Why Consumers’ Checkbook v CMS is a Sideshow – Brian Klepper

There are people who call for market solutions as the answer to every societal problem, but who then work to restrict the information that markets (and societies) must have to function effectively. Often, the truth is that these supposed market advocates need secrecy and opacity to protect their current advantages. If markets were to work as they claim they want, their actual behaviors (or pricing, or performance) would become known, and their positions compromised.

Which brings us to the new, interesting development in the case of Consumers’ Checkbook v CMS. You may remember that Consumers’ Checkbook (CC) is a consumer advocacy organization that sued CMS for the Medicare physician data in 4 states and DC. Seemingly arguing against their previous position, the Bush Administration – which actually has a good record for promoting health care pricing/performance transparency – took the opposite stance in this case, arguing instead that physicians have a right to privacy. (It is tempting to suggest that the AMA’s fingerprints must be all over this, but I don’t know that for sure.)

In any case, much to the surprise of me and, I’m sure, a lot of other people, on August 22nd, the court held with CC and ordered CMS to release the data by September 21st or appeal the decision. CC promptly promised to provide public access to the data, and sued again, this time for the Medicare physician data from the rest of the country.   

On October 19ths, CMS appealed the ruling. This means the Administration will fight to keep physician data out of the public’s hands.

As I’ve said before, in the short term the symbolic importance of this battle cannot be overestimated. Currently, there are few, if any, freely available, robust sources of claims data. Health plans and clearinghouses have the largest data sources, but these are typically proprietary.

If a startup company wants to identify the best performing physicians in any market – the ones who, in a given specialty, consistently obtain the best outcomes at the lowest costs – there is no easy way to independently do that.

Or let’s say you have a family member with a complicated condition or who needs a particular procedure. There is no direct way for you to objectively determine which community physician has the best track record with that condition or procedure. (You CAN get information on which car has the best repair record, which house repair contractor gets the best reviews, and which pizza restaurant delivers the fastest.)

The good news is that the Administration’s position is weak, at best, and won’t last long, even if they win this round. Hospital data is already publicly available and states are now actively publicly reporting key measurements of hospital quality and safety. Why should physicians have a special status that keeps their track records secret from the patients who depend on them? How can this Administration, which argues incessantly for market-based solutions, suppose that the health care marketplace can resolve the crisis when, as the great economist Adam Smith would have pointed out, there is no information to drive the decision-making that healthy markets require.

It is ironic that we’re even still having this discussion. In the first years of the 20th century, the famous surgeon Ernest Codman MD began to campaign for “the end-result system of hospital standardization.” He said,Hospitals [and surgeons], if they wish to be sure of improvement…must analyze their results, to find their strong and weak points, [and] must compare their results with those of [their peers]…[They should] make this information publicly known so that the future patients might make informed decisions.

In the end, it won’t matter what this Administration does. There is now widespread acknowledgment that much of the health care crisis can be traced to an inability to see what is going on behind the curtain. A tidal wave of sentiment is building in the marketplace, with calls for making the information available, so that decision-makers of all types can make responsible, informed decisions.

It is difficult to imagine that this stonewalling can last much longer. If transparency doesn’t occur through policy change, it will surely happen in the marketplace through vendors with the heft and resources to see it through. If the recent Health 2.0 conference in San Francisco made any point emphatically, it was that a slew of companies are focused on infusing health care with unprecedented levels of transparency and decision-support.

The transition away from an opaque market to one that makes relative pricing and performance known and that rewards the good providers is the real health care reform we’re all looking for. Yes, we need to find a way to re-enfranchise everyone into the system. But that will be much easier if there is reason to believe that we can get excessive care and cost under control.

And to that end, Consumers’ Checkbook v CMS is a sideshow, not a pivotal decision. On this issue, the Bush Administration and whoever is urging them on are anachronisms that will soon be swept away with the buggy whip and White-Out. The real change agent here is technology and the long-overdue realization by purchasers of all kinds that, when markets are opaque, value becomes secondary and many vendors will act most assertively in their own interests first.

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7 replies »

  1. In the discussion above both “Happy” and “Peter” are correct. If CC had access to all of the appropriate data they could risk adjust for patient characteristics. However, to my knowledge, while they did reqest information about physicians, CC do not have the data about patients to do the risk adjustment. CMS has a much better privacy argument in regards to patient data than physician data, so it is unlikely they will ever give the data up.
    Also, I wonder which off the shelf algorithm (risk adjustment models) would be appropriate here if CC interested in more than mortality or cost. Even if they had all the data necessary, I believe that CC would struggle to put out meaningful results any time in the next couple of years.

  2. “All the most well-accepted analytical algorithms now account for both patient risk and adherence.”
    Brian, are these analytical systems meant for open public review and assessment? Will I be able to doctor shop from this information?

  3. Brian, are these algorithms population based, or individualized. That is, does every patient carry a severity of illness score, or are the algorithms based on the population profiles locally or regionally or nationally.
    As a hospitalist, we do our own severity of illness analysis evaluations with in our group on a person to person basis. We note, based on hospital coding charges (which itself can be highly manipulated), that our patient population carries a higher severity of illness than other community primary care doctors admitting to our hospital. Some of that increased severity is related to how well we document confounding comorbid medical problems (which is open to a physician’s time do document, and in essence manipulatable).
    So the question I have for you is, are these algorithms developed on an individual basis (everyone has a risk score), or are these algorithms based on populations. Because I can assure you, one can manipulate severity of illness simply by documenting more or less. It happens all the time.
    Patients can be sick as hell, but not coded as such because the documentaion does not support it. Documentation is very dependent on the physician and how well they do it. It is not equal through out healthcare. What are the data points that are plugged in to these algorithms that determine the risk and adherence. Is it physician documentation? Something else? If it is physician documentation, then the end result is open to manipulation towards sicker or healthier scores.

  4. Sorry Happy. This is simply incorrect. All the most well-accepted analytical algorithms now account for both patient risk and adherence. Otherwise they couldn’t hope to compare performance within vendor class on an apples-to-apples basis.
    The differences in patient resource consumption within condition classes are also fairly straightforward to spot. At this point, the evaluations are a lot more sophisticated than a mean. If patients A, B, C, and D require level X of products/services, but patient E, with approximately the same burden of illness, uses Y, that can be noted in the analysis.

  5. It’s hard to package “performance” data when the baseline patient populations can be hand picked to affect the data.
    Quite simply. Surgeon A only operates on “healthy” people, declining to “ruin” his/her numbers with more risky (code word for sicker)–> outcomes look better. Public perception–> Surgeon A is the best.
    Surgeon B has a referal base of sicker patients because he/she is considered “better” by his/her referring primary care docs. Now sicker patients have more complications, no matter how good you are. Public perception–> Surgeon B is less skilled.
    There in lies the problem with outcomes data. It all depends on what the bag of patients you start with. And that bag represents a large spectrum which can be chosen at will to skew data.
    It’s the same as outcomes measures in primary care. Kick out your least performing patients, those who chose not to take personal responsibility, or those just too dificult to manage and you can skew your data —> Dr. PCP A looks great. Take the high road and stick with your patient no matter how non compliant or difficult they are to manage and –> Dr PCP B looks bad.
    How does one factor in the baseline health of the patient without creating really expensive severity of illness adjustements for every single patient you see. Who will pay for that? More data, more money going away from the doctor-patient relationship.

  6. not to hijack the discussion, but following on jd’s point, one element provoking EMR vendors’ terror has to do with the ‘real’ market for robust patient data.
    I feel a lot of the difficulty in arriving at healthcare policy consensus has its roots in the same set of facts that confront EMR/PHR application developers.
    The ferocious skew of healthcare information volume follows the power-law-shaped graph of health care use: tiny fractions of the populace consume vast portions of total healthcare resources. Likewise, only tiny fractions of the population generate health records of a complexity that demand high-powered information management.
    Driven by expert guidance, both EMR & PHR entities build applications for that tiny fraction, apparently under the assumption that if they can deal with the complex cases they’ll ace the routine majority. Policy tends to follow the same path; attempt to anticipate the rules needed for the most complex instances, and along the way the simple stuff will be resolved satisfactorily.
    I’m increasingly unconvinced that that is the most promising path to developing an effective platform for the vast majority of health information exchange needs, or health policy resolutions either.

  7. Nice post. Another good example of the market working against the free flow of information occurs in the world of electronic medical records.
    EMR vendors have long resisted making their products interoperable. EMR vendors who don’t have very good products are terrified that once all the EMRs can talk to one another and share data, doctors will leave them for competitors rather than be stuck with their legacy systems. It is only concerted efforts led by the Federal government to reshape the market that are bringing interoperability about (CCHIT, NHIN, etc.)

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