The House will debate its version of the health cost and quality bill Wednesday (H. 4976, see bill text; Globe article). The House bill builds on the Senate version, strengthening some areas, weakening others, and breaking new ground.
Speaker DiMasi recognized the connection between chapter 58’s access expansion and this bill. ““Even as we boldly acted two years ago to insure virtually every man, woman and child in the Commonwealth, that it would only work if we truly controlled costs in the health care system…. It is time for the same coalition that has sustained expanded access to health care to share responsibility for controlling costs and maintaining quality.” We congratulate the House on their progress, and think that drawing from the two bills, the legislature can fashion a comprehensive approach to improving quality and controlling cost growth.
Click on (more . ..) for our initial analysis and comments.
Prescription Drug Marketing
The most contentious issue, by far, has been the provisions dealing with prescription drug marketing. We were sorely disappointed that the House bill rejects the Senate-passed ban on gifts from drug marketers to doctors and other prescribers. Instead, the House substitutes language that directs drug companies to self-police, under their own codes of ethics. We previously commented on the inadequacies of this approach (blog: Will the Fox Be Guarding the Hen House?), and hope the House can strengthen the language on the floor.
We were very pleased, however, to see the House take on a key issue not addressed by the Senate. The House bill includes a ban on “data mining,” where drug companies buy up the patient prescription records to target their marketing on doctors who aren’t prescribing their brand name drugs sufficiently. The practice invades both doctor and patient privacy, and skews prescribing toward more high-cost drugs (see this fact sheet for more details on the problem).
The House bill also includes the Senate-passed provision authorizing an “academic detailing” program – educating doctors on the most effective medications, including generics. This proven cost-effective program will reduce drug spending and encourage high-value, evidence‐based prescribing practices. Another provision supports the use of comparative effectiveness research, which examines new drugs, procedures and devices and evaluates if they’re worth the cost compared to existing therapies.
Quality
Like the Senate, the House bill contains a number of quality-related provisions championed by HCFA’s Consumer Health Quality Council. These include establishing hospital patient councils and rapid response methods. The House bill surpasses the Senate version by requiring public disclosure of serious reportable “never” events and hospital acquired infections. Still missing from the HWM version are provisions denying payment for serious reportable events, including preventable complications like readmissions and wrong side surgeries.
An extensive “medical home” provision directs MassHealth to implement a chronic care model that emphasizes patient-centered care coordination and education. Under the program, a restructured primary care payment system rewards quality and improved patient health. A grant program to support e-health systems requires doctors to report on quality measures.
Payment Reform
Comprehensive cost control ultimately will require transformative change in the way we pay doctors, hospitals and other providers. The current system is based on secret negotiations among private entities, with no accountability or transparency. Providers are paid generally on the volume of services, not on the quality or appropriateness of care. As a result, the system encourages ever more expensive care, with no opportunity for public oversight. A multiplicity of payment methods further confuses the issue.
The House bill includes a provision empowering a small commission to propose a fundamental restructuring of our payment system. The commission is directed to formulate “a common transparent payment methodology that promotes coordination of care and chronic disease management; rewards primary care physicians for improving health outcomes; reduces waste and duplication in clinical care; decreases unnecessary hospitalizations and use of ancillary services; and provides appropriate reimbursement for investment in health information technology that reduces medical errors and enables coordination of care.” HCFA is disappointed the commission does not include a seat for a consumer representative. As major transformations in the health care cost arena are contemplated and created, it is imperative for the consumer voice to be heard.
The commission’s goal is to frame a Medicare payment waiver, that would allow the state to align all payers into a common payment system. A new incoming federal administration would certainly be interested in allowing a state like Massachusetts to experiment with a new payment system, enabling us to take the lead in demonstrating that cost-effective reforms are possible.
Other Provisions
The bill includes provisions mandating use of electronic medical records and prescribing, and common billing codes. Primary care would be strengthened, through a DPH center, increased UMass residencies and loan repayment for doctors. A number of provisions focus on end-of-life care, including a public awareness campaign on how to communicate wishes to family and providers.
The Division of Health Care Finance and Policy is asked to hold annual hearings on health care cost growth. Our preference is to empower the Division of Insurance, after hearings, to reject rates that are not justified.
Both the House and Senate bills are long and complicated, and dozens of minor and major differences will make for a complicated effort to meld the two. We urge the House and Senate health leadership to make every effort to quickly get the strongest possible bill through to the Governor by the July 31 end of the session.
Brian Rosman
The legal issues around data-mining are far from settled. Only two district courts have ruled and their decisions are under appeal in the first circuit. Vermont, Maine and New Hampshire, as well as public interest groups are confident of victory. MA carefully considered the legal arguments and acted out of a conviction that these laws will ultimately be upheld. See the explanation below from Sean Flynn, an AU law professor that wrote our amicus brief filed in support of the Vermont law. (from the Prescription Project, AARP, National Physician’s Alliance, Vermont Medical Society, NLARX and PPC). Marcia Hams, Assistant Director, RxP.
“The Massachusetts law is not unconstitutional due to a key distinction between commercial speech and consumer surveillance. Only the former is protected by the First Amendment. The commercial speech doctrine serves consumer interests in being fully informed of products and services on the market by providing limited protection to advertisements and other speech to consumers proposing a commercial transaction. Pharmaceutical companies engage in commercial speech when they advertise their products through media and in-person sales calls to doctors. The commercial speech doctrine does not extend protection to use of information by private firms that does not communicate with potential buyers. Pharmaceutical companies are not communicating with potential buyers when they monitor the prescribing practices of physicians, and therefore this practice is not accorded protection under the First Amendment.
Even if the trade in prescription records was deemed to be speech, there are overwhelming societal justifications for its regulation. When governments require the disclosure of personally identifying information, such as that required on prescription records, privacy interests demand that governments ensure that the information is safeguarded from unwarranted disclosure. In addition, an abundance of social science evidence demonstrates that undue influence of pharmaceutical marketing over the prescribing choices of physicians and other health professionals compromises a central value of our health system – that medical decisions be based on evidence, not on personal relationships, marketing influence or the hope for pecuniary reward.
Permitting pharmaceutical marketers to track prescribing choices and use that information to tailor commercial messages and target gifts and enticements exaggerates undue influence of pharmaceutical companies in our health system that raises health care costs, promotes irrational drug selection, threatens professional integrity, compromises patient privacy and increases the prevalence of harassing marketing practices.
States have an overriding interest in combating these social ills.” Sean Flynn
Also see “The Constitutional Battle Over State Regulation of Data Mining” http://www.prescriptionproject.org/tools/solutions_resources/files/0005.pdf
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The data mining law, if passed, will almost certainly be found unconstitutional. Other states have passed similar laws, and every court that has ruled on the issue so far has decided that these laws are an unlawful restriction on free speech.