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Clinical Practice Guidelines as “Safe Harbors” against Malpractice Claims

Health care costs too much in the United States. One key problem is gold-plating of services driven by physicians’ fears of lawsuit for failure to do everything possible for patients. A notable example of such overutilization is increasingly routine ordering of advanced imaging or other tests. Reliable, evidence-based clinical guidelines promise to address low-value utilization by authoritatively stating standards of good care in advance.

Some thought leaders among Democrats seek to use guidelines to side step the routinized political battles over malpractice reform. Republicans have been saying that defensiveness and other problems justify caps and other limits on medical liability. Belittling defensiveness as a problem, Democrats have defended and promoted liability as an incentive for good care.

Defensiveness is a problem, acknowledge proponents of guidelines to reform liability. But it can be fixed simply by legislating that adherence to reliable guidelines constitutes a “safe harbor” against lawsuits for failure to do more. Safe harbors would remove the motivation for defensiveness and also any need to accept Republicans’ caps and other limits. Given the political stalemate in Washington, the idea is worth thinking through.

Good guidelines are a good idea, especially to improve quality of care, which is their main policy driver. And, because guidelines hold promise for cutting wasteful defensiveness, they have superficial appeal as a liability reform. However, practical feasibility limits the reach of safe harbors, as explained in a recent policy brief from The Urban Institute for the Robert Wood Johnson Foundation.

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Why Nobody Believes the Numbers

MARKETPLACE

Did you know that the “official” industry guidelines for measuring care management outcomes are mathematically certain to overstate savings?     And that about half the companies in the DM/wellness marketplace (including carriers) have invalidating mathematical mistakes right on their websites or in their brochures?   And that others simply lie?  And that the “gatekeepers” who are supposed to prevent these mistakes – leading benefits consulting and actuarial firms – routinely make up savings figures that are simply mathematically impossible and hope they don’t get caught?

This is the first book to treat outcomes as being math-based, not faith-based.  It is aimed at the grown-up segment of the marketplace – people who really want to see how much they can save, rather than how much they can be told they can save.   A dozen hilarious case studies—and we are naming names — will include:

·         Major carriers who simply make up numbers and dare you to catch them
·         Benefits consulting firms that specialize in “validating” mathematically impossible results
·         Vendors promising savings in excess of the mathematical limit of 100%
·         Carriers/vendors that are either totally clueless and/or think you are…and make up their own metrics like “reduction in undetected claims cost,” leading one to ask how they are able to detect undetected claims cost, and/or how an employee would otherwise have filed an undetected claim

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The New Doctor’s Desk Reference: How to Break Bad News (For Doctors)

News organizations used Dr. Judah Folkman’s death to report on his decades-long cancer research career. Given his status as a distant, non-celebrity, non-Nobel surgeon, you may be asking yourself why you, personally, should care about his death. Here’s why.

We were in our second year of medical school, feeling the growing pressure of clinical years just around the corner, when we would be thrown into the hospital system. For now, we had lectures in a large hall with 130 students sitting in chairs that sloped down to a stage. Professors came with presentations and handouts and complex diagrams. The immunology lectures were continuous strings of letters and numbers, with only the occasional verb, impossible to decode as human speech without months of training. Every tissue, every disease, every human physiologic function was discussed, down to the sub-molecular level. After hours of these lectures, the air would get stale and backs would ache and the squeak of weight shifting in chairs would become a metronomic beat marking out time that seemed to pass endlessly.

Then, one day, Dr. Folkman walked on stage. He asked us to put down our pens. He said he was going to teach us something that no one else would ever discuss, much less teach. I can’t imagine what he was thinking as he looked out on the sea of our faces. Give or take a few years, almost all of us were twenty-four years old. Almost all of us were single, ambitious, untouched by any of the major human experiences—no children, tragedies, severe illnesses or grief. The youth, the arrogance, the lack of world experience, all of it had to be a daunting, uninspiring sight. Dr. Folkman knew that in mere months, we would be keepers of information that would profoundly change lives. Pathology reports, cancer diagnoses, even the death of a loved one, those were all things we would be telling vulnerable people. Our actions and our words would be often unsupervised, particularly when disaster struck in the middle of the night.

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The Destructiveness of Measures

A little box pops up before him asking if he asked the patient about the exercise.  He mumbles something under his breath, clicks a little box beneath the question, then moves on.

This is what medicine has become:  a series of computer queries and measures of clicks.  It must be measurable, quantifiable, and justifiable or it didn’t happen.

Do they ask if I asked them about if they used cocaine?  Of course not: too politically incorrect.

Do they ask if I really listened to their heart?  Of course not – this activity is not a paid activity.

Do they ask about the myriad of phone calls and e-mails to arrange for a procedure?  Nope.

Do they measure my time with the patient when I go back to see them on the same day?  Nope – not paid for.

So what’s the motivation for doctors to be doctors?  Are we retraining our doctors from care-givers to data providers?  What are we losing in turn?

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Employers and Health Reform

“Change, before you have to…” Jack Welch

We live in a society that loathes uncertainty – particularly the unintended consequences that sometimes result from a catastrophic event or in the case of PPACA, landmark legislation. Wall Street and the private sector crave predictability and find it difficult in uncertain times to coax capital off the sidelines when the overhang of legislation or geopolitical unrest creates the potential for greater risk. Despite our best energies around forecasting and planning, some consequences, particularly unintended ones – only reveal themselves in time.

In the last decade, employers have endured an inflationary period of rising healthcare costs brought on by a host of social, political, economic and organizational failures. There was and remains great anticipation and trepidation as Congress continues to contour the new rules of the road for this next generation’s healthcare system. Optimists believe that reform is both a way forward and a way out of a mounting public debt crisis and a bypass for an economy whose arteries are clogged by the high cost of medical waste, fraud and abuse.  Cynics argue reform is merely a Trojan Horse measure that offers an open invitation for employers to drop coverage and for commercial insurers to “hang themselves with their own rope” as costs continue to spiral out of control — leading to an inevitable government takeover of healthcare.

Meanwhile, leading economic indicators are flashing crimson warning signs as recent stop-gap stimulus wears off and long overdue private/public sector deleveraging results in reduced corporate hiring, lower consumer confidence and increased rates of savings.  The symptoms of a prolonged economic malaise can be felt in unemployment stubbornly lingering around 9.2% and a stagnating US economy that is struggling to come to grips with the rising cost of entitlement programs.  Across the Atlantic, the Euro-Zone is teetering as Italy and Spain (which represent more credit exposure than Greece, Portugal and Ireland combined) stumble toward default.  Despite these substantial head winds, US healthcare reform is forging ahead – – right into the teeth of the storm.

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Monopoly Anyone? The Battle To Control Health Care

Like children gathered around a card table, America’s special interests are engaged in a high stakes game of Monopoly. But the winner of this game gets more than a day or two of bragging rights; this time the spoils are nothing less than control of our health care delivery system for the foreseeable future.

Let’s meet the players: on one side, Big Medicine; across the table, Big Insurance; and between them, Big Government. There’s room at the table for a 4th player…but we’ll get to that later.

Introducing Big Medicine

To compete in this high-stakes game, Big Medicine is reforming itself into large, multi-disciplinary organizations. Independent hospitals are merging into hospital systems. Hospitals and doctors are coming together as self-regulating Accountable Care Organizations (ACOs).

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How I Lost My Fear of Universal Health Care

When I moved to Canada in 2008, I was a die-hard conservative Republican. So when I found out that we were going to be covered by Canada’s Universal Health Care, I was somewhat disgusted. This meant we couldn’t choose our own health coverage, or even opt out if we wanted too. It also meant that abortion was covered by our taxes, something I had always believed was horrible. I believed based on my politics that government mandated health care was a violation of my freedom.

When I got pregnant shortly after moving, I was apprehensive. Would I even be able to have a home birth like I had experienced with my first 2 babies? Universal Health Care meant less choice right? So I would be forced to do whatever the medical system dictated regardless of my feelings, because of the government mandate. I even talked some of having my baby across the border in the US, where I could pay out of pocket for whatever birth I wanted. So imagine my surprise when I discovered that Midwives were not only covered by the Universal health care, they were encouraged! Even for hospital births. In Canada, Midwives and Dr’s were both respected, and often worked together.

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What Republicans Want to Take Away

The fight is on — again. Mitt Romney, Scott Brown, and Republicans across this country are doubling down against President Obama’s health care reform law. Now that the Supreme Court has said that most of the new law passes constitutional muster, the Republicans are running for office pledging to repeal every aspect of the health care reforms.

For millions of people this isn’t a political issue, it’s a personal one. Their health depends on it.

Massachusetts has led the country in health care reform. Most of us — 98 percent — have health care coverage, and our state leads the country in tackling head-on the ever-growing costs of health care. That is why President Obama used our law as a model for health care reform. But the national Affordable Care Act adds some important elements that improve care even here in Massachusetts.

For seniors, health care reform means expanding Medicare coverage to pick up the costs of prescription drugs. As the donut hole closes, the average Massachusetts senior has so far saved about $650. But Mitt Romney, Scott Brown, and their fellow Republicans want to take that away.

For young people, health care reform means staying on their parents’ insurance plans until they are 26. So far, more than 20,000 young people here in Massachusetts have taken advantage of this. But Romney, Brown, and their fellow Republicans want to take that away.

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Crowdsourcing, Price Formation, and Health IT

From the perspective of the average patient, going about his life unconcerned about health policy or economics, what is the most frustrating characteristic of U.S. health insurance? Surely, it is the madness of the billing cycle: Never knowing how much a medical service costs until long after you’ve received it, and sometimes only after a flurry of phone calls and paperwork that can take months to clear up.

This is surely why Michaela Dinan’s “winning entry” in a national essay contest, which invited people to submit anecdotes “illustrating the importance of cost awareness in medicine,” has struck such a chord.  Ms. Dinan’s story concerned a billing error for inserting an IUD.  Before the procedure, the patient learned (via “a few keystrokes”) that the cash price would have been $843.60. Insured, her out of pocket cost was to have been about $200.  Instead, she received a bill for $1,100 that took months to sort out.  I suspect that most readers and contributors at The Health Care Blog will use this story as further evidence of the need for a massive national investment in Health IT, along with Patient-Centered Medical Homes, Accountable Care Organizations, adherence to “meaningful use” standards, et cetera.

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Priorities for States as Plans for HIXs Move Forward

Many states are in a dash to finalize plans for a Health Insurance Exchange (HIX) following last month’s Supreme Court decision to uphold the Affordable Care Act (ACA). The scramble poses several questions – are Americans ready to participate in exchanges, and will states have enough vendor support to meet the deadlines?

Survey Shows HIX Knowledge Gap among Americans

A recent survey of more than 2,000 U.S. adults conducted online by Harris Interactive on behalf of Xerox asked if they were in need of health insurance, would they consider purchasing it through a HIX. Nearly half (46 percent) were not sure. Another 25 percent said they would not consider using an HIX, while 29 percent said yes.

This is interesting as HIXs are designed to create a more consumer-friendly experience, where people can shop and compare when choosing a health plan, much like Expedia.com finds the best travel fare. However, as consumers are reporting a hesitancy around participating in HIXs, there appears to be a disconnect between the consumer-friendly intent and the knowledge people have of the type of experience and benefits an HIX will bring. While it’s common for people to be unfamiliar with the benefits of new technology until they use it, there is a need for states to quickly fill the knowledge gap around exchanges to show consumers they will deliver the desired experience.

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