Hsieh Forbes Column: How Mandatory Calorie Labeling Hurts Consumers

My pre-Thanksgiving Forbes column is up, "How Mandatory Calorie Labeling Hurts Consumers".

I discuss the strict new FDA rules mandating calorie counts on all manner of foods sold in restaurants, stores, etc.

These new rules will be unprecedented in scope, as the Washington Post describes:

Chain restaurants, vending machines, grocery stores, coffee shops and pizza joints will soon have to display detailed calorie information on their menus under long-awaited rules to be issued Tuesday by the Food and Drug Administration. The calorie-posting requirements extend to an array of foods that Americans consume in their daily lives: popcorn at the movie theater, muffins at a bakery, a deli sandwich, a milkshake at an ice cream shop, a drive-through cheeseburger, a hot dog at Costco or Target.

In particular, I discuss three problems with the new regulations:

1) It’s doubtful they will significantly change consumer behavior.
2) They create a significant economic burden on grocers.
3) They tilt the playing field away from fresher foods towards pre-packaged foods.

Given the federal government's poor track record in dispensing nutritional advice (e.g., promoting carbohydrates and demonizing fat), this merely reinforces a bad mindset towards food.

For more details, see the full text of "How Mandatory Calorie Labeling Hurts Consumers".

If the federal government wants a War On Bacon, I know what side I'm on.  And it's not the FDA's.

NYT: How Medical Care Is Being Corrupted

I was pleasantly surprised to see this OpEd in the 11/18/2014 New York Times by Hartzband and Groopman, "How Medical Care Is Being Corrupted".

In particular, they describe perverse incentives being imposed upon physicians to practice "cookbook medicine", often at the expense of actual patient care.

An excerpt:

Contracts for medical care that incorporate “pay for performance” direct physicians to meet strict metrics for testing and treatment. These metrics are population-based and generic, and do not take into account the individual characteristics and preferences of the patient or differing expert opinions on optimal practice.

For example, doctors are rewarded for keeping their patients’ cholesterol and blood pressure below certain target levels. For some patients, this is good medicine, but for others the benefits may not outweigh the risks. Treatment with drugs such as statins can cause significant side effects, including muscle pain and increased risk of diabetes. Blood-pressure therapy to meet an imposed target may lead to increased falls and fractures in older patients...

When a patient asks “Is this treatment right for me?” the doctor faces a potential moral dilemma. How should he answer if the response is to his personal detriment? Some health policy experts suggest that there is no moral dilemma. They argue that it is obsolete for the doctor to approach each patient strictly as an individual; medical decisions should be made on the basis of what is best for the population as a whole.

We fear this approach can dangerously lead to “moral licensing” — the physician is able to rationalize forcing or withholding treatment, regardless of clinical judgment or patient preference, as acceptable for the good of the population.

As always, a key principle is, "follow the money".  When the government (or insurers acting as proxies for the government) control the medical pursestrings, they'll also control medical care.  Which may or may not be the care that's right for you as a patient.

Quality Reporting Problems

Meeting "quality metrics" is not the same as providing actual quality medical care. From Dr. Arvid Cavale at Rebel MD: "The Physician Quality Reporting game hurts patients, physicians alike".

One money quote from Anders Gilberg of Medical Group Management Association (MGMA):

Medicare has lost focus with its physician quality reporting programs. Instead of providing timely, meaningful, and actionable information to help physicians treat patients, this has become a massive bureaucratic reporting exercise. Each program has its own set of arcane and duplicative rules which force physician practices to divert resources away from patient care .

In many ways, the various quality metrics are like the push for aggressive standardized testing in public schools.  The standardized tests may not reliably capture whether or not a school provides actual good education. And school districts can be tempted to "teach for the test" at the expense of doing what's best for their students.

Dr. Cavale's bottom line:

Medicine is a highly personal and individual profession, with incredible variation across specialities, regions and populations in our diverse country. All centrally planned and dictated methods, do not and cannot, provide evidence of quality of care. It is obvious to any observer that these attempts are simply methods to collect data, gain control over physicians and provide rationale for payment reductions...

Should Doctors Become Proxy Data Collectors For the Government?

The Institute of Medicine (a branch of the National Academy of Sciences) is recommending that doctors use electronic medical records "to capture patients' census tract information (to estimate their median income and for geo-coded mapping), as well as information about their financial resource strain and levels of physical activity and stress."

Furthermore, the IOM is recommending to the federal government that regulators and Medicare link such collection to financial incentives to physicians -- essentially turning them into proxy data collectors for the government:

The widespread capture of data in these eight categories, or “domains,” could be achieved by adding them to the requirements of the federal government's EHR incentive payment program, the IOM committee recommended.

The recommendations will be submitted to the CMS and the Office of the National Coordinator for Health Information Technology at HHS for their consideration as they develop requirements for Stage 3 of the EHR incentive program, according to Dr. William Stead, co-chairman of the 13-member IOM subcommittee that released the report. Stead is a professor of medicine and biomedical informatics at Vanderbilt University.

The CMS writes the rules on what providers must do to become “meaningful users” of EHRs, qualify for incentive payments and avoid Medicare penalties under the program created by the American Recovery and Reinvestment Act of 2009. The ONC sets the EHR testing and certification requirements vendors must meet so providers using their systems can meet their meaningful-use requirements.

Additional data that might be collected:

The IOM panel also recommended that EHRs and their users gather information about patients' educational status; whether they are experiencing depression; their social connections and sense of social isolation; and whether or not they're subjected to violence by a partner in an intimate relationship.

It's still unclear when and how such data might be released from patient medical records to which government agencies.

(Link via Dr. Kathleen Brown.)

AZ Approves "Right to Try"

I just learned of this bit of good election news, in the Washington Post (11/5/2014):"Voters in Arizona just overwhelmingly backed a 'Dallas Buyers Club' law":

Arizona voters on Tuesday became the latest state to approve a law providing terminally ill patients with greater access to unproven medical treatments, following in the footsteps of four states enacting similar measures this year.

Arizona's new law marks the first time a so-called "Right to Try" measure was approved by ballot initiative — and did so convincingly — after Colorado, Louisiana, Missouri and Michigan all passed laws in the past six months.

USA Today supported similar laws in its 8/17/2014 piece, "FDA vs. right to try: Our view".

For those who want to read an opposing view, see "USA TODAY flubs it big time over right-to-try laws".

WaPo On Gruber

Washington Post: "Obamacare consultant under fire for 'stupidity of the American voter' comment".

This issue has been making the rounds on social media, but finally hit the mainstream media yesterday.

The relevant quotes from ObamaCare advisor Jonathan Gruber include:

This bill was written in a tortured way to make sure CBO did not score the mandate as taxes... Lack of transparency is a huge political advantage. And basically, call it the 'stupidity of the American voter' or whatever, but basically that was really, really critical to getting the thing to pass...  In terms of risk-rated subsidies, if you had a law which explicitly said that healthy people pay in and sick people get money, it would not have passed...  You can't do it politically, you just literally cannot do it. It's not only transparent financing but also transparent spending.

Gruber subsequently apologized on MSNBC, saying that he "spoke inappropriately".

To me, it sounds an awful lot like, "I wish I hadn't said those things now that everyone knows I said them."

Armstrong on Direct Primary Care

Dr. Richard Armstrong has published a nice piece, "How Direct Primary Care Is Serving as a Health Care Solution".

An excerpt:

Combined with other straightforward alternatives to the Affordable Care Act, such as Health Savings Accounts and High-Deductible Health Insurance plans, Direct Primary Care practices could fill a glaring hole in America’s health care system by allowing patients direct access to their personal physicians for a fee comparable to what they pay for their cell phones each month.

But one potential barrier to the growth of Direct Primary Care is the question of whether these practices can be regulated as “insurers.” Direct Primary Care providers have been concerned they could be labeled by states as “risk-bearing entities” when they provide health care in exchange for a monthly fee, and thus be forced to be licensed and regulated as insurers...

Fortunately, some states (like Michigan) appear poised to recognize that these practices are not "insurance companies".  Let's hope other states (and the federal government) follow suit.

For more details on one promising alternative to ObamaCare, see the Docs4PatientCare Foundation "Physician's Prescription for Health Care Reform".

Medical IT Failures

A couple of quick links on the electronic medical records issues:

"Doctors, hospitals rethinking electronic medical records mandated by 2009 law" (10/10/2014).

The complaints focus on poorer quality care for patients and fewer medical reports while immense new financial burdens are imposed on medical providers. In addition, the new digitized system leaves millions of people vulnerable to hacker attacks.

Many of the responding physicians said they spend too much time looking at computer screens instead of the patients they are examining... [Dr. Kevin] Pho cited a study published earlier this year by the American Journal of Emergency Medicine that found doctors in community hospitals average spending 44 percent of their time in front of a computer and only 28 percent in direct patient care. 

"Why is medical IT so bad?" (11/1/2014)

Critical quote: "EMRs often hinder, not assist, the giving of medical care."

(First link via Dr. Matthew Bowdish.)

SCOTUS Updates From McArdle

Megan McArdle has a good summary of the Supreme Court's decision to review Halbig v. Burwell, which hinges on the availability of insurance subsidies on federally operated insurance exchanges.

From her piece, "Obamacare Courts Death Yet Again" (11/7/2014):

Sounds kind of boring, right?  Actually, this could severely damage, even potentially kill, Obama’s signature program...  [B]y granting cert, the Court is signaling that at least four judges are probably prepared to rule against the government.  Now, maybe they’ll change their minds later.  But I doubt it.

For more background, see her earlier piece, "Obamacare Takes a Body Blow" (7/22/2014):

This morning, a U.S. appeals court issued a ruling that could endanger, or even destroy, Obamacare. The case, Halbig v. Burwell, involved the availability of subsidies on federally operated insurance marketplaces. The language of the Affordable Care Act plainly says that subsidies are only available on exchanges established by states. The plaintiff argued this meant that, well, subsidies could only be available on exchanges established by states. Since he lives in a state with a federally operated exchange, his exchange was illegally handing out subsidies.

The government argued that this was ridiculous; when you consider the law in its totality, it said, the federal government obviously never meant to exclude federally operated exchanges from the subsidy pool, because that would gut the whole law. The appeals court disagreed with the government, 2-1. Somewhere in the neighborhood of 5 million people may lose their subsidies as a result.

This result isn’t entirely shocking. As Jonathan Adler, one of the architects of the legal strategy behind Halbig, noted today on a conference call, the government was unable to come up with any contemporaneous congressional statements that supported its view of congressional intent, and the statutory language is pretty clear. Members of Congress have subsequently stated that this wasn’t their intent, but my understanding is that courts are specifically barred from considering post-facto statements about intent...

For example, the core of the government’s case is that Congress cannot have meant to leave federal exchanges without subsidies, because without the subsidies, the insurance markets in states with federal exchanges would inevitably enter into a death spiral. And obviously Congress wouldn’t do that.

The problem, as the justices point out in their brief, is that the government has done just that...

And for what would happen if the Supreme Court rules against the government, see her piece "Questions for Obamacare Now" (7/23/2014):

In the states that don’t establish exchanges, the most likely outcome is a death spiral. For one thing, without the subsidies, fewer people would be subject to the mandate, because the cost of a policy would become “unaffordable” as the Internal Revenue Service defines it for the purposes of assessing mandate penalties. Even if that weren’t the case, without the subsidies, a lot of people would find it cheaper just to pull out and pay the penalties. The most likely people to do this? Healthy youngsters paying more in premiums than they get in health services. If they exit the exchanges, premiums will rise, and the markets will spiral downhill...

The most interesting question, I think, is what an adverse ruling would do to the insurance companies. A lot of big insurers mostly stayed out of the exchanges for the first year, waiting to see how they’d develop. Perhaps because the administration has sweetened the pot considerably for insurers over the last eight months, this year, they seem to be wading in deeper, albeit still cautiously.

But what if the pot of subsidy money starts shrinking, rather than growing? That was always going to be a problem, because the risk corridor program, through which the government has funneled many of its pot-sweeteners, ends in 2016, and starting in 2019, the law changes its indexing formula in a way that may require subsidized families to pay a higher share of their income toward premiums. This problem used to look comfortably far away, giving the exchanges some time to get their sea legs. An adverse ruling in Halbig might bring it right up close where we can see it.

If insurers start to pull out, or demand huge premium increases to stay, Obamacare’s future looks cloudier. As I’ve written before, Democrats and insurers are now locked in a sort of prisoner’s dilemma, where the benefits of staying together are probably high, but the temptation to defect may be even higher. Once one stampedes, both will head for the doors very quickly.

With new GOP control of the Senate (and the inevitable political calculations of leaders from both major political parties planning for the 2016 election), there's a lot more uncertainty now about the future of ObamaCare.

Hsieh Forbes Column: Who Hasn't Gotten Ebola

My latest post in Forbes discusses some important groups of people who have not contracted Ebola and now have the green light to resume their normal lives: "Who Hasn't Gotten Ebola".

Quick Links: Millenials, HCSMs, Quarantines

Huffington Post: "Millennials Openly Defy the Obamacare Mandate" (10/31/2014)

US News and World Report: "Can't Afford Obamacare? Consider a Health Care Sharing Ministry Instead" (10/24/2014)

AEI: "Why Ebola quarantines will grow larger — and more troubling" (10/30/2014)