Is It Time To Revisit Physician Unions?

The Patient Protection and Affordable Care Act (PPACA) isn’t quite one year old but has already had far reaching effects while generating visceral responses from all involved.  For those who were added to the roles of covered individuals..a sigh of relief.  For just about everyone else..retching, headaches, fear and loathing.  From insurance providers and employers to hospitals and physicians, the expectation of the implementation of the PPACA is being met with the same reservation and feeling of doom as I had when my mother would say “Just wait till your father gets home”.

One response on the part of hospitals and physicians has been the purchase of practices by hospitals, essentially turning the physicians into employees.  The benefits to hospitals are a steady group of physicians referring patients to the hospitals’ inpatient and outpatient facilities, control over certain physician activities, collection of physician related fees and collecting the savings for reduced  overhead expenses.  The benefits to physicians are a steady, pre-established salary, bonuses that can be paid without regard to Stark regulations and limited management of day to day office activities and staff.  An additional benefit to these physicians is the ability to collectively bargain with their employer.  That’s right, a union!

The National Labor Relations Act was enacted in 1935 at the same time that the Federal Labor Relations Board was formed.   The Act was designed to “protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy”.  Several groups of workers were excluded from the Act’s protection, including independent contractors, federal employees, domestic servants and agricultural workers to name a few. Implied, but not specifically stated, were physicians also. The Civil Service Reform Act was enacted in 1978 to cover previously exempted federal employees, giving them the right to collectively bargain with the United States Government.

Physician unions are not new and have been in existence for many years. Their numbers peaked around 1974, with an estimated total membership of 55K.  That was a time when physicians were seeking specific relief from malpractice liability cost increases, relief from government regulation and talk of nationalized health care.  Those numbers have drifted downward but remain steady at about 40K.  The main reasons cited for lack of interest in unions is that currently they can’t be used as collective bargaining units for reimbursement.  Physicians are also afraid to join for fear of bringing the wrath of the federal government down upon them.  An article on the history of physician unions and recent legal developments is here.

An interesting article comparing the issues currently affecting the state employees in Wisconsin and the author’s father, who is a physician, is here. I agree. Physicians are as much a group that should be allowed to unionize as much as any other health related personnel. If we take the definition of an employee vs an independent contractor and apply the test to the current physician/Medicare relationship, the waters appear to be a little muddy on the subject, in the physician’s favor.

Medicare requires a contract to participate. Medicare requires the physician to obtain and supply them with an NPI (National Provider Identification number) before an application of participation will even be considered. Medicare requires the physician to supply banking information for remittance of electronic payments (checks will not be issued). Medicare sets its fee schedule and tells physicians what they will pay; there is no negotiation possible. Medicare sets specific guidelines for documentation of physician/patient encounters to justify certain levels of charges submitted to them; no exception and if incorrect, the penalty for each offense is a $5,000 fine and up to ten years in jail.  All of these items, plus many more, are requirements and NONE are negotiable.

“An employer has the right to control an employee.” Since physicians are “hired” by Medicare to see and treat Medicare patients for a fixed fee (fee schedule-non-negotiable), “the right to direct and control the workers” (Medicare dictates how documentation is to be done, how charges are to be submitted, how remittance will be made and penalties to be levied if not done correctly), … but also as to the details, manner and means by which the results were accomplished. ” Another factor to be considered is the term and duration of the relationship between the company and the workers. The relationship of an independent contractor generally contemplates the completion of an agreed service and result within a stipulated period of time. On the other hand, an employment relationship generally contemplates a continuous rendering of services for an indefinite time” (Medicare “agreements” are yearly and automatically renewable unless terminated by either party in writing).

Since the majority of physicians, in most communities, rely on Medicare as the single largest payer in any given market, most physicians or practices could not survive without participating with Medicare. And with the implementation of the PPACA, more of our income will be dependent upon government sponsored programs.  Under these circumstances, physicians have little choice except to continue working with Medicare. It would only seem fair if we could at least negotiate like any other group with our employer.

Hey NLRB, you can’t have your cake and eat it too.

Doc B

My opinion is free.

Advice is worth exactly what you pay for it.


Health Care Survivors in the New Government Age

I ran across an interesting blog article today.  In it the author tells us that the major players in the health care arena must learn to change themselves by 2015 or risk being run over by the bus, metaphorically speaking of course.  You can read the entire article here.  The tale he tells is one where the new Health Care legislation, along with its regulations and government oversight, will make life a living hell for those players who did not see the change coming or make adjustments for it, well in advance.  And there truly is no reason that everyone shouldn’t be prepared.  We have all been told over and over “it’s” coming.

What I have some issue with is the idea that insurers would forsake profit  for their plan members.  On the contrary, they will be the first to figure out new and yet unrealized loopholes to keep the faucet of profit flowing. Insurance is an interesting industry where you decide how much profit you’d like to make then increase your premiums to make that profit.  Nice. If only the rest of us could do the same.  I wrote a previous blog about a different kind of insured model that would hold the insurers accountable to their customers.  I still think it is a workable model in the upcoming health care market,  AND it requires some form of government oversight.  But without the government trying to run it.

Another player in the market expected to make a change are hospitals.  Contrary to popular belief, hospitals don’t make their money on you when you are a patient.  Rather, they make their money off of outpatient procedures that are performed at the hospital.  The true benefit of being a hospital is the additional reimbursement received for using their facilities or for outpatient procedures.

For example; several surgeon get together and open an ambulatory surgery center (ASC).  They use state of the art equipment, the best staff, and receive JCAHO certification.  They perform the same procedures as the hospital, but the hospital gets reimbursed more than the surgery center.  Even if the ASC has better patient outcomes and lower post operative complications, they still receive less reimbursement.  The result is that many surgery centers are closing and surgeons are making deals with hospitals to share profits if they utilize hospital operating rooms and staff.

The very government that says they are trying to save you money, while providing “quality” health care is rewarding the more expensive hospital, that in all likelihood has less favorable outcomes.

Doc B

My opinion is free.

Advice is worth exactly what you pay for it.


Preventable Medical Errors

A recent post regarding a medical error that occurred with a kidney transplant patient caught my eye.  I was interested because of the position the author had taken on the subject.  Without looking at his profile I assumed he was an administrator of a hospital.  You can read the post and comments here. This story is a case of a true medical error. The post generated a lot of comments, most of which seemed to miss the point; as long as humans are involved in any endeavor, there will be errors.  Even if the humans are in control of a fully automated system, there will be errors (calibration, maintenance, supplies, etc.).  The goal of any process improvement should be to reduce the human errors committed, but unfortunately will never be completely eliminated.

Looking at things from a clinician’s point of view, not all reported medical “errors” are errors.  Some are merely complications of procedures. Upon further analysis, those original studies citing the number of lives to be saved by preventing those errors aren’t as many as they would have you believe.  They also falied to consider the health status of the patients before the error had occurred and whether or not that patient may have survived regardless of the error.

Medical errors are defined as: Errors or mistakes committed by health professionals which result in harm to the patient. They include errors in diagnosis (DIAGNOSTIC ERRORS), errors in the administration of drugs and other medications (MEDICATION ERRORS), errors in the performance of surgical procedures, in the use of other types of therapy, in the use of equipment, and in the interpretation of laboratory findings. Medical errors are differentiated from MALPRACTICE in that the former are regarded as honest mistakes or accidents while the latter is the result of negligence, reprehensible ignorance, or criminal intent. I don’t believe that any clinician would be accepting of medical errors, much less negligence.  I’m sure many errors occur daily and no one hears about them or even knows they have occurred because the patient was not harmed.  These errors are no more significant than any other.  We shouldn’t only focus on those errors that result in loss of life or a negative patient outcome.  If we improve the processes that lead up to those preventable errors then perhaps we can have a truly positive impact on patient outcomes.

Take for example the Medicare quality measure of a urinary tract infection. This is one of the diseases/conditions sited by Healthgrades as being of significant cost and related to loss of life amongst Medicare patients.  If a patient is admitted to the hospital and after two days is diagnosed with a urinary tract infection (UTI), the hospital is dinged by Medicare with a “preventable” infection and will not pay any costs related to that UTI, even if the patient is overcome by septic shock and spends days in the ICU.

Now take that same patient, but instead of admitting them directly, they have testing done at the time of admission showing they have the “possibility” of a UTI.  I, as the admitting physician, document they may have a UTI, and possible septicemia.  Two days later, they become ill and end up in the ICU.  Both scenarios can be the same patient.  The only difference is the documentation in the chart at time of admission.

Under no circumstances was the UTI in either case a “preventable” one,  but from Medicare’s standpoint, the first case is not their problem, financially.  They also consider that UTI to be a negative quality issue with a negative quality mark against that hospital, available for review on the internet.  Not a true, fair representation of that hospital or its staff.  Our hospital chose to screen all admissions for possible UTI with a urinalysis at the time of admission.  In that way we were able to “catch” those patients, who may have been asymptomatic, with a UTI at the time they were admitted.  Defensive medicine being practiced by a hospital, not a physician, because of Medicare’s misunderstanding of “preventable”.

Another hospital screened every patient for clostridium difficile colitis and MRSA at the time of admission.  And a very high number of patients were positive on their screening tests.  These are also quality measure conditions that Medicare deems as “preventable”.  If they are diagnosed after admission, Medicare classifies them as “hospital acquired” and gives the hospital a negative quality mark and may decrease their overall reimbursement for ALL Medicare patients.  Another example of increased costs of medicine due to Medicare’s demand for the prevention of diseases that aren’t preventable and placing the hospitals in a defensive position.  Their limited clinical understanding of disease processes has forced hospitals to order testing and perform screenings to show that many of the infections Medicare deems as preventable are actually present on admission.

As Medicare continues to reduce reimbursements I’m sure you will see more “defensive” medicine practiced by hospitals in an attempt to get a higher quality rating and therefore more reimbursement.  And, that doesn’t even scratch the surface of truly preventable diseases or medical errors.

Doc B

My opinion is free.

Advice is worth exactly what you pay for it.


Unites States Budget and Health Care; A Connection?

The president recently unveiled his budget proposal for the coming fiscal year.  It makes for some very interesting reading.  The section of the proposal that describes, by item, the increase or decrease and it impact on the deficit is especially fun to review  If you’re interested here’ a link; You can review the budget summary or by specific department.

Of interest to me of course, is the area related to health care.  Actually, given the enormous debt associated with the health care bill, and it’s immediate negative tax consequences, it should be of interest to you also.  The budget makes projection on future deficits showing some slight decreases but even 10 years out, no real reduction in the National debt.  It also assumes an increase in tax revenue.  With the current rate of unemployment and the  economy in the its current shape, the only way revenues will increase is by raising taxes.

As a physician, I’m the recipient of a double whammy.  Not only are physicians a routine and regular target of the press and the tax man, but also Medicare.  Reports generated by CMS (Centers for Medicare and Medicaid Services), consistently talk about the “increases” in payments made to physicians from both the public and private sectors.  Their last report stated a 9.9% increase.  I didn’t see that in ANY payment from Medicare or private insurance.  And NO WAY will you ever see an increase in Medicaid.

In fact, Medicare is fudging the data a little to make physicians an easy target.  MEDPAC (Medicare Payment Advisory Committee) is the independent Congressional agency formed to develop and report the studies that are used by Capitol Hill and all the news agencies who report on these issues.  But, if you look into the ENTIRE report, like I did, you find some very interesting facts.

In the most popular version of the reports from 2008 or 2010, physicians are lumped together with “…other clinical services”.  I couldn’t find a definition for their clinical services so I continued to dig to separate physicians from “clinical services” to see what impact, if any, Physicians truly have on the total of Health Care Expenditures in the US.

I found a full copy of the MEDPAC report on their website.  It states that in 1999 “Fee Schedule” payments to physicians accounted for 16% of Medicare dollars spent.  But, in 2009 that value was only 13%  In their official 2008 report that almost all the presidential candidates spewed out of their mouths during the last election, repeatedly reported “physicians were responsible for 22% and that figure was an increase of 9.9%.  There may have been an increase in that category, but it was for ….other clinical services.  Rather an unfair representations.  I think it was done purposely to help demonize physicians and make them an easy target for fee reductions.

You’d think that the AMA (American Medical Association) would be looking out for its physician members.  But you’d be wrong.  The AMA spews the same data as everyone else, despite the fact that it misrepresents every physician in the US.  That means that their article published as Health Care Trends 2008 has no one looking any more deeply int the reported data than the seemingly corrupt congress we have in Washington.  The Tea Party is making headlines all across the US because the citizenship has had enough.  Corruption, taxation without representation, Capitol Hill turning a deaf ear on their constituency. Washington has lost touch with the people.

If we the people have incompetent representation from all of our leadership, who or what are we to believe?  And how can we ever make ANY intelligent decisions, especially about our national leaders?

Doc B

My opinion is free

Advice is worth exactly what you pay for it.


‘‘Patient Protection and Affordable Care Act’’ Part I

So lets get started. The actual meat of the Senate version of the health care bill starts on page 16. Pages 2-15 are an “index” of section numbers, much like page numbers but with specific reference to certain portions of the text and not an actual page number, per se. My review is based on page numbers; mostly because it’s easier for me. If a section crosses page numbers, I’ll complete that section and pick up the remainder of the page in another post. If you would like to follow along as we review together, here is the link to the bill from the democratic senators website.

The first section tells us that insurers are not allowed to establish lifetime limits of coverage or set “unreasonable” annual limits on beneficiaries, but fails to tell us what “unreasonable” is. If a service is not part of the basic essential package of benefits required, insurers may impose lifetime and individual limits for those services. This section also says that an insurer cannot rescind a members benefits once enrolled, unless that person commits fraud or makes an act of intentional misrepresentation. But they can cancel your insurance with prior notice, as permitted under section 2702(c) or 2742 (b). So in effect, they can cancel you with prior notice.

This next section is even better. Instead of paraphrasing it, I decided to include it in it’s entirety so everyone can see just how ridiculous this is. I’m also including the link to the Task Force they mention. You definitely need to read that. Look through the list and pick a disease or diseases that you or someone you know may be concerned about. Check the recommendations for screening. Wow!

SEC. 2713. COVERAGE OF PREVENTIVE HEALTH SERVICES. ‘‘(a) IN GENERAL.—A group health plan and a health insurance issuer offering group or individual health insurance coverage shall provide coverage for and shall not impose any cost sharing requirements for—‘‘(1) evidence-based items or services that have in effect a rating of ‘A’ or ‘B’ in the current recommendations of the United States Preventive Services Task Force;‘‘ (2) immunizations that have in effect a recommendation from the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention with respect to the individual involved; and ‘‘(3) with respect to infants, children, and adolescents, evidence-informed preventive care and screenings provided for in the comprehensive guidelines supported by the Health Resources and Services Administration.‘‘(b) INTERVAL.— ‘‘(1) IN GENERAL.—The Secretary shall establish a minimum interval between the date on which a recommendation described in subsection (a)(1) or (a)(2) or a guideline under subsection (a)(3) is issued and the plan year with respect to which the requirement described in subsection (a) is effective with respect to the service described in such recommendation or guideline. ‘‘(2) MINIMUM.—The interval described in paragraph (1) shall not be less than 1 year.The previous section is saying that any new recommendation made by the task force must wait at LEAST one year before being included as a covered, no “cost sharing”, benefit. By that time the research and literature will have likely changed and we’ll all be receiving a free benefit that covers an outdated treatment or recommendation. It could actually be found to be harmful. Thanks!

Sec 2715. DEVELOPMENT AND UTILIZATION OF UNIFORMEXPLANATION OF COVERAGE DOCUMENTS AND STANDARDIZED DEFINITIONS.Wow! Really big words that mean that all of the insurers are going to be forced to provide members or insureds (you) with a complete, concise summary of benefits and coverage, that is culturally appropriate, not smaller than 12pt type, contain insurance and medical definitions, description of coverages including those requiring cost sharing, deductibles, copays, renewals and only be four pages long. The bill took almost four pages to say what had to be contained in the four pages and didn’t go into any detail. It also states that it must be culturally appropriate and able to be understood by a typical plan participant. They cant tell the insurers what to do in less space than they want the insurers to do it, with much greater detail and under penalty of law or prohibiting them from participation.

What the hell are they thinking?

Doc B.

My opinion is free.
Advice is worth exactly what you pay for it.