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

Volume 64, No. 7 July 2008


The biggest barrier to acceptance of the electronic medical or health record (EMR/EHR) is said to be physician resistance.

Cost, of course, is one enormous barrier. Proposals to "incentivize" physicians to adopt the technology focus on the money: grants to buy the system, technical support, and rewards for practice changes ("quality improvements") that require electronic data collection.

The recent AAPS survey, to which some 430 physicians responded, started with the same questions asked by EMR advocates, but also explored other barriers, which are even more important. Of the 82% of respondents who do not currently use an EMR except for billing, 75% cited concerns for patient privacy protection; 71%, disruptions to practice; 75%, third-party or government interference with clinical decision-making; 77%, a link to centralized government medical records; and 66%, potential for linkage between EMRs and pay for performance. About 72% "prefer personal clinical notes." [Survey results are posted on www.aapsonline.org].

Unregulated Medical Devices

In a May 30 presentation to the AAPS board of directors and in comments to the FDA, Pittsburgh cardiologist Dean Kross, M.D., noted that the FDA adopted rules for computerized systems as medical devices in 1989, but these have not been enforced. An FDA proposal to reclassify medical device data systems (MDDS) devices from class III to class I devices, which have a reduced regulatory burden but actually to enforce the rules led to an outpouring of comments by worried vendors. (See www.regulations.gov; search on "2007N-0484.")

McKesson Corp. argued for excluding clinical data repository systems and EMRs certified by the Certification Commission for Healthcare Information Technology (CCHIT). Kaiser Permanente recommended that "the final rule should exclude systems and infrastructure serving multiple uses." It is important that the FDA "not disrupt current efforts to implement health information technologies in clinical settings."

Contrary to vendors' assertions, HIT is far different from a typewriter or a library, which are exempt from regulation, Dr. Kross points out. And while it is widely assumed that HIT is safe and efficacious, this has never been proven. The limited existing studies have shown an increase in hospital length of stay, an increased delay of more than 90 minutes in dispensing medications, and an increased mortality in the one outcomes study (Pediatrics 2005;116:1506-1512). In particular, computerized physician order entry (CPOE) is "errorigenic," Kross states. A widely used CPOE system facilitated 22 types of medication errors, which occurred weekly or more often (Koppel R, et al. JAMA 2005;293:1197-1203).

Because HIT systems are experimental, human rights are violated when used on patients without consent, Kross states.

Disruption of Care

A photograph from Dr. Kross's hospital shows six workers, presumably nurses, lined up facing portable computer stations interacting with terminals, rather than with each other or with patients. Sometimes they are searching for "hidden data" from different MDDS devices, he says.

Workdays are longer, or fewer patients are seen or both during "initial" implementation, concede EMR advocates Robert H. Miller and Ida Sim of UCSF (Health Affairs, March/April 2004). The slowdown continues for months, or even years after EMR implementation, they note. Both physician workflow and office workflow must be re-designed.

Neither EMR hardware nor software can be simply used "out of the box." Instead, "physician practices must carry out many complex, costly, and time-consuming activities to complement' the EMR product."

When complications from care disruptions caused by MDDS failure or dysfunction occur, they are generally attributed to "human error," Kross states. But if it exists, "error is a consequence of interaction with IT systems rather than a cause of adverse events," write Christopher Nemeth and Richard Cook, commenting on the JAMA article on CPOE-facilitated errors. Many HIT systems are multi-million dollar failures and a continued threat to patient safety. "They are, in a word, experiments" (J Biomed Informatics 2005;38:262- 263).

IT designers don't understand the demanding technical work that clinicians perform, explain Nemeth and Cook. "Just beneath the apparently smooth-running operations is a complex, poorly bounded, conflicted, highly variable, uncertain, and high-tempo work domain" (ibid.).

Technophobia does not explain physician resistance. "I have been programming computers for more than 30 years, am very comfortable with them, use them all the time," writes one AAPS survey respondent. "My opposition is...that EMR is really bad for health care and will decrease the quality of care for patients. How [can] I listen to a patient while I'm typing?"

The EMR does not permit anatomic sketches; using calipers on the EKG tracing; viewing several EKGs or images at once; filing children's drawings; or easily expanding the note to include the "oh, by the way, docs."

"Our EMR is down sometimes; when it is, I'm the only one in my practice who can function well. Because I'm the only one with a paper chart!" writes one physician.

While some respondents do like their EMR systems, many write that they will quit if forced to use one: "I would rather retire...than put my patients' medical records in a digital format that could be hacked into by criminals, foreign hackers, or government officials..." Loss of physicians or profound changes in the thought processes of those who remain is one of the uncounted costs of imposing the EMR experiment.

Data Insecurity

Theft. Computer files on more than 2.1 million patients, including financial information and Social Security numbers, were stolen from a storage company contracted by the University of Miami Health Systems.

Leakage. UCSF Medical Center in San Francisco acknowledged that information on 6,000 patients was available online for 3 months. The leak occurred when information was shared with Target America, which mines databases for information on potential or existing donors (AM News 5/19/08).

Official Use. The FDA and unspecified "academic researchers" will be given access to Medicare databases to monitor prescriptions as well as laboratory tests and hospitalizations (Buffalo News 5/23/08). "All of this research will be performed on Medicare beneficiaries' without their express consent," writes Dr. Lawrence Huntoon. "Apparently, our government is following the recommendations of the Institute of Medicine with respect to this surveillance system.'"

Online Records. Google Health service promises to give users a free central storehouse for their medical records. In addition to doctors and insurance companies, Google Health openly says it may share a user's information with subsidiaries or other "trusted" companies who process personal information for Google, the U.S. government, and merger or acquisitions partners (Mike Adams, NaturalNews.com 5/20/08).

One reason many are moving to cloud computing for data storage is that enterprise data security is like "a big gate with no fence." The biggest threat is not in the corporate warehouse itself but in the endpoints of the network on the laptops, hard drives, and flash drives of end users. More than 2 million laptops are stolen in the U.S. every year, and 68% of thumb drive owners have lost a device at some time. But can Google, or the Internet in general, be trusted?

"To me it seems like an awful lot of trouble and at least a little bit of risk for a modicum of convenience. Will having these records on line really make me any healthier?... Will my doctors make better treatment decisions for me?" (John Pallatto, Ziff David Enterprise, First Read 5/21/08).


EHR Incentive Program Announced

CMS plans to spend up to $150 million over 5 years on a project that would provide a bonus to 100 physicians in each of 12 selected communities (up to around $25,000 each/yr) if they meet or exceed HIT benchmarks. The first year, they would be evaluated on how effectively they use their EHRs [not on how well the EHRs work]. The second year, they will be required to report on a set of national quality measures. In years three through five, they'll be graded on whether they used EHRs to improve care (HITS 6/11/08).


Independent, Informative EMR Websites

Dr. Kross recommends: Wachter's World (www.the-hospitalist.org/blogs/), www.SEEDIE.org, www.extormity.com, Health Care Renewal, and www.e-healthinsider.com.

"The Devil...the proud spirit...cannot endure to be mocked."
St. Thomas More


Nominating Committee Report

The Nominating Committee presents the following slate:

President-elect: Hilton Terrell, M.D., Florence, SC

Secretary: Charles McDowell, Jr., M.D., Johns Creek, GA

Treasurer: R. Lowell Campbell, M.D., Corsicana, TX

Directors: Curtis Caine, M.D., Brandon, MS; Kenneth Christman, M.D., Dayton, OH; James Coy, M.D., Punta Gorda, FL; Lee Hieb, M.D., Yuma, AZ.


Bylaws Amendment

By petition of ten members, the following bylaws amendment will be presented for assembly approval:

"Any board member may be removed from the board by a two- thirds majority of the remaining board members."


Is EBM Scientific?

In a May point/counterpoint, Martin J. Tobin, M.D., argues that "evidence-based medicine" lacks a scientific foundation. He notes that EBM grading is detached from scientific theory and that EBM "confuses statistics for science." Harm results from EBM because "clinical medicine requires thoughtful reflection about each individual patient, whereas graded guidelines encourage reflexive action." He writes:

At a metaphysical level, the EBM dream is reminiscent of Marx's well-intentioned hypothesis: regulation of society based on scientism will guarantee human happiness. The EBM version: clinical practice based on grading of clinical research studies will result in wiser decisions. Utopian projects aimed at eradicating uncertainty and introducing universal good have produced more misery than good fortune (Chest 2008;133:1067-1077).


Medicine Is Not the Same as Counting

Would-be reformers assume that best practices can be discovered through data mining, and that physicians can be induced to implement these practices widely, writes Richard Warner, M.D., Past President, Kansas Medical Society. Computers seem to offer limitless possibilities. For 200 years "social scientists have aspired to the precision and predictability of the natural sciences. Interoperable medical record systems now seem to offer virtual laboratory conditions through which the health of populations can be improved."

Pay-for-performance plans totally distort care. The criteria for rewarding physicians are all countable events; they measure a small fraction of what physicians do, and presume the correct diagnosis has been made. "The participation of organized medicine is being used as a cover to provide credibility and quell debate. Physicians and their organizations should stop participating in the development of [P4P] programs," Dr. Warner writes (Kansas Medicine, June 2007).

Data Mining for Fun and Profit

CMS and state Medicaid offices are turning to advanced mathematical modeling and supercomputers to ferret out fraud and mistakes. The huge data warehouse that New York State purchased from Hummingbird, a Canada-based software vendor, has 5 years of Medicaid data.

"It's really fun to use," said Medicaid management specialist Catherine McCulskey. "We'll never run out of areas to look at.... There are so many services."

She can put a million claims into a "cube" and instantly drill down to the individual provider, finding obsolete procedure codes, changed billing patterns, upcoding, unbundling, transposed numbers, and more. Every morning she sits down at her desk and starts clicking. "No mistake is too small to pursue." And "every provider files false claims."

Sometimes, McCulskey says, staff will call a provider and point out a problem. "We don't always go automatically with a hammer to beat them." Mistakes may not be prosecuted as fraud, but providers must pay back any erroneous payments, say if they missed a new guideline.

Data mining is expected to net tens of millions of dollars in fraud and errors (Medicare Compliance Alert 6/2/08).

MCA tips: Be sure to time and authenticate every entry in a patient's record. Do not forget to document the site of service. Watch out for patient whistleblowers; take every claims question very seriously. Don't count on the "claims scrubbers" in your EMR to protect you; they are frequently wrong or overzealous in recommending certain codes such as the 25 modifier. "You can't put the machine in jail," states attorney Peter Keohane. "So who goes to jail?" (ibid.)


Keep a Muzzle in the Waiting Room

A proposed new rule prohibits marketing Medicare Part D and Medicare Advantage plans in "public" locations in medical facilities. Unless you have rules limiting vendors' interactions with your patients, and materials left in your waiting room, you could be held responsible if prohibited solicitations occur on your premises (MCA 5/19/08).


OK to Charge Uninsured More

An Illinois court ruled that a hospital can charge uninsured patients more than third-party payers, without violating consumer fraud law (Galvan v. Northwestern Memorial Hospital, Ill. App. Ct., No. 1-05-3620, 4/14/08). The court held:

That an uninsured patient is charged a higher rate for medical services is the flip side of the revenue- stream coin. Those that have incurred the expense of medical insurance guaranteeing payment to a medical services provider receive reduced billing rates; those that have incurred no expense to guarantee payment...must bear the full cost for those services.

While Northwestern may have concealed information about its rates and billing practices, the patient failed to allege that he suffered any damages from the alleged concealment (BNA's Health Care Fraud Report 5/7/08).


AAPS Calendar

Sep 9-13, 2008. 65th annual meeting, Phoenix, AZ.

Sep 30-Oct 3, 2009. 66th annual meeting, Nashville, TN.


NPI Update

SSNs. The Social Security number is an optional field on the application, and a physician need not provide it to the National Provider Identifier System. The Medicare carrier, however, cannot match the NPI to the CMS claims system without the SSN. A physician who withheld her SSN from the NPI System out of concerns about identity theft was sent a CMS form 855I to fill out which requires an SSN. Interestingly, the carrier was able to locate the physician in order to demand a refund on services provided 3 years earlier.

Secondary Enforcers. Members are receiving letters, as from hospitals, stating that none of their patients will be accepted for admission or testing until the ordering physician provides an NPI. Baptist Memorial Hospital of Memphis, TN, cites the CMS website: "Many health plans, including Medicare, will require NPIs to be used to identify some or all [rendering, ordering, referring, prescribing, attending, supervising, or other types of providers]." One physician found that he had been assigned an NPI at the request of some other entity, which presumably needed it to collect a payment. Simply having an NPI or an SSN does not mean that you are required to provide it in all circumstances.

The Real Y2K? At the time of the May 23, 2008, extended deadline for NPI compliance, providers were still unprepared. A review of a sample of 10 million claims over the week of Apr 28 by Emdeon Business Services found that 7% would be rejected for lack of an NPI. When identifiers were required for secondary providers, about 30% could not meet it, translating into $1.1 billion in lost reimbursements. When other claim and service level providers were included, the noncompliance rate rose to 69% and lost payments to $2.5 billion. This could lead to a "significant cash flow issue for providers" (iHealthBeat 5/15/08). In the worse-case scenario, physicians might refuse to care for certain patients until payment is received. Full NPI implementation "might be the real Y2K" or "nothing might happen," said Walter Suarez (iHealthBeat 5/22/08). On May 23, 24% of Medicare claims were rejected, compared to the usual 6%, most commonly because old numbers were used to identify secondary providers (McKnight's LTC News 6/5/08).


Physicians Protest Recertification

Elizabeth Lowenthal, D.O., and Susan Ferguson, M.D., of Alabaster, AL, are circulating a petition to the American Board of Internal Medicine, stating that time-limited certificates and recertification "create a separate but unequal status among equally qualified physicians."

"There is no useful purpose...for the enforcement of these policies which constitute a waste of time and money for all physicians certified after the arbitrary time-line of 1990. In today's hostile credentialing and medicolegal environment, we, as a profession, can no longer tolerate the implication of inferiority to those who grandfathered in.' From henceforth we request that all time limitations on the certificates of duly qualified physicians be removed."

Texas plastic surgeon Terry Tubb, M.D., notes that academic physicians and specialty boards desire income and control over private practitioners, through recertification. He suggests bylaws changes that prevent specialty societies from claiming as "official" any positions not approved by members.


The White Coat Makes the Doctor. Pennsylvania thinks all of these cost-containment schemes such as pay for performance are just way too complicated. So, it has decided to get at the heart of the problem. If cost containment is the goal, who needs doctors? Gov. Ed Rendell promised to "revamp health care...starting with a change in regulations that restrict care by nurse practitioners." Stating that "we need to look down the barrel of special interests," he proposed to "mete out pain to everybody in the health-care delivery system everybody."

"I want to free nurse practitioners to do anything they are capable of doing," he said. "Studies show that [they] can handle 70 percent of what doctors do" (Phil Inquirer 12/12/06).
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY


Medical Boards. I am following the news on the AAPS lawsuit against the Texas Medical Board (TMB); the Louisiana State Board of Medical Examiners (LSBME) has exactly the same modus operandi. Physicians should understand that current medical boards are very different from the old ones. The boards are no longer in the business of medical quality assurance. They have become virtual factories manufacturing disciplinary actions. Like any plant in a mass-production market, they have minimal production quotas. The percentage of bad physicians among licensed ones really doesn't matter. The TMB has to punish an arbitrarily selected percentage [see AAPS News, January 2008]. If there are not enough bad doctors, the Board will simply discipline some good ones. Why then even bother with investigations? Let's organize a state lottery and randomly assign disciplinary actions.
Walter P. Borg, M.D., Lafayette, LA


The Trouble with "the" EMR. What is so tiresome about the politics of the electronic health records (EMR) discussion is that they are always all or none. In some cases, web-based records are terrific: a woman I know cares for her adult severely disabled child who requires help for everything. If she travels, or Medicaid makes errors, or there's a new clinic physician or new home attendant, she can have all parties access her child's web-based record. She pays a company to maintain it. An emergency physician tells me the biggest problem for him is finding out what drugs an elderly patient is on: a limited on-line prescription record and limited permission would serve. But most people probably don't need records available except at home under the bed.

But instead of limited, problem-focused goals, we have to have one gigantic electronic system for everything, even though there is No Such Thing as a secure online record, and nobody has a clue about the cost/benefit ratio. And even though almost no working system anybody can think of was designed top down most evolve from early adopters to wide use, exactly the opposite of what devotees of EMRs propose.
Linda Gorman, Ph.D., Independence Institute, Golden, CO


Barriers to EMRs. I don't accept the self-fulfilling prophecy that the "train has left the station," so we'd better be on board. If EMRs really served patients well, they'd already be here. But they are chiefly being used to feed data to third parties so central planners can decide who deserves payment and care. They are not like the commonly cited market examples, such as credit cards and ATMs, which benefit the customer directly. They "will" happen as proposed by third parties (for their benefit) not because of consumer demand but only if mandated by government [see AAPS News, April 2008, for Obama plan].

Besides the costs, there is the obvious problem with confidentiality. As reported in the St. Petersburg Times, a WellCare worker removed security protections, making data on 71,000 Georgia Medicaid recipients accessible on line at the click of a mouse.
David McKalip, M.D., St. Petersburg, FL


"Extormity Knows Best." When you hear any deep-thinking politicos talking about the EMR as though it is some sort of panacea for American medicine, think about this website, www.extormity.com. It is unfortunately all too true. You don't know whether to laugh or cry. It explains why we are seeing such low adoption rates for EMRs. [The name, "created for several hundred thousand dollars by a West Coast brand identity firm," combines the roots conformare and extorquere.]
Russell W. Faria, D.O., Newport, OR


Public v. Private. One proponent of government-funded medical care stated that "governments do not go out of business leaving taxpayers holding the bag." Exactly. Government agencies never go out of business, no matter how corrupt, inefficient, or harmful their activities are. The agencies usually blame their problem on not having enough money, so taxpayers aren't "holding" the bag, but constantly shoveling more money into it.
Greg Scandlen, Consumers for Health Care Choices


Unbelievable. What physicians put up with is so unbelievable that lay people do not accept how it could be possible. When I first tried to explain to Texas legislators (who were businessmen) that Texas Medicaid was paying physicians less than half of what it cost to provide care, they laughed in my face and claimed that I was lying, because they did not believe that any physicians would ever take Medicaid if they did so at a loss!
Donna Kinney, CPA, Texas Medical Association