Volume 67, no. 1 January 2011
Behavior modification for physicians, as through pay for performance (“P4P”), is a central feature of “healthcare reform.”
The P4P idea, while now becoming explicit for physicians, is actually pervasive in society. “Do this, and you’ll get that” is the core of pop behaviorism, writes Alfie Kohn in his 1993 book Punished by Rewards. American managers are fundamentalists in their adherence to the Skinnerian model of motivation, he states.
When an influential idea is so widely shared that we no longer even notice it, it is time to fear its hold on us. Quoting Arthur Koestler’s The Act of Creation, Kohn notes: “For the anthropomorphic view of the rat, American psychology substituted a rattomorphic view of man.”
CMS Director Donald Berwick, M. D., a great admirer of the Japanese industrial model and its potential for standardizing physician behavior, is apparently not aware of the conclusion of W. Edwards Deming, who was sent to Japan to study that model.
“Pay is not a motivator,” says Deming. And the system for appraising and rewarding merit “is the most powerful inhibitor to quality and productivity in the Western world.” He adds that it “nourishes short-term performance, annihilates long-term planning, builds fear, demolishes teamwork, nourishes rivalry, and…leaves people bitter.” Kohn notes that it is also simply unfair when it holds people responsible for factors beyond their control.
One variation on the behaviorist theme that practically guarantees enmity is the collective (“shared”) reward. Since one troublemaker can spoil it for all, it calls forth a particularly noxious form of peer pressure. “This gambit is one of the most transparently manipulative strategies used by people in power.”
P4P, in Kohn’s view, is “an inherently flawed concept.”
Nevertheless, the current Administration has launched “one of the most ambitious behaviorist-style policy projects in American political history,” writes Christine Rosen (“Now Behave,” Commentary, July/August 2010). Regulation czar Cass Sunstein is a member of the behavioral brain trust that intends to bring about profound changes through specifications and regulations.
Accountable Care Organizations (ACOs)
The main difference between ACOs and HMOs is size—5,000 enrollees versus hundreds of thousands, writes Kip Sullivan for Physicians for a National Health Program California. Accountability for cost will be achieved by shifting insurance risk to providers, who are required to achieve “measured quality improvements.” The “defined population,” derived from fee-for-service Medicare recipients, apparently is assigned by the HHS Secretary, based on rules about who provides the majority of the patient’s primary care. Each primary practitioner is supposed to be part of only one ACO (NEJM 10/7/10). A booming industry has arisen to advise on ACO formation, even though the rules and information infrastructure still do not exist.
One problem to be ironed out is how to get around antitrust law, anti-kickback law, and restrictions on physician self-referral.
In an ACO, doctors are “double agents playing the dual role of caregiver and insurance underwriter,” writes Robert Geist, M.D. “ACOs are gatekeeping organizations to serve the purposes of ‘payers’…under the guise of the grander purposes of ‘society.’”
The AMA Board has apparently decided to do everything it can to promote ACOs, writes David McKalip, M.D. AMA president Cecil Wilson, M.D., told the House of Delegates that he would work to get small practices networked into ACOs—and didn’t seem to think that there is any role for any doctor to ever work outside an ACO. P4P is a mandatory and integral part of ACO implementation, Dr. McKalip adds. Yet AMA leaders continue to ignore the directive to actively oppose P4P programs that are not compliant with AMA principles.
For hospitals, ACOs offer another opportunity to garner money and power in the developing feudal medical system. “Global” payments for “episodes of care”—perhaps lasting 6 to 12 months—will guarantee skimping on payment to the serfs for the care of sick livestock, writes Lawrence Huntoon, M.D., Ph.D. Companies that specialize in investigating “disruptive” physicians seem to be springing up everywhere, he notes. One found 8 “independent” physician members of the medical executive committee guilty of being “intimidating.”
Docs out of the Box
In George Orwell’s novel Animal Farm, the initial success of the socialist experiment depended heavily on the efforts of the loyal, strong horse Boxer, who responded to every setback with the resolve to work a little harder, and who had unquestioning faith in Napoleon, the leading pig. What will happen if Boxer retires early, or defies Napoleon—or if doctors decide to stop pushing the little lever to get their reward of a food pellet?
Of physicians responding to a 2010 Physicians Foundation survey, 40% said they would drop out of patient care within the next 3 years. About 60% said “reform” would compel them to close or significantly restrict their practice to certain patients. While more than half thought that patient volume would increase, 69% said they did not have the time or resources to see more patients while maintaining quality. About 16% said they planned to switch to a cash-based on concierge practice.
“Reinforcement” is a negative for excellence, even when cast in the form of an incentive rather than a punishment.
Physician Shortages Loom
According to projections published by the Medical Society for the State of New York, there will be a shortage of 130,000 physicians by 2025, about half in primary care. It could be much worse if even a fraction of physicians act as indicated by the Physicians Foundation survey. The estimate doesn’t consider the massive exodus of older physicians likely to occur if maintenance of certification is required for licensure. About 20% of practicing physicians are older than 60; about half are older than 50.
Physicians are also working fewer hours. A study of primary care physicians in Idaho showed that weekly clinical work hours decreased from a mean of 47.7 in 1996–2000 to 38.9 in 2005–2009 (P<.001) (JAMA 10/6/10).
Today’s physicians place increasing value on leisure time. Previously, Medicaid could count on physicians to accept a few patients because the low fees exceeded the marginal costs of treatment, and fixed overhead needed to be covered. Now, it appears that pediatricians are willing to forgo $18.50 per visit to work part time—more than the Medicaid payment for a brief office visit (Herbert Pollack, New Republic 4/2/10).
Increasing compliance requirements will also eat into time for patient care. In his office, set up to be a “patient-centered medical home” since 2001, Craig Wax, D.O., reports that half of the work involves insurance and billing (Modernmedicine.com 12/2/10).
Welfare Pays Well
One reason that Mississippi no longer has a new manufacturing plant popping up once a week is difficulty finding skilled labor, writes Wyatt Emmerich (Northside Sun 10/7/10). With all the welfare benefits, a person working 1 week a month at a minimum-wage job can have more disposable income than someone working at a $60,000/year, full-time, high-stress job—even without unreported income. The really big-ticket item is Medicaid: virtually $0 vs. $16,500 for private insurance plus copays and deductibles.
Richard Boronow, M.D., writes that we seem to be on an ever steeper slippery slope toward the European welfare state. “And our slope doesn’t need any more Greece!”
Dave Racer points out that with ObamaCare the ratio of 7 people riding the wagon to 3 people pulling it will be reversed.
Where Will the Money Come From?
While organized medicine seems to assume that Congress will be able to “find” the money to keep paying doctors, U.S. current federal obligations of $130 trillion exceed the entire annual global output of human civilization, which is about $60 trillion (MyGovtCost.org 9/11/10). In 2010, the U.S. government will issue as much new debt as all other world governments combined. By 2011, more than 43 million Americans are expected to be receiving food stamps. The recent recession has erased 8 million private-sector jobs (www.zerohedge.com 7/9/10).
In 2009, fewer than 12 million Americans worked in manufacturing, the lowest number since 1941 (Business Insider 9/27/10). We are, however, creating economy-destroying jobs. We have 97,850 compliance officers in the federal government alone, and 119,500 workers to interview applicants for government programs. Their ranks will grow by 9%.
Rescissions
During the year before passage of ObamaCare, the White House set up a special website for posting insurance company abuses. These cases were trotted out in graphic detail during the debate. Yet there was not a single instance of arbitrarily dropping coverage for tens of thousands of people with the stroke of pen, to save money; dropping entire categories of care such as home health visits or dental care; or arbitrarily reducing fees to doctors and nurses, leaving enrollees with serious access problems.
Any of these actions would be a serious breach of contract by a private insurer. There is one insurer that does these things routinely: Medicaid. About half the newly insured under ObamaCare will be enrolling in it (www.john-goodman-blog.com 8/16/10).
AAPS Member Launches Radio Show, Podcast
Dave Janda, M.D., orthopedic surgeon and founder of the Institute for Preventive Sports Medicine, has launched a daily brief commentary on “America’s Vital Signs,” and a 2-hour weekly show “Operation Freedom” on WAAM Talk 1600. He has featured internationally known currency and financial analysts, including Ted Butler, who is exposing the manipulation of gold and silver markets. Listen at www.davejanda.com.
Gems from the “Mainstream” on Reform
More than 40 years after the modern academic quality improvement movement began, “it is unclear what [it] has accomplished,” writes Robert H. Brook. Unknowns: amount spent, who spent it, and whether quality improved (JAMA 10/27/10).
“Value in health care remains largely unmeasured and misunderstood,” writes Michael E. Porter. “Quality usually means adherence to evidence-based guidelines,” and measurement focuses overwhelmingly on process, not outcomes (NEJM 12/8/10).
The sustained growth rate (SGR) for physician payment is an “indispensable abomination,” writes Henry J. Aaron. Replacing it would violate Schultze’s law, which adjures elected officials: “Do not be seen to do harm,” as by boosting deficits. And “the threat of letting [the SGR] take effect may yet be used as leverage to achieve other goals. Congress may one day emulate Vito Corleone and make physicians offers they can’t refuse” (NEJM 7/29/10).
ObamaCare “essentially frames health insurance the way the Civil Rights Act framed other business interests,” writes Sara Rosenbaum. It transforms health insurance into a public accommodation.” A comprehensive regulatory scheme is needed because of our dependence on insurance (NEJM 11/11/10).
AAPS Calendar
Jan 21, 2011. Workshop, Dallas, TX; Jan 22 Board meeting.
Sep 28-Oct 1, 2011. 68th annual meeting, Atlanta, GA.
Victory over TMB in Fifth Circuit
In a unanimous opinion, the U.S. Court of Appeals for the Fifth Circuit held that AAPS has standing to sue the Texas Medical Board (TMB) on behalf of its members.
Among the claims of “pervasive and continuing violations of … constitutional rights” by the TMB, the Court expressly noted allegations that “the Board manipulated anonymous complaints,” that the former Board president targeted physicians, and that “anonymous complaints allegedly were filed by a New York insurance company seeking to avoid paying … for claims.”
The Court described the allegations as “rather dramatic claims,” and sent the case to the federal trial court so that discovery can proceed. The TMB will no longer be able to conceal its wrongdoing against good physicians.
TMB argued that only individual physicians had standing to sue. AAPS noted, however, that individuals could not typically prove a pattern of abuse involving other physicians. Moreover, physicians fear retaliation for complaining about the Board.
The Court ruled that: “If practiced systemically, such abuses may have violated or chilled AAPS members’ constitutional rights. Proof of these misdeeds could establish a pattern with evidence from the Board’s witnesses and files and from a small but significant sample of physicians.”
One Texas physician writes: “I can’t tell you how fearful doctors are of the TMB. Knowing that with each disgruntled employee, angry neighbor, or aggressive competitor, we could lose our license, the practice of medicine has become one of fear. Thank you for your fight, and I hope many physicians will be sleeping more easily…at least in Texas!”
AAPS general counsel Andrew Schlafly writes: “The logic of this decision goes beyond medical boards and will allow lawsuits by AAPS against federal officials who violate the Constitution with respect to the practice of medicine.”
The litigation is supported by the American Health Legal Foundation. The full opinion and other documents are posted at: http://www.aapsonline.org/index.php/site/article/victory_against_texas_medical_board/.
Individual Mandate Unconstitutional
The U.S. District Court for the Eastern District of Virginia has held the pivotal enforcement scheme of the Patient Protection and Affordable Care Act (PPACA, ACA, or “ObamaCare”) to be unconstitutional (Commonwealth of Virginia ex rel. Kenneth T. Cuccinelli, II, v. Sebelius). Despite the lack of a severability clause in the Act, Judge Henry E. Hudson declined to void the rest of it.
“[T]he bill embraces far more than health care reform,” he writes. “It is laden with provisions and riders patently extraneous to health care—over 400 in all.”
He also declined to enjoin implementation because, among other reasons, most does not take effect until 2014.
The Secretary argued that every individual will require health care at some time and might burden society to pay for it. “Her theory further postulates,” writes Hudson, “that because near universal participation is critical to the underwriting process, the collective effect of refusal to purchase health insurance affects the national market.” Hudson rejected the argument, saying it lacked Commerce Clause jurisprudence support or logical limitation, as it could be also applied to transportation, housing, and food.
So What about Medicare and Medicaid?
If the individual mandate is unconstitutional, how can Medicare or Medicaid be constitutional, asks John Graham of Pacific Research Institute (NRO 12/15/10. The legal difference is that ACA requires people to buy a private product.
In the 1937 case that established the constitutionality of Social Security, Helvering v. Davis, the Roosevelt administration cleverly argued that collecting the payroll tax and paying Social Security benefits were two completely independent operations. The former invoked the taxing power, and the latter the power to spend for the “general welfare.” As it was an amendment to the Social Security Act, Medicare was constitutional on the same basis. This means that paying the tax creates no entitlement to benefits.
The Founding Fathers, who had no notion of government-run medicine, would have found it absurd that 20th and 21st century jurisprudence would hold that Congress can tax Jack to pay for Jill’s insurance, or tax Jill to pay for Jack’s, but can’t tax people to pay for their own. Graham hopes, not only that the Virginia decision will hold up, but that “its shock-wave crashes up against Medicare and Medicaid.”
More Compliance, More Traps
Physicians wanting the positive reinforcement of payment for working will need to run ever more Byzantine mazes.
New mandatory compliance programs are required by ACA as of Jan 1, 2011, for participation in Medicare, Medicaid, or the Children’s Health Insurance Program (CHIP) by certain entities. The breadth of the requirement is up to HHS, and it is not clear how broadly it will be imposed. Plans must have seven elements, including written policies; reporting channels; mandatory training for all employees at least once a year; lines of communication with a compliance officer; disciplinary standards; an effective auditing system; and a prompt system of response to issues. (See http://edocket.access.gpo.gov/2010/pdf/2010-7966.pdf for the 150-page Final Rule; BNA’s HCFR 11/17/10).
Secretary Sebelius says that the ACA “is secretly one of the strongest fraud prevention laws in American history.” One aspect is the effort to combine all Medicare claims into one searchable database. Its repeal would do away with “anti-fraud tools” (ibid.). One pebble that ObamaCare removes from the federal shoe is the need to prove criminal intent, writes David Catron, which is “something of a nuisance to federal bureaucrats seeking to bend private industry to their will” (spectator.org 10/8/10).
The Medicare Fraud Strike Force, created in 2007, had a 97% conviction rate through Nov 10, 2010, and 94% of defendants were sentenced to prison (HCFR 12/1/10).
There will be even more opportunities for coding error with the ICD-10 codes required by Oct 1, 2013. There are 70,000 codes, compared with 14,000 in ICD-9. The increased specificity might lead patients to suspect fraud. For a hip fracture, the physician would have to record where in the house the patient fell, whether the house has one or two stories, and whether the patient owned or rented. The average transition cost is expected to be $285,000. Those who are not well along in the implementation process are said to be several years behind (ibid.).
Beware: the FDA’s National Drug Code (NDC) Directory is not reliable for determining drug approval for Medicaid (ibid.).
Correspondence
How to Talk to a Hospital Employee, If You Must. The less interaction you have with hospital employees, the better. If you must speak critically, choose your words carefully. Remember that a hospital employee merely needs to tell an administrator that she felt comments were demeaning; that is all it might take to have a physician found “disruptive,” and to end his career these days. I would highly recommend that you carry a small, concealed recording device with you at all times in the hospital. If you live in a one-party consent state (see http://www.aapsonline.org/judicial/telephone.htm), you need not notify the other party that you are recording the conversation. You should always tape high-risk conversations, as this could prove invaluable later if the employee makes a false charge that you were yelling and swearing. I will be reviewing some of the innovative new devices at the Jan 21 meeting in Dallas.
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY
Breaking the OPM (Other People’s Money) Addiction. To take back our profession, we need to understand how we lost control of it. I believe this happened when we agreed to accept payment for our services from third-party payers. “Accepting assignment” was the first step toward government price fixing. Accepting the idea of getting paid by anyone other than the patient violated a core economic principle and allowed value to be determined by someone other than the recipient of the service. The only cure is for us to return to working for our patients directly—as professionals, rather than as shift workers.
Most physicians believe they cannot provide care outside a third-party payment system. Insurers have created a population addicted to their “services.” To hear their marketing, you’d think that Blue Cross/Blue Shield removed the colon cancer!
Doctors must act first. If enough pull the needle out of their own arms, the drug will become sufficiently diluted that patients will also have to pull out the needle and seek care through “private contracting.” ObamaCare is the antithesis of this idea but may well provide the incentive doctors need because it will dilute their third-party “opiate” to the point that it no longer sustains their needs. If the analogy is disturbing, remember that the last person to recognize the reality of the addiction is the addict.
I speak from experience. More than 8 years ago, I quit all managed-care plans. It took 6 months to unwind the entanglements I had created with more than 20 different carriers. For a surgeon it is much more difficult, because we’re not talking about a $75 office visit, and virtually everyone has a sense of entitlement to surgical services covered by insurance.
Robert Sewell, M.D., Southlake, TX
The Start of It All. The first step was the creation of Blue Shield. which fooled physicians into thinking they could control the process by having a majority on boards of directors. That began the concept of “participating providers,” which morphed into the assignment of benefits by other insurers. I’m not sure it is possible to unwind this history. I’m afraid the only remedy is to have (some) physicians refuse to play the game any more—quit all contracts, and buy a credit card machine to accept patient payments. This may look more attractive as ObamaCare grows, payments drop, and waiting times explode. Suddenly patients may like the idea of paying $75 to see a physician this week, rather than waiting 2 months to see a nurse practitioner for free.
Greg Scandlen, Consumers for Health Care Choices
TPP in Education. The problems in education are similar to those in medicine: third-party payment. Spiraling government money for subsidies insulates “providers” from market prices—and flows directly into the pockets of those smart enough to jack up their prices to capture the surplus. One study showed how California state schools jiggered their prices to maximize the take from all public and private sources when subsidies changed.
Linda Gorman, Ph.D., Independence Institute, Golden, CO
“Medicine Should Be Like Fire and Police.” According to the National Volunteer Fire Council (http://www.tinyurl.com/djragf), volunteers comprise 72% of firefighters in the U.S. Volunteers spend an enormous amount of time training for many types of emergencies. Of the total 30,185 fire departments in the country, only 2,263 are all career. The majority of firefighters killed in the line of duty are volunteers.
Russell W. Faria, D.O., Kent, WA
“Disruptive.” This term is supposed to conjure up visions of physicians screaming at nurses—the kind of out-of-control behavior that would not be easily defended. In fact, hospital administrators and the like have learned to expand the term so that administrative opposition may also be construed as “disruptive”; e.g. opposition to a business practice, alleged improper contracting, or sham peer review. Keep in mind that hospital personnel such as nurses and technologists who are reported for being “disruptive” have the complaints against them reviewed by their bosses and stowed in their confidential personnel files. Doctors have to face judicial reviews, medical board inquiries, and license revocations. The Union of American Physicians and Dentists presented a course on how easily one may be accused of being “disruptive.”
Robert L. Weinmann, M.D., San Jose, CA
The RUC. The any of us fear that the alternative to the AMA quagmire would be the government establishing prices and rationing services.
Kirby V. Nielsen, Delaware, OH
