Sen Blumenthal: Decisions Should Be Made by Doctors

Eli Y. Adashi, MD, MS, CPE; Sen Richard Blumenthal (D, Connecticut)


June 22, 2012

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In this episode of Medscape One-on-One, Sen Richard Blumenthal talks with host Eli Adashi, MD, about the importance of healthcare reform; why the Physician Payments Sunshine Act is still a work in progress; and why it's doctors, not the government, who know what's best for patients.


Dr. Adashi: Hello. I am Eli Adashi, Professor of Medical Science at Brown University and host of Medscape One-on-One. Joining me today is Senator Richard Blumenthal, the junior senator from the state of Connecticut. Welcome.

Sen Blumenthal: Thank you very much.

An Attorney General's Perspective on the Affordable Care Act

Dr. Adashi: As a legislator and a former attorney general, what are your thoughts on a potential outcome of the Supreme Court deliberations on the individual mandate of the Affordable Care Act (ACA)? I know you have given it significant thought. What can you tell our viewers?

Sen Blumenthal: I think the law is on the side of upholding the ACA. The precedent would dictate that it is constitutional. First of all, there is a very strong presumption in favor of any law that Congress passes. Second, on the commerce clause issue, there is a lot of strong precedent in favor of upholding the law. Not to say that's the outcome that will happen, but I think that the idea of upholding the law is one that is deeply rooted in the jurisprudence that exists right now. And I think that there's a strong case to be made. Whether the government's attorneys made it sufficiently strongly remains to be seen.

Dr. Adashi: You would argue that that argument holds both for the individual mandate and for the expansion of Medicaid, in terms of the ability, or the desirability, of the court to uphold the law?

Sen Blumenthal: Again, the court is not in the position -- and should not be in the position -- of deciding whether it's a good law or a bad law, whether it's good policy or bad policy. The court is deciding whether constitutionally, it is so abhorrent, so contrary to existing principle, that it must be struck down. There's a strong presumption in favor of upholding the law in any congressional legislation or any state law.

In terms of the individual mandate and on the question of whether that mandate is severable -- whether the law can be upheld if it is struck down -- there is a strong presumption in favor of upholding law regardless of whether the mandate is struck down. The questions the court asks are always given some weight by the public that observes it, but I've argued 4 times before the Supreme Court, and before many other appellate courts, and I'm always impressed by how little connection there is between the questions asked during arguments and the ultimate outcome.

Eliminating Waste and Fraud to Reduce Healthcare Costs

Dr. Adashi: This may be premature, but assuming for the moment that the court overturns the ACA, in part or in whole, have you and your colleagues given any thought to what might fill that void?

Sen Blumenthal: As attorney general of the state of Connecticut, what I saw repeatedly was abuses by the insurance companies, whether it was denying coverage on the basis preexisting conditions or establishing lifetime or annual caps, or refusing to cover a procedure because it was supposedly "experimental," or a doctor was outside the network. This law has eliminated many of those abuses. My hope is that whatever the outcome in the US Supreme Court is, insurance companies continue to follow the moral imperatives that underlie those legal mandates, including the requirement to cover young adults up to the age of 26 years on existing policies. I think that's a very important public policy outcome of the law, and many insurance companies actually favored it when it was before the Congress. I hope they continue to follow it.

Second, what I saw as attorney general is waste and fraud in the system. There's an estimate that $70 billion annually is wasted in healthcare fraud alone. And the annual recoveries under Medicare fraud are in the range of about $4 billion a year. We're just capturing, or recovering, a fraction of the waste and fraud in the system. I recovered literally millions of dollars as attorney general through lawsuits under Medicare and Medicaid fraud. I think there's much more to be done in that area.

Third, what I saw overwhelmingly -- and I think all providers recognize it -- is the excessive increases in the cost of healthcare. We need to control the cost of healthcare, not by eliminating quality or even reducing quality. In fact, I think that improving quality can be achieved as a goal of reducing some of the unnecessary costs, and those include hospital-acquired conditions, such as infections, and premature discharges from hospitals. One of the most telling statistics to me is that Medicare patients are readmitted at a rate of 25% within 30 days of their discharge. Think of it: Within 30 days, 25% go back into the hospital. That's an enormous cost that we need to winnow out of that system.

I think there are lots of ways to do this. The President has proposed some measures, including Partnerships for Patients and Accountable Care Organizations. Those are mechanisms to achieve reductions in the inflation rate in healthcare. I think that a lot of the providers, the most responsible physicians and hospitals, are all very firmly united in this cause.

Medicare Reform and Medicaid Funding

Dr. Adashi: Speaking of cost reduction, and knowing your actions on behalf of the elderly, I want to turn to Medicare for just a minute. As you well know, the House of Representatives Budget Committee, led by Rep Paul Ryan (R, Wisconsin), has proposed its plan to reform Medicare, which is very distinct from the plan enunciated by the administration through the ACA. What are your thoughts or views with respect to the main tenets of the Medicare proposal made by Rep Ryan and Sen Ron Wyden (D, Oregon)?

Sen Blumenthal: I strongly disagree with the Ryan-Wyden proposal. First, it would shift costs to seniors. The estimate is that in Connecticut alone, $6500 would be increased in out-of-pocket costs for seniors. It would decimate Medicare as we know it.

Second, it would block-grant the Medicaid program, which would very severely harm Connecticut and many other states that are generous (to use a loaded term) to our seniors on Medicare and those eligible for both Medicare and Medicaid -- as well as to Medicaid patients, the ones who can least afford care.

I think that the idea of establishing caps on the rate of inflation -- both President Obama and Rep Ryan say that the rate of increases should be no more than the increase in gross domestic product plus 1% -- is fine as a goal. But the question is, how to achieve it? The president has proposed such mechanisms as the Partnership for Patients, which would increase the incentives for cutting the increasing costs of healthcare by reducing hospital-acquired infections, and other kinds of cuts that I think we can address. This method really enlists the medical community in that effort in a very constructive way, rather than making across-the-board cuts, possibly in provider reimbursements, which further discourages providers from taking part in the Medicare program.

There are very constructive ways to approach cutting the costs of healthcare and the rate of inflation, without the slashing, across-the-board cuts of the Ryan-Wyden proposal, which in many respects are unspecific and unspecified.

Recovering Waste and Fraud

Dr. Adashi: I wanted for a moment to come back to the issue of waste and fraud, which should be high on the agenda. Just last week, US Attorney General Eric Holder and Secretary Kathleen Sebelius announced the arrest of more than 100 individuals who allegedly submitted false Medicare claims to the tune of almost $500 million. From your experience as a state attorney general -- as an enforcer, in a sense -- what else can we do to prevent waste and fraud?

Sen Blumenthal: That's an excellent question, and I think we're really on the cusp of some very important preventive devices. Information technology not only enables avoidance of mistakes in prescriptions; a lot of mistakes from prescriptions are the result of doctor handwriting. I can say that because my brother is a doctor. He has better handwriting than I do, though.

But still, mistakes can result from handwritten prescriptions. Information technology enables avoidance of mistakes but also prevention of fraud. I was one of the advocates in Connecticut of an information technology system that prevents patients from "gaming" the system by -- and this is just one example -- "doctor-shopping" and making the doctors, in a sense, victims of their own generosity. A patient who is addicted to a painkiller and wants to doctor-shop can submit numerous requests, and the doctors inadvertently can be drawn into that system.

I think that information collection and registries of patients -- that kind of real-time submission of information -- may sound like a technical, complex thing but actually is very feasible and cost-effective to prevent fraud and waste in the system. Using information technology is one means of doing it. When I was attorney general, I went after a lot of corrupt patients, for lack of a better term, who were gaming the system. Maybe they needed treatment for the addiction and instead were using the doctors as an accomplice in a crime, so to speak.

Sunshine Payment Act: A Work in Progress

Dr. Adashi: I want to switch gears to a very different topic. The Physician Payments Sunshine Act is to go into effect early next year. This is a component of the ACA that is finally being implemented. Can you say something for the benefit of our viewers about the significance of this development, and whether or not you are satisfied with its implementation?

Sen Blumenthal: I think its implementation is still a work in progress, and quite honestly, I would welcome criticism from doctors and providers who are involved and hospitals that have direct experience with this act.

What's most important -- and I should emphasize that this statement applies to every answer I've given so far -- is that we need to listen to the people who are affected, particularly the providers, doctors, technicians, and hospital administrators. When I go back to Connecticut, which I do every weekend, I speak to the heads of hospitals and I go to visit them. I have spent a lot of time in Bridgeport Hospital and St. Vincent's in Bridgeport, learning about what they do. Yale-New Haven Hospital, which is a tremendous resource, Hartford Hospitals, Danbury and Greenwich Hospitals -- all of these hospitals are really working hard, as are most of the doctors, to control the cost of healthcare without reducing quality, and are in fact increasing quality.

When I talk about such issues as eliminating waste and fraud, I regard the doctors and the professionals as partners in this effort, not by any means, adversaries; and so too with the provisions of the Physician Payments Sunshine Act. The provision is very much a work in progress, and we need to use more disclosure and transparency to help us frame improvements in the law.

Medical Liability Reform

Dr. Adashi: Another concern is the issue of medical liability reform. As you probably know, in your own state last week, the House of Representatives turned down a bill that would have facilitated the filing of malpractice lawsuits. One question that often comes up has to do with whether we should be thinking about this issue as a state issue, or whether a more systemic, perhaps federal, solution is called for. What are your thoughts on this matter?

Sen Blumenthal: One of the important advances in the ACA is to establish some test programs -- for lack of a better word, prototypes or demonstration projects -- that will yield more information about what can be done to improve the system. There needs to be some federal leadership in this area. Perhaps these issues should not be left to a state-by-state patchwork, but as you know, the tradition is for states to regulate their own legal system and set their own laws as far as negligence and malpractice are concerned. I think there will be inevitably some tension between those 2 needs or traditions, and I think it's an area we need to address more effectively. Connecticut decided not to adopt a new law. Sometimes the legislature follows the old edict, "First, do no harm." I think that's very much the approach that we need to take in this area.

Generic Drugs and Patient Safety

Dr. Adashi: Last month, you introduced the Patient Safety and Generic Labeling Improvement Act, thereby providing recourse to consumers who might be injured by generic drugs. What prompted you to tackle this issue, other than your long track record as a consumer advocate? Specifically, what prompted you to tackle this matter, and how is this law going to address this issue?

Sen Blumenthal: First, as a consumer advocate, I want to make sure that patients have a say. Obviously, doctors know the advantages medically and can advise patients, but patients should know the upsides and the disadvantages of generics when they are prescribed, so that they can make intelligent decision and also evaluate the cost -- whether they want to pay out of pocket for the additional costs of brand-name drugs, and what kinds of options are available. I think there needs to be the full range of advice.

I think the same is true in other areas as well. I have proposed protections relating to medical devices and drug shortages. As I go around the state of Connecticut and as I hear from, for example, anesthesiologists from around the country, drug shortages are a very important issue, a crisis issue. And part of the reason we have drug shortages, I'm told, is because many of them are generics, and maybe the profit motive isn't there. There are sterile injectables, which also are often generics. As we go into an era where patents are expiring, there will be more generics on the market. We need to understand and enable patients to understand what the upsides and disadvantages are.

A Career in Consumer Advocacy

Dr. Adashi: Finally, on a more personal note, I couldn't help but observe how, during your career, you have battled Big Tobacco, Big Pharma, and other interests on behalf of consumers, which led me to mention earlier your track record in consumer advocacy. Would you share with our viewers how you found yourself so aggressively involved with this type of public service?

Sen Blumenthal: I think a lot of my motivation as attorney general was to fight for people who needed an advocate, often when they had no place else to turn to in the medical arena. I've tried to continue that advocacy as a senator.

For example, for medical devices, I have proposed a measure that will be part of the US Food and Drug Administration (FDA) reauthorization bill that provides for postmarket surveillance of implants, such as hip implants or knee replacements, when they fail. This will give patients recourse and give the FDA a means of enforcement. On drug shortages, notification is very, very important, because these are workhorse medicines in desperately short supply, which results in overcharges and a gray market that will increase the cost of these drugs by 800%, even 1000%. This is a consumer issue that is fortunately remedied in the FDA reauthorization bill that I hope will pass. We need it to pass so that the FDA will continue to be in existence, and these measures are part of it.

I'm continuing to fight for patients, but also seeking to serve the needs of patients through their doctors. I have a very important principle in the medical arena: Decisions should be made by doctors and patients working together, without the interference of big insurance companies, big pharmaceutical companies, and government. The attorney general or the senator should not be telling patients what decisions to make; that ought to be a matter that the patient decides in consultation with a doctor or family. And that's true of contraceptive care, of decisions on a whole range of medical issues, but that's been the reason why I've been a champion of consumer interests. Because in medicine, decisions ought to be very private, and they should be made by the patients, doctors, and families -- not by big institutions, such as insurance companies, government, or pharmaceutical companies.

Dr. Adashi: All I would say, is keep doing what you're doing.

Sen Blumenthal: Thank you.

Dr. Adashi: On this note, sincere thanks to Sen Blumenthal and to you, our viewers, for joining Medscape One-on-One. Until next time, I am Eli Adashi.