Healthways Fights an Uphill Battle on Medicare Health Support Phase II

Earlier this week Healthways issued a press release describing their progress in pursuing a Phase II Medicare Health Support (MHS) project.   Read Dr. Jaan Sidorov’s blog commentary for additional background.

In brief, Healthways position is that the Centers for Medicare and Medicaid Services (CMS) is statutorily required to expand into Phase II of MHS if Phase I is “successful”. While I’m very sympathetic with Healthways predicament and their frustration with CMS, I’m not optimistic that their tactics are likely to work.

In making the case, Healthways CEO Ben Leedle quoted the legislation authorizing MHS.

For a moment, let’s get legalistic and look closer at this legislation.  What exactly is CMS required to do? (I’ve put the more relevant wording in bold).

With respect to chronic care improvement programs conducted under subsection (b), if the Secretary finds that the results of the independent evaluation conducted under subsection (b)(6) indicate that the conditions specified in paragraph (2) [meeting targets for quality, patient satisfaction, and financial goals] have been met by a program (or components of such program), the Secretary shall enter into agreements consistent with subsection (f) to expand the implementation of the program (or components) to additional geographic areas not covered under the program as conducted under subsection (b), which may include the implementation of the program on a national basis.

This vague and broad wording invites a spitting contest.  When this legislation was passed in 2003, the DM community latched on to the language allowing CMS to expand MHS to a national basis.

I interpret this language as giving CMS a lot of discretion.  Here’s my best guess how CMS’ lawyers will argue the meaning:

The legislation enacting MHS gives us a lot of wiggle room. The legislative intent of Congress was to give us wide discretion if we see program success, NOT to force expansion beyond our good judgment. If Healthways takes the position that they were successful in Phase I and forces us (i.e., files a lawuit and wins) to do MHS Phase II — we will agree to expand the program to an additional geographic area, let’s say Winnemucca in the Nevada desert. Are we required to expand Phase II nationally?  No way.

Now, let’s get practical for a minute.  What evidence is there that the people at CMS believe Phase I of MHS is in any way achieving success?  or that CMS actually WANTS to do Phase II or believes doing Phase II is a good idea? 

I don’t see any. Just the opposite. As Tom Wilson and I wrote previously, Rumors of Medicare Health Support’s Death Have NOT Been Greatly Exaggerated.

So, how do YOU react when someone tries to MAKE you do something that you really don’t want to do?

Healthways bargaining position — both legally and practically — is weak. If I were in Healthways shoes given the same circumstances, I’d probably be doing the same things they are…which is different than believing this approach is likely to work.