September-October 2016

September/October 2016

Volume 113, Number 5

DOJ CHALLENGES MERGERS

Colorado Attorney General joins suit

Award-winning publication of the Colorado Medical Society

contents Sept/Oct 2016, Volume 113, Number 5

Cover story The Department of

Justice (DOJ) has filed suit challenging the proposed mega-mergers between AnthemCigna and Aetna-Humana, the culmination of more than a year of methodical research and close collaboration between the American Medical Association, the Colorado Medical Society and 16 other state medical associations who worked together and with their physician members to develop a compelling economic and legal case for competition.

Read more starting on page 8.

Features. . .

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Successful collaboration–AMA CEO/EVP James Madera, MD, details the tremendous victory achieved by the AMA and the “Big 17” resulting in the U.S. Department of Justice suing to block the proposed health insurance mergers.

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Legal basis for opposing mergers–Patrick O’Rourke

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Writing the next chapter–Steve ErkenBrack, president and CEO of Rocky Mountain Health Plans, explains the rationale behind the Colorado-grown health insurer’s decision to join UnitedHealthcare as a subsidiary.

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Support increase in state cigarette tax– CMS Past President Tamaan Osbourne-Roberts, MD, urges physicians to support a tobacco tax initiative on the November ballot and hopefully prevent youth from starting the habit.

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Raise the bar for Colorado–Lt. Gov. Donna Lynne makes

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COMPAC announces candidate endorsements–

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State Innovation Model: Testing new models of care–

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Lifetime achievement award– CMS Past President W. George Shanks, MD, will be recognized with a lifetime achievement award from St. Mary’s Hospital in late September.

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Final Word–Adela Flores-Brennan, executive director of the Colorado Consumer Health Initiative (CCHI), writes about why CCHI supports the Department of Justice’s decision to block the proposed health insurance mergers.

Inside CMS

5 President’s Letter 7 Executive Office Update 30 Prescription Drug Abuse Update 33 COPIC Comment 34 Reflections

Departments 36 37 38 42 45

Member Benefits Spotlight CMS Election Results Letters to the Editor Medical News Classified Advertising

Colorado Medicine for September/October 2016

explains the basis of the legal challenge to the proposed health insurance mergers, and how the Colorado Medical Society has urged the state to carefully scrutinize them.

the case to vote for Amendment 71 on the November ballot, which would make it harder to amend the state constitution.

Hundreds of physicians have participated in the candidate screening process leading up to the 2016 November general election. COMPAC presents this list of endorsed candidates and urges physicians to consider the recommendations.

One hundred practices in the Colorado SIM initiative are improving quality of care and increasing patient outcomes with help from practice transformation coaches.

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C OLOR A D O M EDICA L S O CI ET Y 7351 Lowry Boulevard, Suite 110 • Denver, Colorado 80230-6902 (720) 859-1001 • (800) 654-5653 • fax (720) 859-7509 • www.cms.org

OFFICERS, BOARD MEMBERS, AMA DELEGATES, and STAFF

2015/2016 Officers Michael Volz, MD

President

Katie Lozano, MD

President-elect J.T. Boyd, MD

Treasurer

Alfred D. Gilchrist

Chief Executive Officer

Board of Directors Charles Breaux Jr., MD Laird Cagan, MD Sami Diab, MD Curtis Hagedorn, MD Mark B. Johnson, MD Aaron Jones, MS Richard Lamb, MD David Markenson, MD Gina Martin, MD Edward Norman, MD David Richman, MD Charlie Tharp, MD Kim Warner, MD

AMA Delegates A. “Lee” Morgan, MD M. Ray Painter Jr., MD Lynn Parry, MD Brigitta J. Robinson, MD AMA Alternate Delegates David Downs, MD Jan Kief, MD Katie Lozano, MD Tamaan Osbourne-Roberts, MD AMA Past President Jeremy Lazarus, MD

Tamaan Osbourne-Roberts, MD

Immediate Past President COLORADO MEDICAL SOCIETY STAFF Executive Office Alfred Gilchrist, Chief Executive Officer, Alfred_Gilchrist@cms.org Dean Holzkamp, Chief Operating Officer, Dean_Holzkamp@cms.org Dianna Mellott-Yost, Director, Professional Services, Dianna_Mellott-Yost@cms.org Tom Wilson, Manager, Accounting, Tom_Wilson@cms.org

Division of Health Care Financing Marilyn Rissmiller, Senior Director, Marilyn_Rissmiller@cms.org

Division of Communications and Member Benefits Kate Alfano, Communications Coordinator, Kate_Alfano@cms.org Mike Campo, Director, Business Development & Member Benefits, Mike_Campo@cms.org

Division of Government Relations Susan Koontz, JD, General Counsel, Senior Director, Susan_Koontz@cms.org Adrienne Abatemarco, Program Manager Adrienne_Abatemarco@cms.org

Division of Health Care Policy Chet Seward, Senior Director, Chet_Seward@cms.org JoAnne Wojak, Director, Continuing Medical Education, JoAnne_Wojak@cms.org

Division of Information Technology/Membership Tim Roberts, Senior Director, Tim_Roberts@cms.org Tim Yanetta, Coordinator, Tim_Yanetta@cms.org

Colorado Medical Society Foundation Colorado Medical Society Education Foundation Mike Campo, Staff Support, Mike_Campo@cms.org

COLORADO MEDICINE (ISSN-0199-7343) is published bimonthly as the official journal of the Colorado Medical Society, 7351 Lowry Boulevard, Suite 110, Denver, CO 80230-6902. Telephone (720) 859-1001 Outside Denver area, call 1-800-654-5653. Periodicals postage paid at Denver, Colorado, and at additional mailing offices. POSTMASTER, send address changes to COLORADO MEDICINE, P. O. Box 17550, Denver, CO 80217-0550. Address all correspondence relating to subscriptions, advertising or address changes, manuscripts, organizational and other news items regarding the editorial content to the editorial and business office.

Subscriptions are available for $36 per year, paid in advance.

COLORADO MEDICINE magazine is the official journal of the Colorado Medical Society, and as such is also authorized to carry general advertising. COLORADO MEDICINE is copyrighted 2006 by the Colorado Medical Society. All material subject to this copyright appearing in COLORADO MEDICINE may be photocopied for the non-commercial purpose of education and scientific advancement. Publication of any advertisement in COLORADO MEDICINE does not imply an endorsement or sponsorship by the Colorado Medical Society of the product or service advertised. Published articles represent the opinions of the authors and do not necessarily reflect the official policy of the Colorado Medical Society unless clearly specified.

Alfred D. Gilchrist, Executive Editor; Dean Holzkamp, Managing Editor; Kate Alfano, Assistant Editor; Chet Seward, Assistant Editor.

Printed by Hampden Press, Aurora, Colorado

Inside CMS

president’s letter Michael Volz, MD President, Colorado Medical Society

Reflecting on a year of advocacy On Sept. 18 I will hand over the leadership of CMS to president-elect Katie Lozano, MD, FACR. It would be cliché to say it has been an incredible year.

Steering the vessel of the medical society was much like being an explorer in the Age of Discovery, and my treasure found was the rich landscape of physician advocacy, health policy, member engagement, and the transition of a nonprofit to a more transparent and connected medical society.

she heard our voice and is taking the time to understand the complexities of the interactions between physicians and health insurers in greater detail.

As I expected when I took the helm last September, much of my presidential year has been devoted to our advocacy on network adequacy and bringing the physician’s voice to state and federal regulators on the proposed mega-mergers of Anthem-Cigna and Aetna-Humana. Not uncharted territory, but certainly challenging terrain, we have devoted countless hours and energy to resolving the barriers to good care that physicians are facing with commercial health plans, and this level of commitment will be maintained for the remainder of the decade.

This issue’s cover story details the latest action in the health industry merger story – the lawsuit filed by the U.S. Department of Justice to block these consolidations. CMS has taken an aggressive stand since last summer when the mergers were announced, first by urging state and federal investigators to carefully scrutinize the mergers, and then in March of this year announcing opposition along with the American Medical Association and 16 additional state medical associations. And speaking of the AMA, it was so gratifying to watch as they coordinated the efforts of 17 state medical associations and provided each with scholarly legal and market analysis support. Nearly 600 CMS members completed our merger survey provided by the AMA, with many of the outcomes on full display in the DOJ’s lawsuit to stop the AnthemCigna merger (read more on page 8).

There are many opportunities in Colorado for our profession to step up in an effort to improve interactions between health plans and physicians. One promising venue has been through a special Physician Advisory Group convened by the Colorado Division of Insurance Commissioner Marguerite Salazar. Starting in April and continuing through the summer and fall, the advisory committee has been meeting with the commissioner and working through a variety of issues, such as network adequacy standards, provider directories, continuity of care and provider complaints. We are grateful that

CMS governance and communications are rapidly transitioning from an emeritus to a millennial model. The New CMS gives members multiple new ways to engage with our society, stay informed on key issues, share opinions and concerns, and feel empowered to get involved. We’ll soon roll out Central Line, an innovative, first-in-the-nation electronic policy system conceptualized by physicians active with CMS. Central Line will provide members with the unique, easy and powerful opportunity to participate in the policymaking process, often without attending a single in-person meeting. As

Colorado Medicine for September/October 2016

a CMS member, you can use Central Line to advise the board of directors on subjects that are important to you via your computer, tablet or smartphone 24 hours a day, seven days a week, and provide input to the board of directors on policy decisions before and after they vote. This brings unprecedented grassroots member engagement to CMS and a more balanced approach to governing that splits the difference between a total top-down and total bottom-up model. CMS will be a stronger, more responsive medical society as a result.

I have also traveled around the state meeting physicians in every specialty and practice setting at The New CMS regional forums. It is inspiring to meet these physicians and lead dialogue on governance changes and Colorado’s most pressing public policy issues. Dr. Lozano will continue our enhanced tradition of listening through these inperson meetings and Central Line.

Throughout this busy year, I have been impressed by your passion and involvement on public policy issues. This is best illustrated by the tremendous response to our all-member surveys on the insurance mergers, physician-assisted death and ColoradoCare/Amendment 69. Our bond may have begun in medicine but it continues as we put our patients and communities first through advocacy.

Thank you for the role you have played in steering the ship; it takes all of us to stay on course. And thank you for entrusting the leadership of the medical society to me this past year. I am humbled and grateful for this valuable experience. n 5

THE STRENGTH TO HEAL

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Colorado Medicine for September/October 2016

Inside CMS

executive office update Alfred Gilchrist, CEO Colorado Medical Society

Anatomy of a DOJ lawsuit: The backstory on physician involvement The cover story on the significance of the Department of Justice’s (DOJ) lawsuit to block the health insurance mega-mergers gives you some idea of the coordinated efforts by the AMA and state medical associations to make your voice heard. However, this level of engagement required a careful logistical assessment, as there is no shortage of exam-room relevant, politically viable issues where our limited resources can be spent on your behalf.

Our advocacy team worked with the AMA and several other key states to determine the logistical aspects of the engagement process in the earliest days of the merger announcements. A look back at where we started will give you insight into these early assessments and strategic thinking.

In order to frame our response, we collectively made the following assumptions regarding how the companies would approach the mergers. These assumptions proved reasonably accurate. We assumed they would do the following: 1. Arm themselves with lobbyists, lawyers and public relations firms across the country.

2. Deploy a message that resonates with the current narrative of the Triple Aim. 3. Use current state merger laws to limit transparency and public input.

4. Rely on their carefully developed, long-term relationships with state insurance commissioners and their top executives.

5. Donate generously to elected officials, parties and others where beneficial to promote their cause.

6. Try to get early wins by targeting states with the highest probability of success in order to demonstrate momentum to Wall Street and to make the case to regulators that the mergers are the right thing for health care in America.

7. Launch every legal strategy and argument conceivable, backed by an army of litigators, to make these mergers a reality.

Given the massive resources aligned on the other side, we also made assumptions about our counter strategy.

1. Rank-and-file physicians vigorously oppose the mergers and mounting a sustained opposition would serve as a unifying cause.

2. Notwithstanding their street credibility at the state level, physicians would be the underdogs.

3. A multi-state medical association effort would be needed and to be successful had to be coordinated with the full backing and expertise of the AMA to force the companies to fight across all the states individually.

4. It would be more appealing and credible to influencers if we played to our strengths at the grassroots level, rather than trying to match the companies’ money and canned PR and legal feints. We would force the companies to counter across 17 states, rather than go head to head with the AMA. 5. Our advocacy would focus on the corrosive effects of monopsony power. A multi-state effort would have to arm every state medical society with grassroots tools, starting with

Colorado Medicine for September/October 2016

extensive physician polling and consistent messaging so they could work with the most directly affected practice categories and markets to prove that insurer concentration will harm patients, physicians and employers.

By November 2015, our strategy was fully engaged. Now with the full force of the DOJ and 18 state attorneys general stepping up, the fight continues in federal court and in the court of public opinion. While the insurance companies are going to continue their fight for consolidation in court, questions remain: Will they be turned back, approved and required to divest in more markets, or is there some other business response we haven’t yet considered?

While the suits progress, the lessons learned from this engagement should provoke state legislative and regulatory debate and, hopefully in Colorado, constructive dialogue with at least some of the insurance companies.

Once the mergers are blocked, the production of a higher degree of equity, fairness and accountability between the business interests of the companies and the clinical interests of medical practices and systems would be a welcome endgame. n

CMS .ORG ORG CMS CMS CMS.ORG ORG Colorado Medical Society

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DOJ CHALLENGES MERGERS

Colorado Attorney General joins suit Kate Alfano, CMS Communications Coordinator

Cover Story STORY HIGHLIGHTS • The U.S. Department of Justice filed a lawsuit in late July to block the proposed mergers between Anthem-Cigna and Aetna-Humana.

• The American Medical Association, Colorado Medical Society and 16 other state medical societies worked together to provide the DOJ with compelling stories to build the case for competition.

• The work of the coalition continues. The insurers have stated that they will vigorously defend the lawsuit.

In late July the Department of Justice (DOJ) filed suit in the U.S. District Court for the District of Columbia challenging the proposed mega-mergers between Anthem-Cigna and AetnaHumana, the culmination of more than a year of methodical research and close collaboration with antitrust experts from the American Medical Association (AMA), the Colorado Medical Society and 16 other state medical associations who worked together and with their physician members to develop a compelling economic and legal case for competition.

The DOJ’s extraordinary effort is the first comprehensive legal challenge in many years to the attempts of the nations’ largest and most influential health plans to consolidate their market share and directly and indirectly influence the physicians who provide care in those communities.

When the mergers were announced in July of last year, the AMA and state medical societies responded swiftly with a campaign detailing how the mergers would increase health insurance market concentration and reduce competition.

The aim was to demonstrate that the proposed mergers would have negative long-term consequences for health care

access, quality and affordability in states across the nation. This response would prove to be a case study in how combining the first-person stories from practicing physicians and the strength of medical organizations – with the data, expertise and experience of the AMA team – can fuel the federal government’s oversight of these anticompetitive power-plays.

In September 2015, the AMA released an in-depth analysis of the mergers’ potential impact on markets and access to care, sharing the results with the DOJ, states and the general public.

The findings were clear, staggering and authoritative: The combined impact of the proposed mergers would exceed federal antitrust guidelines designed to preserve competition in as many as 97 metropolitan areas within 17 states, including Colorado. And the findings perfectly matched the DOJ’s definition of enhanced market power: “A merger enhances market power if it is likely to encourage one or more firms to raise price, reduce output, diminish innovation, or otherwise harm customers as a result of diminished competitive constraints or incentives.”

The AMA also highlighted research published in a leading academic journal establishing that the 2008 United HealthGroup Inc. merger with Sierra Health Services in Nevada resulted in higher premiums. This fact-based evidence disproved the insurers’ central claim that savings would be passed on to consumers. Both the broader competition survey and the Nevada study earned prominent media coverage and frequent citation in testimony before Congress and in the states.

In December 2015, the AMA identified the 17 states where the mergers would have the most harmful impact on patient care delivery and formed a coalition with their state medical associations to block the mergers. The AMA worked closely with CMS in piloting a physician survey relating to the monopsony issues raised by the proposed mergers that was sent to physicians in many of the 17 states. The survey covered not

Colorado Medicine for September/October 2016

only the likely direct deleterious effects of the mergers on patients in the form of higher premiums and poorer plan quality, but also the likely indirect adverse effects on the quality and quantity of physician services caused by health insurer “buyer” or “monopsony” power in contracting with physicians.

The survey responses were powerful, alarming and persuasive to the DOJ investigators, who methodically interviewed numerous physicians in many of the concentrated states identified by the state medical advocates as having extensive experience negotiating plan contracts.

In Colorado, a majority of CMS members (68 percent) opposed allowing the mergers to proceed, including 48 percent who “strongly” opposed it. Among physicians in active practice, 73 percent said they oppose (54 percent “strongly”).

Among decision-makers – physicians who participate directly in contract negotiations with commercial insurers – opposition stood at 79 percent (63 percent “strongly”). And nearly all decision-makers (who make up one-third of CMS members, and are largely concentrated among office-based, smaller specialty care practices) expressed a belief that contract negotiations will be less favorable to physicians if the mergers are approved, with 85 percent saying as much.

Data from the AMA and federal Centers for Medicare and Medicaid Services showed that the Aetna-Humana merger would likely enhance market power or potentially raise significant competitive concerns in five Colorado counties: Boulder, Mesa, Larimer, Pueblo and Weld. The market analysis served as a strong foundation for CMS and the component societies in these markets to make the case to the DOJ, state regulators, and lawmakers to carefully scrutinize and block the mergers.

In the face of this compelling information, the plans threw every conceivable legal theory into their case, spending

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Cover story (cont.) millions of dollars on legal, banking and advocacy services. When Anthem argued that consumers will benefit by its reduced costs in paying for physician services – suggesting the Affordable Care Act’s Medical Loss Ratio (MLR) will prevent the insurers from pocketing excess profits – the AMA secured a letter from Washington and Lee law professor Tim Jost, the author of the ACA’s MLR regulations. His letter, which was addressed to the Florida attorney general and shared with the DOJ before it filed its merger challenges, explained that MLR is no substitute for competitive health insurance markets and does not – nor was it intended to – prevent health insurers from exercising market power.

And when Aetna and Humana argued that the new entity’s massive Medicare Advantage share would be of no consequence because Aetna must compete with the U.S. government and its traditional Medicare offering, the AMA secured a letter from 20 prominent health economists (including former FTC

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Bureau of Economics Director Marty Gaynor) outlining why they are not the same market. Again, this letter was delivered to the DOJ and state attorneys general. Consequently, the DOJ’s complaint against Aetna-Humana reflects these AMA efforts; a section of their complaint is devoted to Medicare Advantage as a relevant product market and covers the points outlined in the economists’ sign-on letter.

As a direct result of these comprehensive efforts, Missouri’s insurance department found that Medicare Advantage does not compete with traditional Medicare and refused to approve the Aetna-Humana merger. The California Insurance Department acted soon thereafter, extensively referencing the AMA’s concerns as a basis for its powerful opposition to the mergers on both monopoly and monopsony grounds. The DOJ and a number of states ultimately decided to challenge both mergers. Among the 18 states and the District of Columbia that joined one or both of the lawsuits, 12 were among the 17 states in the AMA coalition.

A merger of this magnitude would compromise physicians’ ability to advocate for their patients; in practice, market power allows insurers to exert control over clinical decisions, which undermines physicians’ relationships with patients and eliminates crucial safeguards of patient care.

The DOJ lawsuit is not the end of the story; both companies have stated that they plan to vigorously defend it. What will be required for the long haul is a steadfast link between the AMA and the state medical societies, as well as thousands of grassroots physicians, to ensure health care markets can continue to function as intended, where the business relationships between plans and medical practices are balanced and competition is over the value of services, not market share.

Read a timeline featuring AMA/CMS actions leading up to the DOJ lawsuit starting on page 12. View the full timeline on www.cms.org.

Colorado Medicine for September/October 2016

Cover Story

DOJ sues to stop health plan mergers with strong language protecting consumers and physicians Excerpts from the press conference announcing the Justice Department’s actions to block Aetna’s acquisition of Humana and Anthem’s acquisition of Cigna

Bill Baer, Principal Deputy Associate Attorney General Washington, DC Thursday, July 21, 2016

Our lawsuits aim to protect the many Americans who depend on these four health insurers for access to affordable, high quality health care. Aetna’s acquisition

of Humana and Anthem’s acquisition of Cigna may be a convenient shortcut to increased profits for those companies. But the antitrust laws make clear that mergers are not lawful when they risk denying consumers the benefits of competition.

“

“

two mergers] put at risk “ [The the system that Americans across the country rely on to pay for their health care

– threatening to increase insurance premiums, reduce benefits, lower the quality of health care, and slow innovation.

These insurance companies are already some of the largest, most sophisticated companies in the country; they are thriving as independent firms; they do not need these deals to survive; and consumers

“

“

deserve to benefit from their continued competition.

Anthem claims that consumers will benefit if it becomes the 800-pound gorilla at the bargaining table – forcing cost concessions from doctors and hospitals without regard to the impact those concessions would have on the quality of medical care. The antitrust

laws don’t work that way – you don’t get to buy a competitor, and eliminate substantial competition, just to increase bargaining leverage with health care providers. Allowing just one company, Anthem, to dictate how much doctors get paid and employers get charged isn’t good for either doctors or employers. And it certainly is not good for hard-working Americans who rely on their employers for health insurance.

“

Colorado Medicine for September/October 2016

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Cover story (cont.)

AMA/CMS/Organized Medicine Timeline Working together to stop the health15plan mergers JULY 2015 Aetna and Humana announce merger on July 3.

Anthem and Cigna announce merger on July 24.

AMA issues statement, “Insurance Mergers Will Reduce Competition and Choice.”

AUGUST 2015 2015 AMA State Advocacy Roundtable.

AMA session features “Protecting physicians from anticompetitive health insurance and hospital market consolidation.”

CMS meets with Colorado Division of Insurance (DOI) expressing grave concerns about the consolidation of the health insurance market; encourages DOI merger hearings, for the DOI to initiate an independent investigation, and to notify CMS of any proposed orders and hearings relating to these mergers.

SEPTEMBER 2015 AMA releases the 2015 edition of “Competition in Health Insurance: A Comprehensive Study of U.S. Markets” on Sept. 8.

Study offers the largest and most complete picture of competition in health insurance markets for 388 metropolitan areas (MSAs) as well as 50 states and the District of Columbia; also identifies states where the mergers would have greatest impact.

CMS provides DOI and Colorado Attorney General Cynthia Coffman with the Colorado data for both mergers from the AMA analysis.

DOJ and CMS confer to identify all appropriate ways a state medical society could participate in the DOJ investigation.

CMS, Georgia, Connecticut and AMA begin a strategic dialogue on a national-state ‘block the merger’ coalition.

NOVEMBER 2015 AMA publicly and strongly urges DOJ to block the mergers.

CMS urges DOI to reconsider their decision to evaluate the two mergers separately given the potential for adverse or anti-competitive influences.

2016 AMA Interim Meeting.

CMS delegation to AMA supports successful policy proposal emphasizing the need for active opposition of consolidation in the health insurance industry that could result in anticompetitive markets and stunt access to quality, affordable health care.

Colorado DOI approves Aetna-Humana merger through inaction: No public notice or hearing.

CMS holds a physician focus group with polling firm Kupersmit Research to develop an all-member merger survey.

DECEMBER 2015

AMA Board of Trustees Member Barbara L. McAneny, MD, testifies to the House Judiciary Committee. Testimony is shared with U.S. Department of Justice (DOJ), and the National Association of Attorneys General (NAAG) and its work group on mergers.

AMA convenes all state and national medical specialties to propose a comprehensive advocacy strategy that sets a goal to significantly enhance physician and patient standing in the marketplace by first and foremost blocking the mergers.

Mergers, out of network (OON), network adequacy, Medicaid payment and SIM are designated as high CMS priorities.

AMA convenes call with National Association of Attorneys General (NAAG) and its working group related to mergers; over 40 state AG offices are represented.

AMA testifies before the House Judiciary Committee to urge federal and state regulators “to closely scrutinize the proposed health insurer mergers and utilize enforcement tools to protect consumers and preserve competition.” Testimony is shared with DOJ as well as NAAG and its work group on mergers.

AMA identifies linchpin states – states to focus grassroots strategy – and holds multiple calls with what will be called the “Big 17” state medical associations or high concentration states.

CMS meets with Colorado Office of the Attorney General.

OCTOBER 2015 AMA meets with the DOJ Antitrust Division to discuss the AMA’s competition study.

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CMS initiates contact with the DOJ expressing grave concerns about the mergers and demonstrating strong support for the urgings of the AMA and the American Hospital Association that the DOJ thoroughly investigate both mergers.

AMA and their litigation center provide support to CMS on Colorado DOI’s refusal to hold hearings on Aetna-Humana.

AMA and AHA begin a regular, routine collaborative engagement.

CMS meets with DOI executive leadership and the governor’s office to strongly object to DOI’s AetnaHumana decision and to ask for reconsideration.

Colorado Medicine for September/October 2016

engagement.

CMS Board of Directors unanimously votes for opposition to both mergers.

CMS meets with DOI executive leadership and the governor’s office to strongly object to DOI’s AetnaHumana decision and to ask for reconsideration.

Big 17 states and AMA begin sharing merger-monopsony survey results with DOJ, state insurance commissioners and state attorney generals.

The CMS all-member survey is designed with assistance from an AMA antitrust legal scholar to measure anticipated physician reaction to the two mergers should they be approved.

March-April issue of Colorado Medicine dedicated to the mergers.

JANUARY 2016

Cover Story

CMS creates a state specialty-component society coalition to block the mergers; 15 join CMS survey featured in statewide media briefing sponsored by Colorado Campaign for Choice.

DOI announces first-ever outward facing electronic merger and acquisition notification system in response to CMS complaints.

CMS president meets with Colorado Office of the Attorney General.

DOI denies a CMS-requested rehearing on Aetna-Humana approval explaining “there was not substantial evidence that the merger would substantially lessen competition in any line of business in this state,” nor was there “substantial evidence that the merger would tend to create a monopoly.”

State district court gives DOI discretionary authority to release a non-domestic Form E.

CMS initiates two freedom of information requests to DOI seeking all communications specific to the Aetna-Humana merger and release of Aetna’s Form E, the market analysis used as the basis for the DOI decision.

CMS initiates dialouge with the Colorado attorney general to discuss DOI’s approval of Aetna-Humana.

CMS concludes all-member survey; Kupersmit Research begins data analysis.

AMA and patient/consumer group coalition begin a regular engagement to share perspectives on the mergers.

AMA continues conference “coordination” calls with the “Big 17” coalition.

In conjunction with the Utah Medical Association, AMA urges the Utah Insurance Department to reconsider its approval of the Aetna/Humana merger without notice or hearing.

FEBRUARY 2016 DOI files a motion in state district court asking for a ruling on the confidentiality Aetna’s Form E – the subject of a CMS open records request.

AMA provides monopsony survey tested in Colorado to the “Big 17” state coalition.

Conference calls with “Big 17” coalition continue.

Kupersmit Research announces findings from CMS all-member merger survey concluding that CMS members resoundingly reject the proposed mergers.

MARCH-MAY 2016 Conference calls with “Big 17” coalition continue.

CMS Board of Directors unanimously votes for opposition to both mergers.

Big 17 states and AMA begin sharing merger-monopsony survey results with DOJ, state insurance commissioners and state attorney generals.

Colorado Medicine for September/October 2016

CMS testifies in state district court in support of public release of Aetna’s Form E.

CMS requests DOI release Aetna’s Form E in the interest of policyholders and the public.

Missouri regulators reject Aetna-Humana.

Modern Healthcare reports Anthem-Cigna and AetnaHumana cumulatively have spent more than $400 million on lawyers, investment bankers and other advisers on the mergers covering after-tax expenses from the time the deals were announced through the end of March 31.

JUNE 2016 Boulder County Medical Society (BCMS) sends a letter on June 3 to the DOJ protesting the CO DOI AetnaHumana decision, with full support from the AMA and CMS. Letter is shared with NAAG. AMA Litigation Center meeting featured at 2016 AMA Interim Meeting discusses how medical associations are responding to the Anthem-Cigna and AetnaHumana merger.

California insurance commissioner urges DOJ to block Anthem-Cigna.

JULY 2016 DOJ and 18 state attorney generals, including Colorado AG Cynthia Coffman announce a federal lawsuit to block the mergers of Aetna-Humana and AnthemCigna. Colorado DOI hearing on Anthem-Cigna is postponed in response.

CMS board of directors unanimously votes to seek 2017 legislation to make non-domestic Form Es transparent if DOI denies pending CMS request for Aetna’s Form E. Anthem calls DOJ lawsuit “unfortunate and misguided” based on a “flawed analysis” and vows to challenge the suit in court, as does Aetna.

AUGUST 2016 DOI denies CMS request for production of Aetna’s Form E citing the federal lawsuit to block the mergers and that release could negatively impact the DOI’s ability to receive confidential information from entities including other state regulators, the federal government and the NAIC.

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Colorado Medicine for September/October 2016

Features

Successful collaboration James L. Madera, MD Executive Vice President & CEO, American Medical Association

AMA, CMS and other states team up on advocacy strategy This July, the American Medical Association (AMA), the Colorado Medical Society (CMS), and our coalition of 16 other state mediJames Madera, MD cal associations achieved a tremendous victory for the nation’s patients when the United States Department of Justice (DOJ) and numerous state attorneys general sued to block the Anthem-Cigna and Aetna-Humana mergers. Your Colorado Medical Society was at the forefront in coalition efforts and strategic thinking.

This victory was a major triumph in a difficult environment – an environment where the health insurers spent millions of dollars more than the coalition did on state and federal lobbyists, where close relationships exist between state insurance regulators and the health insurers they oversee, and where closed, nontransparent merger review processes stacked regulatory reviews in the insurers’ favor.

Jointly developing a uniform, evidencebased advocacy strategy was just one way in which the AMA, CMS and the rest of the coalition worked together to successfully challenge the mergers. The formula for our success was clear: (1) create an irrefutable evidence base; (2) develop and implement a shared strategy; and (3) partner with stakeholders both within and outside of medicine.

In terms of the evidence base, the AMA’s authoritative “Competition in Health Insurance: A Comprehensive Study of U.S. Markets,” which uses the DOJ’s and Federal Trade Commission’s own metrics when evaluating health insurance mergers, provided empirically rigorous data showing that the proposed mergers would be bad for patients.

So too did the AMA’s retrospective analysis of the 2008 merger of United HealthGroup and Sierra Health Services, which disproved claims that insurers pass on savings to consumers.

We then developed a shared strategy that allowed us to align our values and communicate with authority. CMS’s and other coalition members’ efforts added to the AMA’s work in ways that were essential to the success of this evidence-based advocacy. For example, CMS’s extensive survey of Colorado physicians gathered a wealth of information that helped tell the merger monopsony story in great detail. The survey data was shared with the DOJ, which opened the door to communications between practicing Colorado physicians and that agency. These communications gave Colorado physicians the opportunity to express their concerns about the negative effect that the mergers would have on their patients in the most realistic, practical and convincing terms. Our joint efforts paid off – after filing its lawsuits, the DOJ called to thank both the AMA and our state medical society collaborators, including CMS, for our collective efforts. It was this joint, evidence-based advocacy that ultimately enabled us to trump insurer rhetoric. Our voices were heard – in large part because we never lost sight of

Colorado Medicine for September/October 2016

the key issue – that the mergers would hurt patients’ access to, and the quality of, health care.

Finally, we forged a robust alliance with key allies. We were creative and relentless as we developed the third prong of our formula. We found ways to work with hospital associations, consumer groups, and the nation’s top experts on antitrust and other key issues. With a robust evidence base and a shared vision, the path to aligning with critical stakeholders was clear and unencumbered.

So what’s next? Although the lawsuits have been filed, the final chapter has yet to be written, as Anthem and Aetna are vigorously challenging the lawsuits in both federal and state courts. The AMA and our state medical society coalition will continue to actively oppose the mergers at every opportunity until all merger issues are finally resolved. We will continue to engage both the national and local media – making certain that our shared message is heard – as a counter to the insurers’ specious claims that these mergers benefit patients. Our work is not over. We will not rest until the legal process has run its course.

The dramatic success we have already achieved demonstrates the value of being a member of organized medicine.

It provides a perfect model illustrating how the AMA and state medical associations can work together to jointly achieve success on other issues of primary importance to organized medicine – issues that impact patients and physicians committed to protecting them. n 15

Features

Health insurance mergers Patrick T. O'Rourke Vice President, University Counsel and Secretary of the Board of Regents

Understanding the legal basis for opposition Five national health insurance companies compete to offer services to tens of millions of patients and hundreds of thousands of employers in the United States. Four of those five companies hope to merge with each other – taking the “Big Five” to the “Remaining Three.”1 Anthem, Inc. seeks to purchase Cigna Corporation for $54 billion in what would be the largest merger in the history of the health insurance industry, and Aetna, Inc. seeks to acquire Humana, Inc. for $37 billion. The companies claim that their mergers will “increase competition and result in cost savings, efficiencies and other benefits that will make health care more affordable and accessible to consumers” and that “there is ample competition from other competitors.”2 The U.S. Department of Justice, as well as the attorneys general of more than a dozen states, including Colorado, have sued in federal court to prevent the mergers. In stark contrast to the merging companies, the government claims that the mergers would “substantially lessen competition, harming millions of American consumers, as well as doctors and hospitals.”3 Instead of promoting competition, the government argues that the “mergers would reshape the industry, eliminating two innovative competitors – Cigna and Humana – at a time when the industry is experimenting with new ways to lower health care costs.”4 The opposing parties’ claims are irreconcilable.

A federal law known as the Clayton Act 16

serves as the battleground for resolving their arguments. Section 7 of the act states that “no person . . . shall acquire the whole or any part of the assets of another person5 . . . [if] the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly.”6 Together with the Sherman Act, the Clayton Act has been described as the “the Magna Carta of free enterprise. They are as important to the preservation of economic freedom and our free-enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms.”7 Analyzing any transaction to determine whether it runs afoul of the antitrust laws first requires the courts to define and analyze the relevant market.

Unless the courts define the relevant market, there is no way they can consider whether the transaction lessens competition or tends to create a monopoly.8 The ultimate test is whether the transaction results in a company holding enough market power that it can dictate terms to consumers because there aren’t enough competitors offering a substitute product.9 For these potential health insurers’ mergers, there are two broad market categories to consider: product markets and geographic markets.

In the product market, these mergers will first affect the “buyer’s market.”

In the buyer’s market, businesses and consumers that purchase health insurance will inevitably have fewer choices and may face higher prices due to the absence of meaningful competition. In

truly competitive markets, consumers might expect new insurance companies to enter the field and offer price competition if the existing companies raise prices, but there are relatively high barriers to entering the health insurance markets that will likely discourage new entrants.10 The health insurers counter by arguing that the mergers will allow them to more effectively negotiate with hospital systems and health care providers and “will lead to lower reimbursement rates, which will lead, in turn, to savings for its customers and increased access to medical care.”11 Commentators, however, have cited a body of literature suggesting that health insurer consolidation leads to price increases, as opposed to greater efficiencies or lower health care costs.”12 The merger will not just impact health insurance purchasers and is likely to have a significant effect in the “seller’s market.” The sellers in this case are hospitals and physicians who provide health care to the companies’ insurers.

Using the correct legal terminology, the government argues that the mergers not only threaten a monopoly, which is control of the supply of a commodity or service,13 but also a monopsony, which is a market in which there are insufficient numbers of buyers.14 A monopsony in the market for health care services would ultimately hurt consumers if insurers can offer physician reimbursement on a take-it-or-leave it basis, thus leading physicians to reduce the time they spent with patients, defer investments in medical equipment, or even retire from practice. For this reason, more than 70 percent of the

Colorado Medicine for September/October 2016

Features CMS physicians in active practice who responded to a survey were opposed to the mergers.15 In the geographic markets, the mergers will affect the national and regional market for employer account, state exchanges and even counties where particular insurers hold a disproportionate share of the market. Because health care delivery often takes place in a local market, especially for primary care, the mergers could significantly limit competition and force consumers into paying for out-of-network services.

Corporate mergers didn’t exist in 1776, but Adam Smith may have foreseen them when he said: “People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.”16 Not all mergers are bad, but there are legitimate reasons to question the impact upon the public when competitors cease competing. For these reasons, the American Medical Association and the Colorado Medical Society have joined the U.S. government and the attorneys general of more than a dozen states in opposing the health insurance mergers. n

5. The definition of “person” includes business entities, such as corporations. 15 U.S.C. §12 6. 15 U.S.C. §18 7. United States v. Topco Associates, 405 U.S. 596, 609 (1972) 8. Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 459 (1993) 9. United States v. E. I. du Pont de Nemours & Co., 351 U.S. 377, 393 (1956) 10. David Hyman, Improving Health Care: A Dose of Competition/A Report by the Federal Trade Commission and the Department of Justice, Chapter 6 – Page 25 (Hyman, D.) (July 2004) 11. Answer of Anthem, Inc., United States et al v. Anthem, Inc. et al, ¶¶1, Case 1:16-cv-01493 (D.D.C. 2016) 12. Paul von Ebers, Mega Health Insurance Mergers: Is Bigger Really Better?, Health Affairs http:// healthaffairs.org/blog/2016/01/22/ mega-health-insurance-mergers-isbigger-really-better (Jan. 22, 2016) (citing literature)

13. Black's Law Dictionary (10th ed.

2014) 14. Black's Law Dictionary (10th ed.

2014) 15. Ed Sealover, Colorado med groups want tough state scrutiny of AnthemCigna merger, Denver Business Journal, (June 2, 2016) http:// w w w.bi z jou r n a l s.com /denver/ news/2016/05/31/colorado-groupspress-for-closer-look-at-anthem. h t m l? a n a=l n k & e d=2 016 - 05 31& j=73 6 3 8 8 42 & s = a r t i c l e _ du&t=1464730650 16. Adam Smith, An Inquiry Into the Nature and Causes of the Wealth of Nations, Great Books of the Western World 55 (R. Hutchins & M. Adler eds. 1952)

CMS .ORG ORG CMS CMS CMS.ORG ORG Colorado Medical Society

1. Ayla Ellison and Molly Gamble, Anthem to buy Cigna — and then there were three: 7 key points, Becker Hospital Review (July 23, 2015) http://www.beckershospitalreview. com/payer-issues/anthem-to-buycigna-and-then-there-were-3-7-keypoints.html 2. Answer of Anthem, Inc., United States et al v. Anthem, Inc. et al, ¶¶1-2, Case 1:16-cv-01493 (D.D.C. 2016) 3. Complaint, United States et al v.

Anthem, Inc. et al, ¶¶1, Case 1:16cv-01493 (D.D.C. 2016). https:// www.justice.gov/atr/file/878206/ download 4. Complaint, United States et al v.

Anthem, Inc. et al, ¶¶1, Case 1:16cv-01493 (D.D.C. 2016). https:// www.justice.gov/atr/file/878206/ download Colorado Medicine for September/October 2016

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Features

Writing the next chapter Steve ErkenBrack, President & CEO, Rocky Mountain Health Plans

A letter from Steve ErkenBrack to Colorado physicians For 42 years, Rocky Mountain Health Plans (Rocky) has been working alongside physicians to provide access to high-quality health care for all across our Steve ErkenBrack Colorado communities. This has been our core mission, with a focus on access for everyone, collaboration with providers, and a continual effort to improve the quality of patient care and our health care systems.

• Medicaid Prime, the successful restructure of both the delivery system and payment model that integrates behavioral health and health coaches into primary care; and • Monument Health, a lower-cost and higher-value clinically integrated network for individuals and employers of any size.

These efforts do not exist in silos; rather, they are braided together to form the core of one of the most successful health care delivery models in the country.

This summer, Rocky announced our intent to continue our mission by joining UnitedHealthcare, as a subsidiary, at the end of the year, subject to regulatory review and approval. The news surprised many, as the two plans are indeed different. However, both organizations share the same vision: to serve all lines of business, to work closely with independent physician practices, and to enhance the quality of the delivery system by aligning technology and time-tested relationships.

With this spirit and focus throughout the decades, together we have been able to help develop and implement teambased, patient-centric initiatives, such as: • Medical Practice Review Committees in which Rocky convenes regional physicians for peer review sessions to attain localized best practices and insight; • Quality Health Network, formed jointly by Rocky and physicians to create a community-wide health information exchange; • Loan repayment programs to support the recruitment and retention of quality primary care physicians to the Western Slope; • Learning Collaboratives to help physicians transform their practices with new tools and technology;

Rocky has not accomplished these achievements alone. That’s the point.

We have succeeded only by working together with physicians and other partners in our communities. In doing so, we have built what is seldom seen: a community-based health insurance carrier.

When state-of-the-art population health management tools are funneled through the community relationships of Rocky, you create a health system of the future that can be a benefit to all communities, not just major metro areas where high-performing, fully-integrated networks operate in a separate system, but in smaller communities with independent health delivery providers that – like Rocky – are part of the fabric of the communities in which they live.

Colorado Medicine for September/October 2016

We know change can be hard, and questions are understandable, but I ask you to consider this: Each member of Rocky’s 14-person community-based Board of Directors, including four physicians, support this proposed partnership; the Board of the Rocky’s Foundation unanimously support this opportunity; and both my CEO predecessors (Rocky has only had three CEOs in four decades), Mike Weber and John Hopkins, join me in supporting this alignment. Why? Because both organizations know the key to the success of this alignment is not to erode the brand and relationships of Rocky with physicians, but rather to enhance them – all for the sake of your patients, our members, and our Colorado communities. It’s where our focus has always been, and will continue to be. Rocky must stay true to what it is and where it is in order to infuse the successes of the past with the power of the partnership. We will still be based in Grand Junction with a primary focus on Western and rural Colorado. We will still be committed to our neighbors who get their care through Medicaid and Medicare, as well as those in our commercial populations. Rocky will still deliver the same high quality service when the physicians and our members call.

We ask the physicians of Colorado to embrace the potential of this partnership, the positive aspects of this change, and the opportunities that will exist for all of us as we write this next chapter together. Because, “together” has always been the watchword of our mission. n

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Features

November ballot initiatives Tamaan K. Osbourne-Roberts, MD President, Colorado Academy of Family Physicians Immediate Past President, Colorado Medical Society

CMS and CAFP urge support for state cigarette tax increase It should come as no surprise to any physician that smoking is the leading cause of preventable death in Colorado, killing more than 5,000 Coloradans per year and burdening our citizens with $1.9 billion in annual health care costs. With over 650,000 adult smokers, 24,000 smoking high school students, and over 7 million packs of cigarettes bought or smoked by minors annually, Colorado has fallen behind most states in efforts to fight smoking; indeed, in 2015, cigarette sales increased in Colorado for the first time in over a decade.

working with the Campaign for a Healthy Colorado to fight back against tobacco companies’ efforts, and to support voters in choosing a proven strategy to improve public health – a strategy that will prevent many of our patients from smoking, while aiding those we know need just a little more help to quit.

Network, the American Heart Association, and the American Lung Association – support the measure. I encourage you to find out more for yourself by visiting www. healthyco2016.com; it is my hope that you will stand together with CMS and CAFP on Election Day to help make Colorado an even healthier place to live.

Over 80 organizations – including CAFP, CMS, Children’s Hospital Colorado, the American Cancer Society Cancer Action

As always, thank you for everything that you do for our patients, our profession, and the citizens of Colorado. n

This November, the citizens of Colorado will have the opportunity to combat this public health threat by voting to raise an additional $315 million through increases in the state cigarette tax, as well as taxes on other tobacco products. Not only will this measure help to decrease tobacco use (with estimates that it will prevent more than 34,000 kids from becoming smokers, save over 20,000 lives, and decrease future health care costs by more than $1.4 billion), it will raise much-needed funds for Colorado-based medical research into treatments for tobacco-related disease, tobacco education/prevention/cessation programs, veterans and youth health services, and debt repayment for medical professionals serving in rural and underserved areas.

Unfortunately, and unsurprisingly, it is likely that the tobacco industry will work hard to defeat this ballot measure here in Colorado; indeed, they have already spent $17 million to fight a similar measure in California. The Colorado Academy of Family Physicians (CAFP) and CMS are Colorado Medicine for September/October 2016

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Colorado Medicine for September/October 2016

Features

November ballot initiatives Lt. Gov. Donna Lynne

Donna Lynne Lt. Governor & COO, State of Colorado

Increase the threshold for amending the state constitution From the peak of every Colorado fourteener, you can truly appreciate the grandeur of our great state and the limitless possibility it provides.

Many of us are fortunate enough to call this place home.

While we embrace our Western independence, we are vulnerable to the political winds both within and outside our borders. No doubt, Colorado has many unique attributes, but one of our distinctions opens the door for outside special interests to inject their agendas into our governance: the ease of amending our state’s constitution.

At first glance, it might seem appealing to have the same requirements for citizen-led initiatives to amend both state law and the constitution. But as

we’ve seen, national fads and political topics of the day have found their way to Colorado’s ballot. These issues take advantage of the political winds and aim to amend our state’s founding document, leaving no room for further refinement or removal. While these issues may be popular at the time, remorse can be expensive and painful.

This year, I’m happy to support an effort to make it more difficult to amend the constitution. Amendment 71 will finally increase the threshold for amending the constitution, while leaving the current initiative process the same for changing state law.

The measure before Colorado voters this fall will ensure ideas proposed for Colorado’s constitution have broad,

Colorado Medicine for September/October 2016

statewide support before they are permanently embedded into our state’s fabric. It requires constitutional amendments to first seek signatures from 2 percent of all registered voters in each of Colorado’s 35 state senate districts to qualify for the ballot.

Once on the ballot, these measures will need to secure 55 percent to win at the ballot box. This will encourage greater engagement throughout our state and additional voter buy-in before amending our state’s founding document.

This year, your ballot will be crowded. I hope you’ll consider joining me in voting yes on Amendment 71. Let’s protect our state and make it more difficult to amend our constitution.

Let’s raise the bar for Colorado. n

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Features

COMPAC announces candidate endorsements Susan Koontz, JD, CMS General Counsel

Physicians urged to consider recommendations Unless you have cancelled your cable subscription and thrown your TV out the window, you are painfully aware that this is an election year. This means that physicians across the state have been hard at work interviewing candidates and helping the Colorado Medical Political Action Committee (COMPAC) make decisions on which candidates to support in the upcoming election.

Through Sept. 14, 2016, COMPAC has endorsed 81 candidates for state and federal office this year. Physicians and all friends of medicine are encouraged to consider the recommendations that follow and, above all, to be sure to vote.

This list represents endorsements made by press time; more will have been selected before the election. For an updated list, visit www.cms.org/advocacy/compac-endorsements. For help identifying the candidates running in your district, visit www.cms.org/advocacy/find-your-legislators.

COMPAC does not endorse based on political party. The rules of engagement require COMPAC to have working, sustainable relationships with the public officials on both sides of the aisle who are responsible for setting the course of health policy. Adhering to this rule is an imperative during this time of rapid transformation and upheaval in the medical profession.

Endorsements are made following a screening process that takes into account the views of the local medical community, the position of a candidate or incumbent on medical issues important to the medical society, the demographics of the district, and a candidate’s ability to win. Hundreds of physicians have participated in this process since its inception in the 2006 election cycle and it has proven instrumental in developing relationships between local constituent physicians and members of the Colorado Legislature.

Like other medical societies, CMS must walk a tightrope between the more traditional conservative policy options, such as medical liability, and the decidedly center-left polices that drive health care spending, like Medicaid reimbursement, coverage and eligibility. The basis of medicine’s support takes into consideration the balance of a candidate or incumbent’s 24

views, voting record or anticipated voting record – respecting their constitutional duty to make choices that can’t please every constituency or interest group. The screening process hones in on a pattern of support for medicine and patients.

The final endorsement choices are never drawn from a purely partisan or ideological well.

When it comes down to it, CMS is a politically pragmatic organization that advocates for what works in the real world of medicine. This has less to do with doctrine and more to do with the pursuit of evidence-based policies. Political policy evolves and requires revision just as conventional scientific knowledge does – physicians understand this. A great amount of strategy goes into COMPAC endorsements that emphasizes not only the inherent value of physician engagement in the political process, but also one of the most fundamental rules of political engagement: ideological agnosticism.

At COMPAC, your perspective and participation are critical to us. If you haven’t been involved before or if you’re looking to become more involved, COMPAC asks that you consider one of these items on the graduated scale of political activism: • Join our movement financially, with a modest contribution to COMPAC and the special Small Donor Committee (used exclusively to support candidates who protect Colorado’s stable tort environment). COMPAC funds are vital to the success of our endorsements at the ballot box. Go to www.cms.org/contribute.

• Host or co-host local support events for the legislator of your choice (even if we haven’t endorsed a candidate in that race). Receptions, coffees, block walks, mini-internships, and all the varied means of engaging your legislator/ candidate in face-to-face interactions during the election season strengthen those relationships and the mutual understanding that follows.

• Participate in the interview process to endorse candidates.

For more information on any of these opportunities, contact susan_koontz@cms.org. Thanks for all that you do. Be sure to vote in the 2016 general election. n Colorado Medicine for September/October 2016

Features COMPAC COLORADO LEGISLATURE ENDORSEMENTS COLORADO SENATE DISTRICTS SD 4 James Smallwood (R) Douglas SD 8 Randy Baumgardner (R) Garfield/Grand/Jackson/ Moffat/Rio Blanco/Routt/ Summit SD 10 Owen Hill (R) El Paso SD 11 Michael Merrifield (D) El Paso SD 12 Bob Gardner (R) El Paso SD 14 John Kefalas (D) Larimer SD 17 Matt Jones (D) Boulder SD 18 Stephen Fenberg (D) Boulder SD 19 Laura Woods (R) Jefferson SD 21 Dominick Moreno (D) Adams SD 23 Vicki Marble (R) Broomfield/Larimer/Weld SD 25 Kevin Priola (R) Adams SD 26 Nancy Doty (R) Arapahoe SD 27 Jack Tate (R) Arapahoe SD 28 Nancy Todd (D) Arapahoe SD 29 Rhonda Fields (D) Arapahoe SD 31 Lois Court (D) Arapahoe/Denver SD 33 Angela Williams (D) Denver SD 35 Larry Crowder (R) Alamosa/Baca/Bent/ Conejos/Costilla/Crowley/Custer/Huerfano/Kiowa/

Las Animas/Mineral/Otero/Prowers/Pueblo/

Rio Grande/Saguache COLORADO HOUSE DISTRICTS HD 1 Susan Lontine (D) Denver/Jefferson HD 2 Alec Garnett (D) Denver HD 3 Jeff Bridges (D) Arapahoe HD 4 Dan Pabon (D) Denver HD 5 Crisanta Duran (D) Denver HD 6 Chris Hansen (D) Denver HD 8 Leslie Herod (D) Denver HD 9 Paul Rosenthal (D) Arapahoe/Denver HD 11 Jonathan Singer (D) Boulder HD 12 Mike Foote (D) Boulder HD 13 KC Becker (D) Boulder/Clear Creek/ Gilpin/Grand/Jackson HD 14 Dan Nordberg (R) El Paso HD 16 Larry Liston (R) El Paso HD 17 Kit Roupe (R) El Paso HD 19 Paul Lundeen (R) El Paso HD 20 Terri Carver (R) El Paso HD 21 Lois Landgraf (R) El Paso HD 22 Justin Everett (R) Jefferson HD 23 Chris Hadsall (R) Jefferson

COLORADO HOUSE DISTRICTS (cont.)

HD 24 Jessie Danielson (D) Jefferson HD 25 Tammy Story (D) Jefferson HD 26 Diane Mitsch Bush (D) Eagle/Routt HD 27 Lang Sias (R) Jefferson HD 28 Brittany Pettersen (D) Jefferson HD 29 Tracy Kraft-Tharp (D) Jefferson HD 30 JoAnn Windholz (R) Adams HD 31 Joe Salazar (D) Adams HD 32 Adrienne Benavidez (D) Adams HD 33 Matt Gray (D) Boulder/Broomfield HD 34 Steve Lebsock (D) Adams HD 35 Faith Winter (D) Adams HD 37 Cole Wist (R) Arapahoe HD 39 Polly Lawrence (R) Douglas/Teller HD 40 Janet Buckner (D) Arapahoe HD 41 Jovan Melton (D) Arapahoe HD 42 Dominique Jackson (D) Arapahoe HD 43 Kevin Van Winkle (R) Douglas HD 44 Kim Ransom (R) Douglas HD 45 Patrick Neville (R) Douglas HD 46 Daneya Esgar (D) Pueblo HD 47 Clarice Navarro (R) Fremont/Otero/Pueblo HD 48 Steve Humphrey (R) Weld HD 49 Perry Buck (R) Larimer/Weld HD 50 Dave Young (D) Weld HD 52 Joann Ginal (D) Larimer HD 53 Jenni Arndt (D) Larimer HD 54 Yeulin Willett (R) Delta/Mesa HD 55 Dan Thurlow (R) Mesa HD 57 Bob Rankin (R) Garfield/Moffat/Rio Blanco HD 58 Don Coram (R) Dolores/Montezuma/ Montrose/San Miguel HD 59 J. Paul Brown (R) Archuleta/Gunnison/ Hinsdale/La Plata/Ouray/ San Juan HD 60 Jim Wilson (R) Chaffee/Custer/Fremont/ Park HD 61 Millie Hamner (D) Delta/Gunnison/Lake/ Pitkin/Summit HD 62 Donald Valdez (D) Alamosa/Conejos/ Huerfano/Mineral/ Pueblo/RioGrande/ Saguache HD 63 Lori Saine (R) Weld HD 65 Jon Becker (R) Weld

COMPAC FEDERAL CONGRESSIONAL DELEGATION ENDORSEMENTS U.S. SENATE Sen. Michael Bennet (D) U.S. HOUSE OF REPRESENTATIVES D-5 D-1 Diana DeGette (D) (Denver, Arapahoe, Jefferson) D-3 Scott Tipton (R) (Alamosa, Archuleta, Conejos, Costilla Custer, Delta, Dolores, Eagle, Garfield, Gunnison, D-6 D-7 Hinsdale, Huerfano, Jackson, La Plata, Lake, Mesa,

U.S. HOUSE OF REPRESENTATIVES (cont.)

Mineral, Moffat, Montezuma, Montrose, Ouray, Pitkin, Pueblo, Rio Blanco, Rio Grande, Routt, Saguache, San Juan, San Miguel) Doug Lamborn (R) (El Paso, Park, Chaffee, Teller, Fremont) Mike Coffman (R) (Adams, Arapahoe, Douglas) Ed Perlmutter (D) (Arapahoe, Jefferson, Adams)

Features

Testing new models of care Colorado State Innovation Model offers practice transformation support Act, says Emilie Buscaj, MPH, PCMH, CCE, program manager, HealthTeamWorks.

•

Barbara Martin, RN, MSN, ACNP-BC, MPH, Interim SIM Office Director While an increasing number of health care professionals are talking about value-based reimbursement, about 100 practices participating in the Colorado State Innovation Model (SIM), an initiative funded by the Centers for Medicare & Medicaid Services (CMS), are taking steps to improve the quality of care and patient outcomes by integrating behavioral health and primary care with help from practice transformation coaches, small grants and other SIM-related support.

The first group of SIM practices started their work in February and the SIM application (www.practiceinnovationco.org/sim) for the second group of practices will be released this fall. The foundational work these SIM practices are completing has been described as a culture change that will be required to succeed in the new payment models that were introduced by the Medicare Access and CHIP Reauthorization 26

“Practices see a need to prepare for payment reform, yet it’s difficult to justify the time necessary to address how this change will affect practice culture,” explains Buscaj, who manages practice facilitators, a coaching service that is included in the SIM transformation package of support. Practice facilitators meet with SIM practices twice a month to review progress toward SIM milestones and update practice improvement plans that help the practice move from volume- to valuebased health care delivery. “Practice professionals are busy,” Buscaj adds.

“Our goal is to prepare practices so they are able to address changes in the environment before it’s too late.”

•

•

SIM practices receive the following benefits to help support this transition: • Facilitation of relationship with payers: Six private payers and Medicaid signed a memorandum of understanding indicating a willingness to make a good faith effort to support SIM-participating practices with value-based payments. The SIM office is working to foster an ongoing dialogue between payers and providers to ensure that reimbursement models support and sustain the transition to new care delivery models.

• Small grants: SIM-participating practices have the opportunity to apply for grants (up to $40,000 per practice) that support the integra-

•

•

tion of behavioral health integration and business practice redesign for new care delivery models.

Participation payments: Each SIM practice is eligible to receive up to $5,000 to help them meet key practice transformation requirements.

Business consultation support: SIM practices receive various forms of support to help ensure that transformation efforts are financially successful.

Expert technical assistance: SIM practices are matched with at least one practice transformation organization that provides expert guidance, including the following inperson resources: o A practice facilitator to guide the participant’s practice improvement team in ongoing change and quality improvement activities. o A clinical health information technology advisor (CHITA) to help build practice data capacity.

SIM recognizes that data is only actionable if it is accurate and trusted, which is why CHITAs will work with practices to support their collection and use of accurate, actionable data.

Opportunities for Continuing Medical Education (CME) credit: Providers have the opportunity to earn CME credits twice yearly during in-person Collaborative Learning Sessions and through online courses.

Maintenance of Certification (MOC) credit: Eligible providers who participate in the quality improvement process can use this

Colorado Medicine for September/October 2016

Features project to satisfy MOC requirements.

• Regional Health Connector (RHC): SIM practices will have access to the RHCs, who are based in local community organizations and are dedicated to connecting practices to relevant community and state resources.

cpc-sim) from SIM subject matter experts.

Learn more: • SIM overview: www.colorado.gov/ healthinnovation

Federal initiatives support innovation in the state In addition to the SIM, Colorado primary care practices also have an opportunity to participate in the Comprehensive Primary Care Plus (CPC+) initiative from the federal CMS, which dovetails with SIM efforts underway.

Colorado was selected as one of 14 regions for the CPC+ initiative and the application was open from Aug. 1 through Sept. 15. Learn more about SIM, the differences between SIM benefits to support behavioral health integration and the CPC+ initiative by reading a series of frequentlyasked questions with answers (www. c olor a d o.gov/ he a lt h i n novat ion /

Colorado Medicine for September/October 2016

• SIM frequently-askedquestions: www.colorado.gov/ healthinnovation/cpc-sim • SIM application: www. practiceinnovationco.org/sim n

All friends of medicine are eligible to participate.

E-mail susan_koontz@cms.org or call 720-858-6327 or 800-654-5653, ext. 6327

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Features

Lifetime achievement Kate Alfano, CMS Communications Coordinator

W. George Shanks, MD, honored for outstanding career such as palliative care, stroke and cancer programs, and medical education.

Past CMS President W. George Shanks, MD Past CMS president W. George Shanks, MD, will be recognized as the 2016 Saccomanno Lifetime Achievement recipient by St. Mary’s Hospital Foundation at the St. Mary’s Ball on Sept. 24. The award honors an outstanding retired physician. The award committee specifically recognizes Shanks’ philanthropic and social contributions to St. Mary’s Hospital and the community at large, as well as physicians who have practiced at St. Mary’s Hospital and Medical Center.

St. Mary’s Foundation instituted the annual award as a tribute to Geno Saccomanno, MD, whose legacy of medical excellence serves as the benchmark for the prestigious honor. In its sixth year of the St. Mary’s Ball, the hospital expects to raise more than $250,000 and host more than 700 guests. Funds raised will assist a number of hospital programs 28

Born in Scotland and raised in Philadelphia, Shanks moved to Colorado in 1968 for a rotating internship at Presbyterian Hospital in Denver. He joined the United States Navy and lived around the country and world. After completing his military service, he returned to Denver to complete a general surgery residency at St. Joseph’s Hospital. He was recruited by Gordon Munro, MD, and Glen Kempers, MD, in 1976 to join their general surgery practice in Grand Junction, where the Sisters of Charity of Leavenworth had founded St. Mary’s, a state-of-the art hospital with the most advanced operating rooms, emergency rooms and laboratory in the state. At St. Mary’s, Shanks says he worked with the most knowledgeable and dedicated nurses he had ever encountered, as well as superb physicians and medical staff.

During his 25 years on the staff of St. Mary’s, Shanks served as chief of surgery, president of the medical staff and a member of the hospital board. He was actively involved in securing a Level II Trauma designation for St. Mary’s as well as the development of the outpatient surgical center. He was an associate professor of surgery for the University of Colorado School of Medicine and enjoyed teaching the third-year medical students.

Shanks was active in Colorado’s surgical societies, serving as president of the Denver Academy of Surgery and the Colorado Chapter of the American College of Surgeons. He was also a member of the Board of the Southwest

Surgical Society. He says that serving on the board of the Colorado Medical Society for six years and being elected as CMS president (1998-99) was a career highlight.

Shanks retired from active medical practice in 2001 and now divides his time between “on-call” house renovations for his children and restoring a centuriesold stone cottage in Derry, Ireland, adjacent to his wife Stella’s childhood home.

When home in Grand Junction, Shanks channels his creative energy into building wooden boats. When not building homes or boats, Shanks enjoys exploring the far reaches of the world. His adventures in retirement include treking in Peru, scaling the Swiss Alps and kayaking in the Antartic.

“My 25 years as part of St. Mary’s staff and the trust of the patients of the Grand Valley will be forever cherished,” Shanks said. “And to the people of the Grand Valley, thanks for such a wonderful journey.” n

Support the Colorado Medical Society Foundation The Colorado Medical Society established the Colorado Medical Society Foundation (CMSF) as a 501(c) 3 organization in 1997. We strive to administer and financially manage programs that improve access to health care and health services to improve the health of Coloradans.

Consider giving a tax-deductible donation of $25, $50, or more to help CMSF continue its mission.

Questions? Call 720-858-6310.

Colorado Medicine for September/October 2016

Features

CMS Corporate Supporters and Member Benefit Partners While CMS analyzes the quality and viability of our member benefit partners and their offerings, we do not guarantee any product or service will be right for you.

Before you make a purchase, we recommend you perform your own due diligence.

AUTOMOBILE PURCHASE/LEASE Rocky Mountain Fleet Associates 303-753-0440 or visit www.rmfainc.com * CMS Member Benefit Partner

RXAssurance Visit www.rxassurance.com or www.opisafe.com

FINANCIAL SERVICES COPIC Financial Service Group 720-858-6280 or visit www.copicfsg.com * CMS Member Benefit Partner

PRACTICE VIABILITY ALN Medical Management 866-611-5132 or visit www.alnmm.com

Gold Medal Waters 720-887-1299 or visit www.goldmedalwaters.com

Carr Healthcare Realty 303-817-6654 or visit www.carrhr.com

Sharkey, Howes & Javer 303-639-5100 or visit www.shwj.com * CMS Member Benefit Partner

First Healthcare ComplianceTM 888-54-FIRST or visit www.1sthcc.com *CMS Member Benefit Partner

INSURANCE PROGRAMS COPIC Insurance Company 720-858-6000 or visit www.callcopic.com *CMS Member Benefit Partner

HealthTeamWorks 866-401-2092 or visit www.healthteamworks.com *CMS Member Benefit Partner

UnitedHealthcare 877-842-3210 or visit www.UnitedhealthcareOnline.com MEDICAL PRACTICE SUPPLIES AND RESOURCES Colorado Drug Card 720-539-1424 or visit www.coloradodrugcard.com *CMS Member Benefit Partner

University of Colorado Hospital/CeDAR 877-999-0538 or visit www.CeDARColorado.org

Medical Telecommunications 866-345-0251, 303-761-6594 or visit www.medteleco.com * CMS Member Benefit Partner The Legacy Group at Re/MAX Professionals 720-440-9095 or visit www.legacygroupestates.com/physicians TransFirst 800-613-0148 or visit www.transfirstassociation.com/cms *CMS Member Benefit Partner

CO-POWER 720-858-6179 or www.groupsourceinc.com *CMS Member Benefit Partner

Transcription Outsourcing 720-287-3710 or visit www.transcriptionoutsourcing.net

GreenLight 866-602-1778 or visit www.Greenlight.md *CMS Member Benefit Partner

TSI 800-873-8005 or visit www.web.transworldsystems.com/npeters * CMS Member Benefit Partner

MedjetAssist 1-800-527-7478, referring to Colorado Medical Society, or visit www.medjet.com/cms *CMS Member Benefit Partner Colorado Medicine for September/October 2016

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Inside CMS

Prescription drug abuse Kate Alfano, CMS Communications Coordinator

New federal law to support fight against opioid epidemic Overdoses from heroin, prescription drugs and opioid pain relievers last year surpassed car accidents as the leading cause of injury-related death in America, according to the Centers for Disease Control. Heroin overdoses have more than tripled in the last five years, receiving increased attention nationally and within the state of Colorado, one of the hardest-hit states.

New bipartisan legislation opens new funding streams in the fight against this epidemic. The Comprehensive Addiction and Recovery Act (CARA), S. 524 and H.R. 953, was introduced by Sen. Sheldon Whitehouse (D-RI) and Rep. Jim Sensenbrenner (R-WI), and passed Congress on July 13. It was signed into law by President Barack Obama on July 22.

This federal legislation authorizes the attorney general and secretary of Health and Human Services to award more than $181 million in grants to address the national epidemics of prescription opioid abuse and heroin use.

Funds must be appropriated every year through the regular appropriations process.

The new law: • Establishes a task force to review, modify and update best practices for pain management and prescribing pain medications.

• Provides grants for state awareness campaigns and training.

• Requires the FDA to consult with advisory committees prior to approval or labeling of certain new opioids in pediatric populations and to pro 30

vide final guidance for generic drugs that claim abuse deterrence within 18 months of the date of enactment.

• Authorizes the attorney general to expand disposal sites.

• Creates a pilot program to support family-based services for pregnant and postpartum women with substance use disorders, and creates a study of the prevalence of neonatal abstinence syndrome.

• Permits grants to states to carry out a comprehensive opioid abuse response.

• Requires a study of state Good Samaritan Laws with regard to exemption from criminal or civil liability for someone who administers an opioid overdose reversal drug or device, or who calls 911 to report an overdose.

• Allows prescription drug plans in Medicare to develop a safe prescribing and dispensing program for beneficiaries who are at risk of abuse or diversion of drugs that are frequently abused or diverted.

• Allows the secretary of Health and Human Services to work with private drug plan sponsors to facilitate the creation and management of “lock-in” programs to curb identified fraud, abuse and misuse of prescribed medications.

• Authorizes Medicare Integrity Contractors (MEDICs) to directly accept prescriptions and necessary medical records from entities such as pharmacies and physicians.

• Exempts abuse deterrent formulations of opioid drugs from the definition of “line extension” for the purpose of calculating Medicaid rebates.

• Expands the use of routine and random drug tests for all VA patients during and after opioid therapy.

• Requires that VA providers disclose certain information to state controlled substance monitoring programs.

• Eliminates the copayment requirement for veterans receiving opioid antagonists or education on the use of opioid antagonists.

• Allows partial filling of opioid prescriptions.

• Permits nurse practitioners and physician assistants to administer medication-assisted treatment for opioid use disorder, with physician oversight if mandated by state law.

• Authorizes multiyear funding for the Department of Justice to issue grants to states, local government and Indian tribes to be used to develop or expand treatment alternatives to incarceration programs, train law enforcement officers and other first responders in the use of naloxone to reverse an opioid overdose, and for other purposes.

Rob Valuck, PhD, RPh, chair of the Colorado Consortium for Prescription Drug Abuse Prevention, said that while there are many useful pieces in the new law, the two biggest disappointments are that it’s severely underfunded and there isn’t much funding targeted for treatment and prevention.

“The problem is very complicated and has so many different dimensions to it. There are so many places where you could focus your efforts and all are worthwhile in some way. That’s why

Colorado Medicine for September/October 2016

Inside CMS you see legislation like CARA, which is a whole bunch of different pieces put together. It’s a hodgepodge.”

Additionally, with the consortium leading the effort in our state, Colorado leaders are already either aware of most of the recommendations in the bill or already actively working on them.

“What we’re hoping for is more funding, especially for things like more Naloxone so that high-risk people have an opportunity to get into treatment.” The treatment gap – a term for the number of people who need care and are ready and able to access it but who cannot get care – stands at 80-85 percent in the U.S., down from 93 percent two years ago, Valuck said.

Because of the treatment gap, the consortium is urging Colorado physicians to be trained to provide medicationassisted treatment (MAT) with Suboxone (buprenorphine and naloxone).

Physicians need only to fill out a form and complete an online eight-hour training module available through the American Society of Addiction Medicine (ASAM) to start seeing these patients, Valuck said. Access the ASAM Buprenorphine Course for Office-Based Treatment of Opioid Use Disorders training at www.asam.org/education/ live-online-cme/buprenorphine-course.

This method can be more convenient for patients without ready access to a methadone clinic, which requires daily visits, because Suboxone prescriptions can be written for a week or month supply.

This effort will be bolstered by an AHRQ grant awarded to the University of Colorado Denver. This project will expand access to MAT across 24 counties in Eastern and Southern Colorado, providing rural primary care practices with comprehensive training and support for delivery of MAT in their practices using face-to-face practice coaching and an ECHO tele-training model.

Learn more about the work of the Colorado Consortium for Prescription Drug Abuse Prevention on their website, www.corxconsortium.org. n Colorado Medicine for September/October 2016

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Colorado Medicine for September/October 2016

Inside CMS

Ted J. Clarke, MD Chairman & CEO COPIC Insurance Company

Legal expertise that supports the practice of good medicine Navigating health care often requires that medical decisions take into account the ever-evolving legal and regulatory environments. In complex situations, medical providers look for guidance to answer questions like “what are the rules surrounding telehealth interactions with patients?” or “what type of consent is required for drug screening in the perinatal setting?”

Maintaining a favorable legislative environment Throughout the year, the legal team reviews legislative bills for impacts on patient care, encroachment upon tort reform, and unnecessary increases in medical and health care facility liability. In 2016, input was provided on more than 50 proposed, amended or drafts of health care-related legislative bills.

Members of COPIC’s in-house legal department are recognized for their expertise on issues where medical and legal elements intersect. They play an integral role in how we support our insureds, the medical community and broader efforts to maintain a stable medical liability environment.

In addition, legal staff may draft language, attend stakeholder meetings and testify on key legislation affecting health care providers. As appropriate, these efforts are coordinated with partners such as the Colorado Medical Society and Colorado Hospital Association and, in recent years, have included:

Guidance on legal issues Working closely with COPIC’s Patient Safety and Risk Management staff, the legal team answers questions from insureds to help them understand a wide range of issues such as:

• Colorado Professional Review Act • Prescription Drug Monitoring Program • Emergency Medical Services Quality Management Bill

• HIPAA • Problematic patient situations • Treating minors • Medical board reporting and policies • Termination of patient care • EMTALA The legal department also shares its knowledge by authoring articles for COPIC newsletters as well as conducting educational presentations on current health care topics.

Providing input on regulatory issues The legal department is at the forefront of maintaining relationships with the Colorado Medical Board, Department of Regulatory Agencies and other administrative entities. This has helped establish COPIC as a trusted resource. Members of the legal team provide opinions, review suggested language, and testify regarding proposed rules and policies that affect health care providers. In the last several years, areas of involvement have included: • Telemedicine and liability issues • Supervision requirements with allied health professionals • Prescription drug opioid policy

Colorado Medicine for September/October 2016

Managing “covered proceedings” COPIC’s “covered proceedings” coverage (formerly referred to as “legal defense”) is part of our medical professional liability policies. The legal department oversees this coverage, which is for issues that involve defense costs for disciplinary proceedings, governmental investigations, billing fraud and abuse investigations, or peer review proceedings where the insured is under the formal review of a peer/professional review entity.

Additional areas of support The in-house attorneys who are part of our legal department do not directly represent insureds facing a claim or lawsuit (our claims department works with outside defense counsel on this), but they do participate in our Claims Committee meetings and provide ongoing support tied to our coverage.

In addition, they are involved with our popular “mock trial” program—an education activity where trials of de-identified cases are re-enacted to offer insight into the litigation process.

COPIC’s legal team contributes to better patient care in several meaningful ways. Their dedication to support medical providers and patient safety is essential as the future of medicine unfolds and new challenges emerge that require their expertise. n

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Inside CMS

Reflective writing is an important component of the CU School of Medicine curriculum. Beginning in the first semester, all medical students participate by writing essays or poems that reflect what they have seen, heard and felt. This column is selected and edited by School of Medicine faculty members Steven Lowenstein, MD, MPH, and Henry Claman, MD.

L. A. Kahn University of Colorado School of Medicine

guished only by the order in which their systems break down.

I don’t remember my patient’s name because it was irrelevant; I instead remember the course of events that took him, the shocking CT scan, the failed surgical attempt, the pressors and traumas of the last hours. The detail of my documentation was in his death, not his life.

L. A. Kahn is an MD/MPH candidate for the class of 2017.

With a background in political work and education, she hopes to combine clinical emergency medicine practice with advocacy and writing. Her work "The Life Biologic: Portraits of Disease" is featured at the Hampshire College Library.

The death of my patient last week My patient died eight days ago. His name escapes me, though I used it many times in the hours that I knew him; its recollection is lost in the wash of biological details I collected and faithfully catalogued. The human spirit may exist beyond the material plane, but the mundane markers of daily wear are what we see and respond to. Like concentration camp prisoners stripped of clothes and hair, bereft of the symbols of the lives they had, there is an irrevocable loss of personality that occurs upon hospitalization. Patients replace their chosen clothing with hospital gowns and skid-proof socks, carry machines in their flesh tethering them to information networks, require assistance in removing waste from their orifices. They merge into an undifferentiated mass of needs, one beast calling out from many beds, a smudge of human suffering distin 34

*

*

*

On hospital days, the dichotomy becomes unbearable: five physicians in a ward room, dressed exhaustively in professional gear, shoes shined, ties and badges abreast, and clipboards in hand. We stand around the bed of the patient below us – barefoot, pasty, un-garbed. We talk to each other about the patient, in front of the patient, a convention unacceptable in the bright world outside. We tell each other how much salt is in their blood, how much blood is in their urine, how much urine they have produced in the past 24 hours. We speak in code about their perceived motives and desires. We tell each other what we think we should do, confirm and veto plans, roll the patient back and forth to hear various organs, examine tubes carefully. We make mental lists of things to do as we answer their questions, and rub antiseptic gel on our hands as we walk briskly out of the room to the next failing creature.

* * * My patient who died eight days ago was a freshwater biologist before he retired. He and his wife enjoyed going to concerts and eating out around town. He died the night I admitted him, suddenly, unexpectedly, amidst much rancor between medical teams. There was blame to spare the next morning.

I scrolled through his CT scans again and again, searching for a sign we’d missed on admission, a predictor of what the next 12 hours would bring. I didn’t see his body or his family; they were inaccessible, buried in the ICU behind a cluster of Colorado Medicine for September/October 2016

Inside CMS professionals. I wanted to see his wife – to do what? Cry with her? Apologize for laughing so casually the night before?

Share my bewilderment, as though it could provide solace?

My patient’s CT scan from admission stays with me: the black and gray images of his colon, the hunt for signs of inflammation, the contested slide that might have showed dead tissue. I remember, too, his physical exam from the night before, his abdomen distended but not taut, tender to the touch in only a few places, his lungs clear, his ankles a little swollen. His feet were sensitive, from some longstanding nerve damage.

I remember how much oxygen he needed and that his potassium was normal. I do not remember his name. n

Serving the Continuing Medical Education needs of Colorado physicians Your bridge to quality improvement in health care

Accredited CME is education that matters to patient care.

For more information contact the Colorado Medical Society CME office at 720.858.6309

Colorado Medicine for September/October 2016

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Departments

Member Benefits

Spotlight Julie Sheppard, BSN, JD, CHC, president and founder of First Healthcare Compliance

Define your relationship: vendor or business associate?

Health care organizations have many relationships to manage, including patients, providers, payers and vendors.

On top of this, some relationships require a Business Associate Agreement (BAA) to comply with HIPAA. In order to determine if such an agreement is necessary, it is crucial to look at each relationship individually to ensure you provide proper treatment and act appropriately. The following definitions and examples will simplify the decisionmaking process.

How is a vendor defined and why is this important?

All vendors must be screened against the OIG’s LEIE database in order to determine if the business relationship is legal or whether it must be terminated immediately based on its exclusion from participation in Medicare, Medicaid and other federal health care programs.

Your organization may have business relationships with patients, providers, payers and vendors as defined below: • The term “patients” refers to individuals who receive medical care from health care providers.

• The term “providers” refers to health care professionals who provide services to patients billed to payers.

• The term “payers” refers to insurance providers that pay providers for patient care.

• The term “vendors” refers to any entity that provides services and/or products in exchange for a fee, which includes contractors and suppliers.

Obviously, providers and payers are not 36

vendors. However, many organizations find it challenging to determine which vendor relationships require a BAA. What is a “business associate” as it relates to the health care relationship?

A business associate is a person or entity that performs certain functions or activities that involve the use or disclosure of protected health information on behalf of, or provides services to, a covered entity. A member of the covered entity’s workforce is not a business associate.

A covered health care provider, health plan or health care clearinghouse can be a business associate of another covered entity. The HIPAA Privacy Rule lists some of the functions or activities, as well as the particular services, that make a person or entity a business associate, if the activity or service involves the use or disclosure of protected health information. The types of functions or activities that may make a person or entity a business associate include payment or health care operations activities, as well as other functions or activities regulated by the Administrative Simplification Rules.

Business associate functions and activities include: claims processing or administration; data analysis, processing or administration; utilization review; quality assurance; billing; benefit management; practice management; and repricing.

Business associate services include legal, actuarial, accounting, consulting, data aggregation, management, administrative, accreditation and financial. The legal definition of a business associate

is provided in 45 CFR § 160.103 and other helpful information can be found at HHS.gov: www.hhs.gov/hipaa/for -p ro fe s sio n a l s/p r iv a c y/g u id a nc e / business-associates.

Examples of Business Associates: • A third party administrator who assists a health plan with claims processing.

• A CPA firm whose accounting services to a health care provider involve access to protected health information.

• An attorney whose legal services to a health plan involve access to protected health information.

• A consultant who performs utilization reviews for a hospital.

• A health care clearinghouse that translates a claim from a non-standard format into a standard transaction on behalf of a health care provider and forwards the processed transaction to a payer.

• An independent medical transcriptionist who provides transcription services to a physician.

• A pharmacy benefits manager that manages a health plan’s pharmacist network.

Managing all of the relationships within a health care organization can be a daunting task, and making the determination of which entities are considered business associates can be confusing.

If you have additional questions about your obligations related to vendors or business associates please schedule a complimentary demo with our team at http://1sthcc.com. n

Colorado Medicine for September/October 2016

Departments

CMS elections Physicians vote for officers in first all-member election During the month of August, all CMS members had the opportunity – for the first time ever – to vote for the 20162017 CMS officers. All ballots were cast electronically through the third-party company Survey & Ballot Systems. The all-member election is a significant part of The New CMS. CMS is pleased to announce the 2016-2017 officers.

M. Robert Yakely, MD, President-elect Yakely is a retired urologist and longtime CMS leader. He most recently served as Speaker of the House of Delegates (since 2011) and on the CMS Board of Directors (since 2006). He has worked on numerous CMS committees, commissions, councils and task forces, including the governance reform task force that developed The New CMS plan and the committee that revised the CMS bylaws. He also served as president of the Clear Creek Valley Medical Society and the Rocky Mountain Urologic Society, and as chair of the CMS Council on Legislation.

“I believe that my many years of experience working in many positions in the Colorado Medical Society are an asset,” Yakely wrote in his candidate statement.

“Over the years I’ve learned a few things about working with my colleagues to get things done. I have a thorough knowledge of the issues in which CMS is currently representing the best interests of Colorado physicians.”

Lee Morgan, MD, AMA Delegate Morgan, an obstetrician-gynecologist, has served Colorado physicians in multiple capacities over the past 29 years.

She served as president of the Colorado Medical Society, the Pueblo County Medical Society, and the Colorado Gynecology and Obstetric Society. She has also participated on every major council of CMS. She currently serves as chair of the Council on Legislation and is a past chair of the COMPAC Board of

The 2016-2017 officers elected in the 2016 CMS election, left to right: Bob Yakely, MD, president-elect; Lee Morgan, MD, AMA Delegate; and Katie Lozano, MD, AMA Alt. Delegate.

Directors. She served on the Physicians Congress and the ad hoc Committee on Patient Safety and Physician Accountability, to mention a few.

She has been a member of the AMA since 1978 and an active member of the AMA delegation for 13 years. She served as co-chair of the Colorado delegation to the AMA for two years and four years as its chair. At the AMA she has been active within the Western Mountain States Conference, serving as treasurer and chair, and on the executive committee.

“I believe that, with your support, I can continue to contribute significantly to organized medicine on a local, state and national level,” Morgan wrote in her candidate statement.

Katie Lozano, MD, FACR, AMA Alternate Delegate Lozano has served on the CMS Board of Directors since 2008, as CMS treasurer from 2010-2015 and as presidentelect since September 2015. She will be installed as CMS president during the 2016 Annual Meeting, Sept. 1618, in Keystone. On the national level, she served as delegate and chair of the AMA Young Physicians Section from 2008 to 2013.

sion through my work with numerous boards, committees, commissions, task forces and legislators is carefully considered as an investment in enhancing communication between and amongst those organizations and the people and patients involved,” Lozano wrote in her candidate statement.

Affirming The New CMS A total of 201 members voted. This newly elected slate of officers, joined by the other members of the Colorado delegation to the AMA and Immediate Past President Mike Volz, MD, will continue to oversee the transition to The New CMS, a more horizontal governance process that aims to engage all members. We thank them for their leadership.

CMS especially appreciates your participation in this new process and we ask you to consider seeking an officer position in the next round of the nomination process. The nomination period will be open Jan. 1-31, 2017, and CMS seeks nominations for president-elect (one position), AMA delegate (three positions) and AMA alternate delegate (three positions). More information will be made available on www.cms.org.

Questions? Contact Dean Holzkamp at dean_holzkamp@cms.org or 303-7486113. n

“My service to the medical profes-

Colorado Medicine for September/October 2016

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Departments

letters to the editor Correcting facts on ColoradoCare I am writing to correct statements regarding ColoradoCare made in the January/ February edition of Colorado Medicine in the article titled “2016 public policy priorities” on page 12.

I am writing as the co-chair of Physicians for ColoradoCare. ColoradoCare is not a single payer program but rather akin to a “Medicare for all” program as private insurance is allowed under it, and by federal mandate Medicare and Tricare are continued unchanged. This distinction is important as there is the option for private insurance for anyone wanting the freedom to choose. I believe however that few people will choose such an option due to the benefits of ColoradoCare.

ColoradoCare is not government run.

The state government does collect the tax to pay for the program but has absolutely no say in how the money is spent and how the health care program is run.

Rather, a board elected by all citizens of Colorado will make these decisions. ColoradoCare is not a state-run insurance company but rather a health care financing system. Eighty percent of Coloradans will pay less in taxes than they currently pay for health care via insurance premiums, deductibles, co-pays, and other outof-pocket expenses.

Although $25 billion in taxes per year will be raised in new state taxes, this amount will replace the roughly $30 billion currently spent per year for health care in Colorado. Thus the citizens of Colorado will be saving $5 billion per

year in health care expenses. This is because the bureaucratic costs currently needed to pay for insurance companies’ overhead and employees (as well as executive salaries) will go away, and in addition physician office expenses will significantly be decreased by the elimination of prior authorizations for referrals, procedures, and prescriptions. This is not to mention the greatly reduced staff time not having to go through the phone trees and not having to remain on prolonged hold with insurance companies. Physicians will make the decisions for their patients on these health issues, as they used to. Other serious problems generated by insurance companies will be eliminated as well such as narrow networks and out-of-network patient billing.

Physician well-being will improve with the elimination of these many hassles and impediments to care for our patients.

I believe ColoradoCare will be a boon to the citizens of Colorado with good quality of care provided to all who want it at a reduced cost relative to our current system.

Laird Cagan, MD n

Encourage a colleague to join the Colorado Medical Society and your local medical society today!

Visit www.cms.org to learn more about the benefits of becoming a member For more information, call Tim at 720-858-6306 or e-mail tim_yanetta@cms.org 38

Colorado Medicine for September/October 2016

Departments

letters to the editor ColoradoCare is not “something better” than the current system All of us share a frustration with the current system: a patchwork of coverage, made worse with high deductibles and daunting copays for many of our patients. From our side, a maze of payment regulations makes basic collection for our services a challenge.

It is natural, in that setting to want “something better” – all of us do.

I have served on the CMS Special Advisory Committee on ColoradoCare, and read and contributed to the pro/con piece you have seen on the amendment (available at www.cms.org/ coloradocare/analysis). Unfortunately, Amendment 69 is not “something better” than what we have.

While ColoradoCare does eliminate our current structure, what would replace it is far worse – a demonstration of the esteemed political principal that “they can always hurt you more.” Under ColoradoCare, health care in our state would be designed and run by a board of 2l individuals (first appointed and then elected), who are not required to have any relevant health care experience. They will manage a $36 billion system and they will report to…no one. Not the Governor, not the state Department of Health, and not the legislature. They will be a law unto themselves; they will even set their own salaries and they cannot be recalled by the voters.

itself, which I urge you to read. The amendment does not set any minimum reimbursement for physicians.

ColoradoCare will make us the highest taxed state in the nation with a 10 percent payroll tax and a 10 percent state tax on all other non-payroll income – and that’s just for starters. A recent nonpartisan analysis by the Colorado Health Institute revealed that even with this enormous stream of revenue, they project that the system will start out over $200 million in the red and get worse with time. Only three options will be available: raise taxes even higher, cut benefits or cut reimbursement to physicians.

Since ColoradoCare covers every resident, and doesn’t define resident, literally every individual in the country who needs expensive health care and can’t afford it for themselves or their children would now have another choice: move to Colorado. Every physician will have a choice as well — accept the declining reimbursement, retire or move to a state that pays better. Many will take each option. With a dramatically increasing demand for health care services and a clearly declining number of physicians, we will have very soon an access crisis, particularly in key special-

ties that the board may consider “overreimbursed.”

I have heard many proponents say, “well even if it’s not perfect, it’s a start, and we have to make changes from what we have.” We do have to make changes— but they should be for the better.

Importantly as well, ColoradoCare is a state constitutional amendment by initiative. If it is passed, it is carved in stone with all its defects. It can be changed only by another amendment passed by all of the voters. Neither the legislature nor the board can change a comma of the amendment on their own.

There is a reason that even mainstream democrats such as Governor John Hickenlooper and Senator Michael Bennet have announced their opposition to the ColoradoCare amendment.

We should listen to them.

For those who want to improve health care in our state, the first step, unfortunately, is to defeat the ColoradoCare amendment. Let us follow the basic guidepost of our profession — “First, do no Harm.”

Tashof Bernton, MD n

They will also set your salary. The Board will establish (“negotiate” says the amendment) all physician payment levels. There is no restriction on the level at which payment can be set. If you hear from amendment supporters that reimbursement will be “at least (insert your number of choice),” it is not true. The only things that one can count on are what is the amendment Colorado Medicine for September/October 2016

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Departments

letters to the editor Apply principles to end-of-life care to protect patients, physicians As a member of the working group for Committee on Ethical and Judicial Affairs (CEJA) on the subject of physicianassisted suicide (PAS), I have devoted a significant amount of time reading and reflecting on this important and controversial subject.

cians) either strongly favored or were in favor. As a physician who swore an oath to due no harm and who strongly believes in the Hippocratic oath of never administering a medication that would lead to the death of a patient, I was dismayed.

When the results of the CMS survey

by Benjamin Kupersmit (published in the May/June issue of Colorado Medicine) were presented to our society, I was shocked by the results, particularly the following question: “Do you favor or oppose physician-assisted suicide, where adults in Colorado could obtain and use prescriptions from their physicians for self-administration, lethal doses of medication?” Out of a total of 663 responders, 55.9 percent (371 physi-

As I pondered over the survey, I understood the frustration of physicians who have cared for terminally ill patients in agonizing pain and discomfort, and began to understand why the majority of those who responded to the survey favored PAS. I was not in favor of the final CEJA position to remain neutral and am still strongly opposed to PAS because of my personal beliefs as a Catholic and as a physician who swore an oath to do no harm, a principle I

have followed throughout my career.

However, if a law is passed with or without voters’ approval, I do believe that the society could and should continue to take the moral and ethical high road by acting on behalf of patients and physicians by adopting the following principles: 1. Provide the necessary educational material to patients and physicians on the subject.

2. Ensure that physicians are adequately trained to discuss end-of-life issues with their patients and be able to discuss their patient’s personal desires.

3. Ensure that patients have access to high-quality hospice care providers who thoroughly understand how to manage the terminally ill patient and how to manage their pain medications to relieve their discomfort.

4. Include mental health providers into the palliative care team, particularly if patients are severely depressed regarding their terminal diagnosis.

5. Provide the necessary pastoral care if patients desire.

6. With the patient’s permission, make sure that family members are brought into the discussions early on.

7. Make sure that the decisions patients make are not being influenced by financial reason or others, i.e., family members or insurance companies.

Although times are changing and physicians’ and patients’ attitudes have changed, by approaching this most sensitive subject with care and concern, I do believe that we can and should be able to assist patients in avoiding an unnatural death by assisted medication, by providing true death with dignity.

Michael Lepore, MD n

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Colorado Medicine for September/October 2016

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letters to the editor CMS policy on end of life needs to change End-of-Life choices and care in America needs to change. As a family physician who is getting older with my patients, I feel strongly that my job is not only to help my patients achieve health but also accept the limits of medicine and help them die. Very little of my formal training was devoted to the end of life and it took over a decade in private practice to develop sufficient skills to address this process. Nobody wants to have his or her patient die but this is inevitable – we all will die. The questions are how does medicine deal with this fact and are we open to allowing patients options at the end of life?

that the opponents to PAD promote.

With all the other controversial issues (abortion, gun control), CMS has made it clear that when our membership is

The history of the “End-of-Life Choice Movement” essentially started with the founding of hospice in 1971 and as of last year there are five states that legally accept physician-assisted death (PAD): Oregon, Washington, Montana, Vermont and California. Colorado will have a ballot initiative this November that could make ours the sixth state where PAD is legal.

It is time that the Colorado Medical Society change its policy on PAD or physician-assisted suicide (PAS) that was written decades ago. The current policy is in opposition to any form of PAS. The recent poll taken by CMS showed an even split of Colorado physicians who supported and rejected PAD/PAS. I see the increase in physician support for PAD based on the evidence from states that have PAD and show a safe, functional program and no “horror stories”

split, our policy is neutral. This is where CMS needs to be on the issue of PAD – neutral.

Cory D. Carroll, MD n

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medical news Insurance commissioner commits to studying health care costs following legislative study The Colorado Division of Insurance, in response to a directive from the legislature, recently studied the feasibility of using one geographic rating area (rather than the nine current areas) for setting health insurance premiums for individual and small group markets.

Rather than moving to one geographic area, Insurance Commissioner Marguerite Salazar will “focus on ways to control underlying health care costs to address rising insurance premiums,” according to a DOI news release.

mendations before the end of the year.

The DOI announced its intention to immediately assemble key stakeholders – which will include physicians – to meet and develop a set of recom-

The study can be found on the Division's main website, dora.colorado.gov/ insurance, under the section “More from DOI.” n

Health insurance companies can differentiate their premiums between geographic areas. The DOI’s study showed that geographical areas with high average premiums have had high health costs. “Moving to a single geographic rating area will have no impact on health care costs, and without tackling these costs, there is little hope of bringing down health insurance premiums,” the DOI said in the release.

Be aware of elder abuse reporting law Colorado has a new law that requires certain professionals to report when that professional observes, learns of, or suspects that a person age 70 or older (at-risk elder) or an adult with an intellectual and developmental disability (at-risk adult with IDD) is a victim of physical abuse, sexual abuse, caretaker neglect, or exploitation (mistreatment).

The law requires these professionals to make the report to law enforcement within 24 hours so that law enforcement may conduct a criminal investigation into the allegations. These reports are then shared with Adult Protective Services, which may also investigate the allegations.

Failure to report under this law is now a class three misdemeanor, which if charged and found guilty could result in receiving a fine of up to $750 or jail time up to six months, or both.

42

Included in the list of mandatory reporters is: • Any person providing health care or health-care related services including: general medical, surgical, nursing services, nursing specialty services, dental, vision, pharmacy, chiropractic services, physical, occupation, musical, or other therapies.

• Staff of hospital and long-term care facilities engaged in admission, care, or treatment of patients.

• Staff or consultants of a care facility, agency, home, or governing board (licensed or unlicensed, certified or uncertified) including long-term care facilities, home care agencies, or home health providers.

Information on the mandatory reporting law and an online training are available at ColoradoAPS.com. n

U.S. Surgeon General: “Turn the Tide” on opioid epidemic Every day, more than 75 people in the United States die from a prescription drug or heroin overdose. In 2013, nearly 249 million prescriptions were written for opioids – enough for every adult in America to have a bottle of pills. In a letter sent to more than 2.3 million health care practitioners and public health leaders in August, U.S. Surgeon General Vivek Murthy, MD, MBA, asked for help to solve the opioid epidemic.

“It is important to recognize that we arrived at this place on a path paved with good intentions,” he wrote. “Nearly two decades ago, we were encouraged to be more aggressive about treating pain, often without enough training and support to do so safely. This coincided with heavy marketing of opioids to doctors.

Many of us were even taught – incorrectly – that opioids are not addictive when prescribed for legitimate pain.”

“I know solving this problem will not be easy. We often struggle to balance reducing our patients’ pain with increasing their risk of opioid addiction. But, as clinicians, we have the unique power to help end this epidemic. As cynical as times may seem, the public still looks to our profession for hope during difficult moments. This is one of those times.”

He urges all clinicians to join the campaign to “turn the tide.” Visit the campaign website at TurnTheTideRx.org for practical tools, information, and in-the-trenches stories from colleagues offering their insights into the epidemic. Then take the pledge at TurnThe TideRx.org/join. n

Colorado Medicine for September/October 2016

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medical news Feds announce major MACRA change at urging of AMA, CMS Andrew Slavitt, acting administrator of the Centers for Medicare and Medicaid Services, announced in a September blog post that the agency will heed concerns expressed by the American Medical Association, the Colorado Medical Society and other physician organizations about the proposed start date for performance reporting by physicians under the new payment systems created by the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA).

In a draft regulation issued last April, the federal CMS proposed to require physicians to begin reporting under the Merit-based Incentive Payment System (MIPS) or through the advanced alternative payment model (APM) option on Jan. 1, 2017, even though final regu-

lations promulgating MACRA’s sweeping payment system changes would not be issued until the fall.

The agency announced that the final MACRA regulation will exempt physicians from any risk of penalties if they choose one of three distinct MIPS reporting options in 2017, in addition to the option of participating in an advanced APM: • Full-year reporting that begins on Jan. 1; • Partial year reporting for a reduced number of days; or • A “test” option under which physicians can report minimal amounts of data.

Physicians who report in 2017 may be

eligible for bonus payments in 2019, depending on which option they choose.

Those who opt for full-year reporting will be eligible to receive a “modest positive payment adjustment;” those who choose partial year reporting will be eligible for a “small positive payment adjustment.” Physicians who choose the “test” option will not be subject to any payment adjustments. Qualified participants in advanced APMs will be eligible for 5 percent incentive payments in 2019.

The AMA issued a statement immediately after the blog posting praising Acting Administrator Slavitt and HHS Secretary Burwell for listening to physicians and providing the flexibility needed for a successful launch of the new MACRA payment systems. n

White House drug policy director: U.S. needs trained doctors to provide treatment for the prescription opioid, heroin epidemic In a letter sent to all 50 U.S. governors in August, Michael Botticelli, director of National Drug Control Policy, wrote about the urgent need for more doctors to be trained and certified to treat people with prescription opioid and heroin use disorders.

The Obama Administration is offering free buprenorphine trainings for providers all across the country and online. Medication-assisted treatment (MAT), which includes the use of FDAapproved medications like buprenorphine, has proven effective at helping people with opioid use disorders enter into long-term recovery. Other FDA approved medications to treat individuals with opioid use disorders are naltrexone and methadone.

As of February 2016, however, 1,489 counties did not have a single physician with a buprenorphine waiver or someone to dispense buprenorphine from a

doctor’s office. The vast majority of need for these treatments is in rural areas.

safely administer buprenorphine to individuals with opioid use disorders.

“Research shows that access to medication-assisted treatment (MAT) saves lives by significantly increasing the likelihood of successful recovery for people with opioid use disorders. Unfortunately, there are not enough physicians trained to use MAT and prepared to treat people with the disease of addiction,” Botticelli wrote. “To help address the need for treatment providers, the administration offers free buprenorphine trainings for physicians across the country through the Providers Clinical Support System for MAT.”

Federal and state agencies have used their respective authorities to take every available action they can to address the opioid epidemic. In July of this year, for example, the Department of Health and Human Services issued a final rule that increases from 100 to 275 the number of patients qualified physicians who prescribe buprenorphine for opioid use disorders can treat.

The DATA 2000 waiver program was established by the Drug Addiction Treatment Act of 2000 to create a system by which physicians could be trained to treat patients who have opioid use disorder with MAT. After being trained, physicians can be certified by the DEA to properly and

Colorado Medicine for September/October 2016

To fully address the crisis, however, Congress must act to provide additional funding to make lifesaving treatment available to everyone who seeks it. The president has called for $1.1 billion in new funding for states to help expand access to treatment.

More information on the process for prescribing or dispensing buprenorphine is available at www.samhsa.gov/medicationassisted-treatment. n 43

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Features

the final word

Adela Flores-Brennan Executive Director, Colorado Consumer Health Initiative

Advocating for policies to create a stable insurance market When the Department of Justice (DOJ) antitrust division recently moved to block both major health insurance mergers between Anthem and Cigna, and Aetna and Humana, the Colorado Consumer Health Initiative (CCHI) applauded the action as being protective of consumer interests. CCHI is a consumer-oriented, membership-based health care advocacy organization whose mission is to advance the consumer perspective to create equitable access to quality, affordable health care for all Coloradans. CCHI has been working to ensure Coloradans’ affordable access to health coverage under the framework of the Affordable Care Act (ACA) since its passage in 2010. We believe that the opportunities under the ACA, which have helped reduce the uninsured rate by half in Colorado, are extremely positive improvements.

However, recent trends in the insurance market remind us that in order to ensure Colorado consumers can get the health care they need when they need it, we must be diligent about advocating for policies that create a stable insurance market that provides affordable coverage and supports access to quality health care. Thus, when considering the proposals to consolidate the five largest insurance companies into three mega-insurers, CCHI was concerned about the impact on market stability and how that would affect consumer choice, access and affordability.

The combined impact of the mergers was estimated to increase market concentration in Colorado as much as 42 percent. We are concerned that the increased concentration would lead to 46

decreased competition and thus less choice and higher prices for consumers.

The insurance companies have suggested that the mergers would translate into lower costs for consumers because the carriers can use their increased leverage to negotiate more favorable provider rates. However, there is no guarantee that the insurance companies’ savings would translate to savings to consumers, and research has shown that previous mergers have failed to produce lower rates for consumers.

owned subsidiary. And, insurance premiums continue to increase.

Similarly, mega-insurer dominance may not directly correlate with expanded access or increased innovation toward improved quality. Rather, as insurers currently look to cut costs through narrower networks, those same strategies could be just as likely post-merger. And decreased competition decreases incentives to improve quality. However, with less competition in the market, and fewer plans to choose, consumers would also have less recourse to vote with their feet and switch plans.

If the DOJ is unsuccessful in blocking the mergers, CCHI will advocate to ensure that state regulators scrutinize the transactions for the impact on consumers and enforce certain conditions aimed at consumer protection. (This may only be possible in the AnthemCigna merger, as the Colorado Division of Insurance has already given the green light to the Aetna-Humana merger.)

Conditions could include requirements for the companies to expand into or remain in certain markets, limits on premiums and cost sharing, and increased charitable giving.

It also seems unlikely that mergers would be a stabilizing force in the insurance market. With or without the mergers, disruptions in the insurance markets will likely continue for the foreseeable future. For example, prior to the DOJ’s action, Humana and United both exited the Colorado individual markets (both on and off the exchange). Colorado’s Rocky Mountain Health Plans pulled back all of its individual market products except for its Monument Health products in Mesa County, and UnitedHealth recently announced its intent to acquire Rocky Mountain Health Plans as a wholly

To borrow language from a recent L.A. Times editorial, the market disruptions can either be considered a “death rattle of a failing” market or the growing pains of an emerging one. We optimistically prefer the growing pains analogy.

Either way, there is no shortage of justification for regulators at the state and federal level to carefully scrutinize the proposed insurance company mergers.

At the end of the day, the need to ensure a stable insurance market for Colorado consumers is much more complex than the issue of “mergers versus no mergers.” It will require a great deal more policy development at the state and federal level that accounts for and addresses all parts of the health care ecosystem (payers, providers, purchasers and patients). CCHI looks forward to actively participating in those policy conversations to ensure consumer interests are being protected. n

Colorado Medicine for September/October 2016

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