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FAIR Health Board Access Interview with Peter J. Millock, Esq.

Peter J. Millock is a noted attorney who has played a significant role in the development of New York State’s healthcare legislation and regulatory policies for close to 40 years. He served as the General Counsel of the New York State Department of Health (NYSDOH) from 1980 to1995 and is currently a partner and senior member of the healthcare practice at Nixon Peabody, LLP, an international law firm. Four years ago, Mr. Millock spoke with FAIR Health as part of the Board Access interview series regarding the impact that the Affordable Care Act (ACA) could have on states’ healthcare laws and regulations. With the healthcare sector in flux once more, Mr. Millock spoke with FAIR Health in a follow-up conversation about the legal ramifications of the current challenges facing the healthcare sector, and FAIR Health’s importance as the leading source of objective information on healthcare prices and utilization.

FAIR Health: During our interview four years ago, you discussed the relationship between antitrust laws and Accountable Care Organizations (ACOs). How has this relationship evolved since that time?

Peter J. Millock: ACOs involve combinations of different sorts of providers, including doctors and clinics. While antitrust enforcement has long been used to assess the impact of hospital combinations on concentration and market dominance under antitrust laws, the inclusion of doctors and clinics in the mix is changing the nature of the antitrust assessment. There have been efforts to harmonize the connections fostered by ACOs and antitrust laws; however, this has not been resolved. This may be due to the fact that ACOs have not evolved far enough to pose an antitrust risk or have not had enough of an effect on the healthcare market to trigger a strong antitrust reaction. There have been various efforts at the state level, in New York and other jurisdictions, to create protections for ACOs and similar combinations. Those protections have been ineffective and underutilized.

FH: Supported by funding from the Centers for Medicare & Medicaid Services (CMS), New York State initiated its Delivery System Reform Incentive Payment (DSRIP) program in 2015 with the aim to reduce avoidable hospital use by changing the Medicaid program’s healthcare delivery and payment structure. The program also is expected to impact the state’s healthcare system overall. To what extent might the DSRIP program spur changes in the larger healthcare delivery and payment system in New York?

PJM: DSRIP is a very exciting program for New York State. A great deal of money is available to providers, so the main question right now is how the funds will be used. If the DSRIP program simply funnels additional money to hospitals to do what they have been doing all along and without assurance that it is linked to meaningful collaborations, then the funding will be wasted. So far, New York has closely monitored DSRIP recipients to ensure that the funds are used effectively and appropriately. Although it is too early to predict whether there will be tangible long-term results, DSRIP should promote its intended permanent integration of services even if some combinations fall apart when the money ceases to flow.

FH: Among the numerous advancements in health law and public policy that you witnessed during your tenure at the NYSDOH was Commissioner Dr. David Axelrod’s 1986 decision to order doctors to use stricter procedures (i.e., special prescription forms forwarded to the state) when prescribing certain tranquilizer medications such as Valium. In the wake of the national opioid crisis, what lessons can be learned from Dr. Axelrod’s approach?

PJM: On many issues, David Axelrod was ahead of his time. When it came to controlling prescriptions, he focused on careless and sometimes ill-intentioned medical prescribing, which certainly are among the causes of today’s opioid epidemic. There are definitely lessons to be learned from how Dr. Axelrod handled the control of prescriptions. Mandating triplicate prescription forms, enforcing regulations regarding prescriptions of those medications and prosecuting negligent physicians were certainly steps in the right direction.

FH: How has the role of cost transparency in the marketplace evolved over the past few years? To what extent has the uncertainty that pervades today’s healthcare landscape affected the way in which cost transparency is figuring into the national conversation on costs? What is the future of healthcare cost transparency?

PJM: Cost transparency has arrived. It is amazing how much service- and provider-specific cost information is now available. Cost control, access to care and quality of care are top priorities for health reform. Unfortunately, there are no panaceas for the problems that beset our healthcare system. Transparency, and I say this as a proud FAIR Health Board member, is very useful, but it is useful primarily to sophisticated or large-volume consumers who care about or are affected by price differentials. It is not a panacea. It alone will not control overall healthcare costs.

FH: FAIR Health has continued to lead as a source of independent and objective price and utilization information. Are you surprised about FAIR Health’s progress over the past few years and the role that the organization has come to play in the healthcare sector? Looking to the future, what do the next few years hold for FAIR Health?

PJM: I am not surprised by FAIR Health’s progress given the quality of its executive leadership. From the services and products that FAIR Health has made available to the amount of data that it has accumulated over the past several years, it has been quite astounding to witness FAIR Health’s development. Perhaps even more impressive is the fact that FAIR Health has survived as a nonprofit with public interest goals and independence from providers, payors and government.