Rationing Our Finite Resources… with Our Eyes Open

Two articles published in the latest NEJM issue are devoted to “our finite resources” and the inevitability of rationing care. First Dr. Howard Brody is attempting to rephrase the issue as one of “waste avoidance” and is delving into the ethics of practicing waste avoidance which is defined as withholding non-beneficial care. Of course non beneficial is not a cut and dry label, so Dr. Brody is envisioning that “[a]n ethical system for eliminating waste will include a robust appeals process”, where “[p]hysicians, as loyal patient advocates, must invoke the process when (according to their best clinical judgment) a particular patient would benefit from an intervention even if the average patient won't”. While the sentiment is commendable, I am not clear who exactly should physicians appeal to “according to their best clinical judgment” and I am not certain where the newly empowered and engaged patient go. Or is all this empowerment and engagement talk just a cruel joke?

The second article in NEJM, which is authored by M. Gregg Bloche, M.D., J.D. and titled “Beyond the “R Word”? Medicine's New Frugality”, is arguing that it is very unlikely that we could actually cut the waste, which is estimated at 30% of costs, and even if we do, costs will continue to rise and we are just postponing the inevitable. The inevitable, in the kind doctor’s opinion, is denying beneficial care. No beating around the bush any longer. Just say it and do it. Of course, the empowered patients are nowhere to be found in this article either, although it is full of advice for politicians on how to go about stopping therapeutic advances in their tracks, because “we can't afford all the things that medicine can achieve” and “we must make painful choices between health care and other needs”. Sadly Dr. Bloche J.D. did not elaborate on his “other needs”.

But the most disturbing experience for me was reading the comments posted to both articles, mostly by physicians, and mostly supportive of the need to ration care to patients. One physician commenter in particular seemed to see rationing as “a logical corollary of our responsibilities as physicians” because physicians are citizens before they become physicians and they have duties and responsibilities to their fellow citizens which “are not superceded [sic] by the mythical primacy of the doctor-patient relationship”.
Well, if we must ration our finite resources, let’s ration them with our eyes open, as Dr. Berwick wisely stated. So here is some eye opening material for your rationing pleasure….
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Random Non-profit Hospital Quotes

“Millions of dollars have been spent transforming the hospital into a beautiful, soothing, healing environment. Artwork graces the walls and soft music fills the hallways. ……..
“Hospital food” is also out-of-the-ordinary at Fauquier Health; The Bistro on the Hill provides food options for patients and their guests. Earning a reputation of its own in Warrenton, the Bistro serves everything from brick-oven pizza to gourmet pasta, from a fresh soup and salad bar to shrimp stir-fry. Bakers keep the dessert case filled with fresh cakes and pies, cookies and tarts. Community groups frequently congregate at The Bistro, and catering for off-site events is available.” http://www.fauquierhealth.org/about-us

“A six-story pavilion is under construction on the west side of Missouri Baptist Medical Center. The patient tower is part of a major building project that also will see construction of a new Clinical Learning Institute, new entry way, parking lot and nature trails for the campus at 3015 N. Ballas Road. The West Pavilion will add 216,000 square feet to the medical center and will house the medical center's new main entrance lobby; four floors of private patient rooms for surgical patients; four new operating rooms; and a new outpatient surgery center that will connect to the hospital's current operating room suites. "Medicine has changed a lot since 1965 (when Missouri Baptist relocated to its present location), when patient rooms were smaller and they still actually had patient wards," said Jesse Arevallo, facility and campus planning director. "The new standard of care requires a larger building footprint," he said. "This project, creating state-of-the art equipment and facilities, will tremendously benefit patients and the community." The private hospital rooms will allow the medical center to find a new use for its semi-private rooms in the main part of the hospital. "So we're not actually adding beds, but replacing," Arevallo said. The West Pavilion will cost $140 million. It is slated for completion by July 2013.” http://www.stltoday.com/suburban-journals/metro/news/missouri-baptist-medical-center-to-add-six-story-patient-tower/article_7efd4ea4-fdcd-538d-abc5-cbc464d531f6.html

“Patient-centered amenities abound in the new Cancer Center facility
As patients and families enter the lobby of the Cancer Center facility, they will step into a cozy, living room-style space with fireplace, sofas, chairs and decorative carpeting. A nearby café will offer indoor and outdoor seating and a health-focused menu with fruits and vegetables from local farmers. ……  A focal point of the building is a central, five-story, light-filled atrium, which looks down on spiraling artwork filled with inspirational quotes from Duke cancer patients and friends.” http://construction.dukemedicine.org/projects 20 

Highest Paid Non-Profit Hospitals CEOs in the Midwest

1. Randall O’Donnell; Children’s Mercy Hospital and Clinics; Kansas City, Missouri: $6 million
2. Javon Bea; Mercy Health System; Janesville, Wisconsin: $4.5 million
3. James Skogsbergh; Advocate Health Care; Oak Brook, Illinois: $4 million
4. Dean Harrison; Northwestern Memorial Hospital; Chicago, Illinois: $3.4 million
5. Richard Pettingill; Allina Health System; Minneapolis, Minnesota: $3.3 million
6. Joseph Swedish; Trinity Health; Novi, Michigan: $2.7 million
7. Lowell Kruse; Heartland Regional Medical Center; St. Joseph, Missouri: $2.5 million
8. Steven Lipstein; BJC Health System; St. Louis, Missouri: $2.2 million
9. Kevin Schoeplein; OSF Healthcare System; Peoria, Illinois: $2.2 million
10. Thomas Sieber; Genesis Healthcare System; Zanesville, Ohio: $2.1 million
11. Paul Pawlak; Silver Cross Hospital; Joliet, Illinois: $2 million
12. Toby Cosgrove; Cleveland Clinic; Cleveland, Ohio: $1.9 million
13. William Petasnick; Froedtert Memorial Hospital; Milwaukee, Wisconsin: $1.9 million
14. Fred Manchur; Kettering Medical Center; Dayton, Ohio: $1.9 million
15. Patrick Magnon; Children’s Memorial Hospital; Chicago, Illinois: $1.8 million
16. Kenneth Hanover; University Hospital; Cincinnati, Ohio: $1.8 million
17. J. Luke McGuinness; Central Dupage Hospital; Winfield, Illinois: $1.8 million
18. Daniel Evans Jr.; Clarian Health Partners; Indianapolis, Indiana: $1.8 million
19. James Madera; University of Chicago Medical Center; Chicago, Illinois: $1.8 million
20. James Anderson; Cincinnati Children’s Hospital Medical Center; Cincinnati, Ohio: $1.8 million
http://medcitynews.com/2011/08/nonprofit-hospital-ceo-salaries-in-the-midwest-whos-on-top/

2009 Insurance Companies Total CEO Compensation

• Aetna, Ronald A. Williams: $18,058,162
• Coventry, Allen Wise: $17,427,789 (took over from Dale Wolf)
• WellPoint, Angela Braly: $13,108,198
• United Health, Stephen Helmsley: $8,901,916
• Cigna, David Cordoni: $6,593,921 (took over from CEO H. Edward Hanway)
• Cigna, H. Edward Hanway: $18,800,000
• Humana, Michael McCallister: 6,509,452
• Health Net, Jay Gellert: $3,643,342
http://www.healthreformwatch.com/2011/03/16/health-insurance-ceo-total-compensation-in-2009/ 

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Following Dr. Brody’s reasoning, I can certainly see some golden opportunities here for ethical waste avoidance, with a proper appeals process in place, of course. And as painful as it may be, some of the beneficial ambiance provided by fireplaces, freshly baked brioche and well-fed executives will need to be cut as well, because Dr. Bloche is largely correct and we do have other needs, which could be addressed by having corporations, whose cash flows allow for millions of dollars in real estate investments and executive compensation, pay their taxes first.

If you think that this is a liberal overreaction to a couple of academic papers, think again. In the January 2010 issue of NEJM, Dr. Brody suggested that each specialty should pick a “Top Five” list of expensive tests and treatments that should be discouraged. Today we have the ABIM Choosing Wisely campaign of exactly five “don’ts” for each specialty. What I find fascinating is that routine EKGs, for example, are discouraged twice in the ABIM lists, but places like the top ranked Mount Sinai hospital seem to think that having those routine EKGs and much more is a very good idea (if you have $6,000) and will “help you and your associates live longer, healthier lives through the highest measures of preventive care”. So is Mount Sinai with its “award-winning physicians” correct? Or is ABIM correct? Or do we advocate two standards of care based on the size of your wallet?

As to Dr. Bloche J.D., his Huffington Post bio, suggests that amongst his many degrees and honors he “was a health care advisor to President Obama’s 2008 campaign, as well as the presidential transition, and he spoke frequently for the campaign as a “surrogate.””.  Is he speaking as a “surrogate” (whatever that may be) when suggesting that we must ration beneficial care (Mount Sinai executive customers excluded, of course)?

I don’t have the answers to these questions, but the implications to non-policy makers are pretty clear. To all the ePatients, participatory patients, engaged and empowered patients out there, I would suggest that you devote as much time to budding policies as you do to obtaining access to your electronic data, because having real time visibility into how your care is being denied will provide very little comfort, even if it is supplied to you in a computable and transferable structured data format.
To all practicing doctors, if you passively allow yourselves to be represented by learned articles like the ones cited here because you are too busy seeing patients, the day will come when, in the eyes of the public,  your profession will be no different than that of an IRS auditor, including financial and social rewards. Yes, you will most likely retire by then, but this is the Medicine you are going to experience in your old age, and this is the Medicine you are bequeathing to your children and grandchildren, and this is not the Medicine that was entrusted to you by previous generations of physicians.

What’s Up Doc? Medicare Carrots and Sticks

The Patient Protection and Affordable Care Act (PPACA) of 2010 mandates that certain administrative simplifications should be made to reduce overhead costs of health care. Since administrative complexity obeys the conservation laws of physics, for every bit of complexity that is removed, a new chunk of bureaucratic complexity must be added to the system. With that in mind, CMS has created and is proposing to grow an array of financial incentives and penalties for health care providers. This collection of carrots and sticks is intended to be used as so many levers to control and fine tune the practice of medicine by encouraging adoption of health information technology, measuring processes and steering physicians to low cost treatment methods.

Since confusion is abundant, and confusion leads to anger, fear and sometimes outright panic, which in turn causes folks to dump perfectly good private practices on the first hospital that knocks on their door, I thought it would be beneficial to clarify a few things and look at the situation from an objective mathematical perspective. Below are concise descriptions of the current CMS incentives and penalties programs, and a dollar amount evaluation of their possible effect on your bottom line.

Electronic Prescribing

A bit outdated in the EHR era, the eRx incentive program began in 2009 and is due to expire in its entirety by 2015, when no bonuses and no penalties will be assessed for this initiative.
The Rules: Currently, 10 electronic prescriptions in the first half of the year will ward off the penalties for next year, and 25 electronic prescriptions during the entire year will get you the incentive next year. The prescriptions must be written for Medicare patients’ unique visits with associated E&M codes and a “qualified” electronic prescribing system must be used. Any eRx module in a certified Complete EHR will do and if you use a standalone system, make sure it states that it is “qualified” for CMS incentives.
The Numbers: The incentives are 1% this year and 0.5% in 2013. There are no incentives available after that. Incentives are calculated as a percentage of the total Medicare Physician Fee Schedule (MPFS) allowable charges for the calendar year. The penalties are -1%, -1.5%, -2% in 2012, 2013 and 2014 respectively. There are no penalties after 2014. Penalties are applied as an adjustment to ongoing MPFS payments during the penalty year. Note that you cannot receive eRx and Meaningful Use Medicare incentives in the same year. You can do so for Medicaid EHR incentives.

Physician Quality Reporting System (PQRS)

This is the successor of PQRI (the “I” was for initiative) and it started in 2010 in its current format with no proposed expiration date. It is important to keep in mind that the contents of your PQRS reports will be made public on the Physician Compare website maintained by CMS.
The Rules: You will have to report on at least three clinical quality measures, or one group of measure, for the reporting year. You may report your measures via claims, registries, EHR or a special group reporting tool. The reporting is limited to Medicare patients and although the registry option offers a 6 months reporting period, most other methods require that you report on 30% to 80% of pertinent patients for the whole year. If you choose claim reporting, make sure you don’t let charges entered close to year-end linger around, because CMS may not get them in time to calculate your incentive. Both Incentives and penalties are calculated and applied as they are for the eRx program.
The Numbers: You could have gotten a 1% incentive in 2011, but starting in 2012 and through 2014, the incentive is a constant 0.5%. There are no incentives authorized after 2014. Penalties begin in 2015 with -1.5% and continue to -2% from 2016 and beyond. There is no end date for the penalties. PQRS incentives are independent of eRx and Meaningful Use and may be combined with either one.

Maintenance of Certification (MOC)

The MOC program is only available for those who successfully report PQRS measures and is available only through the incentives phase of PQRS.
The Rules: You need to participate in a Maintenance of Certification program and complete a practice assessment more frequently than is required to qualify for or maintain board certification. Make sure that your board is indeed qualified by CMS for this program, since not all are.
The Numbers: This is a very simple program that will pay an additional 0.5% of MPFS to what you already receive for PQRS reporting. The program expires after 2014 and there are no penalties associated with it.

The EHR Incentives Program (Meaningful Use)

Saving the best for last, this is the big one and most advertised one. The Meaningful Use program started in 2011 and is projected to continue indefinitely. It has been likened to an escalator, where the requirements become more comprehensive and more complex every two or three years.
The Rules: You must buy an ONC Certified Complete EHR (or a collection of certified modules) and meet a set of required measures every calendar year. The measures are adjusted every two (or three) years, from the current Stage 1 to future Stages 2, 3 and presumably others. There are two tracks for this program, one for Medicare and one for Medicaid participants. Meaningful Use is a very comprehensive set of measures reaching into every aspect of medical practice and is inclusive of both electronic prescribing and the reporting of clinical quality measures. The EHR incentives program and the electronic prescribing program are mutually exclusive under Medicare incentives.
The Numbers: The program offers 5 years of decreasing incentives followed by incrementally increasing penalties for non-participation. The maximum incentives under the Medicare track is $44,000, plus 10% of that if you practice in a designated health professional shortage area, and $63,750 for the Medicaid track. You can join the Medicare track as late as 2014 (you will lose about half the incentive) and the Medicaid track can be started as late as 2016 with no loss of incentives. However, in 2015 penalties, in the form of adjustment to your Medicare allowed charges, will begin to apply for those not participating in either track. CMS is proposing to backdate the penalties, so they apply in 2015 to those who have not become Meaningful Users by October 1st of 2014, effectively moving up the compliance date mandated by legislation. The penalties start at -1% of MPFS in 2014 and increase by 1% every year until they reach -5% in 2019 and continue at the -5% level indefinitely.

Bottom Line

For illustration purposes, let’s say you see 10 Medicare patients every day, you work 5 days every week and 50 weeks every year in a health professional shortage area. Accounting for different E&M charges, you are looking at approximately $200,000 per year paid to you by Medicare, and clearly this is a best case scenario. Let’s further assume that the proposed reimbursement cuts and the proposed increases to primary care reimbursement balance each other out and your Medicare revenue stays flat in today’s dollars. How will the carrots and sticks affect your income?
Scenario 1: You do all that is required and are rewarded with nothing but carrots between 2011 and 2020. In addition to your claims reimbursement, you will receive from CMS $57,400 over the current decade, which is $5,740 per year or $478 per month, totaling less than 3% increase in your average Medicare reimbursement.
Scenario 2: You ignore all CMS programs and do your own thing, and stick with your decision through 2020. You will of course not get any incentives and you will lose a total of $72,000 over this decade, or an average of $7,200 per year, which is $600 per month, or the equivalent of 3.6% of your Medicare revenue over 10 years.

It is important to note that, while the incentives are temporary, the penalties are applied indefinitely, converging to 7% MPFS, or $14,000 per year in our imaginary scenario. The sticks are larger than the carrots. These numbers do not bring into account costs of opportunities lost, such as performance bonuses and additional payments per-member-per-month that are becoming available from private and public payers for special endeavors such as medical homes and other quality improvements, and require the same infrastructure be exercised in the same fashion as the Medicare incentives programs described above.

But wait, there is more: The Value Based Payment Modifier (VBPM)

If you are fortunate enough to practice in Iowa, Kansas, Missouri, or Nebraska, you are part of a preamble to a new Medicare program which proposes to add a modifier to your charges based on the ratio of cost to quality for services rendered to Medicare members. So far physicians of all specialties in the selected pilot States have received Quality and Resource Use Reports (QRURs) outlining their performance and costs based on 2010 claim submissions. The program is in its definition stage and there are no clear numbers associated with the proposed modifier, and no explanation on how such modifier would be calculated, but it seems that by far, this is going to be a much more significant stick or carrot than anything outlined above. The legislation mandates that this program goes into effect in 2015 and by 2017, most physicians paid under the MPFS will see the VBPM applied to claims they submit to Medicare. [More on the VBPM in a future post…]

CMS incentives and penalties proposed programs 2011-2020 (click to enlarge)

 These are the visible carrots and sticks. Now it’s your turn to do the math and make your decision. Note that Scenarios 1 and 2 above are the extremes. You can always jump on the wagon at a later point, with less incentive and/or less penalties. The wagon, though, is accelerating pretty quickly.

NwHIN: Government Governance of Governances

Today, the Office of the National Coordinator for Health Information Technology (ONC) has released a Request for Information (RFI) regarding the governance of a Nationwide Health Information Network (NwHIN). The document outlines ONC’s current thinking on the subject and poses 66 questions to the public. The NwHIN is the proposed vehicle by which secure and presumably trusted health information exchange is facilitated and accelerated. The NwHIN consists, or is envisioned to eventually consist, of a set of standards and policies to govern health information exchange over the Internet. It does not include the actual infrastructure for such exchange. Below is a brief summary of the RFI highlights and the obligatory commentary on the proposed governance methodology.

Highlights

The 64 page document, as its title clearly states, is focused on creating trust in the exchange of health information at a National level. To that end, ONC is proposing to define a set of policies and regulations to be adhered to by participants in information exchange as “conditions for trusted exchange” (CTE). Consistent with current direction and the funding of Health Information Exchange (HIE) organizations, ONC is envisioning a set of entities specifically built for, or specializing in, the exchange of health information. These new entities (or new services) are named Nationwide Health Information Network Validated Entities (NVEs), and very much resemble what was previously referred to as Health Internet Service Providers (HISPs) in the context of the Direct Project based exchange.

Going forward, ONC proposes to assume responsibility for “oversight of all entities and processes established as part of the governance mechanism”, including management and endorsement of CTEs, “selection and oversight processes for an accreditation body that would be responsible for accrediting organizations interested in becoming validation bodies” and “[a]uthorizing and overseeing validation bodies which would be responsible for validating that eligible entities have met adopted CTEs”. For starters, ONC proposes three types of CTEs with the understanding that many others will be added in the future. Here is an (almost) verbatim list of the proposed CTEs:

Safeguards

[S-1]: An NVE must comply with a good portion of the HIPAA regulations as if it were a covered entity.
[S-2]: An NVE must only facilitate electronic health information exchange for parties it has authenticated and authorized, either directly or indirectly.
[S-3]: An NVE must ensure that individuals are provided with a meaningful choice regarding whether their Individually Identifiable Health Information (IIHI) may be exchanged by the NVE.
[S-4]: An NVE must only exchange encrypted IIHI.
[S-5]: An NVE must make publicly available a notice of its data practices describing why IIHI is collected, how it is used, and to whom and for what reason it is disclosed.
[S-6]: An NVE must not use or disclose de-identified health information to which it has access for any commercial purpose.
[S-7]: An NVE must operate its services with high availability.
[S-8]: If an NVE assembles or aggregates health information that results in a unique set of IIHI, then it must provide individuals with electronic access to their unique set of IIHI.
[S-9]: If an NVE assembles or aggregates health information which results in a unique set of IIHI, then it must provide individuals with the right to request a correction and/or annotation to this unique set of IIHI.
[S-10]: An NVE must have the means to verify that a provider requesting an individual’s health information through a query and response model has or is in the process of establishing a treatment relationship with that individual.
Interoperability
[I-1]: An NVE must be able to facilitate secure electronic health information exchange in two circumstances: 1) when the sender and receiver are known; and 2) when the exchange occurs at the patient’s direction.
[I-2]: An NVE must follow required standards for establishing and discovering digital certificates.
[I-3]: An NVE must have the ability to verify and match the subject of a message, including the ability to locate a potential source of available information for a specific subject.
Business Practices
[BP-1]: An NVE must send and receive any planned electronic exchange message from another NVE without imposing financial preconditions on any other NVE.
[BP-2]: An NVE must provide open access to the directory services it provides to enable planned electronic exchange.
[BP-3]: An NVE must report on users and transaction volume for validated services.

Considering the broad spectrum of CTEs, the entities accredited to validate NVEs will need a very broad range of capabilities to do a proper job at validation and monitoring of exchanges. ONC allows for the possibility that NVEs may be fully or partially validated, similar to EHRs being certified as Complete or Modular, and in both cases it is assumed that NVEs will be able to publicly advertise their compliance status. All these definitions are in a proposal stage, and ONC is requesting input on pretty much the entire proposed structure. You have 30 short days to file your response.

Commentary

This is a very technical subject and, with the notable exception of those actively working in health care IT, this publication may not elicit any interest in the physician or patient population. However, there is one item in this RFI which prompted me to hurry up and write this post, because after consistently complaining for several years, my wishes have been answered in the form of the beautiful [S-6] CTE!! So here are my impressions of this lovely thought and the document that surrounds it.

The Exquisite
After what seems like an eternity, ONC officially recognizes that de-identified information can be rather easily re-identified and that those who happen to own the hardware infrastructure where people’s medical records are stored do not have an inherent right of ownership to those records. I would very much like to see ONC extend this regulation to every HIT vendor, not just those specializing in exchange of information, since if it is pertinent to NVEs, it must be also pertinent to EHRs, HIEs, ancillary software vendors and, yes, pharmacy software vendors. I am not naive enough to believe that CTE [S-6] will survive the rule making process, but for the moment, the detailed description of the dangers inherent in the wholesale of patient data is reason for celebration.

The Good
All Safeguards CTEs (with the exception of [S-9], which could cause havoc in the many places where data originated from), are proposing to put in place regulations that are beneficial to the privacy and security of patients and their medical information. The Interoperability CTEs are also very sensible and actually a bit restrained. Put together, these 12 CTEs, if complied with, should create enough trust in exchanging entities to allay the concerns of physicians and patients regarding the transfer process itself. Other concerns may persist, but it was not the intent of this RFI to address those. Releasing an RFI prior to a formal notice of proposed rulemaking (NPRM), is also a positive sign that ONC is open to considering other opinions (too bad that this is how [S-6] will be killed off). So, even if you don’t clearly see your dog in this fight, read the document (it’s very readable and informative), find your dog, and back him up.

The Bad
The Business Practice CTEs are overreaching into the world of private business. ONC is asking if NVEs should perhaps be required to be non-profit. Not a good idea, but even if they are, those entities will need to have a sustainable business model, or forever be dependent on Government grants. If their dreams of making billions from health data are to be crushed, then they must be allowed to make a living by selling services. Current hype notwithstanding, software is not free to develop and maintain in a professional and trustworthy manner. The reporting CTE [BP-3] sounds too much like big government and should not be necessary. Most vendors are incessantly advertising their number of customers and transactions, and perhaps statistics is something NVEs should be paid for to provide.

The Ugly
Bureaucracy, lots of it, expanded and extended indefinitely into the future with no end in sight.

And now we wait for the public comments to be submitted, the NPRM to be published, more public comments, the final rule to be issued, and the “governance of governances” to be established. Keeping my fingers crossed for little [S-6] to make it to the finish line….

Meaningful Use Stage 1 - Redux

Escher - Relativity, 1953

The public comments for the proposed rules for Meaningful Use Stage 2 are closing now. After reading the public submissions of several organizations, I decided not to comment, since what I wanted to say was covered by much better heeled organizations, and I am not convinced that individuals can influence government in any shape or form nowadays. Instead, I thought that this would be a good time to look back at Meaningful Use Stage 1 and see if there are any lessons to be learned, something that CMS did not deem necessary to do before moving up the escalator to Stage 2. This is a bit peculiar considering that only 5% of physicians were able to attain Meaningful Use so far, and according to a new study published in Health Affairs, less than 14% of physicians said that their EHR has all the bells and whistles necessary for Meaningful Use Stage 1. Since Meaningful Use Stage 2 is largely an amplified version of Stage 1, it may be useful to look back and identify the most troublesome aspects, prior to significantly increasing their magnitude.

Computerized Physician Order Entry (CPOE) – On the surface, asking that 30% of prescriptions be entered in the EHR seems like an almost trivial task. Where else would you enter them? A closer look reveals that there is some complexity in the definition of the denominator for this measure, and the requirement is that 30% of patients who have at least one active medication on their medication list should be prescribed at least one item using CPOE. Does this mean that the doctor must prescribe something for a third of patients seen? While this may make sense for a primary care doctor with an elderly panel, it does not make sense for other specialties, where patients have most of their medications prescribed elsewhere. And the exclusion for those who write less than 100 scripts per reporting period, which is now one full year, is not an adequate answer either. Perhaps a better measure would be to require a much higher percentage of all prescriptions written, to be entered through the CPOE module, regardless of whether the patients come in with existing meds or not. This is not an easy thing to measure though, but it could be done if EHRs were required to have the prescriber identified in the medication list.

Clinical Summaries – Probably one of the most confusing measures for both patients and physicians requires that 50% of patients be given a visit summary within 3 days of the encounter. This is reasonable and even a bit lax if you have at least 50% of patients using your patient portal. If not, and if you are actually handing out printed summaries, the measure makes little sense. First, the 3 days period is completely contrived. You either give people a summary when they walk out the door, or you don’t. How many patients do you know who will return in the next couple of days to the office to pick up their visit summary? Or how many patients would hang around the office waiting a couple of hours to get that summary? Zero. You either print the thing out before patients check out, or the patient will leave without it. Printing summaries at the end of the visit means that all components have been updated in the EHR during the visit. If you still dictate most of your note, or if you finish notes at the end of the day, or between patients, your summaries may not be accurate. The second problem with this measure is that not all patients want a summary, but Meaningful Use is not making any allowances for patient preferences. So what do people do? They either print all summaries on paper and shred the ones left behind, or print them to electronic file (to trigger the EHR count) and only generate paper if the patient wants a summary. A much more realistic measure would require that summaries be given to 100% of patients who request one during the visit and 100% of summaries are made available on the portal within 48 hours of the encounter. Click fewer boxes, kill fewer trees.

Electronic Copy of Medical Records – This most peculiar measure requires that half of all patients requesting medical records are accommodated within 4 business days. Why only half? HIPAA guarantees the right of all patients to obtain copies of their medical records. Meaningful Use requires an electronic option. If the EHR is capable of packaging a chart in electronic format, why would you only give a copy to half of the people who want it? How does CMS know who wants a copy of their records? There is a checkbox of course, and if there’s that checkbox, and if you clicked it, chances are very good that you will also click the button to generate a chart export, which should give you a perfect 100% score, which should have been a requirement to meet this measure.

Public Health Reporting – There are two public health measures to choose from in Stage 1, immunizations data and syndromic data, and only a test of capability was required, even a failed test was just fine. Should have been a slam-dunk, but it was not. Most public health entities were not ready to receive electronic data and most certified EHRs were incapable of transmitting anything in spite of being certified to that capability. I have no suggestions for how to improve these measures other than refraining from requiring nonexistent things and ensuring that EHR certification is slightly more than fee-for-rubber-stamping.

Medications Reconciliation – This action is required to occur for 50% of care transitions. Since certified EHRs are not required to provide true electronic reconciliation of two datasets and since one almost never has a structured second medication list from an outside source, the best case scenario consists of clicking on two boxes – one at the front desk, designating the visit as a “transition of care”, and one during the visit, validating that the physician (or assistant) opened the medication list page. This measure should have been postponed until the ability to measure, and the tools to actually perform reconciliation, become available.

Security Risk Review – Nobody knows what that is. It is, however, a wonderful opportunity for IT guys to relieve small practices of anything between $2,000 and $5,000, and suggest that the server should reside in a cabinet and that the virus protection software should be updated. Why is CMS getting itself involved with HIPAA and security is a mystery to me, considering that these things are under the purview of the Office of Civil Rights (OCR), which is actively pursuing the matter independently of Meaningful Use. This measure should not have existed.

Clinical Quality Measures – Much has been written about the inadequacy of the chosen quality measures for anything but primary care. Also the seemingly multiple choices of measures are largely theoretical because certified EHRs are not required to certify for all measures and users are basically stuck with whatever the EHR vendor chose to certify, whether the certified measures are applicable to the practice or not. For example, one very popular EHR only has diabetic menu measures available. If you are, say, a dermatologist, you will have to report weight management as part of the core and also dismal measures for your ongoing management of HbA1c. The other major problem with clinical quality measures is their hidden complexity and the not immediately obvious data elements required to calculate the measure and particularly the exclusion of patients from a given measure. A very interesting example of how some EHRs deal with such complexity is the new and fairly common checkbox next to any given diagnosis to mark the condition as terminal in less than 6 months, since this is an exclusion to the weight management core measure. Seriously? And this should be made available on the patient portal too? Clinical quality measures should be carefully reconsidered and dialed back to a sensible set that is truly meaningful.

Meaningful Use Stage 1 created a lot of confusion amongst providers trying in earnest to meet the measures and gobbled up scarce resources in organizations big and small. Many of the measures are being attested to with very little confidence in accuracy, definition and meaningfulness. It would have probably been a very good idea for CMS to go out there and survey its existing and potential meaningful users to seek some authentic guidance, instead of relying on professional advocates (and occasional testimony from carefully selected users), before putting in place the next theoretical step on the now famous escalator.

Big Bad Legacy EHR Products

IBM "cloud" computing - circa 1975

There is no self-respecting innovator in Health Information Technology (HIT) who has not spoken or written about the horrific state of Legacy EHR products, which are slowly but surely being deployed in more and more health care facilities as a result of Meaningful Use incentives and changing reimbursement models. A couple of months ago I saw an EMR in a small practice. They’ve been using it for 15 years and it was a DOS based system with the ubiquitous neon green text glaring on a black and sometimes blue background. Aha! That must be a Legacy EMR, and sure enough the doctor was looking to replace it with a more modern product, but which one should he get now? After all, the last thing you’d want is to have him buy yet another Legacy EMR.

According to dictionary.com, a Legacy system is a “computer system or application program which continues to be used because of the cost of replacing or redesigning it and often despite its poor competitiveness and compatibility with modern equivalents. The implication is that the system is large, monolithic and difficult to modify”.  Well that little DOS EMR was anything but large and monolithic, but nobody was going to invest a penny in redesigning it, and competitiveness wasn’t a term that came to mind when you looked at it, and replacing it is sure going to be an expensive proposition. The DOS EMR is definitely out then. The only question remaining is what it should be replaced with. Which EMRs in the marketplace should be avoided since they are truly Legacy EMRs sold under false premises to unsuspecting buyers? Well, it depends on who you ask.

You could separate the various EHR constituencies based on programming technology (e.g. MUMPS vs. .NET), based on promotional labels (e.g. Cloud hype vs. everything else), based on software architecture (e.g. integrated vs. modular), and a host of other technical criteria, most of which are overlapping to various degrees. A much clearer and natural separation occurs if you divide Health Information Technology (HIT) companies into two groups: those who have lots of customers and those who don’t. According to the latter, the former are all peddling Legacy systems. It seems that a veritable tsunami of innovation is building up outside the infamous walled gardens of existing, Legacy EHR vendors, threatening to bring those walls down any minute now.

As with any worthwhile technology innovators, the newcomers to the EHR marketplace have brilliant Silicon Valley pedigrees and beautiful Web 2.0 style websites, along with iPhone/iPad/Android native (i.e. client/server proprietary) apps to complement, or even supersede, the web offering. Actually using an “old fashioned” computer or laptop is starting to feel a bit Legacy in and of itself. The innovative products themselves can be divided into two categories as well: full-fledged EHRs and a variety of self-contained pieces, or modules, of what is currently considered a complete EHR. [Note: I am not including products like athenahealth here, since they are not new, do have a respectable customer base, and had no disruptive effects on the rest of the market.]

The innovative new EHRs are all Cloud-based, intuitive and easy to use, built from scratch by user-centered designers, and are offered at a fraction of current prices, or so the ads say. These are the Southwest Airlines of health care, coming in below market pricing, with bare-bones, friendly solutions for the non-customer segment and they have two insurmountable problems. First, almost none of them are actually below market price, which in the ambulatory sector stands now at about $500 per provider/per month for a fully loaded, gold-standard integrated EHR and practice management solution. This is an extremely difficult number to beat. Second, even a bare-bones solution should have all the bones. My guess is that Southwest Airlines would not exist today if their first flight service consisted of boarding passengers in Houston and then proceeding to cheerfully shove them out of the aircraft 150 miles outside of Dallas, expecting them to arrange for their own transportation into the city. And yet, this seems to be the preferred model of our innovative HIT products, and as ePocrates (a household name in health care), painfully discovered, there are no customers lining up for this type of experience no matter how innovative it is touted to be.

In the meantime the Legacy EHR market seems to be thriving, and no, the recent Allscripts misfortune (or mismanagement) is not an indication of an impending disaster any more than this year’s snowfall in Texas is a sign of global cooling. The reason for this seemingly inexplicable prosperity is threefold: a) the government is subsidizing EHR purchase b) there are no viable alternatives to existing products c) innovation is occurring within the established market leaders. Let’s look for example at one of the more popular ambulatory EHRs, which shall remain unnamed. A few short years ago, the product consisted of a basic integrated EMR/practice management system, with very few bells and whistles and lots of bugs. Today, the product comes with a solid Patient Portal with iPhone apps for patients, a full featured disease registry, an iPad version, natural language processing, disconnected mode operations, peer-to-peer communications, and of course a much improved EHR and all sorts of other features and modules. I don’t know about other folks, but somehow this does not seem like a Legacy product to me, and there are a few more just like this one. There may be Legacy products out there, but today’s top selling EHRs do not fit the description.

A very unfortunate side effect of the forced march to HIT innovation is the confusion created by the constant barrage of misleading statements from the various Southwest Airlines wannabes. I sometimes wonder if these new folks have ever seen an EHR, let alone use one or participate in building one. A quality EHR is much more than a handful of rudimentary web pages allowing patients to communicate with providers, no matter how loud and trendy the consumer movement is. A modular architecture is much more than a collection of disparate bits of software interfaced together with duct tape, no matter how standardized the duct tape is. There is a reason why the new iEHR for the VA and DoD was allocated $4 Billion for development over five to six years. There is a reason why it took Kaiser about the same amount of time and money to take Epic from its original state to the powerhouse product it is today. There is no room for Southwest Airlines type of innovation in an industry where the routes, the meals, the fuel and the seating arrangements are regulated by the Federal Government. Innovation is coming and will continue to come from within the established systems, NASA style.

So if you are still looking to replace that little DOS EMR, or an aging and no longer supported practice management system, find a good size EHR vendor, with a hefty customer base, who develops its software in-house, instead of randomly buying shiny things, and hitch your wagon to theirs. It will not be a perfect ride because there are no perfect rides, but it will get you where you need to be. There are no miracles, there will be no miracles, and every day you waste looking for one, will make it harder to catch up, because whether we like it or not, whether it is a smart thing or not, health care is moving up the IT escalator at a very brisk pace. It’s too late for partial, gradual or “lite” solutions. The time for dabbling with a little electronic prescribing and a little email, has long since passed. You’re either all in, or all out, and your patients desperately need you to be all in.

Hypothetical: Tofu at the Broccoli Court

The year is 2018 and President Tofu is fortunate to have a majority in both houses of Congress. America elected President Tofu when it became weary of partisan politics and developed a taste for a President with no preconceived notions and fully capable of absorbing the flavors of whatever surrounds him at the moment; a pragmatic, businesslike President for tough and fast-changing times. American small businesses are still hurting from the lingering effects of the Great Recession, but its larger bastions of business savvy are thriving in a booming global economy bringing cheap products to the impoverished masses armed with $5 cell phones, $10 netbooks and empowered by a Khan universal education system (the other Khan, not Genghis).

Many Americans are also benefiting from this expansion in some ways. For example, after the 2016 passage of the historical and liberating Student Protection and Affordable Education Act (SPAEA), many parents decided to take advantage of the Khan system, now owned and selflessly maintained by Google, and use the Government Education Voucher (GEV, pronounced give), minus the $15 for a cell phone and netbook for each child, to pay for the mandated health insurance penalty of 2010, thus breaking even on child mandates. This trend caught on like wildfire after some knucklehead libertarian tweet went viral on every social media outlet practically overnight, as a suggested measure to counteract the Constitutional, but still unpopular individual mandate to buy health insurance.

America’s Health Insurance Plans (AHIP) did not take very kindly to this popular trend, since most folks buying health insurance from US Health were now either elderly or sick. It should be noted that the other three health insurance providers, Liberty Health which insures elected public servants, Glamour Health which insures most sports and entertainment personalities and the Health Division of Goldman Sachs which provides discrete insurance to industry captains, were not affected by this phenomena, limited to some sectors of the currently or previously wage earning class. Most workers though, were provided health insurance through self-funded multi-national employers, as part of their wages. Unlike the misguided Liberal government of Mexico, who struck down in 2012 an early attempt by Walmart to pay their Mexican employees with store vouchers, the pragmatic administration of President Tofu, welcomed the business oriented solution of paying American workers with vouchers for the company health insurance store.

Seeing how by definition President Tofu found himself in close proximity to US Health executives, some since early childhood, he absorbed the pain and suffering caused to this worthy corporate citizen and decided that something must be done to ensure that elderly and sick Americans can afford US Health premiums and Khan Academy freeloaders don’t dump their health care costs on the rest of society. There were several options for President Tofu and his administration. He could have mandated that GEV should be spent at one of the few private prep schools, but that would impose undue burden on those brilliantly elite institutions of education, who were also very close to President Tofu’s heart. He could have mandated that all Americans not otherwise covered by health insurance, must purchase insurance from US Health at the ongoing premium rates, but some lesser representatives in his Party were deeply concerned with backlash from voters in the upcoming midterm elections, and President Tofu as close as he was with his colleagues, immediately absorbed their pain as well. Luckily there was another way out of this impasse.

In the summer of 2018, the landmark Life Protection and Perpetual Health Act (LPPHA) was passed in both houses with crushing bi-partisan support, and signed by the ever smiling President Tofu into law. Americans were very happy with this legislation, since all media outlets were running headlines informing the people that Congress in its wisdom is now guaranteeing health and long life for every American by 2020. For the skeptical 2012 audience, no, President Tofu was not miraculously transformed into a futuristic Indiana Jones marching out of the crumbling ancient temple with the magic challis in his raised hands, but science, particularly statistical analytics, has advanced to new heights in 2018, partially fueled by Khan Academy graduates.

A RAND corporation study conducted in December 2017, at the behest of a global retail industry giant, clearly showed that Americans employed by multi-national corporations are healthier and projected to have a much longer quality adjusted life expectancy than their peers who were not paid with company store vouchers. After careful adjustments of all measures designed to infer worker health status from corporate economic indicators, RAND concluded that multi-national workers and their dependents have a whopping 92 quality adjusted life years expectancy, thus leaving all OECD Socialized medicine countries in the dust. Other than using innovative study measures, clearly the multi-national corporations have identified the secret sauce to long life and perpetual health. In a follow-up study commissioned by AHIP, RAND identified the preventive health measures taken by self-funded employers as the indisputable cause for the longevity and excellent health of their charges.

Thus the LPPHA contained several provisions to spread the health amongst the rest of the Nation, which would dramatically reduce US Health costs and significantly contain taxpayer expenses for those who chose the 2012 penalty over buying health insurance. At the heart of the LPPHA (or PHA, pronounced phe or F), was a mandate for all citizens to purchase body weight, physical activity and happiness monitors, sold and administered by the corporation insuring their health. Since, most citizens insured by multi-nationals were already purchasing those monitors at the company store, as required by their employer, and since workers’ poor health clearly affects Commerce, and since all Commerce now is at least interstate Commerce, this seemed to be a very logical provision and its benefits to the millions of sedentary, overweight and demoralized Americans were self-evident. Hence the monitoring mandate gained enormous public support, according to the media. Of course, the Government would provide subsidies to those who cannot afford to pay for their own monitors, and monitors would be free to households under 200% FPL, which is really most of the unmonitored citizenry. In order to uphold the monitoring mandate a clever penalty will be imposed, modeled after the large employer health insurance rules, where people with a larger than the approved Body Mass Index (BMI), and/or a smaller than indicated daily activity level, and/or larger than normal depression quotient (as defined by the U.S. Preventive Services Task Force), would have to pay a penalty proportional to their income levels. Exceptions and voluntary drug treatment options are available for all categories.

For a fleeting moment after the beautiful ceremony of the LPPHA signing, by an obviously trim, fit and happy President Tofu, there were some thoughts in some old Liberal quarters that perhaps the LPPHA is unconstitutional and should be challenged in Court, but apprehensions died down quickly after experts read the 4562 pages of the statute and found that the Federal Government is not forcing us to buy broccoli. And America lived happily ever after. The End.

The People’s Advocate at the Supreme Court Bar

H. Bartow Farr, III, Esq.

The Patient Protection and Affordable Care Act (PPACA) has finally met its challengers in the highest Court in the land and following the three days showdown, there’s nothing left but watchful waiting for the Supreme Court to hand down its final decision. All media outlets from left, right and supposedly middle are covering the events and hundreds of experts are ready to make predictions based on the inflections in one Justice’s voice. I made a point to not read any of that, and if you are an informed citizen who still insists on making his/her own mind, the very impartial SCOTUS blog is the place to go for links to the audio and transcripts of all oral arguments and all briefs submitted to the Court. By this logic you should probably not read what follows below either, but if you do, this is an unorthodox (neither left nor right) look at the proceedings from a citizen's point of view, a perspective that struck me as lacking in the proceedings themselves.

The main contenders were the Republican Governments of 26 States against a Federal Government controlled by a Democratic administration. There were also some private plaintiffs with a strong Libertarian argument, but their contribution to the subject is not clear to me, and is probably just a largely inconsequential sideshow. Generally speaking local governments were wrestling with central government in an outdated Federalist argument, where the people themselves have no standing.

The main event took place on Tuesday, March 27, where the constitutionality of the individual mandate, requiring every American to buy health insurance or pay a penalty, was argued, with the Federal Government arguing that its power to regulate interstate commerce includes the right to mandate that everybody buys health insurance, and if not, then the penalty should be viewed as a tax. The State Governments argued as expected that this gives the Feds unlimited power and a penalty is not a tax. The lively debate came complete with broccoli, burial insurance and babies being denied care at the hospital, hypotheticals. But here is what I found interesting: at the heart of the Federal Government argument was the contention that the uninsured are basically offloading their health care costs on the insured and society in general, therefore we must mandate that they buy insurance and pay their fair share. The States on the other hand, argued that forcing healthy people who don’t want to buy insurance to subsidize the sick is really not fair. Most Americans, as everybody agreed, are already purchasing health insurance, so who are these freeloading uninsured?

Well, it seems that 68% of the uninsured are under 140% of the Federal Poverty Level (FPL), and 95% of them are below 400% FPL. A full 45% of poor adults and 17% of poor children (under 100% FPL) are uninsured. Are these our freeloaders? Are these our interstate frequent travelers who impose huge uncompensated expenses on States where they don’t live? Are these poor people without insurance seeking out States that enacted guaranteed-issue and community rating insurance laws and move there en-masse? Is anybody else doing that? Do we even know what problem we are trying to solve?

Another pearl from the March 27 arguments was the realization that the States concede that the Federal Government has the power to require that people pay for health care with insurance. They only differ on the timing of buying the necessary insurance instrument, with the State Governments insisting that a free citizenry should have the right to purchase insurance en route to the ER, if they so choose, and the Feds arguing that they must buy insurance the day they are born. Does that mean that one cannot pay for health care with cash, or chickens? Will they check to see if you have insurance and if so, cash payments will be disallowed? What do you do if you’re one of the penalized? Do you get to pay cash, or do you get some services in return for all those penalties you paid into the system?

As interesting as the constitutionality arguments were, I found the session on severability to be most enlightening. On Wednesday, March 28, the Court grappled with the next steps, if the individual mandate is by any chance found to be an unprecedented and unlimited expansion of Congress powers and thus ruled unconstitutional. The 26 Republican governed States argued that the Court should throw out the entire Obamacare legislation with the mandate, because everything else in the PPACA is either hinging on the offending mandate or is unimportant. This is not surprising, since the war on the individual mandate, which is the brainchild of an ultraconservative foundation, is just a battle in a much larger war to remove the current Democratic President from office. The Federal Government began its arguments by mentioning the millions of citizens that are not standing before the Court and how the Court should nevertheless give them consideration. That was beautiful, but it didn’t last long, because eventually it became clear that the Federal Government is asking the Court to strike down both guaranteed-issue and community rating clauses along with the individual mandate, if found unconstitutional.

The Federal Government, true to form, was arguing on behalf of its insurance companies patrons. Unless the Feds can guarantee a certain number of customers, there is no way that insurers will agree to sell their wares in a non-discriminatory manner, because discrimination is how insurers make money, and no government should infringe upon basic rights of corporations. It fell to an attorney independently appointed by the Supreme Court to argue for the people, and (very eloquently) make the simple point that the purpose of the PPACA was not to provide customers to insurers, but to make health care affordable to all Americans, including poor and sick ones. The individual mandate is just one tool in an arsenal of tools to accomplish that end. It may be a very useful tool, but it’s not the only tool, and therefore if it is found unacceptable, it should be severed from the legislation and removed without throwing out the baby with the bathwater.

So the People finally got their 15 minutes in Court, represented by Court appointed counsel, as paupers usually are. Whatever the Court decides in this case, I will forever be grateful to the Supreme Court of the United States, the nine unelected Justices, who saw fit to solicit someone to speak for the People, something that neither States nor Federal Governments seemed to be too terribly inclined to do. And I am grateful that the Court chose H. Bartow Farr, III, Esq. to represent us in this matter, since his oral arguments were second to none, and may God grant the Court the wisdom to do what Mr. Farr advocated that they do, and the People shall prevail.