How Healthcare Policy Impacts Treatment

David Condos: Hey guys, welcome to another episode of Recovery Unscripted. I’m David Condos and this podcast is powered by Foundations Recovery Network. For today’s episode, I sat down with Michael Barnes, attorney and managing partner at DCBA Law and Policy in Washington, DC. His firm provides strategic counsel for organizations in the areas of healthcare and drug safety, and he joined me at the Moments of Change conference in Florida.

He shares his expert insight about the legislation and litigation that is impacting the treatment field right now, and offers his view on how future changes in healthcare and insurance policy could affect this industry in the days to come. Now, here’s Michael.

I am here with Michael Barnes, thank you for being with us today.

Michael Barnes: I’m happy to be with you.

David: Let’s start by having you tell us a bit about your own personal story, and how you got started in the world of law and policy?

Michael: Well, I’m an attorney in Washington, DC, with DCBA Law and Policy. We work in healthcare space and much of our work is focused around addiction prevention and treatment. I got in to this field substantively having worked in politics during and before law school, then after law school I had an opportunity for a presidential appointment and I wound up taking a position in the Office of National Drug Control policy, which was an interesting choice for me, not something that I had necessarily intended for my future but a great challenge.

David: Yes, that sounds like a big deal to be working in an official White House capacity like that.

Michael: It was a great opportunity, lasted for a year because the politics was as bad as the bureaucracy and I’m not a guy for either.

David: What were some of the things you were doing in that particular role?

Michael: In that role, we were working largely on demand reduction. Reducing the demand through prevention, intervention and treatment efforts but I recognized pretty early on that the opportunities to make a difference through government are very limited. The government at the time was not addressing the emerging issue of prescription drug abuse, then if it did even, government rarely engages the private sector. I wholeheartedly believe that private sector innovation, creativity are vital to developing solutions to societal problems and so as soon as I got out of government, I was able to start working toward those private and not for profit solutions to the issues of prescription drug abuse and addiction broadly.

David: In your view, has that changed a lot since you left government? That disconnect between what the government is doing and engaging the private sector? Is it still pretty much the same or has it changed?

Michael: It’s pretty much the same. There’s a lot more that government could be doing in practice related to fostering private sector, market based innovation. In the new administration, Republicans typically like to talk a lot more about new private sector solutions, market based solutions and innovation. I haven’t seen that yet out of this new administration.

David: Then like you said, you’re now a managing partner at DCBA, could you sum up what the primary focus is in your work at that firm?

Michael: Sure, our clients include treatment programs, but also pain clinics. We deal with both sides of the overdose issue. We work with laboratories, individual healthcare providers and then also not for profit organizations. One is the Center for Lawful Access and Abuse Deterrence, which works to reduce prescription drug abuse without just taking away people’s medications. Then the other is Aimed Alliance, which is an organization that really tries to ensure people have access to quality healthcare, right. Fortunately, I have a great opportunity to work with fantastic clients who are doing really important work.

David: Here at the conference, you just gave a presentation and an update on legislation and litigation impacting the future of addiction treatment so to start off this part of the conversation, could you give us a couple examples of some recent government actions that are making an impact in this industry?

Michael: What we’re seeing now, is that a lot of the solutions to opioid overdose that we thought we had killed, that were bad ideas that were put to rest years ago are coming back because that issue is now generated mainstream media interest. The biggest one that I’ve noticed is this push really just to ban pain medications. Taking away the medications from all people even for those people for whom they’re medically necessary.

David: Now, and definitely a way of hurting this would be to say, “Okay, well, then just nobody has coverage and we don’t have to worry about it anymore.”

Michael: That’s what I think generally would occur, if some of the solutions that we’ve been seeing in Congress were to become reality. Right now, that Senate Republicans say, “Look, send it back to the states.” Well, the states made it very clear prior to the Affordable Care Act, that they were not competent at properly regulating the health insurance industry because there’s excessive exploitation of consumers and insurance wasn’t there for people when they needed it.

What we really need, is to make sure that federal law continues to protect patients and what I see is a very clear area where the federal government has a right, has the authority to regulate, because this is an essential element of interstate commerce that affects all Americans.

David: Yes, like you just said, the federal government has the right, and you feel like should be doing that but also that the states can’t just wait for the federal government to do it so some of the states are stepping in and doing what’s best for their own state. What are some examples, how are different states responding to the issues that they’re seeing at home?

Michael: You’re absolutely right that state intervention is crucial, especially in the area of insurance reforms because insurers even under the Affordable Care Act, are continuing to exploit consumers and deny coverage for the services that people have paid for. For example, states that have really rigorous prior authorization requirements that say, “Well, you have to try and fail this particular treatment before will allow you to have this other more expensive treatment.”

Well, dealing with issues like severe pain, or we’re dealing with issues like addiction, failure on a particular treatment means overdose and death and insurers are saying, “Let’s see you fail before we’re going to give you coverage for the treatment that your provider has recommended and prescribed.”

David: There may not be a second chance with some of this.

Michael: Exactly, so states are stepping in, some of the very– attorneys general are making insurers actually adhere to their promises to consumers to provide coverage for healthcare even if it doesn’t fit the formula that maximizes the profits for the insurers.

David: You mentioned briefly earlier that the government could be doing more that would be of benefit to the patients, to the industry. Just in your personal view, what are some things if you were in charge that you would do to help that?

Michael: That’s a great question David, I always like that having carte blanche as though I’m in charge [laughter].

David: [Laughter] So what would you do?

Michael: I think that largely, our healthcare system would be premised upon sound economics. I think Congress up to this point has not been really thinking much beyond social policy as it is tried to reform the Affordable Care Act. We would look to making sure that there’s a market in which people recognize that healthcare is valuable and it’s worth saving for. It’s worth treating like the priorities that we have in our housing, in our food, in our clothing. That healthcare is vital to our quality of life.

People would save for it, they would buy insurance because there would be a strong incentive to be a part of the insurance market because insurance only works when healthy people are part of the market. Then insurance would be there for people when they needed it. That the decisions would be made by the healthcare providers in consultation with patients and their families and caregivers.

The rationing of healthcare would not be done by insurance companies like is currently occurring, would not be done by government which has been often proposed and is occurring to a lesser degree right now also, but it would be rationed by people who have skin in the game. Because they would have their own co-pays and co-insurance, but they would have savings for that and that they would be making those decisions based on their individual needs, their individual considerations, their family concerns.

How is this valuable to me as it relates to my life and my family? Largely, I don’t think that that’s necessarily a system that is out of touch for the United States, but it’s going to require a much different set of political leaders than we currently have.

David: All right, in a perfect world where those sides come together and create a plan that’s not just repealing, what do you think the impact would be on this industry?

Michael: I think on the addiction treatment field, it would mean that the marketplace exchanges offer more options for consumers, greater competition which would mean greater choice for consumers. Greater choice for the providers actually determining whether they want to go in network or not, or whether they want to accept a certain insurance or not but the most important thing would be that consumers would have greater access to quality care and in addition to stabilizing the marketplaces, the Congress were to focus on reducing premiums for healthy people so the participate in the insurance market. Then we would also see that the market would largely stabilize for the good of every insurance consumer.

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David: One piece of the puzzle is creating legislation and the regulations and all over then there also has to be the enforcement of that. What are some of the things you’re seeing as far as the government making sure that rules they have in place are actually being put into practice while protecting patient privacy?

Michael: Well, I think that’s a great area where the government is challenged. That in enforcement, we see that there’s a heavy law enforcement focus in an area of Public Health and so police are making decisions or judges are making decisions without knowledge of how this particular field works. One of the most egregious cases is for example the court issued an order that allowed federal agents to raid an addiction treatment provider in California. One of the bases for that order was that they were going to be looking for evidence of violations of federal healthcare laws those federal health-care laws apply to federal healthcare programs like Medicare.

This particular treatment provider didn’t even serve patients with that healthcare program, so there were no Medicare beneficiaries in that treatment program. As a result, the program was raided, patients left because they saw the terror. Federal and state public safety officials need to much better collaborate and consult with the public health officials to know what’s what and not to treat healthcare providers as though they are narco traffickers.

Michael: Yes, and just really understand how this is going to work in practice on the ground level for a variety of people.

David: Absolutely, and you would think that everybody would agree that we want to uphold our Fourth Amendment rights to privacy. That’s something that the far left is very concerned about like the ACLU, and then the far right also, with the people who are skeptical of government and you want small government and individual rights. Right so, why is it then that people are accepting the fact that the government is violating the rights of patients? Violating the rights of healthcare providers by accessing their medical information in violation of state law or in violation of the Fourth Amendment to the US Constitution?

That has a major impact on the ability of people to access the treatment that they need, the ability of professionals to be able to determine the course of treatment because if the government is staring down the back of their necks and there is fear that there is going to be unjust enforcement for a treatment decision, they’re not going to make what is the best decision in the interest of that particular patient. We see now that the Christie Opioid Commission has recommended weakening the privacy protections for people who have addiction.

Right now, there are federal regulations known as 42 CFR part 2, says that you cannot provide records related to a person’s addiction treatment without patient consent. The Opioid Commission is saying, “Let’s weaken that, so we can share people’s addiction treatment history with other healthcare providers.” My opinion is that if that’s in the interest of the patient, the patient will provide consent as is consistent with current law. But in this era of aggressive enforcement and police fishing through private healthcare data and the threats to providers as well as patients, this is not the time to be weakening privacy protections.

David: That’s great. You brought up the commission that was going to be my next question. The president created this commission, combat opioid crisis. What are some things that Commission has done and said so far and I guess what role do you think it’ll have going forward?

Michael: Well, it would be really great if the Commission would look at the role of insurance providers in exacerbating the overdose epidemic, because we know that the insurance companies require that healthcare providers prescribe and that pharmacies dispense the more dangerous medications again through these fail first or other coverage policies rather than going to the safer medications those that have been formulated to be abuse deterrent, and that’s again a profit maximizing effort of the insurance companies.

David: Because they’re more expensive.

Michael: Right, so they give them the medications for pain for example that are more likely to cause overdose or be subject to diversion and abuse by intentional drug abusers. That’s one issue and then on the other side of the issue, insurance companies are denying coverage for addiction treatment. Saying, “You can’t have the treatment that is in your best interest as determined by your healthcare provider, yourself and your loved ones. You have to take what we’re giving you.”

The insurance companies have a role in exacerbating this epidemic. It would be great to see the Opioid Commission address their role. Beyond that, I just hope that the Commission really demonstrates compassion for people on all sides of this issue and that we need to make sure that law enforcement very closely collaborates with the public health leaders in fulfilling its role.

David: Yes and so the other recent thing to come from the executive branch on this is the declaration of the national emergency for the opioid crisis. What has that meant so far? I guess on a practical level and how do you think that will end up playing out?

Michael: Practically speaking, the president’s declaration that he will declare an emergency has led to a lot of speculation. Because he hasn’t actually formally through written implementation of a particular statute, declared the emergency. Once we get that written declaration, we’ll know which statute is triggered by the declaration and then what that means. But I can tell you that my largest concern about this is that it will further and empower law enforcement and prosecutors to be aggressive about enforcement without again taking the time to recognize what is compliance, what is standard of care, what is appropriate in this particular field of healthcare.

Because that’s what’s occurring right now, is that the best practices that a law firm like mine recommends are being implemented but then being misconstrued in criminal complaints as pill mill type of activities by medication prescribers for example. I am concerned that this declaration of emergency will further empower law enforcement and prosecutors really to be careless and not put enough thought and consideration and collaboration into their enforcement networks.

David: Based on what you’ve seen recently, how do you think today’s government activity could end up shaping the future of addiction treatment?

Michael: My biggest concern really is around healthcare reform. Just making certain that the patient protections that exist under current law would continue under any new federal system, and that those protections would be at the federal level and not state-by-state. Specifically as it relates to addiction treatment, that means that if people are buying in to insurance so that it will be there for them when they need it, that addiction be recognized as something that happens, that is unanticipated but that can be costly and devastating and then that the cover to be there, when we need it.

Without these federal protections that each state leaves it up to the state legislature to determine, then we know that the default would be pre Affordable Care Act, sort of insurance schemes and we know that that leads to people not having access to addiction treatment which during the time of an overdose crisis, and the national emergency would be the worst possible thing. My biggest concern is that Congress is not recognizing this. They are not seeing that a reversion to pre Affordable Care Act state-level insurance marketplaces would be catastrophic for our nation as a whole.

David: All right I will just wrap up with this last question then. Everyone who serves in this field has some of their own personal reasons for wanting to get up each day and further the cause of recovery, in your case you could be practicing law in any number of industries I’m sure, but instead you’re using your knowledge to help protect providers and patients. To close, could you just sum up why this particular mission is so important to you?

Michael: Yes, working to advance treatment for mental health and substance use disorders is something that goes to the core of who I am based on a relationship that I had early in my life with somebody who unfortunately didn’t make it. Having learned the difficulty associated with mental health and substance use disorders and the dire consequences when healthcare treatment is not available to them, or if it is that it’s not of high quality. I want to be able to help people so that precious lives can be restored.

In my work, I’ve met so many people who’ve lost loved ones but I’ve also met people who have contemplated suicide because they can’t get their medication or are living in pain because they don’t have access to the appropriate sort of healthcare practitioner or treatments. My goal in the work that I do as an attorney and in working in policy, is really to encourage not for profit organizations, community leaders, law enforcement included, to demonstrate compassion for people on all sides of this issue.

People with mental health, substance use disorders, people with need for controlled medication, their family members, their communities. With that as the starting point, we’re confident that we can provide quality healthcare that’s individualized to individuals’ unique specific needs driven by the healthcare provider, not by government, not by insurance and we can really make a dent in this crisis in the United States.

David: All right. Well, Michael, thank you for the work you’re doing and thank you for your time today.

Michael: Thank you, David.

David: Thanks again to Michael for joining us. Now I get to introduce another installment of our ongoing segment called Minute of Mindfulness. Together we’ll take the next 60 seconds to slow down, take a deep breath and focus on this present moment. As always, I’ll open things up with an inspirational quote and then I’ll rejoin you to close out the episode. Today’s quote comes from ancient Chinese philosopher Confucius who said, “Our greatest glory is not in never failing, but in rising every time we fail.”

This has been the Recovery Unscripted podcast. Today we’ve heard from Michael Barnes, managing partner of DCBA Law and Policy. To read more about what they do, visit dcbalaw.com. And thank you for listening today. Please take a second to give us a rating on your podcast app and subscribe so you won’t miss out on what we have coming up. See you next time.