Much has been made of the legislation Congress (finally) passed to address the "draconian" cuts required by the Sustainable Growth Rate (SGR) formula -- the so-called "Doc Fix." The bill's sponsors claim to have not only removed the need for the annual Congressional short-term fixes but also to have revamped how Medicare pays physicians.
In signing the bill, President Obama praised: "...it starts encouraging payments based on quality, not the number of tests that are provided or the number of procedures that are applied but whether or not people actually start feeling better. It encourages us to continue to make the system better without denying service."
Not so fast.
The bill is the talking pig kind of news. It's not that the pig talks so well as that it talks at all. Given the recent bitter partisan atmosphere that has prevented Congress from passing virtually any legislation, passage of this bill is noteworthy. The President is going to have a reception next week to "salute" Congress for its work.
What the bill primarily does, of course, is to prevent the 21% cut in physician payments that SGR would have required as of April 1 (not that the Senate acted before then, of course). It also removes, or at least pushes further off, the prospect of future SGR reductions.
It does so by a much heralded focus on value, by linking future increases to participation in an Advanced Payment Model (APM), such as an ACO, and to performance under a Merit-Based Payment Incentive System (MIPS). MIPS consolidates and expands several existing pay-for-performance programs. MIPS will base rewards on four types of measures: quality, efficiency, meaningful use of EHRs, and clinical practice improvement activities.
(For a more detailed summary of SGR and the Doc Fix legislation, please see Billy Wynne's Health Affairs post.)
Congress is patting itself on the back for merely doing its job, even though their fix neither leads to any changes in the near term nor is paid for, except for the portion borne on the backs of Medicare beneficiaries. Even the HHS Chief Actuary is rather bearish in his analysis of the bill's impacts, especially long term.
Basically, physicians trade immediate cuts for guaranteed increases the next four years, then face subsequent increases that will be partially based on these new value incentives. I suspect the AMA and specialty boards are already developing their lobbying strategies for how to ensure that most physicians will qualify for full increases. Given their track record, I wouldn't bet against them.
Push will come to shove when CMS starts having to define how they plan to define the measures, especially quality. Instead of starting with existing measures, they're to develop "evidence-based" measures that have undergone a peer review process. This is already making people nervous. As Meredith Rosenthal, a Harvard health economist, told The New York Times, there is no clear agreement on how to measure most types of physician quality. "Once we're out of primary care, we're in kind of a neverland of measurement," she notes.
I'm not so sure we should think primary care is much different.
The Times also quoted Dr. Daniel Craviotto with what I think is a typical physician complaint: "All of a sudden you have nonmedical entities and people outside of medicine deciding what is value." Physicians don't usually offer better ways to measure it, mind you; they just don't want anyone else trying.
Here's my favorite part of the bill: as The New York Times reported when the House first passed it, whatever quality measures end up being used for MIPS can't be used in malpractice suits.
An executive at a physician-owned malpractice insurer explained to The Times: "What a doctor thinks is best for a particular patient is not necessarily what the government thinks is right for groups of patients with that condition."
Let's think about this. Considerable time and effort is going to be spent developing the measures. Even more effort is going to be spent collecting the data, analyzing them, and using the results to adjust payments. The measures are going to force some consensus about how to measure value for a wide range of physicians, and will most likely start being used by other payors. And none of that will matter when a court is trying to figure out if a physician acted appropriately for a patient.
I'm no fan of the existing malpractice system. It takes something that should be more like a quality improvement activity -- identifying errors, systemic flaws in processes, and other aspects of care that harm patients -- and turns it into an adversarial system that gives providers no incentive to disclose problems and every incentive to overtreat. It becomes more like a playing slots in a casino, where random patients can get big payouts but most patients get nothing, even if they actually had poor care.
In this analogy, the malpractice lawyers are the casinos, because they end up being the only consistent winners.
So why would we proclaim this new era of value but explicitly prevent its quality measures from being used for malpractice? Perhaps we should be honest that the "new" approach may end up being just a different way to justify continuing payment increases.
It's kind of sad that the only ones really at risk in our system -- even once MIPS goes fully into effect -- are patients.
A few months ago I proposed a relatively simple approach to value-based purchasing that would firmly put providers on the hook for sub-standard care. Under it, physicians with patients who ended up worse after treatment wouldn't just get smaller payment increases, they'd actually get payment cuts. In some cases, such as when patients ended up substantially worse after treatment, the provider could end up owing money.
That kind of approach may sound extreme, but that's only because we've become jaded by our current system. We're used to thinking that even when care does no good, or actually harms a patient, we should still pay the provider the same amount as if the outcome was what was desired. Oh, sometimes we might "penalize" a provider a few percent through incentive programs, but nothing dramatic, nothing that might cause poorly performing providers to either get much better or stop providing care.
For that, we throw them into the malpractice lottery, where they now have new protections from being expected to perform well on objective measures.
I'll believe we're serious about value when providers offer "money-back" guarantees for the care they provide. I'll believe it when providers want to publicize performance data, not argue against it. I'll believe it when "do no harm" returns to being an operating practice, such as being tried at the University of Colorado. I'll believe it when malpractice is part of the process to improve care, not a way to punish providers.
Maybe all that will happen at the ACO/PCMH level instead of for individual physicians or hospitals. Maybe. Even if so, will they be any more transparent to patients?
In the meantime, forgive me for not getting too excited about the Doc Fix.