Guest Blog – The AOL Babies: Our Healthcare Crisis in a Nut

Check out the latest from Nic Terry, courtesy of HealthLawProf Blog.

Where does one start with AOL CEO Armstrong’s ridiculous and unfeeling justifications for changes in his company’s 401(k) plan. Cable TV and Twitter came out of the blocks fast with the obvious critiques. And the outrage only increased after novelist Deanna Fei took to Slate to identify her daughter as one of the subjects of Armstrong’s implied criticism. Armstrong has now apologized and reversed his earlier decision.

As the corporate spin doctors contain the damage, Armstrong’s statements likely will recede from memory, although I am still hoping The Onion will memorialize Armstrong’s entry into the healthcare debate (suggested headline, “CEO Discovers Nation’s Healthcare Crisis Caused by 25 Ounce Baby”). But supposing (just supposing) your health law students ask about the story in class this week. What sort of journey can you take them on?

First (but only if you are feeling particularly mean), you could start with HIPAA privacy. After all, intuitively it seemed strange to hear an employer publicly describing the serious health problems of employees’ family members. With luck your students will volunteer that the HIPAA Privacy Rule does not apply to employers (not “covered entities”). True, but AOL provided employees and their families with a health plan. Assume this was an employer-sponsored plan of some scale. It remains the case that the plan and not the employer is subject to the Privacy Rule, although following the Omnibus rule, the plan and its business associates are going to face increased regulation (such as breach notification, new privacy notices, etc). The employer’s responsibilities are to be found at 45 CFR 164.504 and primarily 164.504(f) (and here we descend deep into the HIPAA weeds). The employer must ensure that the plan sets out the plan members’ privacy rights viz-a-viz the employer. For plans like these the employer can be passed somewhat deindentied summary information (though for very limited purposes that don’t seem to include TV appearances). However, if the employer essentially administers the plan then things get more complicated. Firewalls are required between different groups of employees and employer-use of PHI is severely limited. By the way, and in fairness to Mr Armstrong, there are many things we don’t know about the AOL health plan, the source of his information about the “distressed babies,” whether any PHI had been deidentified, etc. Yet, at the very least AOL may have opened themselves up to the OCR asking similar questions and starting an investigation into how AOL treats enrollee information.

Second, this storm about the babies’ health insurance should provide a good basis for discussion of the various types of health insurance and their differential treatment by the Affordable Care Act. A large company likely will offer either a fully-insured or self-insured plan to its employees. If the latter, would your students have recommended reinsurance against claim “spikes” with a stop-loss policy? ACA should have relatively little impact on such plans or their cost except where the plans fall beneath the essential benefits floor. Contrast such plans with those traditionally offered on the individual market that are now being replaced with the lower cost (subject again to extra costs associated with essential benefits) health exchange-offered plans.

Third, this entire episode raises the question of health care costs and, specifically, the pricing of health care. On first hearing a million dollar price tag seems extraordinary. Yet as Ms. Fei noted in her Slate article, her daughter spent three months in a neonatal ICU and endured innumerable procedures and tests resulting in “a 3-inch thick folder of hospital bills that range from a few dollars and cents to the high six figures.” Now, the ACA may be criticized for not doing enough to cut costs (how about a quick pop quiz on what it does try to do?), but is there any truth to the argument that it raises health care costs? Recent investigative work by Steve Brill and fine scholarship by Erin Fuse Brown have highlighted both high prices and high differential pricing in health care. So why would a corporate executive (either directly or indirectly) blame high prices on the ACA? Are, for example, technology markets so different that the reasons for health care costs are under appreciated? And by extension, instead of fighting the ACA why are corporate CEOs not urging a second round of legislation aimed specifically at reducing the cost of healthcare for all? After all it is highly unlikley FFS pricing would be tolerated in their non-health domains. Or does such a group prefer the status quo and what Beatrix Hoffman critically terms as rationing by price?