Volume 69, no. 3 March 2013
We often hear about the phenomenal exponential growth of digital technology, with the implicit assumption that the doubling will continue—unlike exponential growth phases in nature, which are part of an S-shaped curve—and that it is an unmitigated blessing. The amount of paper in a print-out of a patient’s chart and the amount of data one is required to gather also keeps doubling.
It reminds me of the 1797 poem Der Zauberlehrling by Johann Wolfgang von Goethe and the Disney animation (“The Sorcerer’s Apprentice” in Fantasia). The apprentice calls up spirits to animate a broom to carry water to fill his bath, but forgets the magic word to stop it. Hacking the broom in half just doubles the deluge: “Die ich rief, die Geister, werd’ ich nun nicht los!” [“The spirits I summoned will not let me go!”]
Claims vs. Reality
The electronic medical record (EMR) is touted as the key to containing costs, reducing errors, improving quality, and simplifying administration: an “elegant exercise in wishful thinking,” in the words of Jerome Groopman and Pamela Hartzband.
The real motive appears to be control (AAPS News, April 2011). Indeed, to spur adoption, EMRs are becoming semi-compulsory. For example, the performance-in-practice (PIP) component of the Federation of State Medical Board’s Maintenance of Licensure template is EMR-dependent Also, physicians who are not “compliant” with various electronic requirements will have their Medicare fees cut.
The federal government has “invested” $20 billion over the last 2 years in promoting health information technology (HIT), based on expectations from a 2005 RAND study of $81 billion in annual savings. The study was paid for by a group of companies that profit from selling EMR systems to hospitals and physician practices. Cerner’s revenue nearly tripled since the report was released, from $1 billion in 2005 to a projected $3 billion in 2013. The RAND study deliberately avoided looking at negative information. Double-blind, randomized studies have shown that EMRs with computerized decision-making tools did not result in a single improvement in any quality measure in the care of chronic diseases, and has not been shown to save money, writes Greg Scandlen.
Some think the growth of HIT is a bubble, which is very often the result of misallocation of funds derived from government subsidies (http://tinyurl.com/adwhj5r).
Costs have clearly increased. As an article in the NY Times pointed out, hospitals that received government incentives to adopt EMRs had a 47% rise in Medicare costs, compared to 32% in hospitals that did not.
Scot Silverstein, M.D., of Drexel University, describes the rapid changeover to EMR as a mania. “We know it causes harm, and we don’t even know the level of magnitude.” Poorly designed software can obscure clinical data and generate incorrect treatment orders. Errors voluntarily reported to the Food and Drug Administration (FDA) probably reflect a small percentage of events that actually occur.
There is a tacit admission by experts that EMRs by themselves don’t improve quality of care. You have to have an army of technical consultants in your office, writes Lawrence Huntoon, M.D., Ph.D. One study reported that it took at least 9 months of EMR use and eight or more technical assistance visits to show any statistically significant improvements in key quality measures. Even after 2 years, physician offices without such support showed no improvement (Health IT News 1/9/13).
Bad Engineering
In an article entitled “Escaping the EHR Trap,” Kenneth Mandl, M.D., M.P.H, and Isaac Kohane, M.D., Ph.D., write that commercial electronic health records evolved from practice-management (i.e. billing) systems, with various modules tacked on. Physicians are locked into pre-internet systems that are not designed to link with third-party applications and do not even embrace existing modular architectures. Complex software that was never properly engineered “must be reimagined, reinvented, and reimplemented constantly.” Entrenched “legacy” approaches and other factors stifle innovation (NEJM 6/14/12).
In the same issue, Spencer Jones et al. describe the “IT productivity paradox.” During the 1970s and 1980s, the computing capacity of the U.S. economy grew one hundredfold, while the rate of productivity growth fell to less than half that of the preceding 25 years. In the early 20th century, it took two decades to figure out how to realize the benefits of electricity, as factories initially replaced waterwheels and steam engines with large electric motors running the same central belt-and-pulley system. The breakthrough was to use small electric motors that provided power when and where it was needed.
Individual autonomy, self-directed work teams, “home-grown” IT systems relying on user-centered design practices are suggested. Does this spell “fragmentation” and “decentralization,” instead of top-down central planning?
The federal government may be using HIT to drive more standardization and tighter regulation and monitoring of physicians—with the sacrifice of professional autonomy and independent clinical judgment. But what if the current HIT bubble bursts, and better HIT helps physicians and patients take back medicine?
HIT: the Bad and the Ugly
Template Bloat: Pre-programmed template notes are a workaround for time-consuming data entry. Word-for-word identical progress notes, even lengthy operative reports, are commonplace. The template includes what usually happens and what might happen, and notes may include pages of things that never happened (http://tinyurl.com/afgs23y).
Virus-Infected Medical Devices: Software-controlled medical devices are increasingly interconnected and internet-linked. Many run on older operating systems that are vulnerable to hackers and cannot be changed, even to add antivirus software, because of fear of violating FDA rules. Malware is rampant in many hospitals, from drug compounders to image-archiving systems (http://tinyurl.com/d6jcx8j).
Payoffs: HIT vendors made hundreds of thousands of dollars in campaign contributions. Former Allscripts CEO Glen Tullman visited the Obama White House at least seven times. The rules are ridiculously favorable to the big players, and ridiculously unfavorable to society, states Athenahealth co-founder Jonathan Bush. “Companies that should have been dead were…put on machines and kept alive for a few more years” (NY Times 2/19/13).
ObamaCare Shockers
In what Paul Craig Roberts calls the most comprehensive analysis available on ObamaCare, a person who wishes to remain anonymous explains how ObamaCare “works for the insurance companies but not for you” (http://tinyurl.com/a945sjx).
Lower-income Americans who receive a subsidy to buy mandated insurance may have to pay it back if their income increases. In other words, instead of an expected tax refund they will get a bill. Note that the subsidy (“advance tax credit”) was paid to the insurance company, but the payback comes from the individual.
Persons eligible for Medicaid cannot receive a tax credit. If an Exchange finds a person to be eligible for Medicaid, he will be enrolled. Some states will auto-enroll people in Medicaid who appear to be eligible when they apply for another program such as SNAP (food stamps). If their income changes, people may be bounced back and forth from Medicaid to a tax-subsidized plan.
If a person is put into Medicaid, he has just gotten a mandated collateral loan if he uses Medicaid benefits at age 55 or older. Depending on state law, anything in the estate (the multi-generational family home and everything in it, annuities, bank accounts, etc.) may be subject to state recovery of funds expended by Medicaid for certain benefits, or possibly of all expenditures. This happens because the asset test was dropped as part of the Omnibus Budget Reconciliation Act of 1993 (OBRA 1993). While this provision does not come from the Affordable Care Act (ACA), ObamaCare’s Medicaid expansion means it can be applied much more widely. “Recovery provides revenue for cash-strapped states and it’s a big business,” the article states. It is not clear how disclosure of this provision will be made if people are bumped into Medicaid or auto-enrolled.
For some reason, getting people to enroll in ObamaCare is expected to require a high-pressure sales pitch. Enter “Enroll America,” a tax-exempt organization backed by Big Insurance. Spin experts are working on what to say and what not to say.
The Cost of Compliance
Post election, some 13,000 pages of ACA regulations have poured out of HHS, leaving many basic questions unanswered. The House Committee on Ways and Means has launched an ObamaCare Burden Tracker (#ObamaCareBurden on Twitter). So far, compliance has been calculated to require 127 million hours—enough time to construct 1,040 projects as big as Mount Rushmore, which took 14 years to build.
Drug Shortages Worsen
Nearly 300 drugs are in short supply, especially injectables, including anesthetics, drugs for cardiac resuscitation, chemotherapy agents, and antibiotics. Shortages have quadrupled since 2005. To date, 15 deaths in the U.S. have been attributed to inability to obtain a necessary drug. A lack of raw materials, consolidations and closures of drug makers, and low profit margins are among the reasons. Huge fines levied by CMS for “overcharging” have driven some manufacturers from the generics market altogether. A federal drug rebate program started in 1992 requires manufacturers to provide discounted drugs to certain facilities treating indigent patients. There were 2,000 such facilities in 2002. The number is being greatly expanded by ACA, and is now nearly 20,000. Rigid, inflexible FDA rules prevent markets from compensating. Manufacturers must get approval for the amount they plan to make, and if the FDA shuts down a competitor’s plant it cannot step up production without a new round of approvals.
“The Obama Administration’s preference for regulation rather than market forces to solve safety problems is making the entire health care system less safe than it might have been,” writes John Goodman (http://tinyurl.com/3r7542h).
Limiting Medicine’s “GDP Footprint”
Warren Buffett likens our health system to a tapeworm that devours funding for other public goods. Physicians have a choice, writes Arnold Milstein, M.D., M.P.H., of Stanford: protect their income and traditional role—or commit themselves to stewardship of “pooled health insurance dollars,” as the Physician Charter demands, with 2-3% annual efficiency gains and preservation of federal creditworthiness (NEJM 1/3/13).
AAPS Calendar
May 17-18. Workshop, board meeting, Columbus, OH.
Sept 25-28, 2013. 70th annual meeting, Denver, CO.
“As George Orwell predicted, freedom dies not with howls of outrage but with cheers of approval. And jeers too for those who would object, as absurd relics of the past not fully cognisant of the fact that the present is so wondrous that it no longer needs the anachronism of being free.”
George Igler, “How Freedom Dies,” 2012
ACTION OF THE MONTH
Save the dates! Our May 17 workshop in Columbus will focus on Maintenance of Certification and Maintenance of Licensure. Recommend a student for an annual meeting scholarship.
EMR: Federal Prosecutors’ New Cash Cow
Over the last decade, medical professionals have billed $11 more to Medicare, prompting concerns that billing for higher level services, which is facilitated by the EMR, may be inappropriate. The Center for Public Integrity, in its “Cracking the Code” series, suggests that billing errors and abuses are worsening with the shift to electronic records. Just over half the doctors billing Medicare are now using digital records.
One technology company in its sales materials predicts an average of one billing level increase per patient visit, potentially adding $225,000 per year in new revenue.
“Red flags” include software that enables “documentation” of a complete examination with one mouse click, or “cloned documentation” that cuts and pastes data from a previous visit (http://tinyurl.com/bg4a5lo).
Investigations into fraudulent billing using the EMR is the second of 10 top health care fraud issues in 2013.
The government is increasingly funding itself through fraud investigations and settlements, according to Linda Baumann, an attorney with Arent Fox. Investigations by Medicare program integrity contractors are incredibly burdensome for hospitals and other providers. Many regulations are unclear, and providers cannot get definitive answers on how to interpret them.
In many cases, Arent said, “contractors are recouping all of the money associated with legitimate claims for services that were actually furnished to patients, yet lacked some minor piece of documentation” (BNA’s Health Care Fraud Report 1/9/13).
Auditors will be mining E/M documentation for cloned note patterns (Medical Practice Compliance Alert 1/7/13).
Doctors are responsible for checking the accuracy of the EMR. One patient was told he had a melanoma because the report on another patient’s biopsy ended up in his record (ibid.).
Under the new HIPAA mega-rule that goes into effect Mar 26, fines can go up to $1.5 million per year, even for the lowest tier of offense. The new rule expands the definition of “business associate” to include vendors, contractors, and subcontractors, such as vendors who supply cloud-based storage platforms. Covered entities will need vast numbers of new business associate contracts. However, providers are just as liable for security breaches by a business associate as by their own practice, and will have to notify affected patients (MPCA 2//13). Some large health entities have 20,000 business associates (HCFR 1/23/13).
Although formal compliance programs are now mandated only for certain entities, such as nursing facilities, they may soon be required by law for all healthcare providers, writes Jeff Hayes in the journal of the Maricopa County [Phoenix] Medical Society. All personnel would require periodic training and monitoring for criminal conduct (Round-up, January 2013).
AAPS Files Amicus in Natale Appeal
In a brief filed on behalf of surgeon John Natale, M.D., now serving time in federal prison, AAPS writes: “The suggestion that medically imprecise, disfavored, or even false statements in operative reports amount to a federal crime is unprecedented in the absence of billing fraud. Medical misstatements are as inevitable as typos in legal reports…. Holding them to be a crime is a breathtaking expansion in government interference with medical practice, and the resultant chilling effect is detrimental both to efficiency and the ability of physicians to speak freely about their own work.”
The government failed to prove criminal intent; AAPS argues that “the bedrock principle of mens rea requires reversal of the conviction.” AAPS opposes the utilitarian principle in criminal law, as for the government’s stated goal of “sending a message,” citing Immanuel Kant: “Juridical punishment must never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him on the ground that he has committed a crime….”
AAPS argues that if the conviction is upheld, the message to doctors is to “say less in operative notes, or even get out of Medicare and Medicaid altogether.”
Judge Weighs Claim of Abuse of Power by TMB
Closing oral arguments were held in federal court in Austin on Feb 19 in AAPS v Texas Medical Board before U.S. district judge Lee Yeakel. More than a dozen physicians attended, from as far away as West Virginia.
Counsel for TMB seemed to be arguing that AAPS needed to prove that TMB treated other physicians less harshly than those whose cases were included in the complaint, observed AAPS executive director Jane Orient, M.D. “Is it permissible to harass physicians and cause them to incur enormous costs, as long as their ultimate punishment is not disproportionately harsh?”
AAPS general counsel Andrew Schlafly reminded the Court that the issue is one of violating rights guaranteed by the U.S. Constitution, even if TMB is found to have complied with state law. A declaratory judgment is needed, he said. The resignation of TMB president Roberta Kalafut, accused of using her power to harm her competitors, is no protection against future abuse.
State representative Bill Zedler, who attended the hearing, told the Austin American-Statesman that he has written legislation to require TMB to tell doctors the names of complainants and of expert witnesses against them, and to require disclosure of financial interests of physicians who hear disciplinary cases but are not board members.
The Judge promised a decision as soon as feasible.
AAPS Files Amicus in Gianoli Case
Florida physician John Gianoli, M.D., was convicted on one of five counts related to prescribing a controlled substance to an undercover agent posing as a patient. He was sentenced to 5 years imprisonment, including a sentencing enhancement for violating a position of trust. AAPS describes Dr. Gianoli as an “anti-pill mill” doctor. Rather than having a high volume of patients who all got essentially the same prescriptions, Dr. Gianoli accepted pain patients and attempted to wean them off their medications. He was nonetheless targeted by a sting operation. He believed the undercover agent’s pain history, but disbelieved what he thought was a joking statement (in fact, it was a lie) that the phony patient shared his meds with his girlfriend in return for sex. The prosecution did not present the recording of the initial comprehensive visit, on the basis of which the prescription was written. Dr. Gianoli soon dismissed the “patient” as being unreliable. AAPS argues for reversal of the conviction.
Correspondence
Digital Efficiency. I was one of the first to submit Medicare claims electronically many years ago as a Non-Par physician before I became a proud Opted-Out physician. The only thing efficient about it was that it was very easy for the carrier to alter or delete entire batches of claims in a single keystroke, so that we continually had to resubmit them. It is virtually impossible to sue a Medicare contractor for anything related to processing claims; they have official immunity. A Medicare claims examiner had to go into hiding after she revealed evidence of the contractor’s wrongdoing to the Inspector General. She was specifically asked to suspend claims so as to impede cash flow to physicians who questioned the carrier. The contractor would automatically deny 25% of all claims in the hope that the physician would choose not to incur the expense of resubmission. Physicians who acted the way the Medicare contractor did would be in prison and owe millions of dollars in fines. See http://www.jpands.org/vol8no3/burr.pdf.
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY
200,000 Jobs. An article in the NY Times celebrated the potential for the HIT industry to create more than 200,000 jobs. It’s a great example of Bastiat’s What Is Seen and What Is Unseen. We will never know what might have been done with the $20 billion used to inflate this bubble. Any time government diverts resources from where they would naturally go, malinvestment occurs, and the eventual economic correction will cause intense job loss and human suffering. The success of this game depends on the short memories of those whose hard-earned wages were confiscated to line the pockets of the elite (http://tinyurl.com/bbxfxcq).
G. Keith Smith, M.D., Oklahoma City, OK Surgery Center of Oklahoma
563-Page Rule. This new rule modifies HIPAA rules with more stringent privacy and security measures passed in the American Recovery and Reinvestment Act (ARRA, the “Stimulus Package”). About 700,000 entities will have to comply, for an HHS-estimated cost of up to $225 million in the first year. Each will have to hire an administrator or consultant or purchase software to avoid incurring a $1 million fine. Many of the retained experts will be the same apparatchiks who wrote the indecipherable rule while working for the government and will now get rich as consultants while the nation gets poorer. One example: subcontractors of a covered entity, who provide services to a business associate, are also business associates to the extent that they have access to protected health information, “even if the business associate has failed to enter into a business associate contract with the person.”
Craig Cantoni, Scottsdale, AZ
Box Checking. With EMR, physicians can offset some of the extra time required by standardizing some terminology. The EMR pushes one to the selection of one phrase that can be “clicked” to enter it into the record. Doing so generates a meaningless note with boxes checked. It took a year to restore some personality to my notes, and they now take “only” two to three times as long as when I dictated them. Having the boxes in front of me allows me to check more of them, and bill private insurers (I’m opted out) for a higher-level visit. The government is now employing word and phrase analysis to look for “inappropriate use” of templates. They are also looking for information that checks boxes, but has “no relevance” to the exam—by their definition. Payments for “meaningful use” are now gateways for audits and fraud charges.
The government insists that we all be electronic, but if we make use of any of the EMR benefits, we are guilty of fraud. It’s like a rigged game of poker: Once you start, you can’t win; you can’t draw; and you can’t quit.
Adam Harris, M.D., San Antonio, TX San Antonio Orthopedic Specialists
Why EMR? The end game of the EMR is data mining on patients, with the physician as data gatherer. This will be used to profile patients and ration care. The actual cost of EMR far exceeds the government “carrot” payments as well as “stick” penalties. EMRs are 20% less efficient, and cost $27 per patient visit to maintain. Some physicians find value in the EMR after they have spent thousands of dollars and untold man-hours fine-tuning the templates, which are crude at best. My only problem is with data gathering for centralized transmission. Ultimately it will require you to subjugate your judgment to that of the Institute of Medicine and its rubric for care.
Jane Hughes, M.D., San Antonio, TX
What Is an Exchange? It is actually a an IT connection to a federal government server, the Federal Data Services Hub. It is a data exchange, not a marketplace though called that to keep the public in the dark. It is like a spider, reaching into a vast array of state and federal agencies to compile data on an individual—identity and incarceration, employment, tax, family, and medical status. It will provide the IRS with a tool to enforce the mandate/tax. The state exchange is state in name only. The Minnesota contract with Maximus, Inc., to build the health insurance exchange (HIX) calls it the “federal MNHIX.” The federal government cannot force a state to open its data portals. That would be unconstitutional commandeering. That’s the reason for the federal “establishment” grant dollars to states to do it for them (http://tinyurl.com/bcfrlrq).
Twila Brase, Citizens’ Council for Health Freedom
