Hospital Mergers: Impacts on Patients, Pricing, & Antitrust Concerns.

Over the past year, mergers and acquisitions across industries are seeing a spike while appropriations to the antitrust division of the Department of Justice have remained the same. Included in this most recent spate of mergers are hospital systems. Hospitals are merging at record rates and PricewaterhouseCoopers predicts hospital system mergers to continue to grow. As hospitals continue to merge, they have started to form new conglomerates in the healthcare industry. One recent example is the merger between Catholic Health Initiatives and Dignity Health, forming CommonSpirit Health.

CommonSpirit Health has sites across 21 states, 150,000 employees and over $30 Billion in revenue. With 90 percent of Metropolitan Statistical Areas considered highly concentrated for hospitals as of 2016, these mergers beg the question of whether patients are benefitting. Furthermore, what are the anti-trust implications of highly consolidated regional hospital systems?

A new study from the American Hospital Association claims “hospital acquisitions are associated with a statistically significant 2.3% reduction in annual operating expenses at acquired hospitals.” The American Hospital Association suggest that by combining administrative functions among hospital systems they can pass these savings onto patients. However, a recent class-action lawsuit against Sutter Health disputes this notion. Sutter Health – a Northern California health system – is accused of using its market dominance to drive up the cost of services. With such a high level of regional market control, hospital systems like Sutter Health use “all-or-none” contracting with insurance companies to demand higher prices for services. These costs trickle down to patients with higher premiums and co-pays.

Patient advocates attribute the Sutter Health lawsuit to lax anti-trust practices when it comes to hospital mergers. While anti-trust officials have the time and resources to focus on blockbuster industry mergers such as CVS-Aetna, smaller mergers among regional hospitals and healthcare service providers go unnoticed. An example of such mergers is Anne Arundel Medical Center and Doctors Community Health System merging to form Luminis Health in Maryland. These regional mergers often evade the eyes of regulators and patient advocates warn of their potential to drive up costs by dominating regional markets and rarely if ever lower costs.

An industry-funded study [ST1] from Deloitte points out, however; that mergers and acquisitions in health systems lead to investments and improvements on acquired facilities and lower operating costs. This same study also pointed to specific improvements in patient reducing patient mortality, reducing wait times and reducing readmissions. These are all factors anti-trust officials should consider when deciding whether to challenge a merger. Anti-trust officials simply don’t have the resources to analyze these deals;leaving patients footing the bill for increased costs. Hospital costs continue to remain the largest overall share of healthcare spending in the United States. To lower healthcare costs and improve patient outcomes, it is time for regulators to examine these regional health system mergers and their vast implications on patient outcomes and pricing.

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The Disproportionate Impacts of Obstetric Violence on Minority Women

Serena Williams is a superstar tennis player and a force to be reckoned with, especially after sharing her harrowing postnatal experience. Williams has a history of pulmonary embolisms, and the day after giving birth to her daughter via C-section, she had trouble breathing and believed she was experiencing a blood clot. After Williams alerted a nurse, the nurse suggested Williams’s pain medication left her confused and instead insisted a doctor perform an ultrasound on her legs. Doctors ignored Williams, who knew she needed a CT scan and heparin drip. This dismissal of Williams’ concerns delayed the discovery of several blood clots in her lungs and a large hematoma in Williams’ abdomen, near her C-section wound; she was placed on six-week’s bedrest following this event. Williams’ deeply upsetting interaction with her doctors is not uncommon for new mothers in the days following childbirth, especially among minority women.

Between 700 and 900 women die yearly from complications stemming from pregnancy and childbirth. For every death, there are a handful of women who suffer life-threatening birth injuries. There is a notable racial disparity in the figures, and black women are seventy-five percent more likely to experience a traumatic birth compared to white women. Traumatic birth experiences often result from obstetric violence, a notion that encompasses disrespectful attitudes from doctors, discrimination from care providers, and lack of consent for treatment. In 2016, the American College of Gynecologists published a committee opinion outlining that a “decisionally capable” woman has the right to refuse certain treatments while she is in labor. Furthermore, the College strongly discouraged “manipulation [and] coercion” to influence a woman’s treatment decision. Although this opinion offers guidance to practitioners, it is not binding, and many women nonetheless face varying forms of obstetric violence.

Obstetric violence is especially severe for women of color due to the widespread discrimination within the maternity care field. The CDC notes that Black women in the US are three times more likely to die from childbirth-related issues than white women. Across the country, the maternal mortality rate has risen to 17.3 maternal deaths per 100,000 births. The United States is one of only a select handful of countries where the maternal mortality rate is worse now than it was 25 years ago.

Anecdotal evidence from doulas in Milwaukee and Washington, D.C., both cities that support a large low-income and Black population, reveals how doctors often justify acts of obstetric violence by feigning paternalistic worry and falsely claiming either the mother or infant were in danger. Additionally, it is well-established that black women fare worse in pregnancy, and growing evidence points to a low quality of care in hospitals where black women seek maternal care, which are often found in highly segregated areas. Research has also indicated that women who deliver in these hospitals are more likely to have complications from birth-related embolisms and hysterectomies. Black women believe their concerns are not addressed by their healthcare teams; for many women of color, the news of a baby evokes fear rather than joy because these women know of the alarming trends and how treatment teams may disregard their wishes and concerns.

In the wake of the CDC and WHO data on obstetric violence and maternal mortality rates, legislators have signed H.R. 1318/S. 1112, which supports states to put an end to preventable maternal deaths. Additionally, Senator Kamala Harris introduced the Maternal Care Access Reducing Emergencies Act meant to promote training programs for healthcare professionals that would address implicit biased based on stereotypes. Until the legislation takes effect, organizations like Improving Birth and Birth Monopoly will continue advocating for women who have faced obstetric violence.

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Zulresso: The First and Only Drug Approved to Treat Postpartum Depression

In March, the FDA finally approved Sage Therapeutics’ drug Zulresso (brexanolone) as the first drug intended to treat postpartum depression (PPD) in adult women. Before Zulresso, the only drug used to treat PPD was anti-depressants. Compared to anti-depressants, which could take weeks to regulate PPD symptoms, Zulresso improves symptoms within days. The approval of Zulresso marks a crucial milestone for women who have long suffered from PPD.

Having a baby is supposed to be a joyous occasion, however, within days, or even hours, many women feel depressed. Some women experience the less severe form of the “baby blues” while others suffer from severe and life-threatening PPD. PPD is a major form of depression that occurs in about 1 in 9 women after childbirth. PPD symptoms vary but often include feelings of extreme sadness, anxiety, suicidal thoughts, and severe doubts about the mothers ability to care for her baby. All women are susceptible to PPD because PPD does not manifest itself in one “type” of person, i.e. specific race, culture, etc. Some experts believe that PPD is more prevalent than reported because not all women talk about or seek treatment for PPD. Zulresso is the first drug to provide hope to the millions of women who suffer from this disorder. 

Yet, although Zulresso seems like a saving grace, it is still a drug that comes with serious risks. The FDA reported that serious risks, like excessive sedation or sudden loss of consciousness, occurred after taking Zulresso. Because of these risks, Zulresso was approved with a Risk Evaluation and Mitigation Strategy (REMS). A REMS program helps ensure FDA that the benefits of the drug outweigh its risk and that patients taking the drug are safe. In Zulresso’s case, the REMS program makes Zulresso available only through an intravenous (IV) injection that must be administered and monitored by a health care provider. Since Zulresso takes a total of 60 hours to administer,the REMS program requires patients to be continually monitored the entire administration period. In addition, all patients must be registered and complete counseling before taking Zulresso. 

However, a drug this powerful won’t come cheap. A one-time infusion of Zulresso is expected to cost $34,000 before discounts. For many women without insurance, Zulresso may be unattainable. However, since Zulresso has been clinically proven to be effective for PPD, many women will find its price worth it. Even Sage’s chief executive officer, Jeff Jones, acknowledged the high price of Zulresso, and said that “Zulresso’s medical benefits will overcome any concerns about cost and delivery.” 

Zulresso is expected to launch in late June, and Sage Therapeutics is already working on creating centers for women to have access to the drug. Although the nation is excited about Zulresso, Sage Therapeutics is already working on another fast-acting antidepressant pill that could treat postpartum depression too. However, Zulresso and Sage Therapeutics might have some competition from Marinus, a company also developing and testing a drug to treat PPD. Competition or not, the approval of Zulresso means that fewer women have to suffer and many more women can enjoy motherhood.  

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The Legal Obstacles a Woman Faces in Choosing Her Birth Experience

The labor and delivery process has evolved immensely over the years in the types of procedures and use of medication. More patient focused than ever, the trends towards natural water births, pre-planned C-sections, and hiring doulas are likely to continue. However, while the physical toll a woman experiences in giving birth is obvious, the emotional and psychological burden is often carried alone and in secret. Women are talking about their struggles with postpartum depression and the traumas associated with giving birth. In lawsuits, women’s claims include being forced to undergo painful invasive vaginal procedures against their consent, feeling imprisoned to a bed for hours at a time, and even having their birthing plan completely ignored by staff. All of these indicate abuse at the hands of doctors and nurses whose primary focus is the birth of a child and not the woman in labor. Women should have the right to make choices about their bodies. This type of “obstetric violence” has led to an uptick in diagnoses of postpartum PTSD, which is often misdiagnosed as postpartum depression. 

This trauma has led a growing number of women to turn to alternative birth plans that avoid hospitals and put the mother in control of her birthing process. Many of these birthing plans occur in a tub or pool, filled with warm water, and incorporate types hypnotherapy and calming techniques to ensure a smooth and serene process. Proponents of this movement include midwives, who are trained in child birthing, and doulas, who assist and advocate for birthing women during the process, who emphasize that healthy women with uncomplicated pregnancies are usually more satisfied with the process than their previous births in hospitals. Natural water birth is praised for having lower cost, more freedom to choose medications or methods, less pain/anxiety, a comfortable and peaceful setting, and a personal connection to the process. However, critics argue that for difficult births, women who insist on natural water birth put both themselves and their baby at a higher risk for complications, or even death. If there is distress, bleeding, or other unknown conditions, the ability to get help and necessary care is more difficult and will take longer. In the UK, doctors are discussing a consent requirement for vaginal pirths beacause the risks of vaginal birth are so high and debating whether it should be the default option. Others discourage the notion that “natural birth is fulfilling while unnatural birth is traumatic” because it disenfranchises women who want to make the choice to have a C-section or epidural as part of their labor and delivery process. Regardless, experts agree natural water birth is a safe and successful birthing plan when well planned and executed. 

Unfortunately, across the United States laws are being passed that constrict a pregnant woman’s opportunity to choose a natural birth. Many doctors refuse to indulge in a natural water birth, which forces women to seek out midwives to facilitate their birthing plan. Twenty-three states refuse to license midwives, driving up the cost of natural water birth and making it less safe for those who insist on it. Like abortion, placing obstacles on water births do not stop them from happening. Some states, like Arkansas and Arizona, even require “vaginal assessments” prior to clearing a woman for a water birth, which is comprised of a series of STD testing and invasive vaginal examinations that a woman giving traditional vaginal birth in a hospital does not have to undergo. New York has attempted to reduce the number of water births by minimizing the number of facilities that would be prepared to facilitate them to three, for the entire state’s population. The effect of this is to limit the freedom of a women to control their birthing plans by requiring them to jump through hoops, increase costs, wait on impossibly long wait lists, and in some cases, even jeopardize her own safety just to exert any authority on the extremely painful and intimate process of bringing a child into the world. It is time for state laws to catch up with modern birthing practices and to give women the power to make their own decisions about their bodies as they give birth. 

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Setbacks to the Trump Administration’s Health Care Initiatives

The Trump Administration has undergone setbacks recently in its attempt to reshape the health care landscape. Since the 2017 failure to repeal the Affordable Care Act (ACA) through Congress, the Administration has attempted to use agency power to affect changes to provisions of the ACA. Such changes have been inspired from Republican proposals to limit federal involvement in health care and granting significant discretion for states to run their own programs.

The Centers for Medicare and Medicaid Services (CMS) has directly dismantled many of the provisions of the ACA through expanded approval of state waivers for Medicaid compliance. Under Section 1115 of the Social Security Act, the Secretary of Health and Human Services (HHS), through CMS, can grant states waivers on Medicaid requirements to allow states greater flexibility in shaping their health care programs. This effort has been one of the cornerstone programs under Seema Verma, the CMS Administrator. Administrator Verma previously oversaw the expansion of Indiana’s Medicaid program in 2015. Then-Governor Mike Pence made a deal that Indiana would accept Medicaid expansion in exchange for requirements that enrollees contribute monthly payments to offset some of the cost to the state. That was a unique arrangement at the time, but some in the Obama Administration felt that it would be the only way to get reluctant states to accept an expanded Medicaid program. Once the Trump Administration came into office, CMS began to examine the ability to grant Section 1115 waivers in relation to mandating work requirements for Medicaid recipients. In January 2018, Kentucky became the first state to tie Medicaid expansion to work requirements for enrollees. Seven other states have since successfully applied for waivers to require employment to receive benefits. These waivers have been challenged in court a number of times; Kentucky in particular lost twice. A District Judge in Kentucky blocked implementation of the work requirements in June 2018, holding that HHS had failed to properly consider the request and remanded it back for further examination. The waiver was reconsidered and granted for a second time. However, last week, the same judge once again blocked Kentucky’s program as well as blocked Arkansas’ work requirement waiver, holding that the waivers go against the spirit of Medicaid’s goals.

Eight states in total have expanded Medicaid with the condition that enrollees be employed or seeking work. Utah passed a referendum in the 2018 elections that expanded Medicaid access but the Utah Legislature limited that expansion by requiring enrollees to be employed and raising the income threshold for eligibility. Virginia’s 2018 Medicaid expansion was approved after several years of negotiation as the Republican controlled Virginia General Assembly would only support expansion in exchange for limited work requirements. Georgia has most recently accepted a very limited Medicaid expansion that forbids complete expansion and sets a June 2020 deadline to agree to a waiver or the expansion will be voided.

The most recent legal setback for the Administration has been the rejection of the Department of Labor’s (DOL) association health plan rules (AHPs). These rules allowed for small businesses to join together to purchase health plans, similar to how large employee plans are already structured. The AHPs would not have to abide by many of the coverage requirements the ACA mandates, but would require insurance to cover individuals with pre-existing conditions. Eleven states, led by Pennsylvania, filed a lawsuit against the DOL, alleging that the AHPs violate both the ACA as well as well as violating ERISA guidelines on allowing for groups to join together in AHPs even though they do not have any business connection. Last week, a District Judge invalidated the DOL rule, holding that DOL’s interpretation goes against the language of ERISA.

One legal success for the Administration was the December 2018 ruling by a Texas District Judge finding the ACA was unconstitutional. In NFIB v. Sebelius, the Supreme Court found that the individual mandate, which requires individuals to maintain health insurance and penalizes them if they don’t, was constitutional under Congress’s taxing power because the penalty was treated as a tax. The Texas District Court Judge’s ruling found that because the penalty under the individual mandate was reduced to zero as part of the Tax Cuts and Jobs Act of 2017, the mandate could no longer be justified as a tax and the whole law was thus unconstitutional. Many court watchers do not believe the lawsuit will ultimately succeed at the appellate level, but the Department of Justice (DOJ) recently reversed its position in a brief filed with the U.S. Court of Appeals for the Fifth Circuit, refusing to defend any part of the ACA, believing it to be unconstitutional in whole. The DOJ’s previous position was that only the individual mandate was unconstitutional but the rest of the law could be upheld if the mandate was not. Recognizing the political implications of such a change, the Republican attorneys general of Ohio and Montana filed an amicus curiae with the Fifth Circuit urging them to reject the conclusion that the entire ACA is unconstitutional and limit scrutiny to the individual mandate.

The legal setbacks on a narrowing of provisions of the ACA have once again put a spotlight on health care within the political sphere. President Trump recently declared that, “The Republican Party will soon be known as the party of health care.” Republicans in particular are concerned that this reexamination of the ACA will endanger their 2020 reelection prospects and thus, are blocking attempts to reexamine the ACA. Senate Majority Leader Mitch McConnell has rejected any new attempt to repeal the ACA, viewing any opportunity impossible with the Democrat controlled House of Representatives. The issue of health care will continue to be a pressing political issue as the House of Representatives examines various proposals for ‘Medicare for All’ programs and the Republicans focus on many of their initiatives to bring down health care costs through drug pricing issues and other non-coverage focused initiatives.

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