As I began the year, I will end with a discussion of defensive medicine and medical malpractice.
Is there a need for procedural changes to medical malpractice liability in order to significantly reduce costs associated with defensive medicine?
Answering the following questions will tell us.
1. Does defensive medicine exist?
2. If it does, can increased costs of care be associated with defensive medicine?
3. Is the use of defensive medicine effective in reducing malpractice claims?
4. Is the percentage of increased costs significant enough to justify changes to medical malpractice liability procedures?
5. If yes, then what changes should be implemented?
Anecdotally, we all know that defensive medicine is a reality in spite of a number of individuals saying that it does not exist or, if it does, that it is inconsequential and does not need to be addressed. To help support the reality of defensive medicine you simply have to read a recent paper, “Physician spending and subsequent risk of malpractice claims: observational study,” by Harvard and Stanford scholars in the British Medical Journal.
The study question was: “Is a higher use of resources by physicians associated with a reduced risk of malpractice claims?” The answer was yes. But, you knew that already. Importantly, the study supported this with facts.
The study included 24,637 Florida physicians, 154,725 physician years and 18,352,391 hospital admissions. 4,342 malpractice claims were made against the physicians.
The results showed that greater spending by physicians was associated with a lower risk of being subject to a malpractice claim.
Internists that fell within the lower 20% of internist spending ($19,725.00 per hospital admission) had a 1.5% chance of incurring a malpractice claim.
Internists in the top 20% tier of spending ($39,379.00 per hospital admission) had a 0.3% chance of incurring a malpractice claim. A five fold decrease in being subject to a malpractice claim.
Who wouldn’t use more resources and increase spending if it would significantly reduce incurring a malpractice claim.
The authors concluded that:
1. “. … a greater use of resources was associated with statistically significant lower subsequent rates of alleged malpractice incidents.”
2. “Within specialty and after adjustment for patient characteristics, higher resource use by physicians is associated with fewer malpractice claims.”
The study showed an increase of $19,654.00 in costs per hospital admission from the bottom 20% tier to the top 20% tier in the numbers we presented above.
The upper tier internists actually outspent the lower tier internists by a factor of two.
A 100% increase in spending is significant. The overall percentage increase would be less when all the tiers are included. But, it would still be significant. It would be greater than the 25% level I previously have considered as a benchmark cost of defensive medicine.
So, the existence of defensive medicine and significant increased associated costs is supported by a factual study.
Because defensive medicine significantly increases the overall costs of healthcare, changes to medical malpractice liability procedures could reduce the need for defensive medicine and dramatically reduce overall healthcare costs in the U. S. It might make healthcare insurance more affordable.
Also, changes would dramatically increase overall physician satisfaction with the profession.
This is needed in today’s highly regulated practice environment.
You cannot have effective healthcare reform without real medical malpractice reform. Obamacare did not introduce any changes to medical malpractice liability and, as written, specifically protects the status quo of medical malpractice liability.
Two New York physicians sued Cigna for terminating them from Cigna’s provider network (Rojas v. Cigna Health and Life Insurance Company). Cigna claimed that the physicians had overbilled Cigna $844,000.00 for allergy tests on 150 patients. Cigna requested the money be returned. The physicians refused. Cigna terminated them. The physicians sued.
The physicians’ suit claimed that they should be reinstated to the Cigna network because their termination was retaliation against the physicians. Retaliation is not allowed under a Federal law called ERISA. The law does not allow retaliation for an ERISA beneficiary exercising their rights under the law.
The court disagreed with the physicians claim. The court ruled that the physicians had no standing to sue because they were not participants or beneficiaries under the defined categories of section 502 of ERISA.
The court concluded that the network status of the physicians had not made them an ERISA beneficiary or participant. If the physicians’ suit had addressed a right of payment for services, the court may have ruled differently.
The lesson to be learned from this case is to 1) make sure that, as a physician, your patients sign assignments that give you the right to receive payments under ERISA for medical services and 2) not to claim rights, under ERISA, that you clearly do not have.
A physician’s network status is based upon an agreement with a health insurer. It would be better to address the physician’s network status and rights under this agreement rather then litigating based upon a non-existent right under ERISA.
Network participation is important for a physician. It is important to preserve this status. Over time, network participation is going to become harder to obtain. For that reason, it is best to hold onto what you have. Once lost, it will not be obtainable again.
It seems that this may become a reality if state medical associations and the American Academy of Family Physicians do not become more aggressive in protecting primary care physicians from being overrun by nurse practitioners. Already, 21 states have granted full practice authority to nurse practitioners. Full practice authority does away with the requirement that a nurse practitioner have an “attestation agreement” with a physician in order to practice. Full practice authority allows a nurse practitioner to practice on his or her own.
In May, the State of Maryland was the 21st state to grant full practice authority. In March, Nebraska was the 20th state. Florida is currently taking steps to do the same. The latest attempt, in Florida’s recent Special Session, was Bill 27A.
In Florida, the argument used to justify full practice authority for nurse practitioners is that Florida has a primary care physician shortage because “1.6 million Floridians” have obtained healthcare coverage through Obamacare. The fact that “1.6 million Floridians” have obtained healthcare coverage through Obamacare does not mean that there are not enough primary care physicians in Florida to care for them. What percentage of the “1.6 million” had coverage prior to signing up for Obamacare? That figure is never quoted in the justification argument. Those arguing for full authority for nurse practitioners want you to believe that all of the “1.6 million” never had healthcare coverage before. That cannot be the truth.
If you are a primary care physician and have treated Medicaid patients it is no surprise that the U. S. Government Accountability Office [GAO] recently reported that 5 percent of Medicaid enrollees accounted for nearly half of the program’s spending each year from 2009 to 2011. The GAO reported that one percent of Medicaid recipients “accounted for about a quarter of spending.”
With Medicaid making up the largest component of most state budgets, it seems that the one percent that makes up this 25 percent should be a priority in controlling healthcare costs. But, it does not seem to be a priority. It may be time to change this. If Government cannot address it, then it should be time to give private enterprise a crack at it.
Private enterprise should be able to develop a national healthcare model that would be able to manage the one percent and control the costs of this population. I am sure there are healthcare entities that, if given the freedom they would need from unneeded regulations, would accept the challenge.
On April 15th, the Medicare Sustainable Growth Rate [SGR] was repealed by Congress. Afterward, there was much celebration by the AMA and other medical societies. But, it may be a little premature to celebrate based upon the language of the Bill that was used to repeal the SGR.
The SGR was a method used by the Centers for Medicare and Medicaid Services (CMS) to control spending by Medicare on physician services. It was enacted in 1997. It was designed to ensure that the yearly increase in the expense per Medicare beneficiary did not exceed the growth in the GDP. Unfortunately, the SGR was unworkable and every year since Congress had to suspend its implementation with legislation called the “Doc Fix.”
The language in the Bill repealing the SGR mandated a new Medicare means of reimbursing physicians. It is called the Merit-based Incentive Payment System [MIPS]. It expands Obamacare’s “pay for performance” strategies in which reimbursement is based on provider performance against a variety of metrics. It consolidates the Physician Quality Reporting System, the Value Based Modifier and Electronic Health Records System [EHR] Meaningful Use into it. The penalties associated with these consolidated systems will remain in effect. Physicians will be evaluated and given a score based upon on quality, risk-adjusted resource use, EHR meaningful use and clinical practice improvement.
Clinical practice improvement areas that will be evaluated by CMS must include:
1. “expanded practice access such as same day appointment …”
2. “population management, such as monitoring health conditions of individuals to provide timely health care interventions …”
3. “care coordination, such as timely communications of test results, timely exchange of clinical information … and use of remote monitoring or telehealth …”
4. “beneficiary engagement, such as the establishment of care plans for individuals with complex care needs … and using shared decision making mechanisms …”
5. “patient safety and practice assessment, such as through use of clinical or surgical checklists and practice assessments relating to certification …” and
6. “participation in alternative payment models …” such as shared savings programs and other models under Federal law.
The secretary of HHS can expand on these.
MIPS incentives will range from a maximum 4% bonus or penalty in 2019 to a 9% bonus or penalty in 2022. The penalty levels seem significant to me.
To meet the demands of MIPS, physicians will have to expand their IT use well beyond the current usage level of their electronic health records systems. This will require increased expenditures and increased disruptions to their practices.
The repeal legislation is pushing telehealth and remote monitoring as a way to increase physicians scoring under MIPS. I find this problematic. I have a difficult time seeing how physicians will continue to increase, or even maintain, quality of care without touching the patient. The liability issue of treating a patient without touching the patient is also self-evident.
The repeal legislation, 158 pages, covers a wide range. 158 pages of verbiage was not needed to repeal the SGR. One or two pages would have sufficed. How or if it can be effectively and fairly implemented is a question that remains. So, now is not the time to celebrate. Now is the time to remain anxious.
United States Library of Congress is collecting and storing all Tweets. Is this an issue of cyber intrusion?March 3rd, 2015
In April of 2010, the United States Library of Congress entered into an agreement with Twitter that allows the U. S. Library of Congress to archive all Tweets from 2006 to the present. The Library of Congress intends to make the Tweets available to researchers and policy makers.
Twitter’s Terms of Service do not mention that the Library of Congress is archiving all Tweets for posterity. I am unsure of how many individuals are aware of this. Would they continue using Twitter if they were? Twitter’s Terms of Service states: “This license is you authorizing us to make your Tweets available to the rest of the world and to let others do the same.”
I think it would be appropriate for Twitter to mention that all Tweets are to be perpetually archived in the Library Of Congress. There is a difference between making a Tweet available to the world for a finite time period and the archiving of a Tweet for perpetuity. Also, does a citizen of another country want his or her Tweets to be archived in the United States Library of Congress?
This seems like an intrusive cyber-activity. Normally, when considering this degree of cyber intrusion the National Security Agency comes to mind. But, here it is the United States Library of Congress. That is remarkable.
The other issue is the money being spent on this. Doesn’t the Country have other priorities that are more valid and urgent?
The Obama administration penalizes providers by making it difficult to get a Medicare appeal hearing.February 16th, 2015
As a provider of services to Medicare patients, you normally submit a claim for payment of service to a Medicare Administrative Contractor [MAC] and expect to be paid within a reasonable timeframe. You are a business and have expenses that need to be paid in order for you to remain open. Any disruption in the flow of claim payments to you can result in severe hardship to you and your practice.
If the MAC denies your claim or claims, you can request a redetermination of the denial of payment. The MAC has 60 days to make a decision on the redetermination.
If the MAC continues to refuse to pay the claim or claims, you can then appeal the refusal to a Qualified Independent Contractor [QIC] and request a reconsideration of the MAC’s decision. The QIC has to complete its review within 60 days.
If your claim continues to be denied, you can request a hearing before an Administrative Law Judge [ALJ]. The Social Security Act requires that the ALJ “render a decision … not later than the end of the 90-day period beginning on the date a request for hearing has been timely filed.”
The process, from redetermination through the ALJ hearing and decision, should easily take less than 9 months. This is a long time to determine if a provider is being unduly deprived of funds. Actually, it is too long when one considers its impact on a practice’s cashflow.
On December 24, 2013, the Chief ALJ notified Medicare provider appellants that as of July 15, 2013, she had “temporarily suspended the assignment of most new requests” for ALJ hearings. She anticipated this would result in about a 2.5 year delay before a request for hearing could be heard. This delay was announced despite statutory and regulatory mandates to the contrary. The Obama administration has arbitrarily decided that it can delay a hearing that relates to provider claim payments for 2.5 years. The Obama administration justifies its actions by saying that its ALJs are overworked because their caseloads have increased significantly.
You have to ask yourself why has the number of appeals increased? The reason is simple: the number of provider claims denied or challenged has increased. CMS knew this would happen but did not prepare for it. CMS had contracted with private Recovery Audit Contractors [RAC] to audit provider claims. RACs are paid by contingency fee. They receive a cut of payments they recover. So, it makes sense that challenges of payments would increase. Common sense would have directed that the Obama administration prepare itself for this eventuality. It did not. And now, providers must endure significant delays in resolving payment challenges.
The Obama administration and Congress, both aware of the negative impact this has upon providers, have not come up with a solution. As of December 2014, attempts to make the Courts force the administration to adhere to statutory and regulatory mandates has fallen upon deaf judicial ears. No one in Government seems to be interested in the provider’s well being.
When will providers come to the realization that it is Government that needs them, not the other way around. The Government cannot provide healthcare to the Nation without providers. It seems that it may be time for providers to consider organizing into a more tightly knit group. Nothing else seems to be working.