The Final Rule

The Final Rule

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When I read the original MACRA rule that CMS published last April, I was appalled at its complexity, at CMS’s total disinterest in measuring “performance” accurately, and CMS’s willingness to hype the performance of ACOs and “medical homes” (the main prototypes for the “alternative payment models” [APMs] authorized by MACRA). I entertained the faint hope that CMS would come to its senses after hearing the reaction to its original rule and propose something less complex, or maybe even urge Congress to suspend enforcement of the law until it could be rewritten. Foolish me.

I have read a substantial portion of CMS’s final rule, published last Friday. It is clear to me CMS intends to implement its original rule with only minor changes. I predict the implementation process will be a nightmare.

The most fundamental problem with the rule is its insane complexity. The complexity is a function of both the complexity of medicine and the impossibility of what Congress has asked CMS to do – to measure the cost and quality of physician services at both the individual and group level and to punish and reward doctors based on inaccurate scores, and to oversee the creation of vaguely defined and unproven entities like ACOs and “medical homes” which will also dish out penalties and rewards based on inaccurate data. 

Implementing such a monstrously complex law, or even portions of it, would be very difficult even for an agency run by clear thinkers. But CMS is not run by clear thinkers. It is run by people who think like employees of advertising agencies. They think their job is to persuade their listeners that their product is wonderful. They think they are supposed to exaggerate what MACRA will do, and to deny or obfuscate MACRA’s obvious defects.

CMS committed both types of errors – exaggeration and denial – in its first rule, and it committed identical errors in the final rule. At this point I think it’s reasonable to predict that CMS won’t admit either type of error until long after implementation has begun and reality has repeatedly smashed its staff over the head. Of course, by then much time and money will have been wasted, and many patients may have been harmed as well.

I’ll devote the rest of this essay to examining the worst examples of both types of errors – hyping that which should not be hyped, and overlooking that which should not be overlooked. I will close with a comment on how similar MACRA and the Affordable Care Act are. Both laws are already in trouble because they rely on the same bankrupt theory of cost-containment. Their troubles have only just begun.

“Evangelism is no vice, agnosticism is no virtue”

The most compelling evidence that CMS thinks of itself as an advertiser, as the PR agent for Congress, is its willingness to articulate their most basic premises as beliefs as opposed to conclusions backed by evidence. Consider the following quotations from the final rule (“final with comment period,” is the official label for this rule):

  • We believe participation in any APM offers eligible clinicians and beneficiaries significant benefits. [p. 1396]
  • [W]e believe that all APMs offer meaningful opportunities and benefits to clinicians…. [p. 1427]
  • We believe that both the inclusion of payment based on performance on quality measures in the Advanced APMs and the ongoing monitoring and evaluations conducted on all APMs are mechanisms for identifying whether appropriate care is withheld to save costs. [p. 1454]
  • The costs for implementation and complying with the advancing care information performance category requirements could potentially lead to higher operational expenses for MIPS eligible clinicians. However, we believe that the combination of MIPS payment adjustments and long-term overall gains in efficiency will likely offset the initial expenditures….. [p. 1818] [emphasis added]

Not one of those statements is documented. They are all based on faith. And yet all of those statements have to be true if MACRA is going to improve quality and lower costs. It has to be true, for example, that “any APM offers eligible clinicians and beneficiaries significant benefits” – or at least that the great majority of APMs do so. It has to be true, to take another example, that CMS can detect and punish any denial of necessary care caused by risk-shifting to APMs and the physicians who work for them.

And yet CMS didn’t document these statements and numerous other claims that began with “we believe.” They didn’t for a good reason: They couldn’t. The evidence either doesn’t exist or the evidence indicates the assumptions are wrong.

Take for example the crucial claim that “all APMs … offer benefits to clinicians.” This boast must, at minimum, mean doctors will not lose money if they join APMs. But we have no evidence for that assumption. Ashish Jha recently reported on THCB that CMS’s ACOs are, on average, not saving money, and when CMS’s bonus payments are counted, ACOs are raising Medicare costs. Similarly, all the evaluations of CMS’s “home” pilots indicate they are saving no money for Medicare, and those evaluations plus other studies demonstrate that physicians working in the “homes” are not being paid enough to cover the extra costs they incur to buy the goods and services “homes” are supposed to buy (see my discussion of the evidence here.

“Denial is no vice”

CMS’s sins of exaggeration are aggravated by sins of denial. The worst and most important examples of denial are CMS’s refusal to state that performance must be measured accurately if paying for performance is going to work. You will not find in either the original or the final rule a statement that says anything like, “We believe performance measurement must be accurate.” Is that not an obvious and essential statement? How hard would it be to say that? But you won’t catch CMS saying that.

Here are the two most important “we believe” statements I would have added to the rule:

  1. “We believe pay-for-performance can work only if performance is measured accurately.”
  1. “We believe accurate measurement of performance requires at minimum (a) adequate sample size, (b) accurate attribution of patients to doctors, and (c) accurate adjustment of quality and cost scores to reflect differences in patient health and other factors beyond physician control.”

These statements appear nowhere in the rule despite the fact that numerous commenters raised questions about the accuracy of patient attribution and risk adjustment. CMS just blew those people off. Here is an example:

One commenter was concerned with inaccurate data being reported on Physician Compare…. Another commenter expressed some concern with the accuracy of the information and its usefulness for consumers. One commenter recommended a principal focus be on providing reliable and useful data rather than expediency. Response: We appreciate your comments and remain dedicated to publicly reporting data that generally meet public reporting standards. [pp. 1393-94]

Translation: “We’re CMS. We’ll pretend to seek your input, but on the all-important question of whether we are measuring performance accurately, we intend to ignore you. We absolutely do not want to have an honest conversation about whether it’s financially or technically possible to measure physician performance accurately at any level relevant to even a few types of patients or diseases, much less all of them.”

Republicans and Democrats share the blame for the MACRA mess

In this post I have aimed my criticism at CMS for approaching MACRA with the mindset of a PR agent. CMS deserves harsh criticism because they are not being forthright, and in some cases they have been downright dishonest. [1] CMS’s unwillingness to tell the truth about MACRA does not bode well for its implementation and the ensuing public debate.

But the ultimate blame for MACRA’s nightmarish complexity falls on Congress. Democrats and Republicans voted overwhelmingly for MACRA. How quickly we resolve the mess created by MACRA will depend ultimately on how quickly leaders of both parties understand MACRA’s defects. If both parties engage in some honest introspection, they will at some point realize both parties have subscribed to the same bankrupt theory of cost containment. This should be interesting to watch. On the issue of health care cost containment, there is no daylight between the parties.

The Affordable Care Act, a law Republicans detest, is based on the same bankrupt cost-containment theory that MACRA is based on, namely the managed care diagnosis (overuse) and the managed care solution (shift insurance risk to doctors and micromanage them). Not one Republican voted for the ACA, a law which will succeed only if the claims made for “accountable care organizations” and “medical homes” and other alleged “value-based” reforms are true. And yet Republicans voted overwhelmingly for MACRA, a law which will succeed only if the claims made for ACOs, “homes” and other alleged “value-based” reforms are true.

Republicans need to get their message straight. They can continue telling the public the ACA has no effective cost containment in it (which would be accurate) and is therefore not affordable, but in that case they must level the same criticism at MACRA – it will not cut Medicare costs. Or they can continue to promote the false message that MACRA will cut Medicare costs, but in that event they must stop carping about the ACA and join Democrats in claiming the ACA really will “bend the cost curve” (which is sheer fantasy).

Because neither MACRA nor the ACA promote cost containment, and because both have destructive side effects (including higher administrative costs, more consolidation of the entire health care system, and accelerated physician burnout), both are going to fail. The only issue is how they will fail. Will they collapse overnight? No, I wouldn’t bet on it. I predict, rather, that they will create, each in their own way, so much antagonism that Congress will, after much dithering, be forced to amend them beyond recognition. My only hope is that when Congress amends the ACA it won’t result in a higher uninsured rate and worse coverage, but I fear that’s where we’re headed, at least in the short term.

I predict as well that the amendments that will transform the ACA and MACRA will be contained in multiple bills enacted over a period of years rather than a single bill enacted in one session. These amendments will be stimulated by widespread anger – anger that starts out relatively subdued and spreads as reality sinks in and Congress dithers. The ACA will create (and already has created) anger among taxpayers and patients, while MACRA will create (and already has created) anger among doctors and some patients, including yours truly. Congress will eventually have to recognize this anger and do something about it. My hope for both MACRA and the ACA is total repeal and replacement with a law that focuses on the price of US health care and the administrative waste that drives price up as opposed to the volume, i.e. the overuse, of medical services sold. It is the obsession with overuse that brought us the MACRA mess.

[1] In both the original and final MACRA rule, CMS repeated a false statement it first made in an August 25, 2015 press release, namely, CMS’s ACO pilots are saving money (see p. 1821 of the final rule). Kaiser Health News was the first to demonstrate  this was not true. John O’Shea recently called attention to a report by the HHS Inspector General which criticized CMS for inflating the savings achieved by Pioneer ACOs. As O’Shea put it, “[A]fter the close of the Pioneer ACO Program’s Performance Year (PY) 1, CMS allowed five ACOs that would have had shared losses exceeding $6.8 million to retroactively transfer from a two-sided risk model to a one-sided model with no risk of shared losses. While CMS published information about the results of Pioneer Model PY1’s total shared savings and shared losses, it did not include the information about the five ACOs that had been permitted retroactively to select a one-sided payment arrangement. The $6.8 million in losses that they would have incurred were not included in the results.”

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10 Comments on "The Final Rule"


Member
Oct 20, 2016

We were… a tad disappointed in the lack of outreach required to ensure adequate consumer knowledge and engagement about the upcoming changes. Additionally, consumer-oriented quality measures are hardly represented. http://bit.ly/2eeA93K

Member
Perry
Oct 20, 2016

It’s a government program, what do you expect? The aim here is to force doctors to ration care and be the bad guys, and get paid less for it.
In a perfect world, the doctor and patient should decide between themselves what is quality care.

Member
realdoctor
Oct 20, 2016

none of MACRA makes any rational sense due to the quality measurement and patient attribution problems you have addressed on previous posts.

Unless pro-MACRA forces address these two issues head on, there really is no reason to read anything else they write.

Member
pjnelson
Oct 19, 2016

Today, I finished the last day of some 41 years as a Primary Physician at nearly the same location within the city of Omaha. The office equipment will all be gone in 9 days and the paper records shredded, according to the schedule proscribed by law, one year at a time for the next 23 years. We came to this decision some three months ago when we could no longer generate the operating income to adequately pay for a qualified R.N. to be the first person to answer our phone in the office: likely the most important tool for managing accessibility for Primary Healthcare.

Reading the implementation of MACRA leads me to be thankful for our decision, even though I have personally generated feelings of abandonment. Our patients have all been generous with their respect and positive support for our place in their HEALTH over the last 41 years. My associates and I have always felt it was a rare privilege to have this connection with the rhythms of so many lives. This connection now being replaced by an “Urgent Care Center” side-by-side with a highly regimented “Comprehensive Care” clinic, distributed throughout the city. All occurring in conjunction with Primary Physicians arriving from their residency programs unprepared to accommodate the degree of uncertainty characterizing the HEALTH of each citizen.

The disconnect described by C.P. Snow almost 60 years years ago between the humanities and sciences seems to now represent the central cause of causes for the paradigm paralysis gripping our nation’s healthcare. This paralysis will eventually bankrupt our proud nation, and my patients now set adrift will also suffer from my inability to help our community avoid this calamity. In 1957, Baron Snow was a physician and probably already sensed the abandonment of healthcare from its origins in the humanity of each person’s life, now institutionalized by MACRA in our nation’s centralized and coercive government. I am reminded that all of my ancestors came to Ellis Island from their homeland to leave its centralized, coercive government.

Member
William Palmer MD
Oct 20, 2016

As a proxy for the roughly 10,000 patients you have helped, I’ll thank you. What an impressive career and wonderful legacy! Tell us a few things: Would you select primary care again? What clinical problem was most vexing? Which patients were most satisfying? Did your referral patterns to specialists change over the years? Why? What scientific advance was most helpful to you over the 41 years?
What would you tell a high school kid about medicine as a career?

Member
pjnelson
Oct 21, 2016

What a wonderful invitation! Thank-you. Would I do it again…absolutely! The opportunity to iteratively consider alternatives for individualizing a care plan with the active involvement of each person, always starting with the basics, was a never ending source of amazement and progress. I found that the uniquely individual evolution of senile dementia to be the most difficult health condition, especially for those persons ending with a severe level of agitation. As for my favorites, there were two persons with lumbar spina bifida and its related diplegia. My connection lasted from birth to early adulthood, both had sterile urine when last tested. Their connection with their immediate family was profoundly demonstrated at every challenging event. For this sequence, the process of choosing consultants was augmented by living in a community with two medical schools. The main benefit was that the medical schools attracted a higher level of physicians into the private sector. The most spectacular advancement occurred in relation to the use of aspirin, metoprolol, lisinopril and atorvastatin to stabilize coronary artery disease. If you chose medicine for a future career, do NOT chose a professional group to join that doesn’t have a structured process for professional development that involves each colleague for their entire career. Peter Drucker wrote a book about it 20+ years ago.

Member
meltoots
Oct 19, 2016

Hey Kip, Love you posts. You can put me in the angry burned out physician group.
You are exactly right, its just buzzwords, puffery, “sounds good” ideas, “believe” in rainbows and butterflies. In the end its a HUGE complex mess, that has damaged the profession of medicine beyond repair at this point. We are in REALLY big trouble out here on the front lines.

Member
Oct 19, 2016

“My hope for both MACRA and the ACA is total repeal and replacement”

Trump is your guy. http://regionalextensioncenter.blogspot.com/2016/09/repeal-and-replace.html

😉

Member
pjnelson
Oct 19, 2016

I would also vote for a Constitutional Convention to propose a Balanced Budget and a Term Limits Amendment for Congress.

Member
William Palmer MD
Oct 19, 2016

Well, they’ve got all the registration and IRS stuff on the 100%-400% FPL folks. Why couldn’t they fix the ACA by just telling the insurers that they can do anything they want, including underwriting. And the government would subsidize folks based upon income, wealth and health. The people would have to come up with the difference between premia and subsidy by oop or local or state taxes.