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Thursday, July 23, 2009

Don't Take The Aspirin

I have indeed read the health care bill, and by reading I mean an exercise such as demonstrated by Firebrand's work on one section, in which one traces back all the threads. It is a difficult and time-consuming practice, and it is one in which I have a lot of expertise in bank-related law.

Firebrand's work is admirable, but she completely missed the point about what is required under the legislation and therefore the effect. The change to the law about the Medicare-covered consultation about end of life care (begins on page 425) which concerned commenters is this, beginning on page 426, which is one item on the list of what such a consultation must include in order to be billable under Medicare:
9 ‘‘(F)(i) Subject to clause (ii), an explanation of
10 orders regarding life sustaining treatment or similar
11 orders, which shall include
12 ‘‘(I) the reasons why the development of
13 such an order is beneficial to the individual and
14 the individual’s family and the reasons why
15 such an order should be updated periodically as
16 the health of the individual changes;
17 ‘‘(II) the information needed for an indi18
vidual or legal surrogate to make informed deci19
sions regarding the completion of such an
20 order; and
21 ‘‘(III) the identification of resources that
22 an individual may use to determine the require23
ments of the State in which such individual re24
sides so that the treatment wishes of that indi25
vidual will be carried out if the individual is un-
1 able to communicate those wishes, including re2
quirements regarding the designation of a sur3
rogate decisionmaker (also known as a health
4 care proxy).
This adds a requirement to the existing schedule of paid-for services. In order to get paid by Medicare, the physician must include a blurb about DNRs and the like. This is an essential change to the law. The requirement to include this explanation is modified by clause II, which makes this only mandatory when the state has set up an organized structure for this sort of thing and for the provider to be following what is, essentially, a set script repesenting the interests of such entities such as the state health authorities, hospice association, etc. Thus, for example, the materials which have been developed by say, Catholic medical associations will NOT be part of this required counseling. Another required portion of this consultation is information about hospice benefits and programs. Interestingly, a nurse practicioner or physician's assistant is a qualified provider under this clause. All of the above is part of paragraph 1 under Section 1233. 2 contains the definition of provider. 3 contains the following provision about more frequent paid-for consultations if the health status changes, such as:
5 diagnosis of a chronic, progressive, life-limiting disease, a
6 life-threatening or terminal diagnosis or life-threatening
7 injury, or upon admission to a skilled nursing facility, a
8 long-term care facility (as defined by the Secretary), or
9 a hospice program.
And here we discover that physicians, nurses, PAs and so forth will be paid under this clause for signing a DNR order or another similar order restricting treatment:
13 ‘‘(5)(A) For purposes of this section, the term ‘order
14 regarding life sustaining treatment’ means, with respect
15 to an individual, an actionable medical order relating to
16 the treatment of that individual that—
17 ‘‘(i) is signed and dated by a physician (as de18
fined in subsection (r)(1)) or another health care
19 professional (as specified by the Secretary and who
20 is acting within the scope of the professional’s au21
thority under State law in signing such an order, in22
cluding a nurse practitioner or physician assistant)
23 and is in a form that permits it to stay with the in24
dividual and be followed by health care professionals
25 and providers across the continuum of care;
1 ‘‘(ii) effectively communicates the individual’s
2 preferences regarding life sustaining treatment, in3
cluding an indication of the treatment and care de4
sired by the individual;
5 ‘‘(iii) is uniquely identifiable and standardized
6 within a given locality, region, or State (as identified
7 by the Secretary); and
8 ‘‘(iv) may incorporate any advance directive (as
9 defined in section 1866(f)(3)) if executed by the in10
11 ‘‘(B) The level of treatment indicated under subpara12
graph (A)(ii) may range from an indication for full treat13
ment to an indication to limit some or all or specified
14 interventions. Such indicated levels of treatment may in15
clude indications respecting, among other items—
16 ‘‘(i) the intensity of medical intervention if the
17 patient is pulse less, apneic, or has serious cardiac
18 or pulmonary problems;
19 ‘‘(ii) the individual’s desire regarding transfer
20 to a hospital or remaining at the current care set21
22 ‘‘(iii) the use of antibiotics; and
23 ‘‘(iv) the use of artificially administered nutri24
tion and hydration.’’.
So there is an incentive in place. This section should be read in tandem with the measures for measuring end-of-life treatment quality and of developing patient aids for education. Basically this whole section is created to try to get people to set advance directives, which usually do limit care. Personally I am strongly in favor of people sitting down and thinking this sort of stuff over, but one must be realistic about this. Under current law, if a hospital decides care is "futile", they can generally yank the plug anyway. We are rapidly approaching the point at which a certain measures, including tube feeding and liquids, are going to be routinely denied to many elderly persons deemed to be close to the end of their lives.

Title III is the real oomph. It begins on page 443. It introduces the concept of ACOs (Accountable Care Organizations) that are designed to create incentive structures to "reduce the growth of expenditures and improve health outcomes in the provision of items and services under this title to applicable beneficiaries". (I removed the line numbering.)

To fully understand this section, you have to realize that Medicare significantly underpays primary care physicians, which is stupid, because that is where the bulk of your cost savings are. It is only good primary care that will keep you up and moving and out of the hospital. That is the last place you want to underpay.

Anyway, they have come up with a new way for primary care physicians to make a living. They are going to pay them to cut costs now through these ACOs, which may include hospitals, etc, and must include a group of physcians organized legally so that it can distribute incentives and must include enough physcians to qualify according to the new Secretary's rules. How are the incentives determined?
‘‘(i) IN GENERAL.—The Secretary
10 shall establish a performance target for
11 each qualifying ACO comprised of a base
12 amount (described in clause (ii)) increased
13 to the current year by an adjustment fac14
tor (described in clause (iii)). Such a tar15
get may be established on a per capita
16 basis, as the Secretary determines to be
17 appropriate.
18 ‘‘(ii) BASE AMOUNT.—For purposes of
19 clause (i), the base amount in this sub20
paragraph is equal to the average total
21 payments (or allowed charges) under parts
22 A and B (and may include part D, if the
23 Secretary determines appropriate) for ap24
plicable beneficiaries for whom the quali25
fying ACO furnishes items and services in
1 a base period determined by the Secretary.
2 Such base amount may be determined on
3 a per capita basis.
So the Secretary establishes an amount, and if you come in cheaper for what is actually spent on patient care than the expected, you get some portion of it:
1 ‘‘(i) IN GENERAL.—Subject to clause
2 (ii), a qualifying ACO that meet or exceeds
3 annual quality and performance targets for
4 a year shall receive an incentive payment
5 for such year equal to a portion (as deter6
mined appropriate by the Secretary) of the
7 amount by which payments under this title
8 for such year relative are estimated to be
9 below the performance target for such
10 year, as determined by the Secretary. The
11 Secretary may establish a cap on incentive
12 payments for a year for a qualifying ACO.
The limitation on the incentive payments is that they can't be more than the total difference between expected cost and actual cost.

You get it? Under this bill, primary care physicians can literally be paid almost dollar for dollar for every test they don't prescribe, every medication they don't prescribe, etc. And there is no consideration of long-term costs - this is a year-by-year thing. If you tell old SoAndSo to go home and take an aspirin when you suspect he is having a stroke instead of sending him to the hospital, you get paid for that cost-saving measure. If some recalcitrant doc does make the mistake of sending old SoAndSo to the emergency room, it doesn't matter. The physician at the emergency room will be paid to tell old SoAndSo to go home and take an aspirin. (This, by the way, really happened. Said old geezer did duly die very cheaply at home that afternoon for only the cost of an aspirin.)

Now if you are thinking that my interpretation of this segment is a bit alarmist, consider the implications of the following (page 454) provisions regarding this hyah incentive program to kill the old farts cheaply:
9 ‘‘(4) LIMITATIONS ON REVIEW.—There shall be
10 no administrative or judicial review under section
11 1869, section 1878, or otherwise of—
12 ‘‘(A) the elements, parameters, scope, and
13 duration of the pilot program;
14 ‘‘(B) the selection of qualifying ACOs for
15 the pilot program;
16 ‘‘(C) the establishment of targets, meas17
urement of performance, determinations with
18 respect to whether savings have been achieved
19 and the amount of savings;
20 ‘‘(D) determinations regarding whether, to
21 whom, and in what amounts incentive payments
22 are paid; and
23 ‘‘(E) decisions about the extension of the
24 program under subsection (g), expansion of the
1 program under subsection (h) or extensions
2 under subsection (i).
So, in conclusion, if you are on Medicare and you have a headache and your doctor tells you to go to the emergency room pronto because he thinks you are having a stroke, DON'T TAKE THE ASPIRIN.

If you tell old SoAndSo to go home and take an aspirin when you suspect he is having a stroke instead of sending him to the hospital, you get paid for that cost-saving measure.

Of course! Make health care as efficient as agricultural policy. Why didn't I think of that?
Imagine how much shorter Tanta's life would have been under this bill.
Anon - don't think I haven't been thinking about just that.

I realize that we are going to have SOME rationing, but I think trying to express the value of a life in terms of dollars and cents is idiotic.
Google "Lebensunwertes Leben"
Thank you MOM. What a sterling job you've done to wade through all that bureaucratese and lawyer-speak.

My, how Machiavellian. Incentivize doctors to make more money by withholding end of lfe care. It's brilliant! Thank you, Barack Kevorkian.

Since I'm one of those who are, by dint of my age, in their sights, I will follow your advice and NOT take the aspirin!
Here we have a 1000 page bill that sets up a massive system with the goal of making doctors do as little as possible.

If only government would take its own advice!
Impressive analysis MOM. Especially when considering that "primary care physicians can literally be paid almost dollar for dollar for every test they don't prescribe, every medication they don't prescribe, etc." This means of course that with the time savings (no diagnosis, test analysis, or prescribing) the physician can refuse treatment to multiple patients in the same amount of time, thereby leveraging his incentive payments, and still have time for a round of golf.
Thank you, MOM, for reading all of that!

From reading the section about Optional Coverage for Freestanding Birth Center Services, starting on p. 783, I think that they ultimately intend to skimp on beginning-of-life care to save money too. But first they have to get the midwives trained and the birth centers set up.
I'm Firebrand and I disagree with your assertion that I missed the point of Section 1233. I also disagree with some of your reading of that Section. I have two posts up to that effect on my blog, the first called "Speaking in tongues" and the second called, "You call that mish-mash a defense?" You can find both under the "Me and 1233" category.
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