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

Volume 64, No. 5 May 2008


The third national Pay for Performance (P4P) Summit held in Los Angeles in February ushered in a new IT (information technology) word: "systemness."

"The IT-enabled systemness domain looks and acts like a single, integrated organism like a system working together, rather than a bunch of separate pieces going their independent ways," explained Dolores Yanagihara, manager of the Integrated Healthcare Association's P4P program.

It's "interconnectivity" and more: "shifting decision-making responsibility and authority away from the subsidiary operating units to the corporate level and centralizing or standardizing key management systems and processes."

P4P is the "accelerator" for IT adoption. In fact, Yanagihara said, P4P and IT are inseparable (George Lauer, iHealthBeat 3/6/08).

If the Federation of State Medical Boards (FSMB) gets its way, physicians will be forced to comply with "systems-based" practice requirements for "maintenance of licensure." They will also have to undergo a "peer assessment" program, which could help to eliminate independent physicians, notes Lawrence Huntoon, M.D., Ph.D., as socialist-minded physicians are likely to want to punish their non-conforming "peers."

The FSMB also emphasizes "professionalism" a term that increasingly, as in the Charter on Medical Professionalism (see AAPS News, May 2002), has come to mean dedication to the goals of the system (collective), rather than individual patients.

Culture Change

The fourth road marker on the Journey to Quality Improvement is "culture change," as shown in the cartoon book by Manoj Jain, M.D., M.P.H., entitled Road Map for Quality Improvement: A Guide for Doctors (www.mjain.net), which lists as resources the AMA, the Institute for Healthcare Improvement (IHI), and CMS. In the quality culture, "Variations Uniformity," "Paper records Electronic Medical Records," and "Autocratic Team."

"In the past physicians in training were taught to be autonomous and individualistic. A good physician listened to the patient, made a decision and dictated orders.... This model can no longer work," Jain writes.

"Today, a good physician has to work as part of a team," which has three modalities within an organization: system leadership (hospital administrator), technical leadership (physician), and day-to-day leadership (floor nurse manager). The goals: "Doing the right thing (evidence based care)...For every patient (equal care)...Every time (consistent care)."

The goal of HHS Secretary Michael Leavitt is to transform the health care sector into a system: "coordinated" rather than "disjointed" and "fragmented"; "equitable" rather than riddled with "disparities"; "disciplined" rather than free.

Management of medical resources, one of the responsibilities of physicians under the Charter, requires a "return to the commons," write Christine Cassel and Troyen Brennan of the American Board of Internal Medicine (the latter also part of the Interdepartmental Working Group of the Clinton Task Force on Health Care Reform). The fee-for-service model does not allow physicians to affect where saved resources go. They might, for example, go toward reducing the federal deficit. We thus need an "explicit commons that would link the moral duty to individual patients with a responsibility to the community" a new ethical framework with a public-health focus (JAMA 2007;297:2518-2521).

The Data Imperative

Aggregated, comprehensive data from linked electronic records is essential for the desired outcome. Ultimately, medical records alone will not suffice. "Health" is a much broader goal.

The British National Health Service (NHS) is building a national data "spine"; no one will be able to opt out of the demographic record, including a unique NHS identifier assigned at birth (JAMA 2006;296:2255-2258). At least at present, patients can opt out of having medical information entered, though officials try to dissuade them (Guardian politics blog 3/10/08). Many physicians have opted themselves out and have begun encouraging their patients to do so because of the loss of confidentiality (www.thebigoptout.com).

A proposed compulsory ID card, connected to the National Identity Register (NIR), would have to be swiped every time a British subject bought alcohol or cigarettes, filled a prescription, or withdrew more than ú99 from a bank. The Home Secretary could revoke or suspend the ID making it impossible to do anything requiring access to the NIR, writes former New Statesman art editor Frances Stonor Saunders.

The Real ID in the U.S., warn opponents, is an international biometric identifier that could become essential for getting a job, a marriage license, a bank account, or medical care (DeWeese Report, February 2008). It's the key to establishing a total surveillance society, of which health tracking especially "mental health" is an essential part. State and federal officials are pushing for automated records of people who have been involuntarily institutionalized, or even committed for out-patient treatment: Screening gun buyers is the rationale.

The electronic records in one's "medical home" could be used for many purposes other than calling patients in for needed tests. Confidentiality would be no barrier. Privacy workgroup cochairman Paul Feldman resigned from the American Health Information Community (AHIC) because of its disregard for privacy and security.

Dissent is a threat to systemness, and privacy prevents discovery of dissent, as well as other health or safety threats.

IT News Briefs

Travel Monitoring in the UK. The EU already supplies Washington with 19 pieces of personal data, including mobile telephone numbers and credit card details, on passengers entering the U.S. It's considering collecting the same data for flights within the EU, and British officials want to extend the system to sea and rail travel. Data stored for 13 years would be used to "profile terror suspects." Those who ask questions are considered "soft on terror" (Guardian 2/23/08). Electric trawling of travel records is to help MI5 counter the threat of cyber- attacks that could cripple infrastructure (Observer 3/16/08).

Store DNA from Young Potential Criminals, Police Urge. Primary schoolchildren who exhibit behavior suggesting criminal tendencies should be in the DNA database, says Gary Pugh of Scotland Yard. "Prevention" through cognitive behavioral therapy and other means should start in targeted children as young as five, states a report from the Institute for Public Policy Research (Observer 3/16/08).

Activist Jailed. After meeting with Oklahoma legislators and before a scheduled meeting with a Dept. of Public Safety official, Mark Lerner was arrested on a charge related to writing a single check. Though the charge could have been handled in civil court, Lerner was held with career criminals in a 23- hour lockdown for 2 weeks. The intimidation tactics served to intensify his commitment to inform legislators about the Real ID (http://stoprealidcoalition.blogspot.com).

The AMA Is There to Help. Because "integrating an EMR [electronic medical record] system requires significant changes in the way a practice operates," the AMA offers resources on HIT and redesigning your work flows (www.ama-assn.org).

British P4P. Bruce Guthrie's practice in Scotland contracted to be a subject of the world's largest P4P experiment. In return for a 20% pay increase, they had to record all relevant data for the Quality and Outcomes Framework (QOF) on every patient in an EMR. The torrent of data was a constant burden on clinical and administrative time. The percentage of patients with ideal BP control increased from 45% to 58%. However, no quality improvement effort is expended on the 85% of conditions that aren't in the QOF, and initial diagnosis is no longer checked, as QOF ignores diagnosis. The NHS paid handsomely for incentivized diseases, but in the future "every GP I know expects that more work will be required for no extra money" (posted 8/2/07, http://healthaffairs.org/blog ).

U.S. General Internists on P4P and EHR. A national survey showed that a majority of internists (61%) believe that measuring quality will divert physicians' attention from important types of care for which quality is not measured, and 82% think that measuring quality may lead physicians to avoid high-risk patients (Health Affairs, March/April 2007).

"I've witnessed more serious errors with the EHR than in my previous 25 years as a physician," writes Christine Sinsky, M.D. Tidbits of data are sequestered at the ends of nonintuitive labyrinths. Doctors are not resisting electronic health records because they are Luddites. No coercion was necessary to get them to use cell phones, digital cameras, or the internet. "The problem with HIT is not the purchaser; it is the product," she concludes (Family Practice Management, March 2008).


Murray Sabrin Running for U.S. Senate

Hoping to challenge Sen. Frank Lautenberg (D-NJ), finance professor Murray Sabrin is running against State Senator Joe Pennachio in the primary. Sabrin promotes "freedom and the unleashing the independent spirit of the American people from the shackles of its government." According to a 94-page manifesto published under the pseudonym Dr. Joseph Penn in 1991, Pennachio favors a nationalized medical system and government "coordination of all aspects of society." Sabrin has been endorsed by Ron Paul, and a previous Sabrin campaign was supported by AAPS-PAC. See www.murraysabrin.com.


Washington Members Oppose Assisted Suicide

Washington State Initiative I-1000, sponsored by Compassion in Choices (formerly the Hemlock Society), would allow physicians to write lethal prescriptions. "Assisted suicide turns physicians from healers into executioners and violates 2,500 years of medical ethics," state opponents of the measure (www.noassistedsuicide.com). Former AAPS president Robert J. Cihak, M.D., and AAPS members Susan Rutherford, M.D., and Shane Macaulay, M.D., are working with the coalition that is fighting the measure.


Full Faith and Credit

For the first time in history, writes Martin Weiss, the Federal Reserve has accepted illiquid, opaque securities as collateral and pledged up to 60% of its reserves of Treasuries to back "virtually any junk securities banks want to get rid of." In a few months, Ben Bernanke "has done more to reward risk- takers and punish America's retirees on fixed incomes than all previous Fed chairmen combined." The Fed has already fired its biggest guns, and an unlimited risk of a chain reaction of defaults remains (Safe Money Report, April 2008).

The federal government has already promised more than $100 trillion in Medicare and Social Security benefits, over and above expected taxes and premium payments (2008 Medicare Trustees Report, www.john-goodman-blog.com).

It's not just the economy. Ron Paul (R-TX) warns us: "Monopoly control by government of a system that creates fiat money out of thin air guarantees the loss of liberty" ("What the Price of Gold Is Telling Us," LewRockwell.com 3/15/08).


"Innovation drives change, the market drives change. Government 'change' just drives things away....[C]apitalism [is] the real 'agent of change.' Politicians, on the whole, prefer stasis.... [T]he tide is rolling in on demographically and economically unsustainable entitlements, but that doesn't stop politicians from getting out their beach chairs and promising to create even more. That's government 'change'...."
Mark Steyn, Orange County Register 1/12/08

AAPS Files Amicus Supporting Dr. Eist

Arguing against the unlimited authority of medical boards that the Federation of State Medical Boards (FSMB) asserts is required to protect patient safety (see AAPS News, March 2008), AAPS filed an amicus curiae brief in the Court of Appeals of Maryland on behalf of Harold Eist, M.D.

No matter how laudable the goal of protecting public health, "it may never serve as a justification to use an unconstitutional means," we argue to the Court.

"Assuming arguendo that a doctor had mistreated his or her patient(s), the Board's failure to immediately notify the patient of the investigation, including its subpoena of Dr. Eist's records, would expose the patient to additional improper care, and would certainly amount to a deprivation of the pa- tient's right to...engage the services of a new physician."

The Due Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution require that a person receive notice and an opportunity to present objections to a deprivation of life, liberty, or property. Dr. Eist's interests include the protection of the confidential patient-physician relationship from third-party interference; the protection of his medical license from attack; the protection of his financial assets from an unwarranted fine by the Board; and the protection of his ability and professional duty to raise objections to disclosure on behalf of his patients.

The U.S. Supreme Court has held that "'Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him,' the minimal requirements of the [Due Process] Clause must be satisfied" (Goss v. Lopez 419 U.S. at 574-5).

Because deprivation of due process is unlawful, Dr. Eist cannot be said to have failed to cooperate with a lawful investigation, and thus is subject neither to fine nor reprimand by the Board.

Amici conclude that the Court must declare 4-307(k)(1) (v)(1) of Maryland's Health General Article unconstitutional because it fails to provide a patient with notice and a hearing when the state seeks to access that patient's records.


Lawsuit Demands $67 Million in California

Tort reform notwithstanding, a California radiologist and cardiologist were hit with a jury verdict of $67 million after actor John Ritter died at age 54 of an aortic dissection, misdiagnosed as a myocardial infarction. Though non-economic damages are capped at $250,000, economic damages were calculated on the assumption that Ritter would have continued to work until retirement at the same income he was receiving for his current gig, a new sitcom entitled "8 Simple Rules for Dating My Teenage Daughter."

Physicians may want to think twice about taking on the care of a high-earning celebrity. Most high earners have purchased life and disability insurance on their own, but few physicians are in a position to make such people whole in the event that negligence is proven against them (Medical Justice News Bulletin 3/17/08).


AAPS Calendar

May 30-31, 2008. Seminar, Board of Directors, Dayton, OH.
Sep 9-13, 2008. 65th annual meeting, Phoenix, AZ.
Sep 30-Oct 3, 2009. 66th annual meeting, Nashville, TN.


Medicare Has New ABN

The new CMS Advance Beneficiary Notice of Noncoverage (ABN) has an additional option: patients may choose to receive an item or service and pay for it out of pocket, rather than have a claim submitted to Medicare.

Note that if Medicare denies payment on a claim, as for lack of medical necessity, the physician is forbidden to bill the patient unless the patient has signed an ABN (MCA 3/24/08).


Do an Audit, or Go to Jail

Dr. Martin McLaren faces 46 months in prison, $5 million in restitution, and perhaps additional fines of his wife for, among other things, overutilization of CPT code 99214. The practice had routinely used this code for "prescription pick-ups," without justification in the record for this level of service. To identify unusual billing patterns, staff should routinely create a report comparing the practice with national standards using products such as DecisionHealth's 2008 E/M Bell Curve Book. Also check for unusual procedures or for procedures requiring equipment you don't have (ibid.).


Spitzer Snared by PATRIOT Act

Rep. Ron Paul, M.D., (R-TX) notes that most people think that former NY Gov. Eliot Spitzer got exactly what he deserved when he was forced to resign after exposure of his liaisons with high-priced prostitutes. But does the result justify the government spying on Americans, or engaging in sting operations to entice Americans to break the law? "Spitzer was brought down because he legally withdrew cash from a bank not because he committed a crime."

"[T]hink of all the harm done by Spitzer in using the same tools of the state against so many other innocent people. He practiced what could be termed 'economic McCarthyism,' using illegitimate government power to build his political career on the ruined lives of others" (Politico 3/14/08).


NPI Snafus

Despite applying for the National Provider Identifier (NPI) well in advance of the deadline, one physician found his claims being rejected in October 2007. Numerous daily calls were made to CMS and carrier representatives, including "NPI specialists," with lengthy times on hold, resulting in various contradictory instructions on how to resolve the problem. The crux of the difficulty apparently was that the legacy number had been set up under personal rather than corporate name. Staff billed, as directed, with legacy number only, or legacy number, personal NPI, and corporate NPI alone or in various combinations, which were to change on May 1 or May 23, with unpredictable, sporadic payment. At one point, a representative said that the practice had never been in the Medicare system a situation that would make future and retroactive billing possibly fraudulent in the eyes of CMS. The physician therefore stopped taking most new Medicare patients. The hospital expressed concerns about this, although service to hospital patients was never interrupted.

The physician concluded: "Medicare is a chaotic, gargantuan, profoundly disorganized bureaucracy."

For instructions for opting out, see www.aapsonline.org. Please inform AAPS of any difficulties with this process.


Manpower Problems and a Solution. At a recent 5-hour neurology symposium, I learned about things other than stroke, headache, and MS. There seems to be a nationwide trend for neurologists to withdraw from hospital staffs. The headhunter offers I receive are increasingly for employed neurology hospitalists. Though continuity of care and having a neurologist with a broad range of inpatient and outpatient experience are beneficial to patients, the benefits are outweighed by the poor pay and huge time investment in being on emergency call; chronic sleep deprivation; high liability; general unappreciation by entitled patients; and subjection to cost-containment protocols, failure to follow which can result in career-ending sham peer review.

When a shortage of neurology hospitalists occurs, states may try to force physicians to take hospital call as a condition of licensure. They might also evoke the Model State Emergency Powers Act to compel physicians to work in a state-defined "emergency." Note that "[s]ome states, such as Maryland and South Carolina, have enacted laws that subject HCPs [health care professionals] who refuse to work during a pandemic to penalties in a far broader range of circumstances...." (JAMA 2008;299:1471-1473).
Lawrence R. Huntoon, M.D., Ph.D.


Comparing Costs. When people quote health care spending as a proportion of GDP, the numbers may not permit accurate international comparisons. Some of the differences between national accounting systems and the System of Health Accounts (SHA) developed in 2002 by the Organisation for Economic Co-operation and Development (OECD) may be quite large. Denmark's expenditures are 125% higher under SHA, and Japan's 127%. Denmark excludes long-term nursing care; Japan, services covered by long- term care insurance or not covered by national health insurance; Germany, research, development, and education of medical personnel; and Canada, part of expenditures for out-of-country care.

Then there's the definition of "administrative costs." The Lewin Health Benefits Simulation Model considers all of research, education, purchasing and stores, communications, data processing, and medical records to be administration, along with 30% of non-patient food costs, social work, and plant operation and maintenance. Promises of huge savings in administration with single payer start with a gross overstatement of administrative costs and assume magical shrinkage once one big bureaucracy takes over. Explain to me why dealing with the government will halve a physician's need for computers and software support. Maybe because government systems are so far behind we'll revert to paper and pencil?
Linda Gorman, Independence Institute, Golden, CO


How Did It Happen? The Agency for Healthcare Research and Quality (AHRQ) recently released a study showing a steady decline in in-hospital mortality for many diagnoses and procedures between 1994 and 2004 before widespread or significant implementation of process measure compliance. Compared with 1994 mortality levels, 13,000 fewer patients died during this period from abdominal aortic aneurysm repair, coronary artery bypass, coronary angioplasty, carotid endarterectomy, craniotomy, or hip replacement (HýCUP Statistical Brief #38, October 2007, www.premierinc.com).

Imagine, without government or third-party intervention, physicians improved care and reduced deaths!
David McKalip, M.D., St. Petersburg, FL


Worker's Compensation. People around here are not joking when they say that if they fell at work, they would drag themselves out into the street to pretend it was not a work-related injury. Injured workers can't get care from a physician even if willing to pay out of pocket because physicians are prohibited by law from taking the money. There is excess utilization driven by nonphysicians using up huge amounts of benefit dollars because the real problem, for which the patient had never seen a doctor, remained undiagnosed and untreated.
Donna B. Kinney, C.P.A., Texas Medical Association


Fracture in Belgrade. I am grateful that my misfortune [falling into a manhole] took place in Belgrade, rather than, say, in London, with its terminally dysfunctional National Health Service [NHS], offering services equally perilous to life and limb of the captive millions of its "clients" regardless of the blighters' race, creed, or sexual orientation. My surgeons had perfected their trade on thousands of cases in the ex-Yugoslav wars and NATO's bombing of Serbia. The Belgrade Emergency Health Center has a building more than a hundred years old that needs new bathrooms and a fresh coat of paint; but when some top-notch Swiss doctors tell you that your kid's leg has to be amputated, it may well offer your only hope.
Srdja Trifkovic, www.chroniclesmagazine.org


Covered, but Without Care. During my week's stay in London, much of the sparse television news covered the foibles of the NHS. One story reported that 42% of women in labor were turned away from the hospital where they had expected to have their baby because no one was there to deliver them!
Alieta Eck, M.D., Somerset, NJ


An Innovative Idea. Perhaps Dr. Eck would sell me 10 pre-paid office visits for $400. Otherwise, I could pay her $50 each at the time of service. Why should I pre-pay an insurer?
Kirby Nielsen, Delaware, OH