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Employers and the Coronavirus Crisis

Given the escalating local and worldwide coronavirus (COVID-19) outbreak, we are now inviting Iowa organizations to complete an unscientific ‘survey’ on this website. We hope to learn more about what precautions and business practices employers are taking to avert potential disruptions to the workplace. One example is mandating that a certain classification of employees work remotely. From this information, I will then periodically share personnel practices that have been implemented by Iowa organizations.

In just one day, I’ve been contacted by two friends and an Iowa business on what employers are currently doing to help alleviate the growing concern about this ‘epidemic.’ Because the COVID-19 is both fresh and fluid in our local communities as well as worldwide – so many decisions are being made on the fly as to how to handle and protect employees within the workplace.

Examples of National Employers

How are some key employers locally and around the U.S. responding to COVID-19? Employers have an obligation to notify their employees (and customers) who may have been in contact with a sick employee. Employers should encourage sick employees to stay home – using paid time off benefits or perhaps short-term disability coverage. If no leave is available, the employer may also choose to pay employees – even when they are not sick. This is one way to avoid exposure to COVID-19.

Walmart, effective March 10, began an emergency leave policy after an associate tested positive for the illness. Walmart will allow employees to stay home if they are unable to work or feel “uncomfortable” at work. According to a memo seen by Bloomberg News, employees will need to use regular paid time off options. If their workplace is placed under quarantine, Walmart will pay employees for up to two weeks, and this absence will not count against attendance.

If a Walmart employee is affected by this virus, in addition to receiving two weeks of pay, the retailer will pay “additional pay replacement” beyond the two weeks (if needed), up to 26 weeks for both full-time and part-time hourly associates.

Paid leave and workplace practices are front and center now for employers, and critical for retailers and restaurants. Paid sick leave is much less common for lower-wage employees who work in the leisure and hospitality sector. These employees typically interact with the public, such as in the restaurant industy.

Organizations like Twitter Inc., Microsoft Corp. and Amazon have instructed thousands of employees to work from home, if possible. Whereas Costco Wholesale said that corporate employees cannot work remotely unless there is concern about employees being at high risk. If this should happen, the employee could use vacation or sick time to stay at home.

Wells Fargo, the third largest bank in the U.S., indicated that 62,000 of its 259,000 employees worked from home on Monday, March 9. One employee in San Francisco tested positive for the virus and Wells Fargo learned of this diagnosis two days earlier. Other financial institutions are also taking precautions.

Google, in order to mitigate the potential spread of COVID-19, has sent out a memo to employees across North America to work remotely. Just hours later, Google is extending this recommendation to include all workers in the United Kingdom, Europe, the Middle East and Africa.

Nationwide Mutual Insurance Co. will have many of its 3,300 employees in Des Moines begin working from home, beginning on Monday, March 16. The goal is to have half of its employees working at home at any given time.

An insightful SHRM piece, written by Stephen Miller, regarding employer health, wellness and leave benefits and COVID-19 can be found here.

Centers for Disease Control and Prevention (CDC)

The CDC has a webpage that provides resources for businesses and employers when preparing for COVID-19. It provides a good beginning to address interim guidance for employers, in addition to cleaning and disinfection recommendations. Employers are advised by the CDC to “ensure that your sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies.”

The Centers for Medicare & Medicaid Services (CMS) just sent out a document that contains useful information on measures to keep workplaces, schools, homes and commercial establishments safe.

Summary

Within the span of writing this particular piece, new emails and updates about COVID-19 are coming in with a flurry. One might expect this will be the new normal for a while.

We live in a world that requires vigilance both at home and at work. Despite this evolving environment, remaining calm and gathering as much trustworthy information as possible is the best solution to navigate through this ‘season’ of the unknown.

Again, completing our informal online survey will allow us to share various organizations’ business practices and policies.  As a reminder, our official 2020 survey will be covering many components of paid time off and paid parental leave benefits.

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Comparing Private Payer Prices to Medicare Rates

Private Payer Prices Relative to Medicare RatesTrust, but verify” is a memorable quote that President Ronald Reagan used while negotiating nuclear disarmament with the Soviet Union in the 1980s. According to Wikipedia, this quote was derived from a rhyming Russian proverb, Doveryai, no proveryai.

Trust, but verify” comes to mind in today’s healthcare environment, specifically as it relates to third-party price negotiations between commercial payers (insurance companies) and health providers. Since the prices we pay for non-government medical care are largely secretly negotiated in the backroom by insurers and providers, the TRUE payers (e.g. taxpayers, employers and consumers) often assume they are paying competitive prices for medical services. But they never really know just how much money is being left on the table – it’s anyone’s guess.

With a few exceptions, transparent medical pricing is virtually non-existent. For example, a family member of mine is scheduled to have a knee-replacement performed during this month, but despite our requests to learn the negotiated costs between our insurer and this provider, we were unable to obtain the true cost of the surgeon’s fee, in addition to many of the ancillary costs associated with this particular procedure. My mindset is quite simple: if we have to ask more than once about how much this will cost, then something is clearly not right with our supposedly ‘consumer-centric’ high-deductible health plan – supplemented by a health savings account. We have a $10,000 deductible, so we SHOULD know the true cost, right? But we don’t.

Additionally, we were offered the ‘choice’ between using the outpatient surgical center (owned by our surgeon’s group practice) versus having this procedure performed at a nearby West Des Moines hospital. When we asked the gracious office lady employed by the group practice about the price differential between the center and hospital, we received a blank stare that was followed with a promise that someone would be contacting us ‘soon’ with answers. Over two months later, we are still waiting for that promised phone call. But because we have insurance, our desire to become true ‘consumers’ is not that urgent. This will be fodder for future blogs!

To date, transparency-hype serves as a smokescreen to protect the status quo of pricing opaqueness. A great primer regarding opaqueness in healthcare pricing can be found at The Powers Report Podcast found here.

Linking Private Payment to Medicare Rates

In March of last year, I attended a conference in Indianapolis hosted by the Employers’ Forum of Indiana. The conference centered around a RAND Corp. research report that revealed a national employer-led initiative comparing private (commercial) reimbursements with known Medicare payments. In other words, how do privately-negotiated rates compare to the lower Medicare rates determined by our federal government? Claims data from almost 1,600 hospitals in 25 states were gathered and analyzed by RAND Corp. Iowa, by the way, was NOT represented in this study*.

Because there is little-to-no price transparency in the private/commercial payment sphere, RAND was forced to gather claims data from three types of data sources:

  1. Self-insured employers who chose to participate in the study.
  2. State-based, all-payer claims databases from Colorado and New Hampshire.
  3. Health plans (insurers) who chose to participate.

The key finding from the RAND study (comparing prices from 2015 to 2017) was that relative prices (which represent the allowed amount paid as a percentage of what Medicare would have paid for the same services) rose from 236 percent of Medicare rates in 2015 to 241 percent of Medicare rates in 2017. Put another way, assume that Medicare prices are at 100 percent, private reimbursements were well over double what Medicare pays hospitals for the same services.

Medicare payments are tied to average hospital costs. Some hospitals, due largely to efficient internal practices that result in lower costs, break even or make money on Medicare patients, while many less-efficient hospitals lose money.

The private reimbursement rates range widely from state-to-state, even when states are next to one another. For example, the RAND study found the average Michigan commercial payer price was 156 percent of Medicare rates, yet, their neighbor to the south, Indiana, was highest of all states with 311 percent of Medicare rates. Suffice it to say, Indiana employers in attendance at this conference where both shocked and upset about overpaying for care when compared to other employers outside Indiana.

Employers, specifically self-insured employers, have a fiduciary responsibility to spend prudently and are justifiably frustrated with ever-escalating healthcare costs that do not add value to their bottom line. Because of this, the RAND report is causing a snowballing effect with employers who wish to take a much more active role in directly negotiating and contracting with medical providers for better, more reliable and effective care. Employers are hoping to narrow the large gap between commercial and Medicare payment rates.

According to RAND, the implications of knowing this information allows employers new “opportunities to redesign their health benefits to better align hospital prices with the value of care provided. Employers can exert pressure on their health plans and hospitals to shift from discounted charge contracts to contracts based on a multiple of Medicare or other prospective case rates.”

What About Iowa Commercial Rates?

Because there were no self-insured employers from Iowa participating with RAND during the 2015 and 2017 studies, there is no information on how commercial payments in Iowa compare to Medicare rates and to other states. This, however, can certainly change if a few large, self-insured Iowa employers would voluntarily share their claims data with RAND* for future analysis. Sharing such data would provide proof that the commercial rates being paid in Iowa are competitive (or not) with other states when using Medicare rates as the measuring stick. Very large national organizations participating with RAND evidently trust that their claims data are highly guarded by RAND and will not be compromised due to HIPAA privacy concerns, etc.

In a perfect world, having completely transparent negotiated rates between commercial payers and providers would eventually become a game-changer on knowing just how competitive the prices are in Iowa and elsewhere. It is telling that research is necessary in order to learn whether or not the prices we pay to our healthcare providers are trusted to be appropriate. As President Reagan indicated a few decades ago, verification is a sound strategy.

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*Self-insured Iowa employers, if interested, can become part of the RAND Hospital Price Transparency Project for 2020-2021.

Five Myths about Expanding Tort Reform in Iowa

Five Myths about Expanding Tort Reform in IowaPublic discussion is gearing up on a very contentious healthcare topic: Medical tort reform. In a span of two days last week, there were two opposing viewpoints in the Des Moines Register opinion section on whether or not tort reform should expand in Iowa.  A Waterloo OB/Gyn wrote a piece supporting expansion, while I penned an opposing view one day earlier.

In Iowa, two bills are in the legislature, HSB 596 and SSB 3085. Both are being pushed by the healthcare provider community to ensure their medical-malpractice premiums are held in check by hard-capping ‘non-economic damages,’ at $250,000 – damages that “arise from pain, suffering, inconvenience, physical impairment, mental anguish, emotional pain and suffering, loss of chance, loss of consortium, or any other nonpecuniary damages.”

The specific argument being made by the Iowa Medical Society and others who support this legislation is that “Iowa’s health care crisis” has experienced five lawsuits since 2017 – whereby Iowa juries awarded plaintiffs more than $63 million for “non-economic damages.” The argument being made is that physician’s malpractice insurance policies have a $1 million – $2 million limit, while hospitals also have policy limits. Consequently, when juries award a large amount beyond these limits, the doctors and hospitals are forced to pay the rest out-of-pocket.

According to an article written by the Iowa Clinic in the February 14 edition of the Des Moines Business Record, the ‘simple solution’ is for the Iowa legislature to place a firm dollar hard cap of $250,000 on “non-economic damages,” but patients could still receive unlimited “economic damages” to cover treatment costs and lost wages. By placing a “reasonable” limit on “non-economic” damages, lawmakers, not juries, can ensure “fair awards” for plaintiffs, providers and hospitals “while keeping costs down for all Iowans.”

There you have it. Can we assume that hard-capping “non-economic” damages will miraculously eliminate “Iowa’s health care crisis” as we know it?  The quick answer is “NO.” But to better understand why Iowa’s on-going healthcare crisis will not be remotely solved by these bills, it is helpful to know the pertinent facts conveniently left unshared by the Iowa medical establishment.

There are five myths that the medical establishment would like for lawmakers (and key health payers) to believe. I will summarily refute each myth with some verifiable facts.

1. Iowa malpractice premiums are greatly increasing

Overall, insurance is a risk tool that is predicated on the experience of those being insured. If claims go up, the premiums will also move up. As is often the case, insureds are encouraged to mitigate the inherent risks within their organizations to keep the premiums affordable. The same principle applies to physicians and hospitals. If ‘safety’ and ‘best practices’ that help avoid preventable medical errors are widely pursued, adopted and implemented as the new culture of a medical organization, claims and, consequently, med-mal premiums would indeed go down.

For some Iowa physicians and hospitals, it is true that med-mal premiums are increasing. Much of this will depend on the actual claims experience for each physician practice and hospital. Here is what we currently know about med-mal premiums in Iowa:

  • Over the last 10 years, the medical liability insurance industry has taken in $709 million in premiums from the Iowa medical profession, and paid out just $308 million in combined losses and expenses. Stated another way, the med-mal insurance industry has $401 million in surplus premiums. (Source: NAIC Countrywide Summary of Medical Professional Liability Insurance – Calendar Years 2009 – 2018)
  • The average Iowa medical malpractice insurance premiums have increased 0% for Iowa doctors over the last 10 years. (Source: Annual Rate Survey, Medical Liability Monitor, October 2009-2018)
  • Over a 20-year period (1990 – 2010)*, only 1.73 percent of Iowa physicians were responsible for one-half of all the money paid out for medical malpractice in Iowa. Most of these physicians had multiple malpractice payments. If this small proportion of physicians were either ‘re-trained’ or ‘restricted’ from practicing in this same pattern of behavior, the claims could be cut in half. But only 16 percent of these doctors had reportable action – not even a slap on the wrist reprimand – by the Iowa Board of Medicine. About 10 percent had any reportable action taken against their clinical privileges by an Iowa hospital. Consequently, only about one-sixth of the 1.73 percent of physicians have had any action taken against their licenses – and only one-tenth of them have had any action taken against their clinical privileges. (Source: Robert E. Oshel, Ph.D., retired Associate Director for Research and Disputes for the National Practitioner Data Bank at the U.S. Dept. of Health and Human Services.)

*This calculation was made by Dr. Oshel in 2010 for each state, but has only been repeated since then on a national level only. The calculation is Dr. Oshel’s own independent, unpublished research using the NPDB Public Use File for reports information from www.statehealthfacts.org for the number of physicians in the state. This data was last updated using June 2019 data. According to Dr. Oshel, “the results for this almost 30-year period were very similar to what they have been for the 20-year period using the 2010 data. I would expect 30-year Iowa data also to be very similar.”

2. Tort reform reduces medical errors

The tort reform push in Iowa does nothing to address the root causes of why preventable medical errors occur in the first place. The medical establishment wishes to use hard caps to mitigate their claims and hold down their insurance premiums, but hard caps do not address or incent physicians and hospitals to provide safe care more effectively, through best practices.

After Texas implemented a hard-cap tort reform (passed in 2003), a University of Texas School of Law report years later (authored by Silver, Hyman and Black) stated that “Using standard patient safety measures, we find evidence that hospitals made more avoidable errors after the adoption of HB4 (name of reform).” This report, by the way, does an excellent job of detailing the actual subsequent outcomes of malpractice claims, healthcare costs, influx or exodus of physicians due to tort reform, and other issues that refute many of the arguments made by hard cap supporters.

A study by Black & Zabinski examined five states that enacted caps during 2003-2005 used standard Patient Safety Indicators (PSIs) that were available for at least two years prior to caps being implemented in each state allowing for comparisons later. When comparing data in the five states (Florida, Georgia, Illinois, South Carolina and Texas) to PSIs from previous years, and with other ‘control’ states, the authors determined:

  • “Consistent evidence that patient safety generally falls” after caps are passed.
  • “We find a gradual rise in rates for most PSIs after [caps were passed], consistent with a gradual relaxation of care, or failure to reinforce care standards over time.”
  • “We find evidence that reduced risk of med mal litigation, due to state adoption of damage caps, leads to higher rates of preventable adverse events in hospitals.”

(Source: Bernard S. Black and Zenon Zabinski, “The Deterrent Effect of Tort Law: Evidence from Medical Malpractice Reform,” Northwestern University Law & Economics Research Paper No. 13-09 (July 2014). http://ssrn.com/abstract=2161362.).

The ultimate question that Iowa lawmakers must answer is whether hard caps will reduce medical errors. Unfortunately, rehabilitation of health providers to provide better and safer care is not baked into this tort reform, and other states consistently prove this point. Eliminating financial deterrents for medical providers will only shield them from having accountability to their patients.

3. Tort reform will reduce healthcare costs

The Texas report does confirm one key initiative that physicians and hospitals supporters wish to have:  Hard caps through tort reform greatly reduces the frequency of paid med mal claims, in addition to sharply reducing total payouts.

But implementing hard caps will do little-to-nothing toward curtailing healthcare costs. Various national sources indicate that between 21 – 47 percent of healthcare costs are considered to be waste. This waste, which represents about $1 trillion in the U.S., comes from six categories:

  1. Administrative Complexity
  2. Overtreatment – includes excessive and inappropriate care
  3. Fraud and Abuse
  4. Pricing Failures
  5. Care Delivery Failures
  6. Care Coordination Failures

Many of the above problems exist due to inefficiencies in a poorly-functioning healthcare system. Tort caps are nothing but a small band aid to a much larger systemic problem that the medical establishment fails to meaningfully address. When using this information, the estimated annual waste in Iowa employer health premiums is $2,400 for single and $6,600 for family coverages.

A 2014 study by Black, Hyman and Paik, examined healthcare spending trends in nine states that enacted caps during the period, 2002-2005, and compared this with data from other ‘control’ states. The authors found:

  • “Damage caps have no significant impact on Medicare Part A (hospital) spending, but lead to 4-5 percent higher Medicare Part B (physician) spending.”
  • “[O]ne policy conclusion is straightforward: There is no evidence that limiting med mal lawsuits will bend the healthcare cost curve, except perhaps in the wrong direction. Policymakers seeking a way to address rising healthcare spending should look elsewhere.”

(Source: Bernard S. Black, David A. Hyman and Myungho Paik, “Do Doctors Practice Defensive Medicine, Revisited,” Northwestern University Law & Economics Research Paper No. 13-20; Illinois Program in Law, Behavior and Social Science Paper No. LBSS14-21 (October 2014), http://ssrn.com/abstract=2110656.)

The Texas study mentioned earlier found that “tort reform is unlikely to reduce overall healthcare spending, and could even lead to higher spending…that overall (healthcare) growth is driven primarily by rapidly rising costs for prescription drugs, and by healthcare providers, especially hospitals, charging ever-higher prices for doing much the same things as before.” The report found that “Doctors who fear liability may sometimes do more (conduct more defensive tests and procedures) but they may also sometimes do less (avoid risky procedures). Texas was among the higher spending states per capita before (tort) reform, and is among the higher spending states today.”

4. Tort reform will increase physicians in our state

If tort reform in Iowa is the solution to attract and retain physicians, we can learn from Texas and other states that have already implemented these reforms. A major finding from the Texas study revealed that “neither an exodus of physicians before the passage of HB4 nor an influx thereafter…Texas had a lower ratio of physicians to population than most other states before reform, and has a lower ratio today.”

Another study by Black, Hyman and Paik, examined physician supply in nine states that enacted caps during 2002-2005, and compared this data to other “control” states. The authors found:

  • “No evidence that cap adoption predicts an increase in total patient care physicians, in specialties that face high med mal risk (except plastic surgeons), or in rural physicians.”
  • “[W]e find no evidence that the adoption of damage caps increased physician supply in nine new-cap states, relative to twenty no-cap states.”
  • “Physician supply does not seem elastic to med mal risk. Thus, the states that want to attract more physicians should look elsewhere.”

(Source: Bernard S. Black, David A. Hyman and Myungho Paik, “Does Medical Malpractice Reform Increase Physician Supply? Evidence from the Third Reform Wave,” Northwestern University Law & Economics Research Paper No. 14-11; University of Illinois Program in Law, Behavior and Social Science Research Paper No. LBSS 14-36 (July 2014) http://ssrn.com/abstract=2470370.)

A suggestion to Iowa lawmakers would be to find new approaches to support effective strategies ensuring the Iowa Board of Medicine has all the resources it needs to take action when confronted with physicians who repeatedly have malpractice claims and payments brought against them. Self-policing of doctors can be effective when appropriate culture allows for this to happen. Additionally, Iowa hospitals should be encouraged to ensure that peer reviewers take needed actions. As mentioned earlier by Dr. Oshel, restricting or retraining this small proportion of physicians would be most beneficial to patients and other doctors practicing within Iowa.

Another issue that was raised by the OB/Gyn physician who wrote the DMR Op-Ed is rural communities and their hospitals. It is true that rural hospitals are financially struggling. Rural providers are not seeing as many patients as they have in the past, and because of an older patient mix, they are increasingly being paid at reduced amounts by public payers, such as Medicaid and Medicare. This requires a host of other difficult decisions and solutions, but this discussion and any subsequent solutions goes well beyond med mal issues. This is not only an Iowa problem, it is a national concern.

5. Tort reform reduces defensive medicine

It is true that defensive medicine – a practice by which physicians and hospitals perform additional tests to help mitigate potential lawsuits – is a problem. But as mentioned earlier, there are six primary categories that are extremely wasteful in our healthcare system that require major reform.

A 2010 paper by Mello et al. attempted to determine the cost of defensive medicine in the U.S. The authors took great effort to review other reports on this topic, but conveyed language from the U.S. Congress Office of Technology Assessement, stating, “that defensive medicine is highly prevalent, [but] reliable estimates of its cost are notoriously difficult to obtain.” Mello et al. ventured to estimate that the overall health system cost of defensive medicine to be $55.6 billion in 2008 dollars, approximately 2.4 percent of total national healthcare spending in 2008.

The argument that defensive medicine is expensive has merit, but we must not be led to believe that it makes up a large component of high healthcare costs – it does not. It is important to keep our eye on the true drivers of healthcare costs and the associated waste.

Summary

I do not support unwarranted lawsuits that result in large payouts. But I will say, especially with this particular issue, there are two sides to this story. Much too often, the lobbyists who represent the medical establishment are powerful, vocal – and extremely well-financed – to promote their own self-interests at the public’s expense. They will use this particular issue to leverage the argument about why we have skyrocketing health costs in our state and country. I wish it were that easy.

Iowa and the U.S. does indeed have a “health care crisis.” But it is not because of malpractice costs…which is merely a symptom of a much larger issue. Medical errors are the third-leading cause of death in the U.S.  Based on my analysis in 2016, “Silently Harmed’ in Iowa,” using Iowa and national hospital data, an estimated 2,400 Iowans die and 85,000 are harmed in Iowa hospitals by preventable medical errors each year. Even if the actual numbers were a quarter of these estimates, we would still have an absolute crisis on how care is performed in our state and country. It must be said that estimates are necessary because medical providers often fail to report medical errors, which would be a useful process to gauge future improvement initiatives.

True reform should not come in the form of med mal caps, but rather, how Iowa medical organizations practice and behave in the delivery of medical care. Additionally, the small proportion of Iowa physicians who make up about half of malpractice costs must be held accountable, primarily through the authority and appropriate action of the Iowa Board of Medicine.

Former Senator Daniel Patrick Moynihan said it quite well, “Everyone is entitled to his own opinion, but not to his own facts.” This discussion represents the other side of what we are being led to believe as truth.

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