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Association of American Physicians and Surgeons, Inc.
A Voice for Private Physicians Since 1943
Omnia pro aegroto

Volume 64, No. 4 April 2008


The current Democrat front-runner for the Presidency has it in his "Blueprint for America" also: "lowering costs through investment in electronic health information technology [HIT] systems." It states that "Obama will invest $10 billion a year over the next five years" and will "phase in requirements for full implementation of health IT."

Mandates will be needed. As Chip Kahn of the Federation of American Hospitals noted, physicians would not achieve even 40% adoption of e-prescribing without being compelled to do so (HITS 11/15/07).

IT will be essential for achieving Obama's objectives:

  • Requiring all providers for the "new public plan," Medicare, or the Federal Employee Health Benefits Program (FEHBP) to participate in "proven disease management programs";

  • Payment by both public and private insurers for effectiveness of treatment rather than for volume of services;

  • Eliminating "inequities"; and

  • Forcing providers to report "preventable medical errors."

Costs and Efficiency

Sen. Edward Kennedy quipped that it would take only "four hours of savings" from a fully digitized system to free up $50 billion to fund SCHIP (HITS 5/17/07). Congress wants IT as a "major accomplishment" to show voters before the November elections. IT will produce "radical change," stated former U.S. Representative Nancy Johnson, and is the "only way that we guarantee" state-of-the-art medicine to all Americans, including the uninsured (PCWorld 2/18/08).

Small physician practices will not be the beneficiaries of cost savings from electronic medical records (EMRs). Considering the AMA's estimate that doctors would see only 11 cents of every dollar saved through IT, Massachusetts BlueCross/BlueShield decided not to require EMRs for participation in its bonus program. A hospital computerized order system might pay for itself in 26 months if it reduced rehospitalizations caused by errors (AMNews 3/10/08).

At the 2008 meeting of the American College of Legal Medicine (ACLM), Dr. David Donnersberger reported that a $60,000 grant to his practice covered infrastructure and temporary staffing, but not the $500,000 loss in revenue, or the $10,000 annual maintenance cost. Productivity is down 15-25%. The VA's Vista system has cut the number of patients seen per hour from 4- 6 to 1-2. It can take 30 minutes to do a note that typically took 2-3 minutes maximum on paper. Yet the designers "have made clubs and user groups to praise each other" (Consumer Power Report #88 7/26/07).

Quality Gains and Evidence Base

The absolute reduction in risk-adjusted in-hospital mortality between hospitals with the best and poorest performance measures was a mere 0.005 for myocardial infarction and 0.001 for heart failure, according to the CMS Hospital Compare study (JAMA 2006;296:2694-2702).

As the accompanying commentary asks about such minimal results: "why should clinicians and health centers be required to collect and submit the data, and why should payers and consumers want to act on them?"

A study of family medicine practices showed significantly better diabetes care and outcomes in practices without EMRs (Crosson et al. Ann Family Med 2007;5:209-215).

Since the randomized controlled trials that are de rigueur for medical treatments show such poor results for IT, use of social science methods such as qualitative, observational, and quasi-experimental designs are recommended for "strengthening quality improvement research." Leadership must insist on engagement of all workers, despite needed "radical change" in their work habits (Boat TF et al. JAMA 2008;299:568-571).

Branding and Grading Doctors

The NPI (National Provider Identifier) at last makes it possible to track physician-specific outcomes, stated Dr. James Szalados of Unity Health System at the ACLM meeting.

Modeled on an agreement between NY Attorney General Andrew Cuomo and insurers, with input from the AMA, insurers nationwide are constructing tiered networks, based on "true quality measures" (AMNews 12/7/07).

Elizabeth Kubler-Ross's stages of grief response starting with shock and denial may occur in clinicians receiving bad news about their care practices. "It is only through persistent measurement that clinicians move beyond initial paralysis to acceptance and action" (JAMA 2005;294:369-371).

Professional autonomy, reinforced by organizational autonomy, leads to "functional silos." Thus, "shared financial and regulatory incentives" are needed (JAMA 2008;299:445-447).

The Greater Rochester Independent Practice Association (GRIPA) requires each physician to contribute $10,000 to the disease-management protocols and physician performance measures. "Physicians who repeatedly fail to comply with GRIPA's standards will face disciplinary action and possible expulsion from the group" which could end a medical career, cautions Dr. Lawrence Huntoon.

"Systems-based practice" is part of the new medical "professionalism" which requires a new "medical-societal alliance," reinforced by constant relicensure examinations.

If a shortage of physicians develops, no matter. "More physicians will compete for new resources against already well- documented health system needs." Patient outcomes are no better in regions with more doctors (JAMA 2008;299:335-338).

With fewer physicians and less productivity, the investment in IT could contribute to cost-cutting goals after all.

Low-Tech, Affordable Solutions

One of medicine's most underutilized tools is the medical warning bracelet or necklace; Medic-Alert has only 4 million patients participating worldwide. For $15, the subscriber gets the bracelet, and for $35 plus $20 annually, a 24-hour toll-free hotline from which doctors can get contacts and medical records in an emergency. The fashion conscious can get a 18-K $1,050 solid gold version from Tiffany's (WSJ 4/5/05).

If illegible handwritten prescriptions are a problem, Stuart Gitlow, M.D., suggests a typewriter. His community mental health center bought a self-correcting IBM Selectric III on e-Bay for about $100. "It may be retro, but it gets the job done efficiently, effectively, and accurately." The center stopped using eRx because it increased the time needed for each patient, and there was no observable improvement in error rate, just a change in the types of errors.

According to a study of 26,092 errors related to look- alike/sound-alike drugs submitted through the Medmarx database from 2003 to 2006, two-thirds had an additional error. Unclear handwriting accounted for only 6.2% of these, while errors in computer entry explained 15.1%. Performance deficit in the practitioner topped the list of co-causes at 52.4% (www.modernhealthcare.com 1/30/08).


Which Guidelines?

Where do doctors start if they are to be penalized for not giving preventive health and safety advice to patients? The American Academy of Pediatrics has 192 published discrete advisories that doctors are expected to deliver none of which include an evidence-based discussion of efficacy. Tobacco use and smoke exposure are to be covered at every single visit (www.pediatrics.org 11/15/06).

If the relevant clinical practice guidelines were followed, older individuals with several comorbidities would be on an average of 12 drugs costing $406/mo (JAMA 2005;294:716- 724).



Boeing decided to use ratings by Regence Blue Shield to kick doctors out of the network; 593 were excluded, one for not doing a Pap smear on a woman who had no cervix. After union objections and lawsuits, Regence decided not to implement the performance- based network, without admitting to flaws in data or method (www.workforce.com 2/26/07).

Dr. Steven Petak got the dreaded grey ribbon from BCBS of Texas BlueCompare program, which uses "massive ...computer power and algorithms beyond the understanding of mortal man to distill...a lifetime of medical achievement down to a single consumer-friendly rating." He didn't meet the requirements for diabetes care his practice specifically excludes diabetics. After many complaints the program was suspended (First Messenger January/February 2007).


The Awesome Potential of the PHR

"When Mary steps on a weight scale, she will be able to see both her weight and basal metabolism index. The scale will then upload this information to the PHR [personal health record] on her computer so the PHR can determine if her caloric intake matches her health goals" (California HealthCare Foundation, ihealthreports, June 2007).


Filing Taxes in Massachusetts

All Massachusetts taxpayers must file Schedule HC this year, including their insurers' federal tax ID number and their subscriber number. Being without coverage on Dec 31, 2007, will cost them their personal tax exemption, worth $219. Next year, the penalty will be half the premium for the lowest cost coverage available through the Connector, or $912. A person who lived in Dallas, TX, could probably buy coverage for the price of the penalty (Consumer Power Report 3/6/08).


Carrots and Sticks for Buying IT

Several initiatives are proposed for making federal grants and low-interest loans available to purchase IT in exchange for providing free or low-cost medical care to low-revenue patients ("Who Is Accountable for Racial Equity in Health Care?" JAMA 2008;299:814-816).

After spending $60 million, New York City is ready to equip doctors with software to track patients' records to improve preventive care, as by alerts for overdue prescription refills or cholesterol checks. Some 200 doctors with 200,000 patients have signed up. Government programs can compare outcomes, preparing the way for drastic changes in payment, such as compensating doctors by outcomes. A six-month decrease in productivity is anticipated (NY Times 2/26/08).

Massachusetts is considering a bill that would require the use of EMRs and force doctors to show competency in the technology for medical board registration (AP 3/8/08).


Uses of Data Mining

During the era of systematic prescription data mining, costs have quadrupled, writes Benjamin Schaefer, M.D. (letter, Modern Healthcareonline 11/30/07). "Data-mining is the tool with which the most expensive medications are best promoted to the highest prescribers."

The Blue Health Initiative was designed to sell data on 79 million Blues enrollees to employers, without consent. The greatest use of electronic health data is by the data-mining industry for profit. "[N]ot a single dime of this money...goes to improve the health of a single sick person," writes Deborah Peel, M.D., of the Patient Privacy Rights Foundation (www.modernhealthcare.com 6/27/07).

EBMs are to be integrated with EBMgt, in a system in which "organizations and individuals should be held accountable for not using evidence-based approaches." A federal agency for compiling the guidelines is suggested (JAMA 2007;298:670-679): a "medical-societal alliance" or public-private partnership.

"At present, the financial ties between guidelines panels and industry are extensive," writes Robert Steinbrook, M.D. (NEJM 2007;356;331-333). Disclosure statements by authors reveal that 35% have a potential financial conflict of interest. Some guidelines such as the Infectious Diseases Society of America's guidelines for diagnosing and treating Lyme disease are used to deny insurance coverage.

Guideline Enforcement

Guidelines may be voluntary, but the federal government has its methods. "Quality" initiatives may indeed "save" or recoup money for government programs.

Survey Fees. CMS announced "revisit user fees" to facilities cited for failure to comply with federal quality-of- care standards, authorized by the 2007 continuing resolution. The Social Security Act otherwise forbids user fees for compliance surveys. The estimated revenue of $37.3 million annually is expected to cover the cost of revisits (HCFR 7/4/07).

Nonpayment. If CMS refuses to pay for services that don't meet standards, billions of dollars in revenue could be denied to providers. The Office of Inspector General (OIG) found that Medicare paid $4.5 billion in 2004 for consecutive inpatient and skilled nursing facility stays that were associated with "quality-of-care problems and fragmentation of services" (ibid.).

Criminal Prosecution. Most concerning is that billing for services deemed substandard could increasingly be considered fraud or abuse.

The Health Care Fraud and Abuse Control (HCFAC) program will get an additional $200 million in discretionary funding in FY 2009, bringing its total funding to $1.3 billion (HCFR 2/13/08). As Prof. Ron Libby notes, HCFAC is a self-perpetuating, unaccountable bureaucracy, whose existence depends on a continued stream of prosecutions (The Criminalization of Medicine: America's War on Doctors, Praeger 2008).

Public-Private Partnership. Government efforts are now augmented by private contractors (called recovery audit contractors, or bounty hunters), who are paid a percentage of any improperly billed Medicare payments. Appeals generally take 2 years, and even if the provider is eventually proved right, the RAC gets to keep its contingency fee. Such an audit was a key factor in the $28 million loss posted by Boca Raton Community Hospital in 2007 (Palm Beach Post 1/9/08). The 2006 pilot program will gradually be expanded, encompassing 19 states by October (Kevin Freking, AP 3/1/08).

Higher Penalties. Provisions in the Indian Health Care Act Amendments of 2007, if passed, would double civil monetary penalties for Medicare fraud, and quadruple criminal penalties. The highest criminal fines would be $100,000 per claim, up from $25,000. Additionally, the bill would increase jail time for false statements or Stark anti-kickback violations from 5 to 10 years (HCFR 2/27/08).


An Internal Expert Witness

Clinicians who use EMRs may come to rely on them for automatic alerts. However, physicians ignore or override 75% of the electronic reminders (Sacramento Bee 1/20/07). Imagine the clear well-formatted screen blown up to display for a jury.

Guidelines may come to define the standard of care and even to substitute for expert testimony in professional liability cases, noted Dr. James Szalados at the ACLM meeting. Patients who are researching physician performance data may be influenced in their decision to pursue litigation. It is not clear whether issuance of guidelines or monitoring compliance with them is considered a peer-review function, he said.


Torts v. Licensure Actions

In an ACLM talk titled "The Curse of the Black Pearl and Be Careful What You Ask for," Dr. Frank Battaglia explored some of the unintended consequences of tort reform in Texas.

Plaintiffs' attorneys, unwilling to bring a case because they can't recover a large enough award, are providing would-be clients with an 800-number and instructions for filing a complaint with the Texas Medical Board (TMB).

Limits on tort liability were exchanged for increased power and resources for the TMB. The number of investigations has doubled (increasing from 1,158 in 1999 to 2,593 in 2007), and the number of disciplinary actions has tripled (99 v. 311) (www.tmb.state.tx.us/agency/statistics/enforce/mbdphp).

In 2006, the TMB collected $480,000 in penalties.

Szalados named 10 reasons why defending a lawsuit was preferable to enduring a TMB procedure, including:

  • Professional liability insurance covers malpractice defense and settlement; some PLI covers TMB defense.

  • The right to know the accuser is fundamental in a civil suit, but anonymity may be preserved by the TMB.

  • Accusations must be specified in a civil suit but may be withheld by the TMB to avoid compromising an investigation.

  • Tort plaintiffs must identify experts, but phantom experts may be used in TMB administrative hearings.

  • Hearsay is generally inadmissible in court, but the TMB "lives on hearsay."

  • There is voir dire in court, but not before the TMB.

Concerning the October 2007 legislative hearings on the TMB, Szalados said that the allegations were shocking if true, and highly embarrassing if even partly true.

A deposition of former chief disciplinarian Keith Miller, M.D., in AAPS v. TMB is scheduled for March 14.


Is There Immunity for Racial Discrimination?

On the basis of charges originating from a white suburban hospital, Monica Applegate, M.D., a black obstetrician/ gynecologist certified in high-risk obstetrics, had her medical license summarily suspended by the State of New York, without a hearing. She had practiced without malpractice claims from 1986- 2000, mostly in city hospitals. She was the only black woman practicing her specialty in the Buffalo area, but has been unable to work in medicine since the license suspension. The Second Circuit dismissed her appeal on the basis of absolute judicial immunity.

In her petition to the U.S. Supreme Court for Writ of Certiori, the question starkly presented by attorney Andrew Schlafly is this: "Are members of a state agency entitled to absolute judicial immunity for racial discrimination in investigating and disciplining a licensee?"

Once a medical board has publicized a summary suspension, as here, it "has every political reason to strain to justify its decision, made without due process, and to avoid admitting publicly that it made a mistake," the petition argues.

Serious flaws in the post-deprivation hearing included denying Dr. Applegate access to needed medical records; use of unqualified participants on the hearing panel; use of hearsay; withholding exculpatory evidence; intimidation of prospective supportive witnesses; and biased adjudicators.

"Not even a criminal prosecutor enjoys the sweeping absolute immunity granted below to the New York medical board officials, despite the claim of racial discrimination."


Veterans Lose Benefits Because of Paperwork Errors. Returning disabled veterans are finding themselves destitute and without medical benefits because of faulty discharge papers. Veterans are responsible for correcting errors on their own DD214, but are not familiar with the codes. One Marine who saw combat was miscoded as a "conscientious objector"; she ended up living in her car for a time. The Army alone has a backlog of 1,890 veterans asking for corrections (Buffalo News 2/24/08). Some have been waiting for 3 years.

Much like CMS, the military blames private contractors, evading its responsibility for hiring and supervising contractors.

"Universal coverage" means universal incompetence of bureaucrats running the system, which means universal suffering for patients who are "covered" by the socialized system with no means of escape.
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY


The Primacy of Data. I had a conversation with the evidence-based medicine advocate and state data maven, who said it is OK to require all breast cancer patients to participate in randomized controlled trials because that is how we get data. When I asked what gave her the right to use patients as lab rats, she replied that that is how we progress.
Linda Gorman, Independence Institute, Golden, CO


Lost: the Medical Record. My charting system consists of sheets of blank white paper, for notes, and lined file cards, for collection information. It works very well. Any simple database program can emulate that system. But every stakeholder wants to convert the medical record into something else: quality control, liability control, cost tracking, prescription tracking, E&M and CPT codes. All the information we doctors use to remember the important stuff from visit to visit, or to provide consultative information to one another, is gone, because we can't write narrative after we've wasted all our time keeping track of things we never had to bother with in the past.
Stuart Gitlow, M.D., M.P.H., M.B.A., New York, NY


Electronic Efficiency. Electronic technology is supposed to save money by "cutting through the mountain of bureaucratic paperwork and improving worker productivity." Before 1985, we submitted all claims manually. This required one worker for three physicians, and claims were paid promptly and correctly. With the addition of practice management software, we have increased this molehill of paperwork to a mountain of paper, electronic entry, appeals, bundling, more appeals, denials, automated downcoding and need four or five staff members.
Stephen R. Levinson, M.D., Easton, CT


The Real Motive. In my opinion, the government/corporate push for EMRs is merely a way for Big Brother to get our clinical practice data so they can call us names and pay us less. When EMRs benefit my patients and don't cost too much for my solo practice, I'll get them.
Jay Gregory, M.D., Muskogee, OK


EMR Results. IT gurus have long concurred that EMRs will not allow us to treat patients more quickly. The hope was that we would be more thorough and score higher on "quality measures." This hope was dashed by a study showing no significant difference on 14 of 17 quality indicators. There was improvement on two: avoiding benzodiazepines in depressed patients (91% with EMRs v. 84% without) and avoiding routine urinalysis during general medical exams (94% v. 91%) (Arch Intern Med 2007;167:1400-1405).
Scott Hagaman, M.D., Columbia, MD


More Can Be Less. Computers give us the ability to scan more and more data. That is both good and bad. Bureaucrats have no recognition that someone has to collect and record the data. Then when I get reams of paper produced by an "efficient" EMR I have a printout of garbage plus a little bit of data that I need, which is lost in the mess. The rationale behind the note is lost in a sea of paper. Return EMR to physicians!
Allan Wald, M.D., West Palm Beach, FL


Security Checklist for EMRs. Is all of your patient data encrypted on secure servers and backed up daily, with the backup kept off-site in a secured place? Is the backup moved to storage via secured transport? Do any employees have laptops with sensitive information on them? If so, how are they secured? Are emails containing sensitive information encrypted? What sort of physical security does your office have? Could someone walk off with your server? What sort of disaster recovery responses do you have in place? Are all employees trained in security and privacy? Have they signed security agreements? Is there a published security policy? Different levels of password access?....
Bob Speth, Roseville, CA


Payment for Data. The Secretary of HHS has advised Congress that physicians should have to spend at least $10,000- $20,000 to implement an EMR system to qualify for a small pay raise not enough to cover the costs. The ultimate irony is that the EMR would be used to gather data that would rate doctors on "quality" and "efficiency" as determined by bureaucrats to see whether they qualify for future pay increases. Will HHS ever learn that people don't pay to work?
David McKalip, M.D., St. Petersburg, FL