Thursday, November 4, 2010

OBAMACARE NEEDS INSTANT REVISION by Robert L. Weinmann, MD

"I WILL ENSURE THAT NO GOVERNMENT BUREAUCRAT GETS BETWEEN YOU AND THE CARE YOU NEED"

Inadvertently, some would say, Obamacare contains provisions that effectively ration care. With all due intent, others assert, it's no accident that the present version of Obamacare contains language creating pre-authorization restrictions. Here's how it works.

In the autumn of 2009 President Obama said "I will ensure that no government bureaucrat gets between you and the care you need." At the same time, however, Congress was considering HR 3200 which contained a provision to establish "a private-public advisory committee" to "recommend" treatment options. The public reaction was tepid, but House Minority Leader John Boehner (R-Ohio) and Speaker Nancy Pelosi (D-CA) noticed problems. The difference was that Boehner wanted to expose these discrepancies but didn't at the time have enough information to do so. The bill was only in its formative stages even though it was being rushed through the legislative process (see The Hill's Blog Briefing Room, story by Michael O'Brien with comment by the undersigned, 3/04/10). Pelosi didn't worry about internal problems in the bill --her agenda and that of President Obama was to get the bill passed no matter what flaws might be in it.

HR 3200 then gave way to HR 3962 which included a provision to set up a Health Benefits Advisory Committee which was further described as "a private-public advisory committee which will be a panel of medical and other experts to be known as the the Health Benefits Advisory Committee to recommend covered benefits." In other words, Medicare patients were on the verge of being "recommended" out of the care they needed. Patients generally were on the verge of being "protected" out of the care they might need by a new bureacracy for health care regulation that was actually contained in legislation that was being hurried past Congress.

HR 3962 would include an Independent Medicare Advisory Board (IMAB) that would be empowered to regulate care before-the-fact by utilizing techniques known as "pre-authorization" and "utilization review." At this point, chills should have radiated down President Obama's back. His allies in Congress had undercut his promise. Did he understand that? Nancy Pelosi should have been alerted that the IMAB would be a bureaucratic adjustment that would toss Presidents Obama's promise onto the scrapheap of political rhetoric.

Still there was no hue and cry about specifics in the bill which went unread by many Congressional representatives who didn't notice that key words such as "provider" or "other medical experts" were often used to hide the fact that non-doctors would be making medical decisions pertaining to access to care. Red flags were flying but a divided Congress wasn't arguing technical issues that should have been openly discussed. After all, it is not too difficult for most of us to recognize when we're being "protected" out of our rights and property.

That's when the next metamorphosis occurred, namely, changing the name of the IMAB to the Independent Payment Advisory Board (IPAB). Now the cat was out of the bag -- the bill, as critics had opined all along, wasn't about medical care after all. It was about cost-containment. President Obama's promise was now consigned to the proverbial scrapheap -- without a word in protest from the President.

The IPAB language, now inserted into the Affordable Health Choices Act of 2009, was fleshed out by Section 10320 of the legislation. The IPAB removes Congress from the ability to make decisions. In the opinion of this writer, it is a danger to patients, doctors, and hospitals. Organizations purportedly interested in affordable healthcare should seek repeal of Section 10320 -- repeal of this section does not spell the demise of the entire bill. Repeal of Section 10320 should be a priority of the hospital associations, the medical associations, and the unions -- in fact, everybody. It is just as harmful to a corporate CEO as it is to the lowest paid worker -- that is why the unions should also seek repeal of Sec. 10320.

The IPAB is a sneaky attempt to restore rationing by enabling denials of care in advance. It is a utilization review mechanism designed to reduce costs by reducing access to care. It should be repealed.

9 comments:

  1. I'll preface the following diatribe with a single caveat; I hate utilization review. Pure and simple. I've been out of fellowship and practicing now for less than six months and I've already concluded that whatever logic may have substantiated the initiation of this process has been lost to an all too nihilistic and antagonistic endeavor.

    That stated, the statistics regarding US health care remain valid. Two and a half trillion dollars in total, over 17% of GDP, now over $8,000 per capita, for a system that still fails to treat an astonishingly vast population. The pending insolvency of Medicare should serve as sufficient impetus for change, and the final realization that health care, and more pertinently health care spending, is a finite resource. As such, it must be rationed.

    I've been clear about utilization review, but I'm also well aware of the dangers of continued cost escalation, to the field, to the people, to the economy. An objective panel of trained professionals, preferably specialty specific, trusted to oversee medicine's all to often rampant over utilization of services seems as legitimate an answer as I've heard thus far. Do I trust the federal government to develop this? No. Do I put faith in politicians more concerned with their own re-election campaigns than the good of the country? No. But it's at least a topic worth discussing, and vastly superior to simply putting off the difficult decisions until the next political term.

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  2. COMMENT ON THE COMMENTS

    The IPAB in the ACA, Section 10320, will require implementation by rule making -- that's the process by which statute may be enforced, implemented, or eviscerated.

    In the California examples in our earlier reports, we describeD how Utilization Review got turned upside down by a decision by the Office of Administrative Law which decided that in-state medical licensure wasn't necessary for utilization review.

    I appreciate Bradley Hennenfent's succinct approval and Dolori Finem's detailed discussion. The trouble is that IPAB appointees will be chosen by politicians, not by "an objective panel of trained professionals."

    Robert L. Weinmann, MD, Editor

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  3. Perhaps I'm wrong, but in my limited experience thus far it seems that the primary issue with utilization review is incentivization. That is, third party UR firms are capitalist enterprises with reimbursement schemes directly tied to denial rates. If there really was pure objectivity without financial impetus then the system may very well work. However, as soon as it becomes more profitable to deny, either through direct increases in payment or by additional throughput as reward for decreased authorization, any potential legitimacy is lost.

    I do, however, have to disagree with your contention that in-state medical licensure improves UR outcomes. Any notion that a 12 hour review course in pain management provides improved UR objectivity is dubious at best, and I can tell you that in my pain practice the denial rates, denial rationale and peer-to-peer discussion are no better with in state UR. A far larger issue is the review process that allows specialty specific decision making to be carried out by physicians without subspecialty training. Throw in the type of politicking to which you refer and the entire system may very well grind to a halt, at least from a patient advocacy standpoint.

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  4. Perhaps I'm wrong, but in my limited experience thus far it seems that the primary issue with utilization review is incentivization. That is, third party UR firms are capitalist enterprises with reimbursement schemes directly tied to denial rates. If there really was pure objectivity without financial impetus then the system may very well work. However, as soon as it becomes more profitable to deny, either through direct increases in payment or by additional throughput as reward for decreased authorization, any potential legitimacy is lost.

    I have to disagree with your contention that in-state medical licensure improves UR outcomes. Any notion that a 12 hour review course in pain management provides improved UR objectivity is dubious at best, and I can tell you that in my practice the denial rates, denial rationale and peer-to-peer discussion are no better with in state UR. A far larger issue is the review process that allows specialty specific decision making to be carried out by physicians without subspecialty training. Throw in the type of politicking to which you refer and the entire system may very well grind to a halt, at least from a patient advocacy standpoint.

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  5. COMMENT ON GARRET'S COMMENT

    I agree, Garret, that a 12 hour course in pain management may not improve patient outcomes, but it's enough to make sure that California doctors doing pain management know about California law. Licensure makes sure that so-called peer reviewers run the same risks as primary treating physicians and are equally subject to California's medical board. Treating doctors' wrongful decisions are subject to licensure review. Non-California licensed doctors don't run this risk -- they're not subject to the California board or even their own state boards because they don't have jurisdiction in California.

    As for the specialty title, that's a problem because major boards also have sub-boards with overlapping expertise, e.g., more than one major board has a sub-specialty board in pain medicine or pain management.

    You're right on target in pointing out that there's more financial incentive to denying care than there is to authorizing care. On a national level, that's why there's an IPAB in the ACA ("Obamacare"). The idea is create an up-front sophisticated denial and rationing system.

    "Medical Red-lining, Economic Credentials for Physicians," San Francisco Examiner, 12 Jan 1996, reprinted in the Congressional Record, v. 144, # 118, 9 Sept 1998, may interest you.

    Your overall point that "it is more profitable to deny" goes smack to the financial heart of the matter. That's where the fight should be.

    Thanks for your thoughtful comment,

    robert L. weinmann, MD, Editor

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  6. Comment on Dolori Finem's observation ... well said! My point about the 12 hour course is that the non-California state licensed doctors aren't responsible to the California Medical Board since they're not licensed in California. The 12 hour course at least makes sure that the examinees know the relevant law in California.
    Doctors who don't take this course cannot be held responsible to the medical boards in their own states since those states don't have jurisdiction in California. So, to whom are the non-licensed doctors responsible? The answer is they're responsible to their employers, the insurance companies.

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