Susan Jaffe: Medicare's frustrating post-hospitalization gap

Incision from knee-replacement surgery

Incision from knee-replacement surgery

From Kaiser Health News

Medicare paid for Betty Gordon’s knee-replacement surgery in March, but the 72-year-old former high school teacher, a Rhode Islander, needed a nursing home stay and care at home to recover.

Yet Medicare wouldn’t pay for that. So Gordon is stuck with a $7,000 bill she can’t afford — and, as if that were not bad enough, she can’t appeal.

The reasons Medicare won’t pay have frustrated her and many others trapped in the maze of regulations surrounding something called “observation care.”

Patients, like Gordon, receive observation care in the hospital when their doctors think they are too sick to go home but not sick enough to be admitted. They stay overnight or longer, usually in regular hospital rooms, getting some of the same services and treatment (often for the same problems) as an admitted patient — intravenous fluids, medications and other treatment, diagnostic tests and round-the-clock care they can get only in a hospital.

After knee-replacement surgery, Betty Gordon needed to go to a nursing home but because she had been in outpatient care and not hospitalized as an admitted patient for three days, Medicare would not cover her care there.

But observation care is considered an outpatient service under Medicare rules, like a doctor’s appointment or a lab test. Observation patients may have to pay a larger share of the hospital bill than if they were officially admitted to the hospital. Plus, they have to pick up the tab for any nursing home care

Medicare’s nursing home benefit is available only to those admitted to the hospital for three consecutive days. Gordon spent three days in the hospital after her surgery, but because she was getting observation care, that time didn’t count.

There’s another twist: Patients might want to file an appeal, as they can with many other Medicare decisions. But that is not allowed if the dispute involves observation care.

Monday, a trial begins in federal court in Hartford, Conn., where patients who were denied Medicare’s nursing home benefit are hoping to force the government to eliminate that exception. A victory would clear the way for appeals from hundreds of thousands of people.

The class-action lawsuit was filed in 2011 by seven Medicare observation patients and their families against the Department of Health and Human Services. Seven more plaintiffs later joined the case.

.“This is about whether the government can take away health care coverage you may be entitled to and leave you no opportunity to fight for it,” said Alice Bers, litigation director at the Center for Medicare Advocacy, one of the groups representing the plaintiffs.=

If they win, people with traditional Medicare who received observation care services for three days or longer since Jan. 1, 2009, could file appeals seeking reimbursement for bills Medicare would have paid had they been admitted to the hospital. More than 1.3 million observation claims meet these criteria for the 10-year period through 2017, according to the most recently available government data.

Gordon is not a plaintiff in the case, but she said the rules forced her to borrow money to pay for the care. “It doesn’t seem fair that after paying for Medicare all these years, you’re told you’re not going to be covered now for nursing home care,” Gordon said.

No one has explained to Gordon, who has hypoglycemia and an immune disease, why she wasn’t admitted. The federal notice hospitals are required to give Medicare observation patients didn’t provide answers.

Even Seema Verma, the head of the Centers for Medicare & Medicaid Services, is puzzled by the policy. “Better be admitted for at least 3 days in the hospital first if you want the nursing home paid for,” she said in a tweet Aug. 4. “Govt doesn’t always make sense. We’re listening to feedback.” Her office declined to provide further explanation.

Patients and their families can try to persuade the physician or hospital administrators to change their status, and sometimes that strategy works. If not, they can leave the hospital to avoid the extra expenses, even if doing so is against medical advice

The requirement of three consecutive days as a hospital inpatient to qualify for nursing home coverage is written into the Medicare law. But there are exemptions. Medicare officials don’t apply it to beneficiaries in some pilot programs and allow private Medicare Advantage insurers to waive it for their patients.

Concerned about the growing number of people affected by observation care, Medicare officials created a “two-midnight” rule in 2013. If a doctor expects a patient will be sick enough to stay in the hospital through two midnights, then it says the patient should generally be admitted as an inpatient

Yet observation claims have increased by about 70 percent since 2008, to more than 2 million in 2017. Claims for observation care patients who stay in the hospital for longer than 48 hours — who likely would qualify for nursing home coverage had they been admitted —rose by nearly 159%, according to data Kaiser Health News obtained from CMS. Yet the overall growth in traditional Medicare enrollment was just under 9 percent.

Justice Department lawyers handling the case declined to be interviewed, but in court filings they argue that the lawsuit accuses the wrong culprit.

The government can’t be blamed, the lawyers said, because the “two-midnight” rule gives hospitals and doctors — not the government — the final word on whether a patient should be admitted.

The government’s lawyers argue that since Medicare “has not established any fixed or objective criteria for inpatient admission,” any decision to admit a patient is not “fairly traceable” to the government.

Like Gordon, some doctors also complain about observation care rules. An American Medical Association spokesman, who spoke on condition of not being named, said the “two-midnight” policy “is challenging and illogical” and should be rescinded. “CMS should instead rely on physicians’ clinical judgment to determine a patient’s inpatient or outpatient status,” he added.

HHS’s Office of Inspector General urged CMS to count observation care days toward the three-day minimum needed for nursing home coverage. It’s No. 1 on a list issued last month of the 25 most important inspector general’s recommendations the agency has failed to implement.

The Medicare Payment Advisory Commission, which counsels Congress, has made a similar suggestion.

However, Colin Milligan, a spokesman for the American Hospital Association, is more positive about the “two-midnight” rule. It “recognizes the important role of physician judgment,” he said.

Medicare isn’t dictating what physicians must do, said a physician who has researched the effects of observation care. “It’s a benchmark upon which to base your decisions, not a standard or a mandate,” said Dr. Michael Ross, a professor of emergency medicine at Emory University School of Medicine in Atlanta. He supervises observation care units at Emory’s five hospitals and was chairman of a CMS advisory subcommittee on observation care.

Other physicians claim that since HHS pays hospitals and doctors to treat Medicare patients, the agency’s policies weigh on their decisions.

“One of the hardest things to do is to get physicians to predict what will happen with patients — we like to hedge our bets and account for all possibilities,” said Dr. Tipu Puri, a physician adviser and medical director at the University of Chicago’s medical center. “But we’re being forced to interpret the rules and read between the lines.”

In the meantime, observation care patients who get follow-up care at a nursing home may soon receive a puzzling notice. A Medicare fact sheet issued last month “strongly encourages” nursing home operators to give an “advance beneficiary notice of non-coverage” to patients who arrive without the required prior three-day hospital admission.

But that notice says they can choose to seek reimbursement by submitting an appeal to Medicare — an option government lawyers will argue in court is impossible.

Susan Jaffe is a Kaiser Health News reporter., @SusanJaffe

Llewellyn King: Trump grabs U.K. third rail, then lets go fast


American conservatives hate it. Even the most passionate British conservatives support it. It was conceived by Winston Churchill as far back as 1908, mentioned again in 1924, and laid out as a plank for British reconstruction in his forward-looking “Plan for Postwar Britain” in 1943.

This toxic issue, which turns red blue and blue red when you cross the Atlantic, is Britain’s National Health Service (NHS).

Introduced in 1948 by the Labor Government of Clement Atlee, it is often thought of in the United States as a socialist idea. Churchill was, in fact, influenced greatly by William Beveridge, a liberal economist who played a key role in the formation of what came to be known as the welfare state, which combined national insurance (social security) with national health insurance.

The Brits, I can attest as a former Brit, love the NHS. They also love to criticize it. It is up there with the weather.

Also, it should be noted, the NHS is not perfect; it is and always will be a work in progress.

So large a system has its failures. Whenever there is one, conservative American friends are quick to send me the bad news -- as though a surgical mess-up in Birmingham was a harbinger of the collapse of the entire system.

The NHS has been described as the third rail of British politics.

Clearly, President Trump had never heard that and had the temerity to suggest that the NHS should be part of trade negotiations between the United States and Britain. No, a thousand times no, was the instant reaction of the conservative ministers and former ministers now jostling for election as prime minister.

Any suggestion that the NHS -- Britain’s most popular government program -- would be in any way subject to commercial interference would doom a British candidate for public office.

How it was that Trump thought he could grab the third rail and get away with it is unknown, but he walked that one back, as they say nowadays, quickly the next day.

Over the years, I have been asked innumerable times about how the Brits do things from public transport to creative theater; from the financing of the BBC to the hobby of racing pigeons. When it comes to the NHS I am never asked; I am told. Liberals tell me it is what we need in the United States: a single-payer system. Conservatives tell me that it is communism and that the Brits get terrible health care.

I am not sure the former is desirable, and I know the latter to be poppycock fed by a fury that is based on misinformation willingly received and willingly disseminated.

I have received care as a young man under the NHS and members of my family have been recipients through the years. I have spent long hours examining various health systems and a good deal of time taking to British doctors and professionals. I have also done the unlikely in this debate: talked to patients.

A dear relative was gravely ill a few years ago. I spent a week at her bedside in a large hospital in Kingston, just outside London. As she was sedated at the time, I had a lot of time to study the place.

It was big with wings specializing in everything from heart failure to eye surgery. It seemed to work pretty well, although the public wards were crowded.

But there were these takeaways: No one was refused, nor would be sent home early, and no surprise bill would come in the mail. My relative had a private health plan on top of the NHS standard and got a private room and good food.

The biggest difference is in cost. Health care spending accounts for 17.9 percent of GDP in the United States, whereas it accounts for just 9.7 percent of GDP in the United Kingdom. Germany, France and Canada all have different systems which come out in the same place as the UK, with service delivered for money spent.

Structural costs bring our bill up. All those women in your doctor’s office, arguing with insurance companies on the phone over “codes,” are not practicing medicine. They are engaged in a kind of health care roulette: Will they or will they not pay? Is it in the plan?

I am not sure the NHS is right for the United States, but structural overhaul is necessary. Wasted efforts and greed pervade the system.

By the way, I do not have a dog in this fight: I am on Medicare -- and that costs the taxpayer too much because of weak controls.

Llewellyn King is executive producer and host of White House Chronicle, on PBS. His email is He’s based in Rhode Island and Washington, D.C.

Jordan Rau: Feds cracking down on short-staffed nursing homes


From Kaiser Health News

The federal government accelerated its crackdown on nursing homes that go days without a registered nurse by downgrading the rankings of a tenth of the nation’s homes on Medicare’s consumer website, new records show.

In its update in April to Nursing Home Compare, the Centers for Medicare & Medicaid Services gave its lowest star rating for staffing — one star on its five-star scale — to 1,638 homes. Most were downgraded because their payroll records reported no registered-nurse hours at all for four days or more, while the remainder failed to submit their payroll records or sent data that couldn’t be verified through an audit.


If you would like a copy of this data, please email

“Once you’re past four days [without registered nursing], it’s probably beyond calling in sick,” said David Grabowski, a health policy professor at Harvard Medical School. “It’s probably a systemic problem.”

It was a tougher standard than Medicare had previously applied, when it demoted nursing homes with seven or more days without a registered nurse.

“Nurse staffing has the greatest impact on the quality of care nursing homes deliver, which is why CMS analyzed the relationship between staffing levels and outcomes,” the agency announced in March. “CMS found that as staffing levels increase, quality increases.”

The latest batch of payroll records, released in April, shows that even more nursing homes fell short of Medicare’s requirement that a registered nurse be on-site at least eight hours every day. Over the final three months of 2018, 2,633 of the nation’s 15,563 nursing homes reported that for four or more days, registered nurses worked fewer than eight hours, according to a Kaiser Health News analysis. Those facilities did not meet Medicare’s requirement even after counting nurses whose jobs are primarily administrative.

CMS has been alarmed at the frequency of understaffing of registered nurses — the most highly trained category of nurses in a home — since the government last year began requiring homes to submit payroll records to verify staffing levels. Before that, Nursing Home Compare relied on two-week snapshots nursing homes reported to health inspectors when they visited — a method officials worried was too easy to manipulate. The records show staffing on weekends is often particularly anemic.

CMS’s demotion of ratings on staffing is not as severe as it might seem, however. More than half of those homes were given a higher rating than one star for their overall assessment after CMS weighed inspection results and the facilities’ own measurement of residents’ health improvements.

That overall rating is the one that garners the most attention on Nursing Home Compare and that some hospitals use when recommending where discharged patients might go. Of the 1,638 demoted nursing homes, 277 were rated as average in overall quality (three stars), 175 received four stars, and 48 received the top rating of five stars.

Still, CMS’s overall changes to how the government assigns stars drew protests from nursing home groups. The American Health Care Association, a trade group for nursing homes, calculated that 36% of homes saw a drop in their ratings while 15% received improved ratings.

“By moving the scoring ‘goal posts’ for two components of the Five-Star system,” the association wrote, “CMS will cause more than 30 percent of nursing centers nationwide to lose one or more stars overnight — even though nothing changed in staffing levels and in quality of care, which is still being practiced and delivered every day.”

The association said in an email that the payroll records might exaggerate the absence of staff through unintentional omissions that homes make when submitting the data or because of problems on the government’s end. The association said it had raised concerns that salaried nurses face obstacles in recording time they worked above 40 hours a week. Also, the association added, homes must deduct a half-hour for every eight-hour shift for a meal break, even if the nurse worked through it.

“Some of our member nursing homes have told us that their data is not showing up correctly on Nursing Home Compare, making it appear that they do not have the nurses and other staff that they in fact do have on duty,” LeadingAge, an association of nonprofit medical providers including nursing homes, said last year.

Kaiser Health News has updated its interactive nursing home staffing tool with the latest data. You can use the tool to see the rating Medicare assigns to each facility for its registered nurse staffing and overall staffing levels. The tool also shows KHN-calculated ratios of patients to direct-care nurses and aides on the best- and worst-staffed days.

Jordan Rau:, @JordanRau


Jordan Rau: In Vermont, no break after big breaks


From Kaiser Health News

Sarah Witter couldn’t get a break even though her leg had gotten several.

As she lay on a ski trail in Vermont last February, Witter, now 63, knew she hadn’t suffered a regular fall because she could not get up. An X-ray showed she had fractured two major bones in her lower left leg.

A surgeon at Rutland Regional Medical Center screwed two gleaming metal plates onto the bones to stabilize them. “I was very pleased with how things came together,” the doctor wrote in his operation notes.

But as spring ended, the wound started to hurt more. In June, Witter returned to the doctor. “He X-rayed it and said it broke,” she said. “And I was thinking, what broke? And he said, the plate. He said they do sometimes.”

The doctor performed another operation, removing the cracked plate and replacing it with a larger one.

Witter said she had been dutifully following all the instructions for her recovery, including going to physical therapy and keeping weight off her leg.

“I was, of course, thinking, ‘What did I do?’” Witter said. “The doctor said right off the bat it was nothing I did.”

Then the bill came.

The two surgeries Sarah Witter had following her skiing accident last February led to almost $100,000 in bills. Witter paid more than $18,000 of that out-of-pocket.

Total bill: $99,159 for emergency services, therapy and hospital care, including $52,587 for the first surgery and $43,208 for the second surgery. Altogether, Witter’s insurer, Aetna, paid $76,783. Witter paid $18,442 — including $7,808 for the second surgery. About half of Witter’s total expenses were copayments; another $7,410 was the portion of hospital charges that Aetna considered unreasonably high and refused to pay.

Service provider: Rutland Regional Medical Center, the largest community hospital in Vermont, performed the surgeries. Emergency services, anesthesia and physical therapy were done by other providers.

Medical service: In February, two metal plates called bone fixation devices and manufactured by Johnson & Johnson’s DePuy Synthes division were surgically attached to two lower leg bones Witter had fractured in a skiing accident. These plates are long, narrow pieces of metal with holes drilled in them at regular intervals for screws to attach them to the bones. A crack had developed in one of the plates running from the side of one of those holes to the edge of the plate. A second surgery was required to remove the plate and replace it.

What gives: When devices or treatments fail and need to be replaced or redone, patients (and their insurers) are expected to foot the bill. That may be understandable if a first course of antibiotics doesn’t clear a bronchitis, requiring a second drug. But it is more problematic — and far more expensive — when a piece of surgical hardware fails, whether it’s a pacemaker, a hip that dislocates in the days after surgery or a fractured metal plate.

Warranties, standard features at an electronic store or a car dealership, are rare for surgeries and in the medical device industry.

Dr. James Rickert, an orthopedic surgeon in Indiana and president of the Society for Patient Centered Orthopedics, said a plate like the one implanted in Witter’s leg can fail if the surgeon does not line it up correctly with the bone, although usually that causes the screws to break or back out. A plate also can fail if the patient puts too much weight on it or doesn’t follow other recovery instructions.

“When the plate breaks, it’s usually from overworking it, or a defect in the plate itself,” Rickert said. “The vast majority of people follow their instructions and are honest about it. If a person comes in and tells you they’ve been following their instructions and the surgery’s done properly, to me that’s a hardware failure.”

Nancy Foster, vice president for quality and patient safety policy at the American Hospital Association, said sometimes hospitals will not charge for a second surgery “if they were aware that it was something they did that caused the patient to need follow-up care.”

Rutland Regional, Witter’s hospital, would not discuss Witter’s care or bills, even though she gave it permission to do so. “The organization is not comfortable in getting into the specifics of an individual patient’s case,” a spokeswoman wrote. The hospital also declined to discuss under what circumstances, if any, it would discount a second surgery’s cost because of the first’s failure.

Hospitals do not consider it their responsibility if a medical device failure is the problem, Foster said. But manufacturers are reluctant to take the blame for an unsuccessful surgery.

Patients are usually out of luck when a second surgery is needed because of the failure of a medical device, like Sarah Witter’s broken plate. “The biggest annoyance with this whole thing, even though it took eight months out of my life,” Witter says, “is I hate to pay for it again, and the doctor clearly said it wasn’t anything I did.”

AdvaMed, the trade group for medical device manufacturers, said some companies will provide replacement devices if theirs failed, but others do not, especially if the failure of a procedure cannot “easily be attributeDed” to the device, the group said in a written statement.

“There are numerous factors outside of a manufacturer’s control — and unrelated to the safety of the device as designed — that could result in a device not performing as intended,” AdvaMed said.

These devices aren’t cheap: Witter’s hospital billed $9,706 for the first set of plates. It billed $12,860 for the replacement and an extra piece of equipment to attach it.

DePuy Synthes, which manufactured Witter’s plates, said in a written response that “in rare circumstances” metal plates “may fracture under normal weight-bearing or load-bearing in the absence of complete bone healing.” Even then, the company said, that is a chance patients have to take.

AdvaMed said it does not keep statistics on device performance, and DePuy did not respond to questions about how often its plates fail.

Resolution: The second surgery delayed Witter’s recovery by four months and prevented her from gardening, golfing, hiking, biking and motorcycling through the summer and fall, as she usually does. “I was pretty much chair-bound for 20 weeks,” she said.

In November, she was not able to join her husband and son on a trip to Iceland. Instead of volunteering at a nearby ski resort, as she had done for six years — and which carries the benefit of a free season pass — Witter said she tried selling hand warmers and lip balm out of a small kiosk and watching the skiers through a window. She said she had to quit after six days because of the pain in her feet.

“The biggest annoyance with this whole thing, even though it took eight months out of my life, is I hate to pay for it again, and the doctor clearly said it wasn’t anything I did,” she said.

Aetna said that while it does not allow providers to charge for indisputably inept medical mistakes such as leaving a surgical sponge in a patient or operating on the wrong limb, a broken plate does not qualify for such protection.

After reviewing Witter’s records, Aetna said it concluded the hospital had billed Witter for the portion of charges Aetna had considered excessive —a practice known as “balance billing.” While Aetna cannot reject those charges because the hospital does not have a contract with it, the spokesman said Aetna would try to negotiate with the hospital on Witter’s behalf to reduce the bill.

Rutland Regional, however, indicated in its statement that the only reason it would discount a bill was for people who had inadequate insurance or were suffering financial hardship from the size of the bills. Witter said she does not meet the hospital’s criteria.

The hospital invited her to meet with her surgeon and its chief financial officer.

The Takeaway: Witter brought up the seeming unfairness of the double charges to the hospital’s billing department as well as to her doctor, who, she said, was “charming,” but told her “he had no wiggle room to do anything.”

Patients are usually out of luck when a second surgery is needed because of the failure of a medical device or a surgeon’s mistake. A few places, most prominently the Geisinger Health System in Pennsylvania, offer warranties for hip and knee, spine and coronary artery bypass surgeries, among other procedures.

AdvaMed says that if a company provides a replacement, the hospital or surgeon is not supposed to bill Medicare or the patient for the equipment — even if the operation incurs charges.

Patients should scrutinize their bills and question their doctor and hospital or surgical center about charges for replacement devices.

If the doctor or hospital is partially at fault for the failure of the first procedure, request that part or all of the costs of the second surgery be waived. Get it in writing so you can make sure the billing department follows through. Also, in a medical market where insurers want to pay only for value-based care, let your insurer or employer’s human resources department know that you are being charged twice for the same surgery. Let them fight the battle for you.

Do you have an exorbitant or baffling medical bill? Join the KHN and NPR Bill-of-the-Month Club and tell us about your experience.

Jordan Rau:, @JordanRau

Ski trail in Stowe, Vt.

Ski trail in Stowe, Vt.

Martha Burk: A sad birthday for Medicare and Medicaid




July 30 marks a very important anniversary in our modern political history.

Fifty-three years ago in 1965, President Lyndon Johnson signed Medicare and Medicaid into law, creating two programs that would disproportionately improve the lives of older and low-income Americans — especially women.

Fast-forward to 2018, and both programs are very much under siege. Nowhere is the struggle starker than in the House Republican budget — titled “A Brighter American Future” — now on Capitol Hill.

The importance of Medicare as a source of women’s health coverage can’t be over-emphasized.

Older and disabled women make up more than half the total beneficiaries, and two-thirds of those 85 and over. This budget from hell takes a giant step toward privatizing the program by allowing insurance companies into the Medicare marketplace, which means benefits could be caught in a race to the bottom and become too paltry to cover all but the barest of medical needs.

Medicaid is the joint federal-state program that provides low-income people with health care. The proposed Republican budget repeals the Medicaid expansion that came with Obamacare, which will cause 14 million to 17 million people to lose coverage.

The Medicaid remnants that survive would be turned into block grants, allowing states to pick and choose who gets covered and what kind of benefits they get — no doubt with little or no federal oversight. That approach makes it easier to cut the program without saying how many people would be dropped, or how much benefits would be lowered.

Since poor women under retirement age and their children are the biggest group of beneficiaries, it stands to reason they’d also be the biggest losers.

But there’s more. Because women have more chronic health conditions like arthritis, hypertension, and osteoporosis, they’re more likely to need institutional care. Since Medicare generally doesn’t cover nursing home care, Medicaid provides such care for those with disabilities and/or very low incomes — and 60 percent of those folks are women.

What’s not in the budget? Long gone is the Obama-era effort close the Gingrich-Edwards tax loophole that allows some high-income individuals (possibly including Donald Trump) to avoid Medicare and Social Security payroll taxes altogether, resulting in billions of lost revenue for both programs.

The House Republican budget probably won’t pass in its present form. But with Republican majorities in both houses of Congress, even compromises are sure to favor more cuts.

“A Brighter American Future?” Hardly. This summer’s 53rd anniversary of Medicare and Medicaid looks like a less than happy one for those that depend on them most — namely women, but really anyone counting on growing older.

Martha Burk is the director of the Corporate Accountability Project for the National Council of Women’s Organizations (NCWO) and the author of the book Your Voice, Your Vote. 

Jordan Rau: Thin and erratic staffing levels at many nursing homes



From Kaiser Health News


ITHACA, N.Y. — Most nursing homes had fewer nurses and caretaking staff than they had reported to the government, according to new federal data, bolstering the long-held suspicions of many families that staffing levels were often inadequate.

The records for the first time reveal frequent and significant fluctuations in day-to-day staffing, with particularly large shortfalls on weekends. On the worst-staffed days at an average facility, the new data show, on-duty personnel cared for nearly twice as many residents as they did when the staffing roster was fullest.

The data, analyzed by Kaiser Health News, come from daily payroll records Medicare only recently began gathering and publishing from more than 14,000 nursing homes, as required by the Affordable Care Act of 2010. Medicare previously had been rating each facility’s staffing levels based on the homes’ own unverified reports, making it possible to game the system.

The payroll records provide the strongest evidence that, over the past decade, the government’s five-star rating system for nursing homes often exaggerated staffing levels and rarely identified the periods of thin staffing that were common. Medicare is now relying on the new data to evaluate staffing, but the revamped star ratings still mask the erratic levels of people working from day to day.

At the Beechtree Center for Rehabilitation & Nursing here, Jay Vandemark, 47, who had a stroke last year, said he often roams the halls looking for an aide not already swamped with work when he needs help putting on his shirt.

Especially on weekends, he said, “it’s almost like a ghost town.”

Nearly 1.4 million people are cared for in skilled nursing facilities in the United States. When nursing homes are short-staffed, nurses and aides scramble to deliver meals, ferry bed-bound residents to the bathroom and answer calls for pain medication. Essential medical tasks such as repositioning a patient to avert bedsores can be overlooked when workers are overburdened, sometimes leading to avoidable hospitalizations.

“Volatility means there are gaps in care,” said David Stevenson, an associate professor of health policy at Vanderbilt University School of Medicine, in Nashville.  “It’s not like the day-to-day life of nursing home residents and their needs vary substantially on a weekend and a weekday. They need to get dressed, to bathe and to eat every single day.”

Dr. David Gifford, a senior vice president at the American Health Care Association, a nursing home trade group, disagreed, saying there are legitimate reasons staffing varies. On weekends, for instance, there are fewer activities for residents and more family members around, he said.

“While staffing is important, what really matters is what the overall outcomes are,” he said.

While Medicare does not set a minimum resident-to-staff ratio, it does require the presence of a registered nurse for eight hours a day and a licensed nurse at all times.

The payroll records show that even facilities that Medicare rated positively for staffing levels on its Nursing Home Compare website, including Beechtree, were short nurses and aides on some days. On its best-staffed days, Beechtree had one aide for every eight residents, while on its lowest-staffed days the ratio was 1-to-18. Nursing levels also varied.

The Centers for Medicare & Medicaid Services, the federal agency that oversees nursing home inspections, said in a statement that it “is concerned and taking steps to address fluctuations in staffing levels” that have emerged from the new data. This month, it said it would lower ratings for nursing homes that had gone seven or more days without a registered nurse.

Beechtree’s payroll records showed similar staffing levels to those it had reported before. David Camerota, chief operating officer of Upstate Services Group, the for-profit chain that owns Beechtree, said in a statement that the facility has enough nurses and aides to properly care for its 120 residents. But, he said, like other nursing homes, Beechtree is in “a constant battle” to recruit and retain employees even as it has increased pay to be more competitive.

Camerota wrote that weekend staffing is a special challenge as employees are guaranteed every other weekend off. “This impacts our ability to have as many staff as we would really like to have,” he wrote.

New Rating Method Is Still Flawed

In April, the government started using daily payroll reports to calculate average staffing ratings, replacing the old method, which relied on homes to report staffing for the two weeks before an inspection. The homes sometimes anticipated when an inspection would happen and could staff up before it.

The new records show that on at least one day during the last three months of 2017 — the most recent period for which data were available — a quarter of facilities reported no registered nurses at work.

Medicare discouraged comparison of staffing under the two methods and said no one should expect them to “exactly match.” The agency said the methods measure different time periods and have different criteria for how to record hours that nurses worked. The nursing home industry also objected, with Gifford saying it was like comparing Fahrenheit and Celsius temperatures.

But several prominent researchers said the contrast was not only fair but also warranted, since Medicare is using the new data for the same purpose as the old: to rate nursing homes on its website. “It’s a worthwhile comparison,” said David Grabowski, a professor of health-care policy at Harvard Medical School.

Payroll records at Beechtree show that on its best-staffed days, it had one aide for every eight residents, but the ratio was 1-to-18 at the lowest staffing level. 

Of the more than 14,000 nursing homes submitting payroll records, 7 in 10 had lower staffing using the new method, with a 12 percent average decrease, the data show. And as numerous studies have found, homes with lower staffing tended to have more health code violations — another crucial measure of quality.

Even with more reliable data, Medicare’s five-star rating system still has shortcomings. Medicare still assigns stars by comparing a home to other facilities, essentially grading on a curve. As a result, many homes have kept their rating even though their payroll records showed lower staffing than before. Also, Medicare did not rate more than 1,000 facilities, either because of data anomalies or because they were too new to have a staffing history.

There is no consensus on optimal staffing levels. Medicare has rebuffed requests to set specific minimums, declaring in 2016 that it preferred that facilities “make thoughtful, informed staffing plans” based on the needs of residents.

Still, since 2014, health inspectors have cited 1 in 8 nursing homes for having too few nurses, federal records show.

With nurse assistants earning an average of $13.23 an hour in 2017, nursing homes compete for workers not only with better-paying employers like hospitals, but also with retailers. Understaffing leads predictably to higher turnover.

“They get burned out and they quit,” said Adam Chandler, whose mother lived at Beechtree until her death earlier this year. “It’s been constant turmoil, and it never ends.”

Medicare’s payroll records for the nursing homes showed that there were, on average, 11 percent fewer nurses providing direct care on weekends and 8 percent fewer aides. Staffing levels fluctuated substantially during the week as well, when an aide at a typical home might have to care for as few as nine residents or as many as 14.

A Family Council Forms

Beechtree actually gets its best Medicare rating in the category of staffing, with four stars. (Its inspection citations and the frequency of declines in residents’ health dragged its overall star rating down to two of five.)

To Stan Hugo, a retired math teacher whose wife, Donna, 80, lives at Beechtree, staffing levels have long seemed inadequate. In 2017, he and a handful of other residents and family members became so dissatisfied that they formed a council to scrutinize the home’s operation. Medicare requires nursing home administrators to listen to such councils’ grievances and recommendations.

Sandy Ferreira, who makes health-care decisions for Effie Hamilton, a blind resident, said Hamilton broke her arm falling out of bed and has been hospitalized for dehydration and septic shock.

“Almost every problem we’ve had on the floor is one that could have been alleviated with enough and well-trained staff,” Ferreira said.

Beechtree declined to discuss individual residents but said it had investigated these complaints and did not find inadequate staffing on those days. Camerota also said that Medicare does not count assistants it hires to handle the simplest duties like making beds.

In recent months, Camerota said, Beechtree “has made major strides in listening to and addressing concerns related to staffing at the facility.”

Hugo agreed that Beechtree has increased daytime staffing during the week under the prodding of his council. On nights and weekends, he said, it still remained too low.

His wife has Alzheimer’s, uses a wheelchair and no longer talks. She enjoys music, and Hugo placed earphones on her head so she could listen to her favorite singers as he spoon-fed her lunch in the dining room on a recent Sunday.

As he does each day he visits, he counted each nursing assistant he saw tending residents, took a photograph of the official staffing log in the lobby and compared it to what he had observed. While he fed his wife, he noted two aides for the 40 residents on the floor — half what Medicare says is average at Beechtree.

“Weekends are terrible,” he said. While he’s regularly there overseeing his wife’s care, he wondered: “What about all these other residents? They don’t have people who come in.”



Bob Lord: The $170 billion lie in the GOP tax plan



House Republicans and Donald Trump are ballyhooing the wonders of their new tax plan. It’s called the “Tax Cuts and Jobs Act,” which we’re told will mean “More Jobs, Fairer Taxes, and Bigger Paychecks.”

Hallelujah! We can see the Promised Land!

But before we pop the champagne corks, let’s double-check the sticker price: $1.5 trillion over the next decade. That’s just shy of $5,000 for every man, woman and child in America. For a nation over $20 trillion in debt, that seems pricey.

But that’s only the beginning. The deeper costs of their tax plan are so large and so obvious that the failure of Republican leaders to disclose them is, for all practical purposes, a lie.

The premise of the House plan is, in fact, a $170 billion lie.

The vast majority of these proposed cuts — some 80 percent — go to the top of the income ladder. But to sell the plan as beneficial to the middle class, Republican House leaders included a tax credit of $300 for each family member, plus a larger credit of $1,600 for kids under 17.

Without that “Family Flexibility Credit,” the House plan would be a net benefit to far fewer families. Remarkably, however, the House Republicans crafted the Family Flexibility Credit to expire after only five years — after which middle-class families with college-aged kids will see a big tax hike.

So will the break be extended? Republican leaders promise it will be. But the $170 billion cost of extending the Family Flexibility Credit through 2027 isn’t included in the stated cost of their plan.

It’s worse than just that. The repeal of the federal estate tax, which is exclusively paid by a handful of multimillionaire families, will indirectly allow ultra-wealthy Americans and their heirs to avoid tens of billions in income tax. That lost income tax revenue isn’t reflected in the stated cost of the House plan either.

Nor are the tens, perhaps hundreds, of billions in revenue that will be lost when tax lawyers develop structures to squeeze tax savings out of the new 25 percent tax rate for so-called “business income” — a big discount from the otherwise applicable top rate of nearly 40 percent.

Amendments to address the concerns of powerful interest groups will likely raise the cost further. One example: A concern raised by multinational corporations regarding an excise tax provision was addressed by the House Ways and Means Committee, increasing the cost of the plan by $60 billion.

Even regular people will make adjustments that drive up the cost of the plan.

To minimize the impact of rules reducing the tax benefits they get from charitable contributions, some will bunch several years’ worth of gifts into a single year. If they no longer get a tax benefit from paying mortgage interest, some will forgo other investments that generate taxable income to pay their mortgages down at a faster rate.

None of this is news to Republican House tax writers.

But if their plan becomes law, you can count on those same Republicans to tell us how Social Security and Medicare benefits are driving the national debt too high and must be cut. In reality, they caused the problem themselves, by lying about the costs of their huge giveaway to the rich.

And that stinks.

Bob Lord is a veteran tax lawyer who practices and blogs in Phoenix.  He’s an associate fellow of the Institute for Policy Studies. 

David Warsh: The sleazy Sacklers' lethal painkiller promotions and the need for a 'Health Fed'

President Trump has  declared the opioid crisis a public health emergency, rather than a national emergency, since the Federal Emergency Management Agency is over-extended in dealing with storm relief.  Unfortunately, the Hospital Preparedness and Public Health Emergency Funds are equally strapped for cash, running respectively at 50 percent and 30 percent below their peak levels of a decade ago. Congress will have to act.

It was, therefore, an especially good time for “The Family that Built an Empire of Pain,” to appear last week in The New Yorker. You can read Patrick Radden Keefe’s remarkable story about the wellsprings of the crisis for free online, more easily, if less pleasurably, than in the magazine itself. The sub-head states, “The Sackler dynasty’s ruthless marketing of painkillers has generated billions of dollars – and millions of addicts.”

Others have worked on the Sackler family story over the years, documenting its leading role in producing the opioid epidemic, including Barry Meier, of The New York Times, who first uncovered the extensive marketing efforts for OxyContin,  and the Los Angeles Times team that documented the "12-Hour Problem '' that Keefe describes. But none has achieved anything like the rhetorical force of Keefe’s article. Once it is reworked as a book, I expect that “Empire of Pain” will eventually  attain the status of Rachel Carson’s Silent Spring, Jane Jacobs’s The Death and Life of Great American Cities, and other classics of social criticism. It is an astonishing story. You might as well read it now.

The three brothers of the Sackler family — Arthur (1913-87), Mortimer (1916-2010), and Raymond (1920-2017) – are far better known as philanthropists than as pharmaceutical entrepreneurs.  All three attended medical school and subsequently worked together at Creedmoor Psychiatric Center, in Queens, N.Y.  Arthur put himself through medical school working for William Douglas McAdams, a small advertising agency specializing in medical markets, then bought the business.  In 1952, the three physicians bought Purdue Frederick, a little manufacturer of patent medicines in Greenwich Village (and no relation to the famous university). Each owned a third.

While Mortimer and Raymond built the company, Arthur took a more distant role, concentrating on medicine as editor in chief of the Journal of Clinical and Experimental Psychopathology from 1950-1962. In 1960, he founded a biweekly newspaper, Medical Tribune, which eventually reached 600,000 subscribers.

The Sackler family grew tolerably rich on the sale of Valium, which between 1969 and 1982 was the top-selling pharmaceutical drug in the United States. When Sen. Estes Kefauver (D.-Tenn.) investigated the rapidly growing pharmaceutical industry in the early 1960s, a staff member prepared a memo that read, in part,

"The Sackler empire is a completely integrated operation in that it can devise a new drug in its drug development enterprise, have the drug clinically tested and secure favorable reports on the drug from various hospitals with which they have connections, conceive the advertising approach and prepare the actual advertising copy with which to promote the drug, have the clinical articles as well as the advertising copy published in their own medical journals, [and] prepare and plant articles in newspapers and magazines.''

Enter Raymond’s son Richard Sackler (b. 1945), in 1971, fresh out of medical school. Starting as assistant to his father, during the next 30  years he presided over efforts to develop OxyContin and  turn  it into the best-selling pain medicine in the world.  How the company, re-named Purdue Pharma, managed that forms the bulk of Keefe’s 13,000-word account.

Simply put, thanks to  massive marketing efforts, the long-lasting narcotic came to be widely prescribed, not just for severe pain associated with surgery or cancer, but for almost any discomfort, including arthritis, back pain and sports injuries – despite its obviously addictive properties. Early versions turned out to be ruinously easy to abuse; later editions turned out to be a gateway to the use of cheaper heroin. More than 300,000 lives have been lost to overdoses of opioid drugs since 2000; perhaps 10  times as many have been shattered.

Arthur’s heirs sold their father’s share of the company to his brothers sometime after 1987. Mortimer moved to Europe to spend and save his dividends  Raymond ran the company day-to day for many years, and died only last July. Nine family members are among the directors of the private company.  Past president Richard Sackler was deposed last year, as part of Kentucky’s complaint that many of Purdue’s marketing methods were illegal. A battle to unseal his testimony has ensued.  Many more lawsuits are in train; their tactics resemble the campaign to rein in the use of tobacco. Congress can be expected to again hold hearings.

The editorial board of The Wall Street Journal also addressed the topic, uncharacteristically ignoring the supply side in favor of demand factors, in a piece headlined "The Opioid Puzzle'' (subscription required). The editorial board’s interest was piqued by “the government’s role is allowing too-easy access to painkillers, particularly among society’s poor and vulnerable.”

Medicaid recipients receive prescriptions for twice as much pain medication as those not covered by the government’s low-income plan, the editors wrote, citing government figures. And one out of every three Medicare beneficiaries received opioid prescriptions last year, half a million of them in extravagant doses. “The only way to explain this cascade of pills is an epidemic of fraud,” the editors concluded.

Better to put the two analyses together.  OxyContin sales are estimated to have been around $35 billion over the last 20 years.  An enormous portion of that was surely paid by the government as insurance subsidies.  Only when you see the two programs unfolding together do you begin to comprehend the nature of the problem – the entrepreneurial genius of the Sackler family on the one hand, developing and marketing popular mood-altering and painkilling drugs since the 1950s; on the other, the rise of government medical insurance since 1966, when the Medicare program went into effect.

Throw in the mostly unrecognized extent to which big pharmaceutical manufacturers have discouraged all manner of research on the painkilling applications of medical marijuana, and you have a real witches’ brew.

The U.S . health-care industry may be, in certain respects, the best in the world; certainly it is the most expensive.  As the opioid epidemic demonstrates, it offers a colossal field for mischief. The editorial board of the WSJ is right about this much:  innovation is the answer, to the opioid crisis, and much else among the medical sector’s many other ills.  In this case the desideratum is regulation – not Pentagon-style hierarchy, but rather the decentralized and consensual decision-making represented by the Federal Reserve System.

The blueprint developed 10 years ago by former Senate Majority Leader Tom Daschle (D.-South Dakota) in his run-up to a presidential campaign that was ultimately overtaken by that of the junior senator from Illinois, Barack Obama, is still the only model that make sense. Daschle imagined a dozen or so regional health-care authorities, sharing power among regulators, physicians, hospitals, insurers, device and pharmaceutical providers, governed by a federal board of governors insulated as much as possible from politics.

A Health Care Fed eventually will deliver efficiency –  and diminish freebooting – in the enormous sector, in much the same way the Federal Reserve Board stabilized the similarly turbulent banking industry a hundred years ago.  It’s just going to take more time – another generation or two, I would guess.

David Warsh, a long time financial columnist and an economic historian, is proprietor of economic principals. com, where this first appeared.

Sam Pizzigati: Payroll tax deeply discriminates against low- and middle-income people


How much did your paychecks total last year? You know the answer, of course. So does the Social Security Administration. The totals for every American’s paycheck income are sitting in Social Security’s computers.

Once every year, Social Security does a serious data dump out of those computers to let us know just how much working Americans are actually making. The latest totals — covering 2016 — have just appeared.

Most of us, the new numbers show, are simply not making all that much.

In fact, nearly half of our nation’s employed — 49.3 percent — earned less than $30,000 in 2016. A good many of these Americans lived in poverty. In 2016, families of four that earned less than $24,339 ranked as officially poor.

We don’t have an “official” figure for middle class status. But the Economic Policy Institute has calculated the costs of maintaining a no-frills middle class existence in various parts of the United States. In Houston, one of our nation’s cheaper major cities, a family of four needed $62,544 in 2016 to live a bare-bones middle class lifestyle.

Nationally, according to the new Social Security payroll income numbers, over three-quarters of working Americans — 76.4 percent — took home less than $60,000 in 2016.

Some Americans, on the other hand, took home a great deal more. The Social Security Administration counts 133,119 Americans who pocketed over $1 million in paycheck income last year.

Now which of these two groups — the millionaires or the under-$60,000 crowd — do you think paid a greater share of its income in Social Security taxes?

The millionaires could certainly afford to pay the bigger share. But they didn’t.

Individuals who took home $1 million in 2016 had $16,265 deducted from their paychecks for Social Security and Medicare. Those deductions totaled a meager 1.6 percent of their paycheck income. Working Americans making $60,000 last year, by contrast, had 7.65 percent of their take-home deducted for Social Security and Medicare.

In other words, Americans making $60,000 paid over four times more of their income for Social Security and Medicare than Americans who made $1 million.

How could that be?

Our tax code currently has a ceiling on earnings subject to the Social Security tax. That ceiling this year rests at $127,200. All paycheck income up to that level faces a 6.2 percent tax for Social Security and a 1.45 percent tax for Medicare.

Income above that ceiling faces no Social Security tax at all.

Until the Obama years, income above the earnings ceiling faced no payroll tax for Medicare either. But President Obama succeeded in getting that changed. Individual income over $200,000 now faces an additional 0.9 percent Medicare tax.

If all income over $200,000 faced a Social Security tax as well, we’d have enough new revenue to significantly improve Social Security benefits.

The Trump administration is moving in the opposite direction. Earlier this year, the White House tried and failed to get the Obama Medicare tax on the rich repealed.

Now the administration is pushing a tax “reform” that totally ignores the unfairness of the current Social Security payroll tax and instead hands America’s wealthiest a stunningly generous assortment of tax giveaways.

If this Trump tax plan passes, Americans making $60,000 will still be paying over four times more of their income in payroll taxes than Americans who make $1 million. And America’s millionaire-packed top 1 percent will get 80 percent of the new Trump tax cuts, the Tax Policy Center calculates.

The Trump tax plan, in other words, makes the U.S. tax code even more millionaire-friendly than the current code. The White House calls that “reform.” The rest of us ought to call it an outrage.

Sam Pizzigati, an Institute for Policy Studies associate fellow, co-edits 

Triumph of the old

From Robert Whitcomb's "Digital Diary'' in

U.S. public policy helps the old far more than the young. Consideran International Monetary Fund study that found that the lifetime net tax benefit in the U.S. – that is, the value of what we receive in government benefits compared to the taxes we pay – is positive for everybody over 18 but with the biggest benefit for those over 50.

But of course deficit spending (i.e., borrowing from the Chinese, etc.) has been paying for much of this. That suggests that eventually, younger people must pay much more in the new few years to cover the cost of old people on Medicare and Social Security. 

The attitude of many oldsters is: “Don't cut my Medicare, don’t cut my Social Security; I paid for those benefits!’’ Well, they only paid for part of them. As long as so many young people decline to take 20 minutes to vote, the heavy-voting oldsters will get an ever bigger slice of the pie.

The GOP eyes gutting Social Security

Adapted From Robert Whitcomb's "Digital Diary'' in

There's a move underway by some Trump advisers and Republican lobbyists to eliminate payroll taxes used to fund Social Security and Medicare Part A. (Medicaid is financed from general budget funds), with the ultimate aim of throwing more people on the tender mercies of Wall Street to finance their retirements.

Associated Press writers Josh Boak and Stephen Ohlemacher reported: “This approach would give a worker earning $60,000 a year an additional $3,720 in take-home pay, a possible win that lawmakers could highlight back in their districts even though it would involve changing the funding mechanism for Social Security, according to a lobbyist, who asked for anonymity to discuss the proposal without disrupting early negotiations.’’

Well, yes, that might be an initially popular way to destroy Social Security. The George W. Bush administration tried to give Wall Street  lots of Social Security cash. But the public, understandably doubtful that people in the financial-services industry would put customers’ interests first, pushed back. Then came the Great Crash of 2008….

Robert Whitcomb; Treatment for Brexit bathos; 'The Genius of Birds'

This first ran in Robert Whitcomb "Digital Diary'' column in

"There's been a little bit of hysteria post-Brexit vote, as if somehow NATO's gone, the Trans-Atlantic Alliance is dissolving, and every country is rushing off to its own corner. That's not what's happening."

--   President Obama

Quite right. And the Western World has been prosperous for long stretches without the E.U.!

The 51.8 percent vote  in the United Kingdom to leave the European Union stemmed from, among other things, the failure of the E.U. to slow the flood of refugees from nasty places and, somewhat related, the dwindling job prospects of millions of people hurt by globalization and computerization. Outgoing British Prime Minister David Cameron, for example, had vowed to cut net immigration into the U.K. to 100,000 a year. In fact,  it rose to  333,000 in 2015.

Then there was the desire to protect the orderly British way of life.

The British and many people on the Continent understandably fear for their tolerant and opensocieties when so many people from illiberal, corrupt, religiously fanatic and indeed barbaric cultures flee to Europe for its safety andprosperity, not to mention welfare benefits, butrefuse to give up some of the nasty archaic aspects of the cultures whence they came. The British “Leave’’ voters want to adjust the influx of immigrants from non-Western cultures to a pace that  allows for thegradual education of these newcomers so that they come to accept the values of an open, tolerant, democratic and secular society.

What happens next?

Future events might include:

·      The U.K. deciding not to leave the E.U. after all. For one thing, the referendum isn’t legallybinding!

·      Letting Scotland veto Brexit since, under one legal interpretation, leaving requires the Scottish Parliament’s approval and the Scots have strongly favored staying in the E.U.

·      Renegotiating the U.K.’s membership in the E.U. -- for example, giving Britain and other member nations more power to control population movements into their nations.

The U.K. will muddle through with new arrangements with the E.U., perhaps along the lines of non-members Norway and Switzerland and, I hope, develop  even closer connections with its offspring the United States.

Brexit should remind us that we need to strengthen the unity of the wider West – Europe, the U.S. and Canada --  especially as aggressive dictatorships, particularly Vladimir Putin’s Russia, as well as Islamic terrorists, pose intensifying dangers.  NATO must block Putin’s obvious plan to take over the Baltic Republics and that  part of Ukraine he hasn’t already grabbed. And the U.S., the U.K and the E.U. need to accelerate negotiations  to enact  the TransatlanticTrade and Investment Partnership to strengthen the West on both sides of the Atlantic.

An analysis at the World Economic Forum in Davos listed the 10 best nations to live in. All except Japan are Western democracies. Brexit may spawn new ways of thinking to keep it that way.


MontyBurnham, who chairs the Preservation Society of Newport County,  controlled her exasperation in her recent status report on  long-delayed upgrades to three Newport mansions – upgrades that would draw in more tourist money to the City by the Sea.

Tedious Nimby legal actions have long held up a long-overdue welcome center at The Breakers as well as refreshment services at Marble House and The Elms. The society will almost certainly finally triumph this year, letting these improvements be implemented next year. But what a pity it will have taken so long to offer these amenities. America has become an increasingly difficult place to do public projects, no matter how good for the general public.


Republican leaders have long denounced the Affordable Care Act without coming up with a detailed plan with a cost-benefit analysis to replace it.

The tradition continues with House Speaker Paul Ryan’s election-year healthcare replacement “plan’’ for the ACA. As usual, it involves further complicating the tax code -- in this case,  with a new tax credit for people (including rich folks) to buy insurance in markets to be regulated by the states.

The speaker doesn’t project how much the credit would be worth, what the total cost would be, how many people it would cover and the range of  health conditions to be covered by such policies. So, at this point anyway, it means pretty much nothing.

Meanwhile, the most cost-effective and least complicated way to improve American healthcare – extending Medicare to everyone – remains off the table. Lobbyists rule!


Jennifer Ackerman’s new book, The Genius of Birds, about birds’ cognitive abilities, is quite something. Birds use tools, plan, have capacious memories and complex social lives. Many species are anything but what we think of as ‘’birdbrained’’.

But then,  the more we learn about nonhuman animals the more we’re surprised by how many species are smart and deeply feeling creatures. Pigs, certainly. (And some fish?)

And yet we continue to terrify, kill and eat intelligent animals.

Robert Whitcomb is overseer of New England Diary.

Philip K. Howard: Congress needs to clean out the stables of long-outdated laws

Government is broken. So what do we do about it? Angry voters are placing their hopes in outsider presidential candidates who promise to “make America great again” or lead a “political revolution.”

But new blood in the White House, by itself, is unlikely to fix things. Every president since Jimmy Carter has promised to rein in bureaucratic excess and bring government under control, to no effect: The federal government just steamed ahead. Red tape got thicker, the special-interest spigot stayed open, and new laws got piled onto old ones.

What’s broken is American law—a man-made mountain of outdated statutes and regulations. Bad laws trap daily decisions in legal concrete and are largely responsible for the U.S. government’s clunky ineptitude.

The villain here is Congress—a lazy institution that postures instead of performing its constitutional job to make sure that our laws actually work. All laws have unintended negative consequences, but Congress accepts old programs as if they were immortal. The buildup of federal law since World War II has been massive—about 15-fold. The failure of Congress to adapt old laws to new realities predictably causes public programs to fail in significant ways.

The excessive cost of American healthcare, for example, is baked into legal mandates that encourage unnecessary care and divert 30 percent of a healthcare dollar to administration. The 1965 law creating Medicare and Medicaid, which mandates fee-for-service reimbursement, has 140,000 reimbursement categories today and requires massive staffing to manage payment for each medical intervention, including giving an aspirin.

In education, compliance requirements keep piling up, diverting school resources to filling out forms and away from teaching students. Almost half the states now have more administrators and support personnel than teachers. One congressional mandate from 1975, to provide special-education services, has mutated into a bureaucratic monster that sops up more than 25 percent of the total K-12 budget, with little left over for early education or gifted programs.

Why is it so difficult for the U.S. to rebuild its decrepit infrastructure? Because getting permits for a project of any size requires hacking through a jungle of a dozen or more agencies with conflicting legal requirements. Environmental review should take a year, not a decade.

Most laws with budgetary impact eventually become obsolete, but Congress hardly ever reconsiders them. New Deal Farm subsidies had outlived their usefulness by 1940 but are still in place, costing taxpayers about $15 billion a year. For any construction project with federal funding, the 1931 Davis-Bacon law sets wages, as matter of law, for every category of worker.

Bringing U.S. law up-to-date would transform our society. Shedding unnecessary subsidies and ineffective regulations would enhance America’s competitiveness. Eliminating unnecessary paperwork and compliance activity would unleash individual initiative for making our schools, hospitals and businesses work better. Getting infrastructure projects going would add more than a million new jobs.

But Congress accepts these old laws as a state of nature. Once Democrats pass a new social program, they take offense at any suggestion to look back, conflating its virtuous purpose with the way it actually works. Republicans don’t talk much about fixing old laws either, except for symbolic votes to repeal  the Affordable Care Act. Mainly they just try to block new laws and regulations. Statutory overhauls occur so rarely as to be front-page news.

No one alive is making critical choices about managing the public sector. American democracy is largely directed by dead people—past members of Congress and former regulators who wrote all the laws and rules that dictate choices today, whether or not they still make sense.

Why is Congress so incapable of fixing old laws? Blame the Founding Fathers. To deter legislative overreach, the Constitution makes it hard to enact new laws, but it doesn’t provide a convenient way to fix existing ones. The same onerous process for passing a new law is required to amend or repeal old laws, with one additional hurdle: Existing programs are defended by armies of special interests.

Today it is too much of a political struggle, with too little likelihood of success, for members of Congress to revisit any major policy choice of the past. That’s why Congress can’t get rid of New Deal agricultural subsidies, 75 years after the crisis ended.

This isn’t the first time in history that law has gotten out of hand. Legal complexity tends to breed greater complexity, with paralytic effects. That is what happened with ancient Roman law, with European civil codes of the 18th Century, with inconsistent contract laws in American states in the first half of the 20th Century, and now with U.S. regulatory law.

The problem has always been solved, even in ancient times, by appointing a small group to propose simplified codes. Especially with our dysfunctional Congress, special commissions have the enormous political advantage of proposing complete new codes—with shared pain and common benefits—while providing legislators the plausible deniability of not themselves getting rid of some special-interest freebie.

History shows that these recodifications can have a transformative effect on society. That is what happened under the simplifying reforms of the Justinian code in Byzantium and the Napoleonic code after the French Revolution. In the U.S., the establishment of the Uniform Commercial Code in the 1950s was an important pillar of the postwar economic boom.

But Congress also needs new structures and new incentives to fix old law.

The best prod would be an amendment to the Constitution imposing a sunset—say, every 10 to 15 years—on all laws and regulations that have a budgetary impact. To prevent Congress from simply extending the law by blanket reauthorization, the amendment should also prohibit reauthorization until there has been a public review and recommendation by an independent commission of citizens.

Programs that are widely considered politically untouchable, such as Medicare and Social Security, are often the ones most in need of modernization—to adjust the age of eligibility for Social Security to account for longer life expectancy, for example, or to migrate public healthcare away from inefficient fee-for service reimbursement. The political sensitivity of these programs is why a mandatory sunset is essential; it would prevent Congress from continuing to kick the can down the road.

The internal rules of Congress must also be overhauled. Streamlined deliberation should be encouraged by making committee structures more coherent, and rules should be changed to let committees become mini-legislatures, with fewer procedural roadblocks, so that legislators can focus on keeping existing programs up-to-date.

Fixing broken government is already a central theme of this presidential campaign. It is what voters want and what our nation needs. A president who ran on a platform of clearing out obsolete law would have a mandate hard for Congress to ignore.

Philip K. Howard, a New York-based lawyer, civic leader and writer, is the founder of the advocacy group Common Good and the author, most recently, of The Rule of Nobody.



Robert Whitcomb: Hospitals should be insurers, too

  This piece first ran in the Huffington Post.

Steven Brill's latest book, America's Bitter Pill: Money, Politics, Backroom Deals, and the Fight to Fix Our Broken Healthcare System, has gotten a lot of attention in large part because of Mr. Brill's vivid anecdotes about the "jalopy'' of American health care. They're memorable stories, gathered with his famous work ethic and intense curiosity, though there's a bit too much about his own deluxe heart-surgery adventures at Manhattan's very expensive New York-Presbyterian Hospital, which comprises some of the narrative glue of this book.

(I found my own open-heart surgery a couple of years ago to be tedium interspersed by fantastical hospital "chargemaster'' billing. A doctor friend told me that the bills had little connection to the reality of the final  total bill.)

Since we're all healthcare consumers, it would be nice, even in this post-literate society, if most adults read this book, to see how their money is being spent. Mr. Brill brings a lot of transparency to this all-too-opaque sector.

Mr. Brill is a rich entrepreneur and journalist and very much a member of the elite, luminaries of which he has easy access to. But he also displays strong compassion for the low- and middle-income people with whom he talks. Many of these folks have a brutal time paying for essential care (especially the unexpected kind) and navigating the obscenely complicated and contradictory U.S. healthcare "system''. His richly reported book provides a colorful, disturbing and occasionally encouraging look at our medical maze.

It's also a sort of thriller about the near-death saga of getting the Affordable Care Act enacted amidst relentless lobbying and political conflicts of interest. Then comes the Obama administration's efforts to recover from the disastrous launch of the website. Mr. Brill provides a heartening counter-example by telling us about the triumph of healthcare reform in -- perhaps surprisingly -- the Red State of Kentucky.

Most readers are at least vaguely aware of the institutionalized squalor of much Washington lobbying by some healthcare constituencies, and Steven Brill doesn't stint on telling us more about that. One recalls the famous line by Otto von Bismarck to the effect: "Like sausage-making, you don't want to see how laws are made.''

But there aren't many big surprises, except perhaps that you may find from reading this book that the profiteering by the pharmaceutical and medical-device industries -- for which the public pays much -- is even more extreme than you thought.

Meanwhile, there hasn't been nearly enough comment on his very good ideas to improve the ''system's'' egregious lack of coordination, reduce its gigantic costs and even improve medical outcomes, of all things.

In my view, his most interesting proposals are to encourage more hospital systems to get bigger (and hence to offer broader population-health care and better, most cost-efficient care of individual patients, especially the chronically ill) and to be insurance companies as well as care providers.

And in fact more and more systems have been getting into the insurance business in recent years. It may be the best way to incentivize both care coordination and cost control. Most of hospitals' and their clinicians' financial incentives to over-treat and over-test would disappear if the hospitals were also stuck with the claims costs!

Mr. Brill emphasizes what most people in the public don't seem to get: That hospitals with cost-plus "chargemaster'' billing, big operating profits and hugely compensated senior execs have driven much of the health-cost surge. That very much includes the "nonprofit'' hospitals, many of which are hugely profitable. "Nonprofit'' usually just means that things are arranged so that these enterprises don't pay most taxes.

It is the insurance companies, with relatively small profit margins, they get unfairly blamed for just about everything in U.S. health care. (Mr. Brill would also have done well to note that U.S. physicians are by far the highest paid in the world.) Hospital-insurer mergers don't mean that all independent insurers would go away. They'd still be needed (barring extension of Medicare to everybody) to cover bills from small, independent hospitals, independent physicians and some other clinicians.

Hospital system-insurer combined entities are well-positioned to collect and analyze data about patients to improve care and better allocate resources. Indeed, Mr. Brill says, the bigger the hospital system in a region, the better opportunity a system has to coordinate a patient's care in various inpatient and outpatient venues and cut costs through efficient, expense-saving "bundling'' in treating individual patients' injuries and illnesses over time. This includes treatment at the outpatient clinics that systems are increasingly establishing as the number of inpatient beds steadily declines.

Mr. Brill quotes Jeffrey Romoff, the chief executive of the big-foot University of Pittsburgh Medical Center system, which has an insurance company, on provider-payer marriages:

"All the incentives are aligned the right way. It's the beauty of being the payer and the provider at the same time. When the interests are not aligned, it's why seniors dying of cancer get chemo when they should just get hospice care.''

Obviously the hospital systems becoming insurers take on new processing costs, but think of how much money could be saved by cutting out the third-party middleman. For one big thing, the hospital-insurance combo doesn't worry about paying dividends to insurance-company shareholders or insurance execs' multimillion-dollar salaries. And the new combos might become a little more disciplined about the hospital execs' compensation.

Mr. Brill also suggests capping operating profits of hospitals (including "nonprofit'' ones) to, say, 8 percent. While he doesn't use the term "public utility'' I was reminded of the old-fashioned model of state regulators allowing about that percentage for electricity and natural-gas utilities. Maybe it's time to look at hospitals as public utilities, which they sort of are.

This doesn't address pharmaceutical and medical-device companies' astronomical profit margins, protected by Washington lobbyists who are even more effective than the insurers' and hospitals'. They drive up healthcare costs a lot. But the increased transparency and rigor in looking at the unimpressive medical outcomes associated with some heavily marketed medicines and devices will help constrain their pricing.

Mr. Brill also wants to cap salaries of hospital executives. I'm always  leery of government micro-managing internal decision-making in nongovernmental organizations -- too clunky -- but the idea should be studied.

So let's hope that state and federal regulators don't put too many roadblocks in the way of many more hospital systems becoming insurers.

Extending Medicare to everyone might be the most cost-effective reform but economic constituencies, and ideology often divorced from macro-economic realities, in Washington will prevent that, at least for the foreseeable future.

But Mr. Brill's prescriptions could help a lot. Meanwhile, let us hope that the shrinking number of paid healthcare journalists, such as Steven Brill, do what they can to disinfect a  system with all-too-often mediocre care and exorbitant costs that threaten to bankrupt America. More sunlight equals more reform.

Robert Whitcomb ( is a partner and senior adviser at Cambridge Management Group (, a healthcare-sector consultancy, a Fellow of the Pell Center for International Relations and Public Policy and overseer of He's a former finance editor of the International Herald Tribune, a former editor at The Wall Street Journal and former editorial-page editor at The Providence Journal.

A morning on this and that

A few Boxing Day observations:  

New Englanders are always complaining about their high electricity  rates even as they let frenzied and often well financed  and affluent not-in-my-backyard folks keep out the additional natural-gas pipelines, hydro-power, wind power, nuclear and even solar power that would bring down those rates and diversify their power sources so they aren't so vulnerable to one power source's price and supply gyrations.


As a nifty series in The Wall Street Journal implies,  you could expand healthcare if you really went after the physicians and other providers who are defrauding Medicare by many billions of dollars a year.



Donald Hall's latest book, Essays After Eighty, is well worth buying. The New Hampshire-based poet/essayist's take on aging is good medicine for all of us rapidly heading toward, or already in, old age.

As for me, I'll repeat the observation of other old people that the best thing about being  elderly is being able to easily say no to requests to do something you really don't want to do but may have felt compelled  to do by a sense of duty or the desire to be liked, or at least not disliked. Those concerns fall off like a snake shedding its skin.

And both those who liked you and disliked you disappear from the scene at an accelerating rate.




It's sad to know that  Turkish  President Recep Tayyip Erdogan is now a  kleptocratic, narcissistic, bigoted and anti-women dictator who is installing a police state. Turkey is a member of NATO but it's hard to know how long that can continue, since, in principle anyway, NATO members are supposed to be democracies. Erdogan is also cozying up to fellow dictator Vladimir Putin.

Erdogan, increasingly pathological in his lies, will presumably continue to use state apparatus to squelch dissent, and, like, Putin play the xenophobia card, as would any good demagogue.


--- R0bert Whitcomb



Medicare for all would have been better

More and I more I feel as if I have always been right on U.S healthcare reform. Instead of the overly complicated Clinton and then Obama proposals, those administrations should have pushed all out to extend Medicare to every0ne. They didn't want to take on the insurance companies but pushing Medicare for all would have been a much  clearer, and therefore easier,  fight for these administrations if they had summ0ned the will at the start to take on the K Street lobbyists. After all, even the Tea Party types constantly talked about the need to "save Medicare.'' (That's in part because the Tea Partyers include a lot of older people getting or about to get Medicare.)

If it is so great for old people, why not for everyone? Much lower overhead than the private insurers, easier paperwork and fair.


--- Robert Whitcomb