The deterioration of American medicine is visible to the naked eye. Anecdotes tell of soiled dressings in overflowing trash; long delays in giving pain medications to post-op patients; family members having to bring food; a patient lying unattended on the floor of an emergency department for many hours, complaining of severe pain, until he left without being seen and died of sepsis in another hospital a few days later (http://tinyurl.com/zpql9a8). These occurred in top-ranked American hospitals.
These reports are from patients’ families. Where are the doctors? We do have anonymous, generalized complaints in responses to our surveys concerning the Veterans Administration (http://tinyurl.com/z2wej6q) and electronic health records (EHRs) (http://tinyurl.com/ofhxlpv). But Marion Mass, M.D., notes that she is almost the only physician who ever complains openly at departmental meetings. “When did we become such puppets for our masters the administrators?” she asks.
And she has the answer: many physicians are hospital employees, and bucking the system could cost them their job.
Physicians, once proud of their independence, are becoming employees of mega-systems. Half of physician who were still in private practice in 2008 were employees in 2014, according to a Physicians Foundation survey (http://tinyurl.com/l3629a7). The percentage of physicians who said they were practice owners or partners in 2008 had declined to 35%. Less than one-third of physicians said they are free to make the best decisions for their patients, while 69% said their medical decisions are sometimes or often compromised (ibid.).
Even independent physicians fear to speak out because whistleblowers can easily be destroyed by sham peer review, as extensively http://www.jpands.org/vol20no1/huntoon.pdf”>documented in the Journal of American Physicians and Surgeons by Lawrence Huntoon, M.D., Ph.D., chairman of the AAPS Committee to Combat Sham Peer Review.
“Quality care” is, of course, a mantra of “healthcare reform,” and this is a matter of statistical “quality metrics,” not mere anecdotes. A key operational feature of “emerging delivery models” such as accountable care organizations (ACOs), which is required under the Affordable Care Act (ACA) to avoid Medicare pay cuts, is the EHR—which also “documents” and scores quality.
“The EHR is the Potemkin Village of Healthcare, disguising the declining quality of American medicine,” writes Gerard Gianoli, M.D. “Legend has it that in 1787 Grigory Potemkin erected a fake portable settlement along the banks of the Dnieper River, in order to fool Empress Catherine II during her visit to the Crimea. At night it was then moved down river for their next stop.” The term “Potemkin Village” has come to mean “a pretentiously showy or imposing façade intended to mask or divert attention from an embarrassing or shabby fact or condition.”
Dr. Gianoli recalls that his pediatrician had only four pages of notes about the excellent medical care he received in the first 20 years of his life. Now, a single visit can cover 4-5 pages.
The chart looks neat and comprehensive, containing all the data it would have taken the old-fashioned doctor more than half an hour to acquire. One efficient keystroke auto-populates the record with “normal” findings. All the doctor has to do is override the entries for abnormalities.
For one of Dr. Gianoli’s patients about to undergo surgery for intractable vertigo, an internist consultant documented that the patient denied having any vertigo!
“Why do capable, well-respected doctors fill the EHR with nonsense?” Dr. Gianoli asks. It’s a matter of survival. Unless all the right boxes are checked, the doctor cannot get paid.
And the “modules” required for Maintenance of Certification (MOC) by many specialty boards require such documentation, along with “improvement” over time in metrics based on it.
The process of determining the chief complaint, performing the history and physical, constructing a differential diagnosis, performing indicated tests, and arriving at the optimal individual treatment plan has been compressed to “chief complaint, test, treat [by protocol],” Dr. Gianoli writes.
The Institute of Medicine has concluded that 1 in 10 diagnoses is probably wrong, and in the “post-autopsy era” proposes the use of teams of “all delivery-system stakeholders” (including patients) and “automatic error-detection systems”—to analyze EHR data (NEJM 12/24/15).
The IOM ushered in the patient safety movement with its 1996 To Err Is Human report, alleging 98,000 deaths per year from medical errors. After all the checklists, quality mandates, and new bureaucrats, there were 440,000 such deaths in 2013, concludes an IOM study, based on equally fuzzy math, writes Rocky Bilhartz, M.D. (http://tinyurl.com/h4x5uwl). “You can’t evaluate quality…by tracking micro-managed measurements ten-parts removed from absolutely anything that matters to a patient,” he writes.
The digitized record is an essential facilitator for attempts to digitize patients, turning their life story, not just their ICD-x diagnoses, into codes. It’s the technocratic equivalent of the Orwellian transformation of language itself—to enable the transformation of medicine and all of society. The verbal and social engineers are erecting a Potemkin façade for their destructive work.
Perils in the Cloud
- Data Held Hostage. The information technology system at Hollywood Presbyterian Medical Center McKesson was shut down by ransomware, with hackers reportedly demanding 9,000 Bitcoins (about $3.6 million) for codes to reopen the system (http://tinyurl.com/hbam7vj). Departments are communicating by FAX, and couriers are driving around town to pick up test reports (http://tinyurl.com/j6jqnrt).
- Forged Prescriptions. Thanks to a tip-off by a pharmacist, a doctor discovered that prescriptions for scheduled drugs were being forged in her name, using her NPI and other numbers readily available by internet. The mandatory reporting system in Ohio has no way for doctors to log in and check what prescriptions are being written in their name. Apparently there is a big ring of forgers operating in this way—and no protections for doctors!
- False Promises on HIPAA. Do not rely on assurances of HIPAA compliance and encryption from a vendor of office management software. You are liable for violations if their promises are untrue—and for false advertising if you used their claims in marketing. Henry Schein Practice Solutions will pay a $250,000 fine; harm to patients and dental practices that relied on its product is as yet unknown (MPCA, February 2016).
- Direct Primary Care Practice. Don’t waste money on nonphysician consultants. See http://www.dpcfrontier.com, built by AAPS member Philip Eskew, D.O., J.D., M.B.A. It includes free toolkits, a collection of videos from AAPS Thrive Not Just Survive workshops, a discussion forum, and more. Also, Dr. Josh Umbehr’s free DPC Curriculum is at https://atlas.md/dpc-curriculum/.
- Patient Response to “Surprise” or Outrageous Bills. With the help of Frank Lobb, author of The Great Health Care Fraud and Too Big to Be Legal, AAPS has developed suggested letters for insured patients to send in case they get a huge bill from an out-of-network “provider” called in by a hospital, such as the $117,000 bill from a “drive-by” assistant surgeon (NYT 9/20/14, http://tinyurl.com/kjforgy). Please share your reactions to these letters, other letters you have used, and the outcomes, at http://www.aapsonline.org/bills. Be sure to respond to such bills within 30 days!
- Fighting Interstate Medical Licensure Compact and Maintenance of Certification. Responses to Freedom of Information Act (FOIA) requests are posted at: http://tinyurl.com/zkb8z5t. Selected action alerts to states considering the IMLC are compiled at: http://tinyurl.com/jo9wro6. Twelve additional states are now considering the Compact. Backers include giant health systems that may force patients into their telemedicine net.
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“His education had the curious effect of making things that he read and wrote more real than things that he saw. Statistics about agricultural labourers were the substance; any real ditcher, ploughman, or farmer’s boy was the shadow. Though he had never noticed it himself, he had a great reluctance, in his work, ever to use such words as “man” or “woman.” He preferred to write about “vocational groups,” “elements,” “classes” and “populations”: for, in his own way, he believed as firmly as any mystic in the superior reality of the things that are not seen.”
C.S. Lewis, That Hideous Strength, 1945
Observations on “Value-Based” Payment
- “The application of behavioral economics to physician behavior is largely untested.” Unknowns include : (1) the optimal number of metrics to enhance performance without causing “choice overload”; (2) the best distribution of incentives between individual physicians and groups; (3) the effect on “skimping on care”; (4) the size of the financial incentive needed to change certain behaviors (Ezekiel Emanuel, et al. Ann Intern Med, published online at http://www.annals.org 11/24/16).
- • “Harnessing the right combination of extrinsic and intrinsic motivation to change physician behavior” is complex. “In the extreme, some physicians experience burnout” (JAMA 12/1/15).
- More than 30% of “providers” will be penalized in 2015 for failure to meet “meaningful use” requirements. Penalties will total $200 million. For a mere 3% (or is it 6%?) of your revenue, AthenaHealth will hitch you to its cloud-based Quality Management Engine™. “The EHR is a revenue driver in this new world” (http://www.athenahealth.com).
- The results of the surgeon scorecard are predicted by Saurabh Jha, M.D.: “After Transparency: Morbidity Hunter MD Joins Cherry Picker MD” (http://tinyurl.com/o8hclye). The actual outcome is seen in a New York hospital, where a high-risk patient needs urgent coronary bypass surgery: “The only surgeon who might take him isn’t on until Wednesday” (NEJM 10/8/15).
- Medicare’s new payment system is a “leap of faith.” Though “logically powerful,” the view that paying by value not volume is the only way to cost containment is “inconsistent with the facts.” Other countries that spend much less than the U.S. use fee-for- service payment (Jonathan Oberlander, NEJM 9/24/15).
- The Merit-Based Incentive Payment System (MIPS), an “elegant compromise” to replace the “tyranny” of the Sustained Growth Rate (SGR) formula, will incentivize physicians to meet government-set performance goals. One “challenge” is the lack of “meaningful quality measures” (M.B. Rosenthal, NEJM 9/24/15).
- Does the EHR represent “transitional chaos or enduring harm”? One critical care doctor prints out daily notes, superimposes them, and holds them up to the light to try to discern what changed. Unlike in the aviation industry, which respects the wisdom of front-line workers, physicians who voice reservations about the EHR are dismissed as “technophobic, resistant, and uncooperative.” A surgeon who used to review his case notes the evening before surgery to remind him about a patient’s individual situation says the EHRs are homogenized and rendered useless by the “tyranny of clicks” (Lisa Rosenbaum, NEJM 10/22/15).
May 20. Thrive Not Just Survive XXIV, Dallas, TX
May 21. Board of Directors meeting, Dallas, TX
Sep 22-24. 73rd annual meeting, Oklahoma City, OK
Oct 5-7, 2017. 74th annual meeting, Tucson, AZ
Privacy Wins in U.S. Supreme Court
In Gobeille v. Liberty Mutual Insurance Co., the U.S. Supreme Court ruled that certain states cannot collect insurance claims data from employers’ self-funded insurance plans. Vermont’s all-payer claims database is preempted by the Employee Retirement Income Security Act (ERISA) to the extent it seeks data from employer-sponsored health plans. Additionally, the Court ruled, efforts by Vermont and at least 17 other states to gather and analyze the data conflict with federal law covering reporting requirements for employer health plans. The 6-to-2 decision is “a step forward for medical privacy in America,” writes Twila Brase (http://tinyurl.com/jcx4bal). The decision will protect hundreds of thousands of employees in their employer’s self-insured plans. More than 3 in 5 companies in the U.S. are now self-insured. About 91% of people in companies with more than 5,000 workers are now in self-insured plans, up from 62% 15 years ago.
The AAPS amicus brief is at http://tinyurl.com/h3ecluc.
AAPS Supports Conscience Rights in Stormans
AAPS joined an amicus brief supporting a petition for writ of certiorari in Stormans v. Wiesman. Pharmacist-petitioners are challenging a Washington State law that requires pharmacies to stock “emergency contraceptives.” Pharmacists argue that while they may lawfully decline to provide drugs for a variety of other reasons, they may not exercise a conscience objection to drugs they believe to end a human life. The Ninth Circuit upheld the law, stating that the pharmacists’ asserted right was not “objectively” established. Amici present the scientific evidence that a unique human life begins at conception, and that the drugs in question likely act by preventing its implantation—“a self-directed process of attaching to the uterine lining,” which is necessary for obtaining nourishment (http://tinyurl.com/hg3adrn).
Defenders of the law argue that it is justified in order to assure access to services that are legal even if morally objectionable to some. However, a brief filed by 4,609 individual medical professionals argues that the law could ultimately impede access to medications because “compelling healthcare workers to participate in treatments that violate their religious conscience will tend to deter otherwise well-qualified and compassionate individuals from entering the pharmacy profession” (http://tinyurl.com/zvldps5).
“This rejection of well-established professional norms severely threatens the conscience rights of all pharmacists—not just those who oppose emergency contraception.” Many pharmacists object to participation in capital punishment or physician-assisted suicide. Amici also note that “the reproductive rights movement was built on the ideal of personal choice.”
EHR Hardship Waivers
Thanks to a bill that passed at the last minute before Congress left for 2015, physicians can more easily apply for a hardship waiver from the Centers for Medicare and Medicaid Services (CMS) that will be automatically granted without a case-by-case review. There are seven options to choose from. See http://tinyurl.com/gtspyg2 and http://tinyurl.com/zmxemer.
Note the disclaimer: picking an option that doesn’t quite fit could lead to a prison term.
Tip of the Month: Physicians who seek intervention by a court while a sham peer review is still in progress are more likely to succeed. Injunctive relief is available and has been obtained for a variety of reasons now, including a hospital’s refusal to produce witnesses at the internal hearing, its failure to substantially comply with the medical staff bylaws, or its violation of the minimum requirements for a summary suspension. If faced with a sham peer review, you might consider whether delaying judicial review may result in justice denied. Also, if there is a report to the National Practitioner Data Bank (NPDB), consider objecting to it immediately, before rights are waived.
Attorneys’ Fees in Sham Peer Review
If a physician challenges a sham peer review action and loses, the court has the option of awarding the hospital its attorneys’ fees if the lawsuit is frivolous, and those fees might be huge. If the physician has gone to court and obtained an injunction, he may be protected against this catastrophic outcome. The applicable provision of the Health Care Quality Improvement Act (HCQIA) is:
§11113. Payment of reasonable attorneys’ fees and costs in defense of suit. In any suit brought against a defendant, to the extent that a defendant has met the standards set forth under section 11112(a) of this title and the defendant substantially prevails, the court shall, at the conclusion of the action, award to a substantially prevailing party defending against any such claim the cost of the suit attributable to such claim, including a reasonable attorney’s fee, if the claim, or the claimant’s conduct during the litigation of the claim, was frivolous, unreasonable, without foundation, or in bad faith. For the purposes of this section, a defendant shall not be considered to have substantially prevailed when the plaintiff obtains an award for damages or permanent injunctive or declaratory relief [emphasis added].
Doctor Sues Physicians Health Program
Psychiatrist Kernan Manion, M.D., has filed suit against the North Carolina Physicians Health Program (NCPHP), the N.C. Medical Board (NCMB), the N.C. Medical Society, and several officials, alleging “arbitrary and unlawful application of summary suspension procedures” resulting from “intentionally and/or negligently abusive practices” (http://tinyurl.com/z8gsatx).
Before being forced to inactivate his license in 2013, he had had an unblemished 30-year career—until he was dismissed from his position as a civilian contracted psychiatrist with the Deployment Health Center at Naval Hospital Camp Lejeune in 2009. He brought claims alleging retaliation for raising concerns regarding what he felt was deficient care of active duty service members with posttraumatic stress disorder. When he contacted police about suspicions that he was being followed and harassed, one officer reported concerns about his mental health. Despite an independent mental health evaluation concluding that he was not delusional or in any way unfit to practice, the NCPHP demanded an expensive evaluation at an out-of-state facility. Manion describes his experience with NCPHP as a “Kafkaesque nightmare.”
Abuse is rampant in PHPs, writes Michael Langan, M.D. See http://www.disruptedphysician.com.
Another Step in the Destruction of Patient Privacy. Gov. Andrew Cuomo of New York announced (http://tinyurl.com/h2zq8ug) that N.Y. has joined the National Association of Boards of Pharmacy PMP (Prescription Monitoring Program) InterConnect hub. This will mean that all prescribers of controlled substances will have access to databases in more than 30 states. Cuomo claims to be saving lives lost to prescription drug abuse.
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY
No Code, No Rx. One evening, I received a frantic call from a patient because a pharmacist would not fill her prescription. The problem: no diagnosis code on the handwritten prescription. The medication is on a restricted drug list for Forward Health, the state medical assistance program. Under the new rules, the pharmacy will not get paid if the prescription is filled without the code. The pharmacist said that the patient would have to pay several hundred dollars in cash. After I gave the pharmacist the diagnosis (I did not know the code), he was apparently able to fill the prescription. It took about 20 minutes to resolve this problem.
Albert L. Fisher, M.D., Oshkosh, WI
Punishment for Value. A Connecticut health official with ties to HHS told us that CMS plans to use the national Health Information Exchange (with forced in) Medicare patient EHRs to monitor provider infractions against guidelines for “value” payment determinations. These would include ordering “non-recommended” prostate specific antigen (PSA) tests (WSJ 11/19/15).
Susan Israel, M.D., Woodbridge, CT
Fragmenting “Accountability.” Since meddling in the large health insurance market has resulted in less and less value for most Americans, the government figures that fragmenting insurance pools into smaller ACO insured groups will miraculously solve the crisis. As if expecting them to fail, the government is heavily incentivizing the “market” so ACOs can exist. This brings up the question: how much incentivizing does a good idea really need? Yes, you must document that your ACO is providing “quality” care to get the most funds. But it has a very expensive computer system designed specifically to check all those boxes for you. Care will look like a boat designed to suit a Federal Boat Bureaucracy run by people who have never driven a boat. There is no need to please those who use the boat. The ACO just needs to learn to manipulate the “value” variables, check boxes, and build something that looks good to the FBB.
Rocky Bilhartz, M.D., http://bilhartzmd.com/?p=2780
A Tragedy in Five Acts. Heralded by ACA, Act Five of 100 years of managed care now begins. To deal with a notable deterioration in the quality of care, physicians are spurred into becoming employees of ACOs or other large administrative entities that can mirror or adapt to bureaucratic demands of government. This may be viewed as a triumph of Progressivism, the notion, dating to the turn of the last century, that social and political affairs ought to be managed with “scientific” rigor and systematic planning.
Michel Accad, M.D., http://tinyurl.com/gtwtoqp
The “Value” of Big Data. So far the benefit to consumers from all the data mining and scoring is a lot of nothing. There’s an occasional study filling the airwaves about what the next big risk assessment might be. But risk assessment is not a diagnostic tool. That IBMWatson’s word-game skills displayed on Jeopardy will make it an expert on oncology is just as unlikely as it sounds. But we all have ball-and-chain risk assessments attached to our ankles that either allow or deny access to something. The average person is likely to generate one million gigabytes of health-related information in a lifetime. “Pre-death” is something we all have been assigned. Patients who pay “cash” for prescriptions are called “outliers,” and “outliers” may be classified as “non-medication adherence compliant.” Remember that, in order to make money, IBM’s Watson went into business with the Nazis, who did “scoring” with IBM punchcards (http://tinyurl.com/hl4nhel).
Barbara Duck, Orange County, CA
Expose the HIPAA Privacy Deception. Without the Health Insurance Portability and Accountability Act, there would be no EHR. HIPAA allows 2.2 million entities, including 1.5 million business associates or government entities, access to patients’ data without their consent if someone is determined to have a need or right to know. Refuse to cooperate with the deception by declining to sign the Privacy Notice in the doctor’s office. The government does not require it for treatment. If you sign, clinics or hospitals can use your signature to argue that you knew your private information could be shared by law without your consent (http://tinyurl.com/jjn2e62). Help educate your doctor.
Twila Brase, R.N., Citizens’ Council for Health Freedom
Sanders’s Vision for America. The wonders of socialism in Venezuela are seen in WSJ Europe 2/6/16 (http://tinyurl.com/zur54fz). Hospitals lack running water, medicines, cleaning supplies, and food. Gang members roam the halls, forcing harassed and underpaid doctors to lock themselves in offices to avoid being assaulted. Six babies died for lack of functioning respirators.
Craig Cantoni, Scottsdale, AZ