JR wrote to us with an interesting question:

“Given the attempt to recover bonus payments to AIG, can you envision a scenarios where CMS attempts to recover payments from physicians that they retroactively deem too high?   What if a new national standards board establishes a rate for hip replacements that is lower than what it is today?  Similar situation?  Not at all?  I’d like to see a discussion on this.”

CCHIT President Mark Leavitt likes the Obama administration’s pick for National Health IT Czar.  He left this comment on Matthew’s post on the selection.

I had the opportunity to work with David Blumenthal recently when I served on an expert panel for the health IT adoption studies. He has a deep understanding of applied health IT and, even more important, how clinicians interact with these systems in the real world. This is great news for everyone interested in advancing the use of health IT to improve quality, safety, and cost efficiency.

Commentology regular Christopher George thinks the courts missed the underlying point in both of the cases that Tobias Gilk discusses. Pharma vs. Devices – FDA, Supreme Court and Liability Whiplash

“In both of these [instances] the product was mis-administered. The
Medronic balloon was inflated above the pressure for which it was
rated; the drug was mis-administered by the nurse. In both cases, the fault lay with the doctor or nurse using the
product, not the product. There is no “failure to warn” here. The
balloon was over inflated. Every balloon, when overinflated enough will
burst. The injection was made into an artery.”

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  1. well I tend to disagree. I think major changes are in order with health care in the US. Carl Parisien Natick MA

  2. JR they have actually done the opposite once in the past so as crazy as it sounds it wouldn’t be out of the realm of belief for congress to do it.
    Count this as reason 142 that we should never consider nationalized healthcare.
    I forget the exact year but around 2002ish there was a bill being considered to either raise or undo a cut in provider funding. Congress being congress it went no where quick and rolled into the next year.
    Keep in mind millions of medicare claims are paid each week.
    Around March or so Congress finally passed the bill which amounted to a roughly 3% increase. Instead of starting the new rate at some date in the future like anyone with an ounce of common sense would do it was retro active. Ecery claims processed between Jan 1 and April had to be redone and additional payment sent.
    As you can imagine 3% is not a huge additional payment but still needed done. We administered a medicare supplement so we where paying an additional 3% on the 20% Medicare didn’t pay. We literrally sent checks for pennies. The postage was more then most checks.
    I would say what you questioned is very possible in the screwed up system we have now.
    Keep in mind Medicare does no prospective screening for fraud and abuse, everything is done after payment months down the road. If someone in DC watched oneof those electric wheel chair commercials and had the empythamy they where being abused the only recourse would be retro.

  3. The question on CMS attempting to recover payments from doctors is confusing apples and oranges. In the case of AIG, the government is now an owner of the company and is trying to recoup money paid to employees. Or, alternatively, the government as Congress is simply passing legislation taking away the money through taxes.
    CMS either pays or doesn’t. There is no retroactivity on appropriateness except insofar as a review finds evidence of fraud and abuse. While the fears of a national standards board are, for now, highly exaggerated, the chances that standards will be made retroactive are nil. Even with AIG, by the way, it took public outrage of an unprecedented scale to prompt the government to figure out ways out of AIG’s contractual obligations.
    Moral of the story: if, say, you put in phantom hips and charge people $65 billion, you’re in trouble. But, under non-fraudulent circumstances, or unless you’re Fox News, the AIG “precedent” is completely irrelevant.