HealthBlawg :: David Harlow's Health Care Law Blog

Medicare Physician Fee Schedule (2009 MPFS): Yes, there's a 5.7% cut, but it's packed with goodies like telehealth and gainsharing

2008-07-08T23:53:09-04:00

Congress couldn't be bothered to stop grandstanding before July 4th long enough to undo the latest SGR-driven physician pay cut (over 10%).

This week, CMS rolled out its 2009 MPFS with an SGR-mandated 5.7% cut in place, while at the same time advising physicians not to submit bills until Congress comes to its senses and undoes this year's 10% cut.

If the proposed rule contained only this doom and gloom, there wouldn't be much to say about it. However, CMS loves to stuff all sorts of goodies into these fee schedule rules, and the current proposed rule is no exception. There are more measures to be added to the PQRI, but several other pieces are of greater interest:

First, physician practices will now be subject to IDTF rules. The idea is to bring some standards to physician-office-based diagnostic testing. This may bring a bit of dislocation as practices implement some new policies and procedures to assure compliance with standards, as well as work their way through the IDTF enrollment process.

Second, Medicare is proposing to cover telehealth -- telephone or email encounters for established patients (with payments on par with in-person visits). A smattering of commercial insurers already do this, but this step, if finalized, will promote more efficient use of scarce primary care provider resources and will likely pave the way for further adoption in the private sector.

Third, CMS has issued its first generally applicable proposed gainsharing rule, presented as the new "Incentive Payment and Shared Savings Programs" subsection of the Stark rules. (See the commentary at 73 FR 38548-91 and the regs at 8604-06; pages 48-91 and 104-06, respectively, of the 2009 MPFS rule.) Interestingly, there is no anti-kickback safe harbor promulgated to go along with the Stark exception, so any incentive payment or shared savings program would still have to comply with AKS. Since the OIG has issued about a dozen advisory rulings on the AKS issues raised by gainsharing, the CMS suggestion that one may now go out and gainshare so long as one complies with AKS appears, at first blush, to be less than thrilling. CMS demonstrations such as the PHCD specifically waived both Stark and AKS. Finally, CMS noted in the commentary that this draft was admittedly narrow, since it was difficult to draft a gainsharing rule of general applicability that could encompass all the sorts of things that providers might wish to do.

The comment period is open through August 29 and a final regulation is expected by November 1, effective January 1, 2009.

-- David Harlow

MAeHC's second HIE goes live in Newburyport

2008-06-26T20:22:21-04:00

MAeHC CEO Micky Tripathi blogged today about the launch of the MA eHealth Collaborative's latest accomplishment -- the launch of its second (of three planned) community-wide health information exchanges, this one in greater Newburyport. Patients can opt in to the system, which allows for sharing of health data community-wide: labs, hospitals, physician offices, etc., thus promoting better coordination of care and less duplication of diagnostic testing. In the future, there will be a patient portal as well, allowing patient access to all this information, too.

Given the strides made in the PHR market since this HIE project first got under way, I wonder whether the Google Healths and Microsoft HealthVaults of the world may obviate the need for some pieces of the infrastructure of local HIEs, bringing them more within reach financially for a broader range of providers and communities -- particularly as privacy, interoperability and chain-of-trust issues are better addressed on those platforms (see my earlier post touching on recent developments in those arenas). There have been myriad workflow and process improvements that MAeHC has helped local providers make as they prepared for the transition to EHRs; my observation is limited to the "last mile," if you will, the connections among providers and between providers and patients.

Update 6/27/08: Micky reacts to my PHR vs. HIE infrastructure musings here. The article re: HealthVault linked to above piqued my curiosity on this front, but I suppose real-world implementation is a ways off. More on the announcement here, straight from MSFT.

-- David Harlow

PHR privacy breakthrough?

2008-06-26T11:14:53-04:00

Connecting for Health. a broad industry coalition organized by the Markle Foundation, announced yesterday a framework for PHR privacy protection that could, if fully implemented, bridge the gap from HIPAA protection of PHI in the covered entity and business associate realm to the Wild West environment in the world of PHRs. Parties endorsing the Common Framework for Networked Personal Health Information include Microsoft, Google, payors, providers, IT vendors, and associations from AHIP to AARP.

This framework has been in development for 18 months, and is being touted as the solution to the PHR privacy question -- i.e., how can PHR vendors be trusted to keep personal health record information private if they are not covered by HIPAA or other regulatory strictures. The response to date has been, essentially: "Hey, we have a privacy policy." As these policies, by their terms, may be revised without advance notice they are (even if they are very good) not much to rely upon.

Since this is a framework rather than a finished product -- guiding principles rather than fully-fleshed-out rules -- some of the same nagging questions that I have raised before elsewhere at HealthBlawg (as have many others) remain. For example:

How are privacy policies enforced? Self-policing? Third-party certification? This seems to be up in the air at the moment.
Is there a mechanism for health care provider certification of records ("chain of trust"), so that PHR information may be trusted by other providers? This seems to be in the works.

There is a tremendous amount of information provided via the links above, and the participants in this effort are to be commended for their undertaking, which has been made necessary by the regulatory vacuum in this field and by the concomitant need to develop public trust in a whole new type of products and services that would otherwise bee seen as useful but perhaps too risky. There's a long road ahead, but this framework puts us several steps down that road.

-- David Harlow

A gustatory Health Wonk Review is up

2008-06-26T09:05:37-04:00

Head on over to Jaan Sidorov's Disease Care Management Blog for an early summer HWR that -- if it were a movie -- might be described as Babbette's Feast meets My Dinner with Andre, as narrated by, well, Jaan.

-- David Harlow

Fixin' chronic care

2008-06-25T18:08:56-04:00

An outfit called NewTalk is hosting a 3-day on-line roundtable (today was day 2) on the following question: Chronic care: Do we need an entirely new model of delivery? The all-star panel includes:

Troy Brennan, Aetna Inc.
Lawrence Casalino, University of Chicago
Susan Dentzer, Health Affairs
Philip Howard, Common Good
Brent James, Intermountain Healthcare
Nancy Johnson, Baker Donelson
Timothy S. Jost, Washington and Lee University School of Law
David B. Kendall, Progressive Policy Institute
Mark McClellan Engelberg, Center for Health Care Reform
Peggy O Kane, National Committee for Quality Assurance
Carol Raphael, Visiting Nurse Service of New York
Arnold Relman, Harvard Medical School
John Rother, AARP
Bruce Vladeck, Ernst & Young's Health Sciences Advisory Services
John E. Wennberg, The Dartmouth Institute for Health Policy and Clinical Practice

The key issues under discussion include both delivery models and payment models. Seems to me there also needs to be more of a focus on population health and on primary care and prevention, since so much of the disease (and cost) burden is due to preventable conditions.

I heard the following description of an alternative payment system at a recent New England School of Acupuncture function: In a traditional Chinese village, the local acupuncturist is paid a monthly fee by each of his patents -- unless they are sick. Some version of a system incentivizing providers to keep patients healthy would be a vital component of any reform in this realm.

-- David Harlow

iRounds: Grand Rounds (almost) meets the new iPhone 3G

2008-06-24T13:48:44-04:00

Head on over to Shrink Rap for the latest and greatest in GR GUI.

-- David Harlow

No pay for never events: Massachusetts edition

2008-06-20T13:24:35-04:00

This week, Blue Cross Blue Shield of MA and the Commonwealth -- primarily through MassHealth (MA Medicaid) -- announced they would adhere to the Leapfrog no pay for never events policy.

According to a news story from about 9 months ago, half of the state's hospitals had already determined that they would not bill for never events. Furthermore, the Massachusetts Hospital Association's members have previously all agreed to no pay for nine specified never events (vs. Leapfrog's 28 never events, and CMS's ever-growing list). Thus, it seems that the impact of this week's announcement -- while notable -- is less than what is being touted.

As I've noted in the past, the Leapfrog approach is notable in that it not only addresses the no pay piece of the puzzle, but it also calls for apologies.

Update 6/20/08: Leapfrog CEO Leah Binder chimed in with the following email this afternoon, reproduced here with her permission:

Thank you for making the point in your blog that the key element of Leapfrog’s never events policy is our insistence that the hospital apologize to the patient. The aspect of our policy that gets the most attention has been our policy that providers should not bill for never events. However, as you note, the apology is even more important to patients and to the employers Leapfrog represents. Whatever business transactions are involved (ie the billing), at its core our health care system is a quintessentially human institution where very vulnerable people rely on the caring and compassion of others. Without an apology, a never event grows even more offensive: it becomes a betrayal of that sense of humanity and compassion that motivates Americans to invest enormous resources in our health care system. The apology reminds us that compassion for the patient is the critical part.
Thanks again for making the point.
Leah F. Binder, MA, MGA
Chief Executive Officer
The Leapfrog Group

(And follow the link to see more HealthBlawgging on medical apologies.)

Refusal to pay does not eliminate all of the services that are used in the event of a never event -- could we ever have a zero HAI rate, even if HAI is a never event? -- and those costs will be shifted elsewhere in the system. Furthermore, payors aren't necessarily going to be able to identify no-pay events, and hospitals note that some no-pay events may be attributable to the actions or omissions of folks beyond the hospital's control (e.g., an infection attributable to supplier manufacturing practices and undetectable and unaddressbale by the hospital).

Well, it's not a panacea; the no pay policy is just one arrow in the quiver.

-- David Harlow

Patient compliance with prescription regimens, evil for-profit health care companies, and Health 2.0

2008-06-17T10:52:28-04:00

Last week, Paul Levy blogged on patient compliance with drug regimens, offering some statistics courtesy of Express Scripts, the recently-fined PBM. (I caught wind of Paul's post only yesterday, thanks to my wife the Luddite who has the Boston Globe delivered to our doorstep.)

No surprise, compliance is kinda low. Commenters on Paul's post noted -- among other things -- that (1) using the word "compliance" is un-PC, as it assumes that Doctor Knows Best, (2) MDs are run ragged by HMOs so they can't be expected to explain drug regimens to patients and (3) can't trust Express Scripts.

(Interestingly, as an aside, Express Scripts announced this spring the establishment of The Center for Cost-Effective Consumerism once it realized that it could influence consumers to switch to higher-profit-margin generic cholesterol medications.)

This brought to mind a troubling statistic I saw a few weeks ago: Massachusetts is number one in the nation for e-prescribing, but that only means that 13% of scrips are handled electronically. The rate of adoption has been infernally slow here in Beantown, even worse elsewhere (top ten states include some barely above the 2.5% mark). The federales may try to mandate encourage eprescribing using legislative carrots, and have laid the groundwork for a national e-prescribing system with uniform standards through regulations (see the e-prescribing regs issued recently by CMS (see related press release and e-prescribing page).

The regs address many of the concerns of the naysayers (esp. interoperability, and also privacy concerns, though further legislative action -- e.g. "TRUST" -- would be helpful), and the potential benefits are enormous: avoiding the illegible scrawl/med error issue, automated drug interactions checks, cost savings to patients through improved and automated prescriber-insurer-pharmacy communication about formulary restrictions and -- back to Paul's issue -- feedback to prescribers regarding whether or not a prescription has been filled (many are not), giving prescribers and their staffs an opportunity to contact noncompliant patients with reminders or potentially other resources (including financial resources and referrals to sources of payment/insurance) to address the reasons for noncompliance.

-- David Harlow

Bloomsday Blawg Review

2008-06-16T12:12:06-04:00

Molly says yes, but Ireland said no (to the EU) last week. Read all about it and much, much more at Eoin O'Dell's cearta.ie.

-- David Harlow

(A) Walk and chew gum? (B) Whistle and eat crackers? (C) Promote a Medicare payment fix and diss the folks across the aisle?

2008-06-13T16:28:29-04:00

Which of these three things do you think Sens. Grassley and Baucus did today? If you chose (C) Promote a Medicare payment fix and diss the folks across the aisle, you would be correct. The six-month reprieve for the formula-driven 10% Medicare physician pay cut (read all about it in earlier HealthBlawg posts here) is up at the end of this month, and the Senators are guest blogging about their dueling Medicare bills at AARP's SHAARPsession today, here and here. Either bill would address the physician payment issue, but of course would pay for the fix in different ways.

-- David Harlow