QUARTERLY NEWSLETTER | SPRING 2023 – #44
Preventative Care Done Right Can Save Lives While Reducing Provider Costs By Joy Stephenson-Laws, Managing Partner The promise of preventative healthcare in the U.S. is unfortunately not being fully realized. When the government began promoting these programs in 1984, it promised to prevent disease. Preventative care was also supposed to reduce healthcare costs. Some thirty years later, the two leading causes of death in the U.S., heart disease and cancer, continue to claim more lives than ever with no sign of any significant decline. On reducing the cost of healthcare, while there is some debate in this area, a recent article in the New York Times makes the case that while preventative care does improve quality of life, it does not, in fact,
reduce healthcare costs for providers, payors or consumers. The CDC, however, reports that chronic diseases that may be avoidable through preventive care services account for 75 percent of the nation’s healthcare spending and lower economic output in the U.S. by upward of $260 billion a year. Reducing something as prevalent as hypertension by just five percent a year could save some $25 billion, according to the Surgeon General.
Prevention Versus Detection Preventative measures such as vaccines, low-dose aspirin therapy, weight reduction and smoking
cessation do reduce the incidence of certain diseases. But much of what the healthcare community defines as preventative medicine is better described as early detection of disease. Early detection is really an attempt to ward off the human and financial costs of chronic disease as early as possible in the disease progression. As a result, providers spend far more time, money and resources on detecting and treating disease than actually trying to prevent it. This may sometimes result in over-testing of patients, which generates additional costs without necessarily adding a corresponding improvement in patient quality-oflife or life-hours gained. And since many of these procedures are not reimbursable by private or
public payors, they either are not done in a timely fashion or are not done at all. A good example of detection over prevention is heart disease, the number one killer in the U.S. To help prevent it, a healthcare provider may recommend cholesterol checks over the age of 40; obesity screening and counseling if a patient starts to gain weight; and routine blood pressure screenings for patients over the age of 20 to detect when blood pressure gets too high. Another example is cancer, the second leading killer in the U.S. To help ’catch’ certain cancers early, doctors usually recommend colorectal and breast cancer screenings for patients over 40 or 50, respectively. Most guidelines indicate holding off on these screening tests until these ages, because this is when the best chance of detecting evidence of these cancers exists. These are generally all recommendations designed to detect and treat asymptomatic disease at a time when the disease is likely to show up.
testing for the disease. By not having true preventative healthcare, the healthcare community may have inadvertently created a healthcare problem that now requires billions to address.
Preventative Care is Underutilized Experience does show that true preventative care can prevent disease and increase the probability of a patient staying healthy. And it is commonplace and routine in many other areas of our lives.
Is it Time For a Shift in Focus? The use of antibiotics provides an example of how a shift in focus to true prevention could benefit patients and providers alike. Antibiotic prescriptions in the United States are among the highest in the world. One often ignored side effect of antibiotics is the reduction in the population of good bacteria in the gut. Certain antibiotics may also reduce the amount of calcium and iron available for use in your body. Insufficient good bacteria in the gut may result in increased risk for heart disease, cancer, obesity and many other diseases. Insufficient calcium and iron may lead to heart problems and other health disorders. But rather than avoiding this risk by appropriately testing the population of remaining good bacteria after a long course of antibiotics, or for calcium or iron deficiency, most doctors instead screen for the diseases caused by the deficient minerals, vitamins and gut bacteria. And then they focus on treating the disease itself. Another example of where detection currently takes precedence over prevention is nutrient deficiency. Research indicates about 80 percent of adults in the U.S. get too few of critical nutrients such as vitamin C, which can result in increased risk of heart disease, cancer and obesity. Yet neither vitamin C level tests, nor testing for many other critical nutrients needed to stay healthy, are on the list of recommended primary preventive screening tests. Screening tests for gut bacteria and nutrients are far better methods of preventative care than
Consider aviation, for example. The risk of death from a single inflight malfunction is so astronomically high, that airlines generally take true preventative steps to identify and correct potential problems before they happen or before warning signs are expected to manifest themselves. The human body is equally complex and the risk of death or disability from untreated disease is just as high. However, given the current dynamics of the healthcare system, the general practice continues to focus on early detection of disease, not prevention. And despite studies that may show otherwise, the Rand Corporation reports a two-to-one return on investment (ROI) on preventative health programs in the workplace. And another report by the CDC shows that preventative care can generate up to a four-to-one return on investment. Yet, despite these numbers, true preventative care continues to be underutilized. In fact, one study indicates that only about 44 percent of healthcare providers ask about health lifestyles and steps patients take to ward off disease.
Healthcare Providers Can Play a Leading Role Healthcare Providers, given their mission to protect community health, can do a lot to develop, promote and make true preventative
care a real possibility. And they may also reap benefits by seeing a positive impact to their bottom line. For example, they may minimize expensive re-admissions, reduce non-emergency and unreimbursed visits to the ER, address the spiraling costs of preventable diseases such as diabetes and obesity and garner community goodwill. Steps providers can take now may include: C ommunity Education: Lack of education leads to bad decisions, which leads to disease and more — greater spending to treat disease rather than on preventing it in the first place. Providers should engage or expand existing efforts in community health-building that give people the information and tools they need to get and stay healthy. W orkplace Health: Providers can set an example by developing new or enhanced workplace wellness programs to include elements aimed at helping employees educate and raise healthy kids. Studies shows that healthy children tend to become healthy adults. They also show that parents with unhealthy habits tend to raise children who will follow in their footsteps. Providers can help break the cycle. P rovide Screening: Screen whole populations but focus on less-expensive but equallyeffective techniques and procedures where possible. For example, in their colon cancer screening programs, certain capitated organizations typically lead with pre-screening through mail-in stool tests. Positive “occult blood” results on these may reliably turn up in the small percentage of the population that could benefit from a colonoscopy. Some five percent of those may actually have colon cancer. W ork to Expand Coverage: Given the ROI on preventative care, work with payors and government authorities to expand coverage to better include preventative care services aligned with the US Preventive Services Task and CDC recommendations. I mprove Targeting: By reaching vulnerable and higher-risk populations, providers can improve the ROI (both human and financial) of preventative care programs. Remember prevention is always better than a cure. But it requires both patient, healthcare professionals, and policy makers to work together.
This quarter’s Spotlight is on Attorney, Ken Dusold. What is your area of expertise within SAC?
Joining SAC’s Chicago Office with experience as a litigator in state and federal courts, arbitrations, and mediations, as well as time spent clerking in the Circuit Court of Cook County, I’m ever-ready and enthusiastic to help clients from across the country when pre-litigation efforts have come up short in resolving disputes with payors. Thanks to the education and experience I’ve had thus far at SAC, I’m also proud to say that I went from a litigator with minimal health law experience to a CRCS-certified specialist in medical reimbursement recovery in just over one year.
What one piece of sage advice can you offer to our clients that can help them in the future?
Medical providers should place an emphasis within their claim reporting teams on keeping concise notes regarding authorizations granted, medical records submitted, charges billed, rates expected, amounts paid (if any), and every communication with every payor, including any and every reason given for delayed payment or denials. Particularly with regard to non-clinical claims, the decision of a judge or arbitrator can turn on the strength of a facility’s claim records.
Can you talk about a recent success story of yours? What was the challenge and how were you able to overcome it?
In Illinois, we have seen payors become increasingly aggressive in utilizing the existence of an ERISA plan to defeat a civil action for underpaid reimbursement. Historically, courts have liberally applied ERISA to preempt and dismiss state actions brought by medical providers seeking reimbursement for medical services provided to a patient covered by such a plan, despite the providers not being participants or even valid beneficiaries to the plan. In a recent attempt brought by one payor,
research uncovered recent federal court cases in multiple jurisdictions in which the same payor had presented competing arguments relating to the application of an anti-assignment provision regularly included in ERISA plans the payor administered and which was present in the plan at issue in our case. Going forward, we will have established either precedent that helps providers more frequently escape the reach of ERISA or – at a minimum – that there exists ambiguity in the language and application of anti-assignment provisions where different federal courts are applying competing interpretations. Where the law calls for ambiguity in contracts to be interpreted against the drafter, and payors are the drafters of these ERISA plans, courts should be interpreting these provisions against payors in the future.
Do you have any hobbies or interests outside of work? I am an unabashed cinephile, with a vast interest in and knowledge of film as art, entertainment and an influential aspect of the modern world’s cultural history. In college, I even moonlit as a film critic for a regional Missouri newspaper. I make sure to use some of my personal time to catch up on both new films and older classics I’ve yet to see, as well as rewatch personal favorites and read books about key cinematic figures, eras, and industry transformations. I also love to travel whenever and wherever I get the opportunity. When not traveling, I genuinely enjoy applying my experiences and research skills to help family and friends develop itineraries for their own travels.
Do you have any charitable causes that interest you and events you have participated in recently? I am particularly interested in the ongoing nationallevel research conducted by The ALS Association and the efforts of its regional chapters which continue to work tirelessly to provide necessary support to people living with ALS and their families. My wife and I are also keenly interested in supporting the work of PAWS Chicago, which is nearing its mission of eliminating the need for any rescued dogs and cats to be euthanized by successfully fostering and re-homing almost 100 percent of Chicago’s rescued animals. I am also a passionate supporter of conservation efforts pursued both at home and in the wilds of the world by experts and friends based at the St. Louis Zoo.
Do you have family and/or pets you’d like to tell us about?
My wife, Brittany, who was my college sweetheart before following me to Chicago and supporting me (read: keeping me grounded and sane) through law school, continues to wow me in her seemingly endless capacity to serve as a source of support, comfort, and honest advice to our friends. Where the pandemic resulted in an apparent growth in knitting and crocheting, stemming from so many people being homebound, Brittany only further mastered what was already a first-rate skill. Since 2017, there hasn’t been a baby born to friends or family that has gone without a unique blanket, a niece or nephew lacking in winter scarves and hats, or friend’s children missing out on a personalized stuffed animal. Currently without a four-legged family member, we look forward to adopting again as soon as we find our next home – this time in the Chicago suburbs and with plenty of yard space.
Do you have any guilty pleasure television shows, movies or other activities to tell us about?
When not actively working or catching up on both new and older films, I suffer from what some have described as an addiction to baseball. Born and raised in St. Louis, it’s not infrequent that Cardinals baseball is playing via TV or radio in the background of my life. Every season, I try to catch games in at least two ballparks I’ve never before visited, with the hope of having all 30 ballparks visited by 2032. While I don’t watch too much television these days, my wife and I are both partial to crime fiction procedurals when we get a chance, including Midsomer Murders, Monk, Psych, Poirot, Sherlock, and Murder She Wrote.
What are your favorite foods? Colors? Other favorites?
My favorite food is also a guilty pleasure and one I must consume only in moderation: ice cream. Being from St. Louis, I’m partial to frozen custard, but whether rich flavorful gelato, palette cleansing sorbet, classic soft serve, or a couple scoops of Ben & Jerry’s, I don’t discriminate when it comes to frozen treats. My favorite color is royal blue (except when watching baseball). And my favorite legal-themed films are Anatomy of a Murder and Michael Clayton.
UPCOMING EVENTS:
May 3 - 4, 2023, AAHAM 2023 Legislative Day, Washington DC
SAC’s Co-Managing Partner, Rich Lovich, along with Partners Chuck Acquisto and Marcus Morrow, as well as Attorneys Kenneth Dusold and Mallory McTarnaghan, will be attending AAHAM’s annual Legislative Day in Washington DC on May 3-4, 2023. This event provides an unparalleled opportunity for our team to connect with key decision-makers who shape the legislative landscape for our industry. We look forward to advocating for our industry’s priorities at this important event.
May 30 - June 2, 2023, South Carolina HFMA 2023 Annual Institute, Myrtle Beach, SC SAC Partner Chuck Acquisto will be attending the South Carolina HFMA 2023 Annual Institute in Myrtle Beach, SC. This premier gathering for those in healthcare finance provides opportunities to learn and network with industry professionals.
All articles are written by the SAC Litigation team. The SAC Litigation team includes attorneys, nurses and physicians with extensive experience in all areas of law related to healthcare matters. Additionally, SAC partners hold legal advisory positions with healthcare organizations and sit on the boards of numerous healthcare-related organizations, and monitor all outgoing SAC client marketing materials and related content.
DISCLAIMER: This newsletter is for general educational and informational purposes only. You should not act upon this information without seeking your own independent professional advice.
We would love to hear from you! If you have questions, comments or feedback, please email us at SACReview@sacfirm.com.
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