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Craig B. Garner, Founder, Garner Health Law Corporation

Health Care's Latest Pi$$ing Contest



By Craig B. Garner
Founder
Garner Health Law Corporation



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Original Publish Date: August 7, 2018

"I dwell in possibility." -- Emily Dickinson

Episode 5: Insurance Strikes Back

Last March dozens of insurance companies filed suit in Florida against a hospital, a laboratory and a medical claims collection agency for more than $100 million. Earlier in March Anthem initiated an action to recover $13.5 million against a small hospital in Sonoma County, California allegedly creating an illegal pass-through arrangement for laboratory claims. In April UnitedHealthcare sued the owners of two laboratory companies in Texas for supposedly orchestrating a similar pass-through scheme that resulted in reimbursements of $44 million.

Across the nation, insurance companies and health care providers battle over the by-product of metabolism in humans. Historically used to make gunpowder, clean, tan leather and dye textiles, urine not only has a role in the earth’s nitrogen cycle, but the $8.5 billion spent in 2014 just testing the excretion exceeded the Environmental Protection Agency’s annual budget. Lately, clinical laboratories and health care providers have joined forces to test almost anything the human body can produce and/or eliminate, but at the center of health care’s recent controversy is a staggering 44 billion annual gallons of potential contraband, most of which usually goes to waste. A new gold rush has hit the United States health care system like a tsunami, although this liquid gold retains its color and has nothing to do with dinosaurs.

Drugs and the War on Affordable Care

According to the Centers for Disease Control and Prevention (CDC), in 2008 opioids caused 41 percent of the 36,450 reported drug overdoses. The CDC cautioned health care providers to go easy on the narcotics when treating pain, but by 2015 another 33,000 Americans died from an opioid overdose alone. In 2007 drug overdoses killed almost 100 people each day, but ten years later just opioid overdoses ended 115 lives daily. From July 2016 through September 2017 opioid overdoses increased 30 percent throughout most of the country.

The 2010 Patient Protection and Affordable Care Act (ACA) solidified the mental health parity laws throughout the nation, and with this new sense of fairness insurance companies covered the cost of recovery. The business of rehab exploded, and so did the demand for urinalysis testing, the treatment center’s number one when it comes to checking sobriety. In the context of recovery, urine tests can detect illicit substances used within a couple of days (cocaine, ecstasy and fentanyl, for example) and as far back as six weeks (such as marijuana).

While reasons for drug testing may differ, reimbursement for urine tests increased across the spectrum so much that Florida launched an investigatory task force called Operation Thoroughbred. Fundamentally, rehabilitation centers rely upon urine tests to combat the industry epidemic which continues to worsen year after year. With more people on more drugs, urine tests can detect prescription medication, marijuana, cocaine, opiates, methamphetamine, amphetamines, PCP, benzodiazepine, barbiturates, methadone, tricyclic antidepressants, ecstasy and oxycodone. Urinalysis plays a critical role in early sobriety, and if this helps in the prevention of relapse, it also saves lives. If nothing else, it keeps the insurance industry from paying for treatment (again), not to mention the health complications on the body throughout a lifetime of substance abuse.

The propriety of urine test frequency is hotly contested by government officials and the S-I-Us (the "special investigations units" at most insurance companies). At one extreme, in 2014 Medicare paid $45 million to test for a class of tranquillizers known as tricyclic antidepressants, including 644,495 tests for the tricyclic drug amitriptyline (which was tested only 6,173 times five years earlier). On the other hand, the cost of opioid abuse in 2015 was estimated at $500 billion. Make no mistake, urinalysis remains the first line of defense on a very long path to recovery where there may not be an offramp with a restroom.

Disease or Decision

Diabetes mellitus refers to a group of diseases that complicate the relationship between the human body and blood sugar (also known as glucose). In short, too much sugar in the blood can be problematic, and Type One diabetes causes the body to destroy insulin-producing cells in the pancreas. Depleted of insulin, the body no longer transports sugar into the cells, building up in the bloodstream instead, thereby necessitating insulin injections to balance blood glucose levels. Most individuals with Type One diabetes inject insulin on a daily basis, but more importantly, they also check blood sugar levels multiple times throughout the day. A more traditional approach for monitoring glucose levels involves extracting a drop of blood then applied to a test strip. Diabetics may check blood sugar levels as many as ten times each day, which happens to be the average daily frequency with which a well-hydrated individual urinates.

While the exact cause of Type One diabetes remains unknown, there is general understanding that diabetes is a disease. Addiction, on the other hand, fosters debate between disease and choice. The American Diabetes Association estimated the total costs of diagnosed diabetes was $327 billion in 2017. While legal in most states for adults, the annual costs of tobacco and alcohol use are $300 and $249 billion respectively. Illicit drug use has an annual price tag of just under $200 billion, and prescription drug abuse costs society almost $80 billion annually. This does not include other costs to society from addiction, such as illness, death, crime and workforce productivity.

The War on Affordable Care, however, will not be won by statistical information alone. Instead, the ACA focuses in large part on preventative care and the elimination of disease and illness before onset rather than treatment options after health declines. The ACA even authorized $1 billion each year in spending to foster provider innovation and the implementation of new and improved ways to deliver health care into communities. To be sure, stories of the $345 Tylenol or the $8 "mucus recovery system" (a single tissue box) raise eyebrows from time to time, but emphasis on the present as a means to improve the future is not just some phrase out of a big book, but a logical approach to establishing and maintaining a sane health care delivery system.

Reconciling Rehab

While the opioid epidemic has stolen the spotlight lately, illicit drug use in general poses a grave threat to a society. Over ten percent of the population older than twelve has used an illicit drug in the past month, not to mention the 22 million with a substance use disorder (past, present and possibly future). The 2008 Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act (MHPAEA), effective January 2010, prohibits in part financial requirements and treatment limitations for mental health and substance abuse benefits in group health plans from being more restrictive than those placed on medical and surgical benefits. Some states even mandate chemical dependency services as a necessary and appropriate expansion of MHPAEA.

Parity, however, does not answer questions about actual payment. The International Statistical Classification of Diseases and Related Health Problems, Tenth Edition (ICD-10) lists tens of thousands of specific physical health concerns, while the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V) only covers close to 300 mental disorders. One out of five Americans experience mental illness, and six percent of the population lives with severe mental illness. The estimated damage alone in annual lost earnings is almost $200 billion, and this cost does not separate those suffering from a mental illness and a comorbid substance use disorder (a combination also known as "dual diagnosis").

It may take time for society to reconcile the true meaning of mental health parity, and before this occurs certain issues will go to the head. Urinalysis, for now at least, is a first bright line the insurance industry has drawn in the snow, which conveniently targets a large profit center for treatment facilities. While this may force some providers out of business, it does nothing to slow the substance use disorder epidemic. For decades hospitals in California fought with health insurance to define "reasonable and customary" charges, and the 2014 California Court of Appeal decision in Children’s Hospital Central California v. Blue Cross of California did not bring the relief anticipated industry-wide.

The behavioral health treatment industry appears to be at the beginning of a similar battle. What started out as a simple pissing match between the insurance industry on the one hand and treatment centers and sober living on the other has shifted focus away from the addiction epidemic. The insurance industry has the right if not the obligation to ensure proper use of premium payments, but it never can replace the role of the provider, much less single handedly dictate the value of a urine test. In this debate, neither side should cast the first stone, but when it comes to the subjective nature of health care, clarity all too often follows a bump to the head. Laws exist to protect those caught in the middle, although the learning curve for society’s understanding of parity is far from equal. Like most things, time and patience may be the only solution, assuming Microsoft has finally stopped autocorrecting the word "parity" with "party."

Craig Garner is the founder of Garner Health Law Corporation, as well as a healthcare consultant specializing in issues pertaining to modern American healthcare. Craig is also an adjunct professor of law at Pepperdine University School of Law. He can be reached at craig@garnerhealth.com.