California's Unwitting Health Care Guinea Pigs

California's Unwitting Health Care Guinea Pigs

Imagine waking up to find, as Dorothy famously did in The Wizard of Oz, that you're not in Kansas anymore, having been transported somewhere else without your volition or consent. The people you trust are nowhere to be found, and the ones you encounter range from "good" to not-so-"wonderful" to even "wicked."

This has become reality for thousands of Californians who are eligible for both Medicare (available to the elderly and disabled) and Medicaid (available to the poor), called "dual eligibles," many of whom have complex medical problems. Unless they actively opt out of pilot programs authorized in 2010 by the Golden State -- now called "Cal MediConnect" -- they are automatically (magically?) enrolled in managed-care plans. Unlike traditional Medicare, which allows enrollees to see any provider willing to accept it, these plans typically limit the doctors patients can see, potentially disrupting long-established care relationships with providers should they not participate.

Of course, California isn't in this alone. The Medicare-Medicaid Coordination Office (MMCO) within the Centers for Medicare and Medicaid Services (CMS) approved the state proposal that permitted the opt-out in early 2013, ostensibly consistent with the MMCO's statutory goal of "making sure [dual eligibles] have full access to seamless, high quality health care and to make the system as cost-effective as possible."

Yet because many of these patients don't have English as a first language and/or have limited educational backgrounds, navigating the complexity of the opt-out process may be challenging despite the state's promise to send "multiple notices" prior to automatically enrolling patients. As a result, untold numbers have been or will be enrolled in these plans without their knowledge and likely against their wills. About two-thirds of those eligible require a 30-day notice after receiving 60- and 90-day ones, suggesting they haven’t responded. So it seems reasonable to presume the ultimate number will be very high. More disturbing, it seems the process is relying on these questionable-at-best circumstances to maximize participation and potential savings.

The state of California and CMS will almost certainly counter that these demonstration projects are an attempt to improve care (by coordinating the services offered through the two programs) while reducing its cost to the state and the federal government. Certainly both are noble goals. And I am confident those involved are well-intentioned. But a careful read of the authorizing state statutes and federal documents strongly suggests that improving quality is not the priority.

While there are nebulous provisions that might allow CMS to request modifications to address quality issues, the agency's only hard requirements for modification or termination have to do with cost overruns. California has similar provisions: The program will become "inoperative," for example, if the director of finance determines there are no "cost savings" (see Section 34).

In fact, because CMS's directive from Congress (see §1115A(b)(3)(B)) envisions only three acceptable outcomes -- improving the quality of care without increasing spending, reducing spending without reducing the quality of care, or improving the quality of care and reducing spending -- the demonstration would be deemed a failure and shut down if it substantially improved quality while only slightly increasing costs.

Further, a program truly dedicated to quality improvements would not use auto-enrollment, because changing someone's health insurance -- and, as suggested earlier, the set of providers he or she has access to -- can have serious consequences. The unwitting enrollment of a California man in a regular Medicare Advantage (managed care) program in 2012 disrupted his planned treatment for age-related "wet" macular degeneration and resulted in legal blindness in the affected eye while things were sorted out. His case and others may have inspired CMS to give those that might be passively enrolled the opportunity to disenroll from or reenroll in the program monthly. Aside from the chaos this might cause, this provision does little to help those like this man, who need urgent or emergency care and have no idea where they can seek it.

The irony is that California saves very little on the provider services that are most disrupted by this process. The details are complicated, but essentially this happens because California's Medicaid fees are low and services already must be administered through managed care wherever possible regardless. Where the state might save money is in the coordination of long-term-care services. But these almost certainly could have been addressed separately.

MMCO has as a statutory goal of "increasing dual eligible individuals' understanding of and satisfaction with coverage under the Medicare and Medicaid programs." So, how can it possibly defend what amounts to legitimized duping of huge numbers of the very people it is charged with protecting?

It's not as if efforts haven't been made to stop this. Aside from the hundreds of comments filed with CMS that did result in some revisions, the Los Angeles County Medical Association and others recently sought an injunction -- denied to date -- largely based on technicalities.

And it shouldn't take a lawsuit for CMS to realize it is creating two classes of Medicare recipients by discriminating solely on the basis of economic disadvantage. Those with Medicare alone -- an entitlement earned by working and paying payroll taxes over many years -- retain their ability to choose managed care, not be forced into it, while those who happen to have Medicaid in addition become subject to this grand experiment.

Don't get me wrong. This is not an indictment of all managed care, and I am clearly in favor of saving money if we can. But how we do that is important, and as well-intentioned as this might have been, it's time for the man (or woman) behind the curtain at CMS -- who, having government insurance, almost certainly doesn't face the threat of waking up one morning locked into a health plan he or she had no say in picking -- to demonstrate respect and concern for these vulnerable patients.

There's still time: CMS's Memorandum of Understanding with California allows the agency to terminate the program "without cause" with 90 days' notice. For the sake of the welfare of the patients CMS is charged with protecting, this option should be exercised.

Craig H. Kliger is an ophthalmologist and executive vice president of the California Academy of Eye Physicians and Surgeons.

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