discussion with regards to the Auto Blue Button project, there seemed to be consensus that this issue involves cultural and policy implications as much as technology solutions. In discussion I have had with large telecommunications companies who are working in this space I actually expect this issue to be resolved relatively quickly. People already trust their cell phone providers with their identity and this is a natural evolution for them. I expect to see wide scale solutions offered by AT&T, Verizon, and others within the year.

This was a very fruitful meeting and a great example of government as a platform for innovation in the role of convening and collaborating. The room only had 80 chairs, and about half of them seemed to be filled with government staff, so obviously not everyone with a viewpoint on the issues discussed could be invited to attend. But I think that they did a very good job of inviting a diverse group of stakeholders and every viewpoint seemed to be represented well. It was time of listening and a call to action. One action already taken is the Advisory Board's new Developer Challenge the "“The Patient Engagement Blue Button Challenge." I expect to see some official blog postings soon highlighting the meeting as well as rapid movement towards forming some workgroups to find solutions to the pressing problems presented.

Wednesday, June 6, 2012

The Health Data Initiative Forum 2012

The Health Data Initiative (HDI), originally launched by the IOM and the U.S. Department of Health and Human Services (HHS) as the Community Health Data Initiative, is a public-private collaboration that encourages innovators to utilize health data to develop applications to raise awareness of health and health system performance and spark community action to improve health.

In March 2010, the IOM and HHS hosted a small gathering of leaders from the White House, federal agencies, academia, social sectors, public health communities, information technology firms, major businesses, and health care delivery systems to catalyze the formation of a new Community Health Data Initiative, and to plan for a June 2010 launch.

On June 2, 2010, the IOM and HHS held The Community Health Data Forum: Harnessing the Power of Information to Improve Health. The purpose of this public Forum was to further ongoing efforts of innovators using community-level health data to empower individuals and communities to make informed choices about their health.

As the types of available health data expanded beyond community data to include data on coverage, access, cost, quality, products and recalls, benefits, and more, the Community Health Data Initiative was rebranded as the Health Data Initiative.

In June 2011, the Health Data Initiative Forum expanded to include more than 50 applications that used data from HHS and other data suppliers. Community leaders, consumers, employers, providers, and others showcased ways that data could be used to spur health assessment, planning, and action.

The Health Data Initiative Forum III: The Health Datapalooza (Health Data Palooza) was held June 5 and 6, 2012, at the Walter E. Washington Convention Center in Washington, D.C. The event brought together a diverse group of data experts, technology developers, entrepreneurs, policy makers, health care system leaders, and community advocates to support innovative application of health and health care data. The videos from the event are below. The Health Data Palooza featured more than 100 new or updated solutions, up from 45 solutions at last years event, that help serve the needs of consumers, health care providers, employers, public health leaders, and policy makers.

"The innovators present today are a great example of how data and technology can be used in powerful ways to help consumers and providers improve health," said HHS Secretary Kathleen Sebelius. "We're not just creating new technology, but we're empowering Americans to make better decisions about health and health care by putting information at their fingertips."

Watch live streaming video from thehealthdatapalooza at

Watch live streaming video from thehealthdatapalooza at

The following announcments were made at Health Data Palooza:

Data found in the Insurance Options Finder is now available through an application programming interface (API), enabling the data to be machine readable and downloaded by third party developers. The Insurance Options Finder allows users to compare different plans, showing important information, such as the percentage of people who applied for coverage and were denied. collects and displays public options, private insurance plans for individuals and families as well as the small group markets.

The Centers for Medicare & Medicaid Services (CMS) launched an initiative to transform the agency's approach to data and analytics. The initiative will help guide the agency's evolution from a fee-for-service based payer to a "value-based purchaser of care" that links payments to quality and efficiency of care, rather than sheer volume of services. To lead the initiative, CMS created a new Office of Information Products and Data Analysis, which will strive to make development, management, use, and dissemination of data and information resources a core function of CMS. This effort also enhances data analytics and management strategies that are being widely promoted through programs by the White House Office of Science and Technology Policy. The announcement builds upon many of the recent advances in data transparency and accessibility achieved by CMS in the past 12 months.

Over time, the initiative will modernize CMS' intricate data systems and policies, and help the agency to achieve the greatest improvements in health care delivery. Data and information resources available under CMS' initiative include:

  • Medicare Geographic Variation Trend Data: A unique data set that leverages nearly 5 billion Medicare claims in an easy-to-use data format that provides key metrics at the state and hospital referral region levels.
  • Medicare Enrollment Dashboard: An online dashboard that provides a single location with comprehensive statistics on Medicare enrollment (Parts A, B, and D and Medicare Advantage).
  • Medicare & Medicaid Research Review: A peer-reviewed online journal on current and future directions of the Medicare, Medicaid and Children's Health Insurance.
  • CMS Data Navigator: A web-based search tool that rapidly connects researchers, policy makers, and the general public to the CMS data resources they need.

The Office for the National Coordinator for Health IT (ONC) has led national competitions toward the creation of easy-to-use, web-based tools that help patients schedule follow-up appointments after being discharged from a hospital stay. In collaboration with the Partnership for Patients, the "Discharge Follow-Up Appointment Challenge" winners were announced:

  1. First place: MyHealthDIRECT, a web-based solution that enables patients and caregivers to search for, book, and confirm appointments and includes reminder and transportation reservation functionality.
  2. Second place: HePak, a tool that integrates appointment-making and reminder functions into its hospital, provider, and patient portals.
  3. Third place: mHealthCoach, a tool that provides calendar syncing and incorporates educational content and HHS data feeds.

Also announced was the Blue Button Mash-Up Challenge (submission period ends Sept. 5, 2012). In conjunction with the Department of Veterans Affairs (VA) and the HHS Office of the National Coordinator announced the Challenge that builds on the VA's existing Blue Button feature to allow patients to download their health information and share it with health care providers, caregivers and others. The challenge requires the development of a tool that will help individuals to use their health information, combined with other types of information, such as cost data or comparative health data, to better understand their own health status and make more informed decisions regarding their health care.

Friday, June 1, 2012

The Imperative of Big Data in Public Health Transformation

As healthcare comes online, both structured and unstructured data accumulate in physician offices, hospital data centers, regional health information exchanges, health registries, and state and federal repositories. Major medical centers are now combining genomic data with the wealth of clinical data already routinely available. Faster processors, mobile technology, devices, sensors, cloud computing and cheap storage have enabled a new data tsunami of personal data that will dwarf all the data collected by clinicians. This talk at the 2012 State Healthcare IT Connect Summit by Charles Safran, MD, MS Chief Division of Clinical Informatics, Harvard Medical Faculty Physicians, and BIDMC Associate Professor of Medicine Harvard Medical School, discusses new opportunities as well as challenges for public health provided by Big Data. [video works best in Firefox and Chrome] PDF of presentation is HERE

Charlie Safran is a primary care internist who has devoted his professional career to improving patient care through the creative use of informatics. He is Chief of the Division of Clinical Informatics, Beth Israel Deaconess Medical Center and Associate Professor of Medicine Harvard Medical School. He is the past President and Chairman of American Medical Informatics Association was previously Vice-President of the International Medical Informatics Association. He is an elected fellow of both the American College of Medical Informatics and the American College of Physicians.

Dr. Safran is co-Editor of the International Journal of Medical Informatics and on the Health on the Net (HON) Foundation Council. During his career he has helped develop and deploy large institutional integrated clinical computing systems, electronic health records, clinical decision support systems to help clinicians treat patients with HIV/AIDS and most recently personal care support systems for parents with premature infants which he calls collaborative healthware. He founded a company, Clinician Support Technology and as it’s CEO successfully brought his ideas to a national market. The company’s products and technology were acquired by a major public company. He has over 150 publications and speaks to national and international audiences. He has testified for the U.S. Congress on Health IT. He graduated cum laude in Mathematics and hold a Masters degree in mathematical logic and a Doctor of Medicine all from Tufts University.