Incompetent or Immoral- Which is it, United Healthcare?

The obstacle courses that patients and physicians must successfully navigate for physicians’ prescriptions to result in patients’ actually obtaining needed medications are becoming increasingly aggravating and dangerous. While obstacle courses are well established as part of military training for soldiers to prepare for combat and part of pop culture for contestants to compete for prizes on reality television series, the obstacle courses set up by health insurance companies serve no good purpose other than to enrich those very multi-billion dollar companies themselves and increasingly rich and powerful middlemen known as Group Purchasing Organizations (GPOs) on the inpatient side and Pharmaceutical Benefits Managers (PBMs) on the out-patient side. A misguided law with serious unintended consequences (a 1987 Medicare Anti-Kickback Safe Harbor statute that exempts these middlemen from criminal penalties for taking rebates/kickbacks from suppliers that went into effect in 1991 for GPOs) gave rise to an unimaginably corrupt pay-to-play system to let a given medication or medical device gain access to the healthcare marketplace. Translation, a medication is available at a hospital or on an insurance company’s formulary not because it is the best drug chosen by our nation’s expert physicians as having the best results and least side effects for most patients, but because the supplier of that drug has paid the most administrative fees, marketing fees, advances, conversion fees, prebates, rebates, and “sharebacks” to the GPO or PBM to pay-to-play. The drug manufacturer must then raise prices to offset the costs of the “pay-to-play.” Repeal of this flawed law would reduce cost of drugs by 30%, if not 50%, and save Medicare and Medicaid $75 billion annually. We cannot fix the healthcare mess until we shed light on the $200 billion that these middlemen take for themselves and repeal this law of unintended consequences.

 

The PBM industry is highly concentrated with just three huge companies controlling over 80% of the PBM market and more than 70% of all prescriptions dispensed in the United States. These three, UnitedHealthGroup, CVS Caremark, and Express Scripts reported aggregate net revenue of $303.7 billion in 2016 alone. The Pharmaceutical Benefits Manager for the United Healthcare, United Optum, is the largest. In 2003, PBMs petitioned the HHS OIG to extend the 1987 law covering GPOs, to cover the PBM industry. According to the Bipartisan Policy Center, from 2003 to 2013, Andy Slavitt worked at United Health Group, eventually serving as the Executive Vice President for Optum, United’s PBM middleman, which he grew to a $40 billion health services enterprise. In 2013, President Obama tapped him to repair healthcare.gov, and he then served as Acting Administrator for the Center for Medicare and Medicaid Services (CMS) from 2015-2017, executing many new programs including the significant shift to “pay-for-value” models, MACRA, and the ACA. This illustrates the incestuous nature of the PBM industry’s relationship with the federal government and explains why the middlemen are left alone with their booty as lawmakers, who rely on lobbyists’ money to get themselves reelected, turn a blind eye to anticompetitive, self-dealing business practices such as secret, sole source contracts that manipulate pricing and cause drug shortages. If just 10% of the $200 billion these middlemen bilk from our healthcare dollars through this loophole is spent lobbying, that’s a cool $20 billion they use to influence and buy favor. While politicians get re-elected and middlemen get rich, patients get gouged financially, get sicker, and needlessly die- as reported in the recent case of a young diabetic who died because he could not afford his insulin. The PBMs are to blame for a recent 300% increase in the cost of insulin. The enormous frustration I experience as a physician, is exceeded only by that I experience as a patient.

 

One month ago, a young physician mom in the last month of her residency was admitted to deliver her first baby boy. Suddenly, she sustained a complete placental abruption requiring emergency C-section and blood transfusion. Thanks to the quick, brilliant actions of the OB/Gyn, general surgeon, anesthesiologist, and labor and delivery team, both mother and baby survived this potentially fatal event. During the baby’s 16 day stay in the Neonatal Intensive Care Unit (NICU) , the astute neonatologist consulted a pediatric cardiologist, who fortunately happened to be one of 150 pediatric electrophysiologists in the country. He clinically diagnosed Congenital Long Q-T syndrome, a diagnosis that can only be confirmed by genetic testing. The hospital and insurance company balked at the physician’s order for genetic testing, which was delayed until sufficient administrative third party hurdles had been jumped. You see, physicians’ orders, including prescriptions for medications and medical devices, are now largely regarded as requests by the all-powerful hospital and insurance industries. The insurance company would not approve anything until the newborn had been entered into their system and informed the parents (who had already notified their employer, through which they got their insurance, of the birth) this could take 5-7 working days or longer. Until then, (even though in reality the baby was living in the NICU surrounded by the best doctors and nurses in Texas), the baby did not exist to the insurer, and they could make no determinations as to whether they would cover anything. The delay in diagnosis could prove fatal for the baby, who is at increased risk for sudden cardiac arrest if treated with inappropriate medications or denied protective drugs and devices. The decision was made to presumptively start the baby on protective medications and send him home with breathing monitors and an AED in case his heart stopped, pending the results of his genetic testing. The insurance company refused to cover the $1400.00 defibrillator, but fortunately, the baby’s mom was able to charge it to her credit card- knowing full well that she most likely would never be reimbursed (in spite of her onerous, monthly premiums, high copays, and huge $8500.00 family deductible.) She had spent a significant portion of medical school, internship, and residency working on prior authorizations and other obstacles to patient care thrown up by insurance companies and their PBMs. The fact that our physicians in training are used as pawns of PBMs, insurance companies and hospitals as glorified billing agents in this deadly game of delay and deny care for profit is pathetic in and of itself.

 

The mother was blessed that she and her husband could afford the defibrillator, which the insurance company refused to cover, because following hospital discharge, the results of the genetic test confirmed the diagnosis of Long QT Syndrome. Fortunately, the physicians had fought those “insurers,” who claim they must follow “process,” even if flawed. The insurance company’s business “process” includes delay and denial of care and even the ridiculous notion that the baby, who was in the NICU, did not exist for the arbitrary 5-7 day insurance company window needed to enter the baby’s data into their system. Imagine the expense of keeping the baby in the NICU even longer waiting on insurance nonsense. Imagine if a parent could not afford the defibrillator, and the baby was sent home from the NICU only to die, because the parents couldn’t afford what the doctor ordered but the insurer denied. The parents are less likely to be able to afford the $1400.00 defibrillator, because they have already handed over an exorbitant amount of money to the insurance company in the form of exorbitant monthly premiums (in addition to what the employer pays), co-pays, deductibles, and cost-sharing. We have not even factored in lost productivity for the parents and wasted resources of a neonatologist and pediatric cardiac electrophysiologist groveling for authorization for medical devices and genetic testing that determines appropriate diagnosis and treatment of the patient.

 

Once home the baby thrived but developed a tear duct infection common in infants. This condition responds beautifully to early treatment with antibiotic eye ointment but can require I.V. antibiotics and readmission to the hospital if it progresses. A person with long QT syndrome can be thrown in to sudden cardiac arrest if given improper medications that further prolong the long QT interval. The baby was accordingly prescribed Bacitracin ophthalmic ointment instead of erythromycin ophthalmic ointment, which can prolong the QT causing the heart to speed up and then stop beating. A baby’s skin is very thin and even topical medications can be absorbed into the body.

 

Bacitracin ophthalmic ointment is a drug that has been around for over 20 years and used to be very inexpensive; however, as a result of the medication middlemen and their secretive business dealings, it is now very expensive. It also did not make the cut to be listed on the United Healthcare formulary. The patient’s neighborhood pharmacy told the baby’s mother would cost $101.00 for a tiny 3.5 gram tube, and United Healthcare refused to cover it. Further insanity ensued. The United Healthcare Representative said the baby’s birthday was wrong- which it wasn’t- and that he had not met his deductible- which after 16 days in the NICU for him and 3 hospital admissions and emergency surgery for his mom, he most certainly had. The representative said he could have the erythromycin only, in spite of the pleas from the baby’s mom, a physician, who informed her the erythromycin could put the baby at risk for sudden death. This all required hours of waiting, recording, script reading, template following, transferring, holding, and discussing on the phone. The physician’s staff was simultaneously spending hours on this, as was the pharmacy. (United Optum teams up with CVS and Walgreens to the detriment of other pharmacies, and that’s another story that warrants discussion too.) So, the baby went without treatment for another 24 hours.

 

The baby’s mom tried to get access to the United formulary to see what was listed and would be covered at what tier. The representative told the mom the only way was to enter each potential drug into their website to see if it was covered, and said sending a hard copy or online copy of the formulary was not possible. The insurance was purchased through the baby’s parent’s employer who then became involved as well, as access to a formulary was pursued. The parent’s employer referred them to a MyUHC website. Not easily, the physician’s staff was able to access an online United Healthcare formulary that listed gentamicin ophthalmic ointment as tier 1, so this was then called in to the patient’s chosen pharmacy- only to be called back by the pharmacy that said there is a drug shortage and the gentamicin ophthalmic ointment is back ordered for months. Finally, another UnitedOptum formulary was found that said tobramycin drops were covered, so this was then ordered, even though it is a drop with more toxicity to the eye and not as good as an ointment for an infant in this scenario. The mom therefore decided they had worn her down, broken her, and her baby needed the medication the doctor had ordered- she would just have to go ahead and pay the $101.00 to get the best medication for the baby- and she felt blessed to once again be able to charge it on her credit card. She also grievd for all the other mom’s who could not afford to detour around the insurance obstacle course. Ironically, she could buy the Bacitracin ophthalmic ointment cheaper by not going through her insurance and using a Good Rx coupon, but this would once again require calling the physician’s office to call another prescription in to another pharmacy, and time was ticking by and serious manpower had already been squandered on patient, physician, and pharmacy ends. She could have also gotten it for less at CVS or Walgreens who have deals with United Healthcare and their PBM, OptumRx, as well- but again, more calls and delays. Finally, if point of service dispensing was legal in Texas, as it is in 44 other states, she could buy the exact medication the doctor prescribes in the doctor’s office at cost plus a couple dollars as she checks out at the front desk, administer it to the baby immediately, and forgo the run around altogether. But, is this the intent of the insurance obstacle course in the first place? Make things so difficult, that patients just give up and pay for themselves or doctors supply samples.

 

The United representative informed the baby’s mom, the case is now open, and a team is looking into covering the bacitracin since the erythromycin is contraindicated and the gentamicin is backordered, but that they have 48-72 hours to respond (and of course July 4th is in the window). The mom asked, “Do you not agree that an infection can significantly progress in a baby in 48-72 hour?” (This is a one-month-old baby, mind you.) So, she was placed on hold again, waiting to talk to an “escalation team.” The United representative returned to tell her it will take 5-7 days to get the issue resolved per the “escalation team.” So, the baby’s distraught mother asked “Does a human life matter?” Their solution was for her to pay the $100.00 then submit a claim form to try to get reimbursed retroactively. (LOL-which they will deny-and it is the mom’s responsibility to find the appropriate form and submit it to the appropriate entity.) The exhausted mother, who had just nearly died giving birth to a son she had nearly lost and now was sick in need of meds, inhaled and stated, “ So, you’re asking me to charge $101.00 on my credit card, which is an amount a lot of people can’t afford, because it takes y’all 5-7 days to resolve an issue that we know the solution for.” The representative replied, “Yes,” but you can fill out a medical claim form to try to get reimbursed.” The exasperated mom replied, “I’m a physician, so I know that you’ll deny the claim, because no one will take the time to review our case.” I ask, are you incompetent or immoral, United Healthcare?

 

I contend, the business model employed by the insurance company, its PBM, and favored pharmacies is perverse and immoral-and intentional. I contend the business model is designed to increase profit by delaying and denying care to patients. Prior authorizations, step edits, quantity limits, tiers, restricted formularies, and so on are all perverse business inventions intended to wear us out, physicians and patients, to the point we won’t finish their obstacle course. This is by design. Think about it, while small town physicians like me, my father before me, and two of my four daughters after me, endured 4 years of college, 4 years of medical school, and 4 or more years of internship and residency, sacrificing much to endure a rite of passage required of us in our pursuit of the ability to care for others as their physicians and surgeons, those in big insurance and big government like Andy Slavitt of United Optum and CMS went to Wharton Business School, got MBAs at Harvard, and worked on Wall Street in their pursuit of making money and amassing power through money. And what better commodity for them than patients’ lives?

 

Physicians work to serve our patients; insurers work to serve their stockholders. The government takes patients’ money in the form of taxes and transfers it to the insurance companies in the form of subsidies, premium support, managed are contracts, tax benefits and so on and on top of what patients and employers pay to the insurance companies as well. The insurance companies receive hundreds of billions of dollars from patients directly, from their employers, and from the government; they keep the money by delaying and denying our care. They are the de facto rationers. We are their commodity, an annoying but necessary inconvenience. All they need to do is run their numbers just right to make it look like not too many of us are dying too soon or too uncomfortably. And they must keep us quiet. Their definition of success is to best serve their stockholders. This requires least serving their patients. Keeping our money in their bank accounts even a day longer results in hundreds of millions of dollars in profit from interest alone in the long run. Each extra obstacle, each hour we linger on the phone, each day we wait for their “escalation team” to decide our fate… escalates their bottom line and our blood pressure. Think about it, when we buy our own meds, they win. When we can’t afford to buy our meds and go without, they win. When physicians tide patients over with samples and provide pro bono care, insurers win- but so do we, because that is our definition of success, serving our patients. That’s why the buck stops with us, the patients and physicians of America. The enormous frustration I experience as a physician and patient, is exceeded only by that I experience as a mother and grandmother.

 

I thank God for my amazing physician colleagues who saved the lives of my precious physician daughter and her precious baby boy, my first grandson, and I praise God for my amazing community of faith, replete with the incredible prayer warriors who prayed with us and for us without ceasing as we walked that valley. I thank God, the ultimate healer, that this community includes the most incredible, life loving, patient serving physicians, pastors, and healthcare professionals across the country who are willing to take on this scam.

 

We must shine the light on these perverse insurance business practices and processes. We must shine the light on the corrupt, racketeering PBMs. As physicians we must not be oppressed and live in fear of being fired as employees or kicked off insurance networks. We must do what’s right in our lives of service to our patients. We must become doctors again. Our patients’ lives depend on us. This will take patients and physicians refusing to run the insurance/PBM obstacle course, exposing the insurance tricks and traps, and demanding our elected representatives close the middlemen loophole that allows PBMs and GPOs to bilk us for over $200 billion per year while we experience inflated drug costs, drug shortages, poor access to drugs, and stifled innovation. While we don’t have $20 billion to lobby on Capitol Hill, we have the vote. This is not a partisan issue. This affects every single American. We must unite on this, America, all of us. Will we unite or will we continue on this never-ending immoral obstacle course- which is it America?

 

 

 

 

 

 

 

 

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Please read and understand the following from my two dear physician colleagues Dr. Bob Campbell, Founder of Physicians Against Drug Shortages, and Dr. C.L. Gray Founder of Physicians For Reform and author of The Battle for America’s Soul. America, we must wake up and act! We are being bilked for $200 billion annually by heartless, unethical profiteers who via unintended consequences of a loophole in federal law have legalized a pay-to-play, kickback scheme beyond the wildest imagination. What’s most disturbing is that what they are doing not only results in our prescription drugs and medical devices being exorbitantly expensive, but the drugs and devices available to us on insurance formularies or in the hospital are determined by these unethical business dealings rather than what doctors believe is best for patients. Further, innovation is squelched as is the production of generics and free market competition. These underhanded business deals are also the cause of drug shortages nationwide, and THEY DON’T CARE! They want the $- patients be damned. We must educate our Congressional Representatives and Senators and demand repeal of this loophole.

 

Lowering Healthcare Costs through Safe Harbor Repeal

 

CL Gray, MD

Robert Campbell, MD

January 9, 2018

 

Abstract

 

The 1987 Medicare Anti-Kickback Safe Harbor statute exempted hospital Group Purchasing Organizations (in-patient side) and later, Pharmacy Benefit Managers (out-patient side), from criminal penalties for taking rebates/kickbacks from suppliers. This law unintentionally created a $600+ billion nationwide distribution monopoly of medical supplies and medications.

 

While legal, this misguided “Safe Harbor” statute gave rise to an unimaginably corrupt pay-to-play system. This distribution monopoly collects administrative fees, marketing fees, advances, conversion fees, pre-bates, rebates, and “sharebacks” simply to let a given medication or medical device gain access to the healthcare marketplace. These fees add an estimated $200 billion of unnecessary expense to American healthcare every year. In short, the 1987 “Safe Harbor” statute legalizes contracts and payments that in any other industry would be subject to criminal prosecution.

 

Repeal of the “Safe Harbor” provision would reduce costs of drugs and healthcare supplies by an estimated 30% and save Medicare and Medicaid approximately $75 billion annually. Over time, renewed free market competition would produce additional innovation and further cost reductions.

 

The Players

 

  • Hospital Group Purchasing Organizations (GPOs) control the purchase of over $300 billion annually of drugs, devices and supplies for about 5,000 hospitals and thousands more outpatient clinics and alternative care facilities.

 

The GPO industry is highly concentrated. According to the Government Accountability Office (GAO), four giant GPOs account for over 90% of total annual GPO contracting volume. In size order, they are:

1) Vizient Inc.

2) Premier Inc.

3) HealthTrust

4) Intalere

 

  • In 2003, Pharmacy Benefit Managers (PBMs) quietly asserted control over outpatient drugs and devices after petitioning HHS OIG to extend the “Safe Harbor Law” to cover the PBM industry. Drug manufacturers compete with each other to get their products on PBM formularies by paying ever-larger rebates/ kickbacks. They then raise their prices to offset these excess costs.

 

The PBM industry is highly concentrated as well. Three huge companies control over 80% of the PBM market and more than 70% of all prescriptions dispensed in the United States. In 2016, these three PBMs reported aggregate net revenue of $303.7 billion. In size order, they are:

1) UnitedHealth Group

2) CVS Caremark

3) Express Scripts

 

  • To give a sense of the magnitude and power of this distribution monopoly, in December of 2017, CVS Caremark (the largest PBM) announced its $69 billion purchase of Aetna (the nation’s largest health insurer). This is the market equivalent of a trucking company that delivers soft drinks purchasing Coca-Cola or Pepsi.

 

Background

 

In brief, here is how this system works:

 

  • Long before online ordering and “just-in-time” inventory, the first hospital GPO was founded in New York City in 1910. GPOs were specifically developed to reduce members’ supply costs by buying in bulk. Under that cooperative business model, hospitals paid dues to the GPOs to cover administrative expenses. By design, the “bulk savings” outweighed the “administrative” costs.

 

That system worked well for about 80 years because GPOs served member hospitals. Payments and incentives aligned with consumer interests.

 

  • That business model changed in 1987 when Congress enacted the anti-kickback “Safe Harbor” provision. GPOs were now exempted from criminal prosecution for taking kickbacks from healthcare suppliers. After the Inspector General of the Department of Health and Human Services implemented the “Safe Harbor” rules in 1991, vendors, not hospitals, paid GPO “administrative” expenses.

 

Rather than reducing costs for member hospitals, GPOs could now extract a variety of fees from both suppliers and the medical supply chain for the “privilege” of a given medication or medical device gaining access to the healthcare market. Rather of serving member hospitals by cutting costs, GPOs rapidly became a highly paid middleman.

 

  • While GPO’s service the in-patient side, the PBM industry services the out-patient side. PBMs allocate market share and may confer “Preferred Distributor” status to middle market distributors. (Sometimes these distributors are entirely owned by PBM shell corporations.) PBMs use secret contracts to manipulate pricing. Manufacturers and distributors unwilling or unable to pay the kickbacks are removed from the supply chain.

 

  • Predictably, this gave rise to a pay-to-play system. Suppliers literally buy market share by paying exorbitant fees to the GPOs/PBMs in return for contracts giving their products exclusive access to GPO-member hospitals and PBM preferred distributors.

 

This system created supplier monopolies by slashing the number of suppliers of vital generic drugs, devices, and other medical supplies; it also discouraged potential competitors from entering the marketplace. Most importantly, the GPO/PBM cartel is a powerful Buyers’ Monopoly, or Monopsony. This is the rarest and most harmful type of monopoly.

 

  • Under this perverse system, purchasing agents, not clinicians, typically decide which drugs, medical devices and supplies physicians can use for their patients. These decisions are based largely on how much kickback revenue these products generate for the GPO or PBM, not what is best for patients. Patients and healthcare workers are often denied access to lifesaving, cost-effective goods including drugs, hip implants, pacemakers, pulse oximeters, safety needles and countless other products.

 

  • Under the safe harbor rules, “admin” fees were to be limited to 3% of sales. If they exceeded that amount, the GPOs were supposed to report the fees to their member hospitals. The available evidence indicates that totalkickbacks paid by suppliers to GPOs/PBMs have often exceeded half of the suppliers’ annual revenue for a single drug! Because kickbacks are generated on a percentage of total contract volume (sales), the higher the price of a medication or medical device, the larger the kickback for the GPO/PBM.

 

  • The HHS Inspector General was empowered to request data excess GPO/PBM fees. However, it has often chosen not to do so. In fact, a 2012 GAO investigation—requested by three U.S. Senators—found that the HHS OIG had not exercised its oversight authority in years.

 

  • These anti-competitive contracting and pricing practices, self-dealing, conflicts of interest and other abuses have forced many firms to stop making inexpensive generic drugs rather than produce them at a loss. They’ve also crippled the ability of other manufacturers to maintain their plants, equipment, and quality control, resulting in tainted drugs, adverse FDA inspections, and plant closings.

 

  • The deadly 2012 meningitis outbreak, which was caused by contaminated drugs sold by an unregulated compounding pharmacy, was a direct result of this crisis. After two FDA-regulated generic drug makers stopped making a widely-used steroid pain killer because it had become unprofitable, many providers were forced to buy this medication from now-shuttered New England Compounding Center (NECC).

 

  • Years before the drug shortages made headlines, four Senate Antitrust Subcommittee hearings, federal and state investigations, media exposés, antitrust lawsuits and independent academic studies found that GPOs, instead of saving money for hospitals by purchasing in bulk, actually inflatedhealthcare costs.

 

  • Various investigations revealed that many GPO and hospital executives have enriched themselves personally through this system. GPO executives have received stock options in firms they do business with, while hospital officials have gotten “patronage fees” and “sharebacks” from GPOs and lavish perks from suppliers.

 

  • Thanks to aggressive GPO/PBM lobbying and campaign contributions, there is virtually no disclosure, transparency, regulation, or oversight of the powerful, secretive GPO/PBM industry. Few, if any, outsiders know where the billions of dollars are going.

 

Action Item/Recommendations

Physicians for Reform (PFR) is helping assemble and lead a broad network of organizations to reframe the healthcare debate and lay out a free-market, patient centered vision for the future of American healthcare. Repealing the “Safe Harbor” law is the first of twelve separate reforms.

 

Physicians Against Drug Shortages (PADS) is a key member of this network. For the past six years Dr. Robert Campbell, PADS chair and co-founder, and his colleagues have investigated this issue at the highest levels. They have concluded there is no path to affordable, high quality healthcare until free-market competition is restored to the drug/medical supply marketplace. This is possible only if Congress repeals the 1987 Medicare anti-kickback “Safe Harbor” provision.

 

Legislation has already been drafted in both the House and the Senate. However, we must change the politics of the issue through public education before these bills can be successfully brought to the floor. This represents a unique and historic opportunity to save money, save lives, and make American healthcare great again.

 

Please contact us if we can be of further service.

 

Sincerely,

 

 

 

CL Gray, MD

President, Physicians for Reform

 

 

Robert Campbell, MD

Chairman, Physicians Against Drug Shortages

 

Time to stand against obstructionist insurance company nonsense- real life insanity from the trenches

Insanity reigns, and we must dethrone it. Today, a precious new patient sought my care. She is 28 and was perfectly healthy until 10 days ago when she developed a headache and then rather suddenly started to lose vision in her left eye. She was scared and waited a day or so hoping things would get better, but they’re not, they’re worsening. She confided in her mom who brought her in to see me, based on the recommendations of friends. I’m an M.D., a board certified ophthalmologist, having completed 4 years of college, 4 years of medical school, an internship in internal medicine, a three year residency in ophthalmology and ophthalmic surgery, 5 years on faculty as an attending physician at the medical school, and 23 years in private practice.

 

The patient and I engaged in a patient-physician relationship, and I obtained her medical history and examined her. This dear patient needs an immediate work up to make a definitive diagnosis, so that appropriate treatment can be implemented before she loses her vision or worse. She is worried, and so are her mom and I. According to standard practice, I arranged for her to have an immediate MRI scan of her brain. This is where the obstruction to her care began. The obstructionist is Blue Cross Blue Shield (BCBS), her “insurance company.”

 

BCBS will not authorize her MRI, because she is an HMO patient and has not seen her assigned “PCP” (primary care physician). If you have a BCBS HMO plan, you must see your PCP before BCBS will cover anything- even if deemed indicated by a board certified specialist. Your designated PCP is your gatekeeper, and there are no exceptions. She has not seen her PCP since having the BCBS HMO policy, because she is 28 and healthy. Apparently BCBS randomly assigned her a PCP, but the physician listed could not be located today, and no one was “on call” for her. In fact, the number listed seemed to be out of business. It just rang and then disconnected time after time. Sadly, there is a scarcity of PCP’s, and it can take months for a patient to get an appointment. Often, PCPs listed by the insurance companies are not actually “in network”, not accepting new patients, not in town anymore, not even in business, or not even practicing medicine anymore. My staff spent hours today trying to ascertain this PCP’s status and obtain authorization for the MRI, to no avail. I called and spent over an hour on hold and talking to various levels of BCBS employees working my way up the ladder through non medical personnel to finally speak to a nurse (God forbid I should get to speak to an actual physician colleague), who tried to get her manager to approve my patient’s MRI. This was all a massive waste of time as BCBS was unyielding. I was told all the usual things, sorry, this is policy, there’s nothing we can do, and even “maybe next time she won’t get the HMO plan.” I was informed all our conversations were being recorded for quality purposes, and I was glad. No one would believe the irrational nonsense I had to endure at the hand of these non-physician BCBS obstructionists without the recordings to prove it. At the end of the day, in spite of my pleas and appeals for rational behavior and ethical care, BCBS said NO, AKA- patient be damned, and screw you while you’re at it.

 

My patient can go to the emergency room tonight, and get the MRI at thousands upon thousands of dollars extra and hours upon hours of waiting and NOT seeing a specialist, and that will be covered. What a waste of valuable resources and abuse of the patient. The MRI I, a specialist, scheduled for this afternoon will not be covered. Further, BCBS negotiated a fee for the MRI of over $4000.00. The patient’s deductible is high. She will have to pay thousands. Ironically, I am an “out of network” physician. I will not enter into agreements with “insurance companies.” I only enter into agreements directly with my patients. I negotiated directly with a local imaging center a fee for the MRI at a fraction of the cost- $350.00. Much to my surprise, the radiologists’ practice has just been purchased by a 3rd party venture capitalist group, and the fee has increased to $550.00 and growing. Still, $550.00 is much less than the $4000.00 BCBS negotiated. This is all one big hot mess.

 

My patient went home with her mom. She is worried sick and asked me for sedatives to get her through the night. I refused, tried to reassure her, and gave her marching orders. If she suddenly gets worse, she will got to the E.R. BCBS will pay thousands of dollars extra, but the MRI will get done, and she will get actual medical care. It’s all a crapshoot now. God willing, she will make it through the night, and I will literally beg a colleague who is listed as a BCBS “in-network” provider to see her tomorrow to sign off on my (the specialist to whom he would have sent her in the first place) orders for the MRI. We’re hoping it helps that her mom went to high school with him, and I can name drop that to get her in before a few months. Then BCBS will hopefully authorize the MRI. It will most likely cost the patient significantly more money, but will at least “apply to her deductible.” Again, this is all convoluted, irrational, and unethical.

 

I am fed up. I can’t play this game. Patients will be harmed, and no doubt patients will die needlessly, because of insurance “policy.” For the second year in a row, the life expectancy in the USA has gone down- what does that tell you about the corporate practice of medicine? I accused BCBS of malpractice and the unethical obstruction of indicated patient care. I can’t sleep, because I am worried about my patient and angry that the tail is wagging the dog in the name of “universal coverage,” which is a scam, garbage, especially if you bought the HMO plan. And just know this, the ACA, MACRA, and the cascade of failed federal “healthcare” laws, rules, and regulations are all part of a top-down, government scheme for HMO’s on steroids, now called ACO’s (accountable care organizations) or APMs (alternative payment models). It is one giant insane mess. This mess benefits the insurance companies and the central planners. I will continue my fight for this patient in a few short hours. I pray she will get through this ordeal- a medical fiasco, pot stirred and fire stoked by BCBS, and its unethical, rigid, nonsensical, wasteful policies.

 

I call on my physician colleagues to refuse to put up with this anymore. They can’t do it without our consent. I call on my patient colleagues (we are all patients, I have cancer among other things- how about you?) to demand the insurance companies deliver. We are paying these companies thousands upon thousands at the individual and family levels and hundreds of billions at the national level to do what- obstruct, delay, deny, ration our care for their bottom line? Just think of the money from interest alone they make on a month of delays and denials. This insanity must stop. If all physicians would give the few remaining insurance companies a 90 day without cause severance notification tomorrow this would end in short order. Patients must stand up to the insurance companies too. Patients must read the fine print and know what they have signed up for and agreed to. Lawsuits against the obstructionist, rationing insurance companies will be essential. The time is now.

MedPAC is Right That MIPS is Wrong- The Patient is Best Served by Merit-Based Incentive Payment System Repeal

*Accepted for publication in the Journal of American Physicians and Surgeons

The Medicare Payment Advisory Commission (MedPAC) is an independent congressional agency established by the Balanced Budget Act of 1997, whose members are appointed by the Comptroller General, which is required by law to review Medicare payment policies and to make recommendations to Congress.[i] At its January 2018 meeting, MedPAC voted 14 to 2 to repeal the Merit-based Incentive Payment System (MIPS),[ii] which was created in the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA). [iii]

 

 

MACRA repealed the sustainable growth rate (SGR), established statutory payment update rates, created an incentive for advanced alternative payment model (A-APM) participation, and created MIPS[iv]– a government program for grading individual physicians with a composite performance score between 0 and 100, and then either penalizing or rewarding that physician with a negative or positive payment adjustment based on his or her score. The composite performance score (CPS) is determined by the sum of each individual provider’s weighted grades in four performance categories as set forth by a complex, untested, and flawed federal government rubric. The CPS is then posted on the Centers for Medicare and Medicaid Services (CMS) physician compare public website.

 

MACRA also expanded the definition of physician by creating the term MIPS Eligible Clinicians and utilizing the term Eligible Professional; thus, the law and its Merit-based Incentive Payment System apply not only to physicians, but to physician assistants, nurse practitioners, clinical nurse specialists, certified registered nurse anesthetists, clinical psychologists, nurse midwifes, physical therapists, occupational therapists, audiologists, speech pathologists, clinical social workers, dieticians and nutritional specialists, and so on, as well.[v] In the MACRA rule-making process, the Center for Medicare and Medicaid Services (CMS) granted itself immense power and expanded its authority, including the potential “to expand the definition of MIPS eligible clinician to include additional eligible clinicians through rulemaking in the future.”[vi] In other words, the federal government could subject anyone and everyone to their social engineering scheme.

 

Social engineering report cards of this sort have been seen in recent years in China, for example, as a way to harness big data and score its people on their behavior. China’s personal social credit score was recently tested on 89 million Communist Party members on their performance in 136 performance categories. Those with good behavior according to the collected data will be rewarded while those who fall short of the Party’s expectations will be denied basic freedoms like loans or travel.[vii]

 

MACRA, via its ensuing rule, rebranded key terminology[viii] to make it appear more palatable and vastly expanded the federal government’s control over patient care and the patient-physician relationship. The stated goal is to drive physician behavior. Government seeks to move physicians away from a fee-for-service payment model, and to instead drive physicians to alternative payment models (APMs) they claim reward what government perceives as value-based care and require providers to assume significant financial risk. The federal government calls their healthcare version of a U.S. social engineering plan the Quality Payment Program (QPP).  Lawmakers believe they can drive physician behavior by incentivizing or penalizing physicians monetarily and psychologically via threat of public shaming on the CMS Physician Compare website, where each “eligible professional’s” government compliance score is posted for all to see.

 

Fortunately, MedPAC ultimately concluded that MIPS cannot succeed. In MedPAC’s own words:  MIPS replicates flaws of prior value-based purchasing programs. MIPS is burdensome and complex. MIPS is costly and wasteful having cost providers $1 Billion in the first year alone just to comply. The reported information is not meaningful. The payment adjustments will be large and arbitrary in later years, and it will not help patients choose clinicians or clinicians improve value.[ix]

 

MIPS does not promote, create, or reward value. In fact, it may do quite the opposite. A 2017 article in The Annals of Internal Medicine reports that pay-for-performance programs such as the Value-Based Payment Modifier, a predecessor to MIPS, implemented by the Centers for Medicare and Medicaid Services, may actually contribute to healthcare disparities without improving performance.[x] The article concluded that physicians were incentivized to care for lower-risk patients and penalized for serving higher-risk patients. In other words, money was inadvertently shifted away from physicians who treat poorer and sicker patient populations to fund bonuses for physicians treating more affluent, healthier populations.

 

That MedPAC recommends repealing MIPS is encouraging, but then, MedPAC arbitrarily concocts something to replace MIPS, called the Voluntary Value Program (VVP). The MedPAC commissioners propose to withhold a percentage of all fee schedule payments unless the physician abandons fee for service and joins an APM or “voluntary group” to be assessed at a group level.  Much of the discussion in the transcript of the recent MedPAC meeting revolved around how big the withhold penalty needs to be to force physicians to join advanced alternative payment models, which include an array of Accountable Care Organizations, (ACOs). ACOs are essentially reincarnations of the reviled HMO’s of the 80’s, and 90’s. If MIPS is repealed, MedPAC recommends a 2% across the board withholding from payments to providers, but MedPAC Commissioners discussed withholding everything from 0.5% to 10%.[xi]

 

This leads us from the struggle for the soul of healthcare to the frontlines of the battle for America’s soul. Who determines and what constitutes value-based medicine? What physician behaviors deserve a high score and high pay, and what behaviors warrant a low score, low pay, and public humiliation? As my dear friend and physician colleague, C.L. Gray, M.D. astutely reminds us, the struggle for the soul of healthcare began with Plato, the ancient Greek philosopher who urged that doctors refrain from curing the weak and infirm to improve society, vs. his contemporary, Hippocrates, who felt physicians worked on behalf of the patient, not the good of the state.[xii] This begs the question, whom do we serve, the patient or the state?

 

One of the four MIPS performance categories in which physicians are scored is rebranded in the MACRA Rule as Advancing Care Information (ACI), formerly known as meaningful use electronic health record technology (MUEHRT) or certified electronic health record technology (CEHRT). This category is especially disconcerting, as it requires physicians to fully disclose all of our patients’ medical information to government data auditing agencies for surveillance or direct review, including the patients’ protected health information (PHI). PHI includes individually identifiable information including all demographics, all medical history past, present, and future, all medications ever taken, and even genetic information. If the physician does not do this, he or she will receive a score of 0 in the ACI performance category. The MACRA law makes data blocking illegal and demands bidirectional, unfettered access by outside government-created or approved entities to clinicians’ electronic health records- for all patients, not just Medicare patients, for all data, not just MIPS data, and from all insurers, including commercial insurers, not just Medicare. The federal government wants to collect, audit, assess, and sell the patient data and wants to be able to input government treatment guidelines, templates, restrictions, and controls. In effect, the federal government wants to dictate the medical care of the American people. The federal government, through the Office of Civil Rights of the Department of Health and Human Services (HHS), via the Office of the National Coordinator of Health Information Technology, specifically granted itself access to our once sacred, private medical records.

 

 

A most dangerous part of the MACRA rule is that the ONC (Office of National Coordinator for HIT) and its ONC-ACB’s (ONC-Authorized Certification Bodies) are granted direct unrestricted access to all individually identifiable protected health information without patients’ authorization under any circumstance. [xiii] MACRA instructs the Secretary of HHS to create 3rd party intermediaries to collect the data and 4th party entities to audit it, potentially including unblocked surveillance on demand and even onsite auditing. [xiv] Further, MACRA requires the data collectors to keep all the data for a minimum of 10 years, if not eternity if government so says.[xv] In this light, engaging with CEHRT may be a violation of our professional code of ethics at best, if not a violation of the 4th Amendment. As such, our ethical duty as Hippocratic physicians is to keep our patients’ data from government, not transmit it to government. We must ask ourselves again, whom do we serve, the patient or the state?

 

In 2016, after reading MACRA and the proposed MACRA rule and submitting comments, this author personally met with Acting Administrator of CMS, Andy Slavitt, and a group of high ranking CMS officials at CMS headquarters in DC to personally convey concerns about such intrusive, self-granted government data collecting practices. A distinction was ultimately made in the final rule allowing voluntary on-going data surveillance, but ONC direct review of Certified EHR data remains mandatory. This highlights the critical importance of U.S citizens reading word for word not only bills before and after they become laws, but to read and comment on proposed rules, and then read the final rules once they are published. If we do not do this, we will continue to fail to secure our blessings of liberty as instructed in the Preamble to The Constitution of The United States of America.

 

In recent months and years, we have become privy to abuses of data collection and surveillance of American citizens by federal agencies, the likes of the FBI, CIA, NSA, and IRS as well as the Department of Justice and Department of Defense. Why are we to presume federal agencies within the Department of HHS, such as the Office of the National Coordinator, the CDC, and CMS, will behave any better? And, might our most intimate medical, physical, psychological, and even genetic information be even more vulnerable to EHR-related injury and death, foul play, and public control than our phone conversations, emails, texts, and finances? If they can lose five months of texts and thousands of emails, can they also lose our vital medical information? There is no limit to the potential consequences of such government healthcare malfeasance, should our protected health information remain subject to unblocked, bidirectional, manipulation by soul-less government agents. The risk to our medical data is not only subject to national forces, but international as well. The politicization and weaponization of our very lives is at bay.  The very soul of America is at stake.

 

Will Congress heed MedPAC’s advice and repeal MIPS? For that matter, will our elected officials honor their word and repeal the Affordable Care Act, root and branch? Or, is the allure of $1.3 trillion per year spent on “healthcare” and the power over each individual American’s life just too hard to resist?

 

 

Tragically, as if penned by Shakespeare himself, MACRA, replete with its MIPS and Advancing Care Information performance category, was sponsored by a physician colleague and fellow Texan and passed with broad bipartisan support. Will egos, money from special interests, political pressures, and irrational excuses like, “we’ve invested so much on this, we have to go forward,” rue the day, or will Congress, led by MACRA sponsor Congressman Burgess himself, step up, admit it was a mistake, and repeal MIPS, and all of MACRA for that matter. In other words, will Congress use some common sense, cut our losses, and do the right thing?

 

The scoring of individual citizens by use of massive government data collection funneled into a complex government grading rubric in order to reward or penalize them monetarily based on the score and to pressure them psychologically by subjecting them to public humiliation by posting the scores on a public website for the stated purpose of driving behavior is something Americans would never dream is part of U.S. federal law. Yet, this social engineering scheme is precisely what is contained in MACRA, and the system is the Merit-Based Incentive Payment System, affably called MIPS. The confiscation, surveillance, and potential manipulation of our medical data as codified by MACRA’s MIPS violates the Constitutional rights of US citizens and places us in harms way. We are heading toward a totalitarian state in short order unless we stand up and fight for our freedoms and liberties. I call on my physician colleagues, with Congressman Burgess, MD, leading the charge, to follow MedPAC’s advice and make MIPS repeal a reality. Through the MACRA rule-making process it became apparent that this law could be too easily and too vastly contorted beyond the sponsors’ intent. Congressman Burgess must ask himself as a physician, whom does MACRA serve, the patient or the state? If he answers honestly, he must next courageously draft the repeal legislation for not just MIPS, but MACRA itself.

 

[i] Medicare Payment Advisory Commission. USAGov. https://www.usa.gov/federal-agencies/medicare-payment-advisory-commission. Accessed February 18, 2018.

 

[ii] http://www.medpac.gov/docs/default-source/default-document-library/jan-2018-meeting-transcript.pdf?sfvrsn=0+Page+113-+172.

 

 

[iii] Burgess M. Text – H.R.2 – 114th Congress (2015-2016): Medicare Access and CHIP Reauthorization Act of 2015. Congress.gov. https://www.congress.gov/bill/114th-congress/house-bill/2/text. Published April 16, 2015. Accessed February 18, 2018.

 

[iv] http://www.medpac.gov/docs/default-source/default-document-library/jan-2018-phys-mips-public.pdf?sfvrsn=0.

[v] The Federal Register Proposed Rule Medicare Program; Merit-Based Incentive Payment System (MIPS) and Alternative Payment Model (APM) Incentive Under the Physician Fee Schedule, and Criteria for Physician-Focused Payment Models A Proposed Rule by the Centers for Medicare and Medicaid Services on 05/09/2016 E.1.a. page 39-40/625.

[vi] Medicare Program; Merit-Based Incentive Payment System (MIPS) and Alternative Payment Model (APM) Incentive Under the Physician Fee Schedule, and Criteria for Physician-Focused Payment Models. Federal Register. https://www.federalregister.gov/documents/2016/05/09/2016-10032/medicare-program-merit-based-incentive-payment-system-mips-and-alternative-payment-model-apm. Published May 9, 2016. Accessed February 18, 2018. Page 40/625

[vii] Denyer S. China’s plan to organize its society relies on ‘big data’ to rate everyone. The Washington Post. https://www.washingtonpost.com/world/asia_pacific/chinas-plan-to-organize-its-whole-society-around-big-data-a-rating-for-everyone/2016/10/20/1cd0dd9c-9516-11e6-ae9d-0030ac1899cd_story.html. Published October 22, 2016. Accessed February 18, 2018.

[viii]Medicare Program; Merit-Based Incentive Payment System (MIPS) and Alternative Payment Model (APM) Incentive Under the Physician Fee Schedule, and Criteria for Physician-Focused Payment Models A Rule by the Centers for Medicare and Medicaid Services on 11/01/2016.

[ix] MedPAC Public Meetings, Past Meetings January 11-12, 2018 View Agenda, Briefs, and Presentations, View Transcript  Presentation  Kate Bloniarz, Ariel Winter, and David Glass January 11, 2018, Assessing payment and updating payments: Physician and other health professional services; and Moving beyond the Merit-Based Incetive Payment System (MIPS) Slide 5

[x] Mendelson A, Kondo K, Damberg C, et al. The Effects `qazof Pay-For-Performance Programs on Health, Health Care Use, and Processes of Care: AA Systematic Review. Annals of Inernal Medicine. 2017;166(5):341-353.

[xi] MedPAC Public Meetings, Past Meetings January 11-12, 2018 View Transcript. Pages 113-172.

[xii] Gray CL. Healthcare, The Culture War, and the Future of Freedom. In: The Battle for America’s Soul. Hickory, NC: Eventide Publishing; 2011:27-45.

[xiii]Medicare Program; Merit-Based Incentive Payment System (MIPS) and Alternative Payment Model (APM) Incentive Under the Physician Fee Schedule, and Criteria for Physician-Focused Payment Models. Federal Register. https://www.federalregister.gov/documents/2016/05/09/2016-10032/medicare-program-merit-based-incentive-payment-system-mips-and-alternative-payment-model-apm. Published May 9, 2016. Accessed February 19, 2018. Page35/625

[xiv]Medicare Program; Merit-Based Incentive Payment System (MIPS) and Alternative Payment Model (APM) Incentive Under the Physician Fee Schedule, and Criteria for Physician-Focused Payment Models A Rule by the Centers for Medicare and Medicaid Services on 11/01/2016.

[xv] Medicare Program; Merit-Based Incentive Payment System (MIPS) and Alternative Payment Model (APM) Incentive Under the Physician Fee Schedule, and Criteria for Physician-Focused Payment Models. Federal Register. https://www.federalregister.gov/documents/2016/05/09/2016-10032/medicare-program-merit-based-incentive-payment-system-mips-and-alternative-payment-model-apm.  Page 242/625. Published May 9, 2016. Accessed February 19, 2018.

The Scarlet Zero- MACRA’s MIPS Completes Government Takeover of Medicine

When Medicare and Medicaid were created, the government promised not to interfere in the practice of medicine whatsoever. President Lyndon Johnson signed the Act into law on July 30, 1965, ironically in Independence, MO. The Act established Medicare, a health insurance program for the elderly, and Medicaid, a health insurance program for the poor.

 

Nothing in this title shall be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided, or over the selection, tenure, or compensation of any officer, or employee, or any institution, agency or person providing health care services… or to exercise any supervision or control over the administration or operation of any such [health-care] institution, agency, or person. Section 1801, Medicare Act, 1965

 

Fifty years later, in flagrant violation of this prohibition clause, stands the 2015 Medicare Access and CHIP Reauthorization Act (MACRA), replete with the Merit-Based Incentive Payment System (MIPS). MIPS is a rubric the federal government uses to grade physicians and assign each a score of 0 to 100. The Composite Performance Score (CPS) is used to financially incentivize or penalize physicians, and then the scores are posted on a public website for all to see. I contend MIPS constitutes deliberate government extortion of our nation’s physician, and at the core lies the ultimate conflict of interest- the very lives and well-being of America’s patients vs. the money and power of the medico-industrial complex run by a small group of insider elites, implemented and micro managed by entrenched, faceless deep state bureaucrats. At the heart of the matter, begs the question of physicians, who do you serve? Are you a physician in the tradition of Hippocrates, who believed the physician works on behalf of the patient, not for the good of the state, or are you a physician like Plato, who urged that doctors refrain from curing the weak and infirm to improve society? Do you serve the patient or the state?

 

I further contend that implementing and complying with MIPS is ethically untenable for those who sacrifice and devote our lives to serving patients, and that physicians who do engage in MIPS either don’t understand it or are forsaking their virtue and morality under threat of bankruptcy and continued abuse from an over-aggressive government no longer controlled by the people but by a powerful cartel of self-serving third party bosses.

 

MIPS consists of four categories upon which physician are graded: quality (outcomes), advancing care information, improvement activities, and cost. Earning a high score often requires doing what government says instead of what is best for the patient. Doing what is best for the patient often results in a low score, loss of income, and public humiliation on the public website.

 

  1. While this sounds great, the “quality indicators” and “outcome measures” chosen may be harmful for patients or deter physicians from taking on the most difficult and challenging patients. For example, one measure of outcome is how many patients under a physicians’ care achieve a blood glucose level under a certain number. One of my patients told me she has passed out twice, sustaining injuries, since her PA put her on two diabetic medications to get her blood sugar below the government number. Imagine if she had been driving or been alone at home in her bathtub. She stopped taking the medications and has yet to return to her physician for care. Since I have refused to participate in MIPS and the likes, I am “out of network” for all insurance plans including Medicare and Medicaid. Ironically, I am seeing an influx of patients with what I call “3rd world cataracts” seeking my care. One that comes to mind could see light only when he sought my care. He is 60 years old with severe cardiovascular disease that presents a higher than normal surgical risk, but his quality of life is unnecessarily negatively impacted because he can only see light, not even hand motion. I did what was best for the patient, operated on him, and he is now 20/20. The surgery was more difficult, because in the government medicine shuffle with the risk of a poor outcome, he had been avoided by several surgeons trying to play the MIPS game to the point his cataracts were like granite rocks floating in bags of milk, making visibility and removal difficult. The physicians earning the highest “quality” or “outcomes” score might be inflicting undue danger on their patients or avoiding the most difficult, sickest, weakest patients altogether.
  2. Advancing Care Information (ACI). This used to be called “Meaningful Use Electronic Health Records”, but Advancing Care Information sounds so much friendlier that MACRA changed the term in Orwellian fashion. MACRA sets law and rules in motion that mandate that government have full, unblocked access to patients’ records, including their protected health information (PHI) without their permission. PHI includes all personal identifying data including all demographics and all medical history, past and present, including all medications ever taken. This is not just a violation of the Hippocratic Oath and sacrosanct patient-physician relationship, but this is a blatant violation of the 4th Amendment. Government will gather all data, not just MIPS data, on all patients, not just Medicare patients, and from all insurers- commercial too, not just Medicare. This data will be sold by government to entities the federal government itself chooses. On a personal note, when I was hospitalized after breast cancer surgery in 2012, an elderly male patient’s medication list was errantly entered into my electronic health record. Had I not been a physician, the error could have gone unnoticed, and I could have been severely injured if not killed. EHR’s have been implemented at warp speed without proper testing. Those seeking high MIPS scores facilitate this, thus, endangering patients and violating their rights. I believe it is my duty to keep my patients’ private information from government not transmit it to government.
  3. Improvement Activities. This is a sneaky one. This is a category where government hopes to, in their own words, “drive physician behavior,” like by having us engage in “education” activities that government deems important- like learning about the emerging “palliative care” movement, replete with educational material glorifying “aid in dying”- formerly know as “physician assisted suicide,” the little sister of euthanasia. This also links the Maintenance of Certification (MOC) issue to government scoring, and financial penalty or reward, and is the mechanism for control of physicians by hospitals, insurance companies, and groups working toward nationalized, if not international, medical licensure.
  4. Formerly known as Resource Use, this category is beyond worrisome. The sample grade chart itself shows that physicians who spend the most on their patients get 0 to 2 points while those that spend the least get 8 to 10 points. In other words, doctors get more money for withholding care and resources from patients and are penalized for delivering care and resources. Need I say more?

 

There can be no denying, MIPS is a top down, command and control grading system based on perverse incentives whereby government rewards physicians who do government bidding and penalizes physicians who serve their patients first. MIPS is more like a Marxist grading system used by China on their citizens than a grading system imposed on America’s physicians. Don’t shrug and think this doesn’t affect you. To make matters worse, government has redefined the definition of physician to include everyone from audiologists, dieticians, and speech pathologists to Nurse practitioners, Physicians Assistants, Nurse Midwives, clinical nurse specialists, psychologists, and so on. We are all now lumped into a group called “Eligible Clinicians” or “Eligible Professionals”- that subjects virtually everyone at all associated with health care to MACRA and its perverse MIPS. Read the law for yourself.

 

In the fifty years since Government vowed not to interfere with medicine whatsoever, government has completely taken us over. It is no wonder physician suicide is epidemic and life expectancy in the US is not increasing, but declining for the first time in history. Ask yourself; do you serve the patient or the state? Do not violate your oath, your ethics, and your conscience to get a higher Composite Performance Score and a positive payment modifier- AKA a payoff. I don’t know whether this is extortion, bribery or both, but I do know- I won’t do it. And neither should you. If physicians would not comply, this perverse system would die. Patients can help by understanding what is going on and realizing that physicians with the highest scores may not necessarily have their best interests in mind, while those of us who refuse to play this most dangerous game wear our Scarlet Zeroes proudly and deserve a second look rather than a premeditated shun.

Insane Healthcare Laws Like MACRA Must Be Dethroned Not Enshrined

The more I read federal healthcare law and the rules promulgated thereof, the more I realize how insane the law is and how bizarre it is that we the people dutifully implement and comply with the insanity. I first read the Medicare Access and CHIP Reauthorization Act (MACRA) just after the House of Representatives passed it in March of 2015. I tried to alert the public and stop the Senate from passing it. Only eight Senators had the wisdom and fortitude to vote against it. I then read and dissented to the proposed MACRA rule and went so far as to travel to DC to personally meet with then head of CMS (formerly Executive VP of United Optum), Andy Slavitt, to point out the dangers and suggest solutions. While professing to listen, hear, and modify the rule accordingly, the CMS bureaucrats made revisions to the proposed rule that did virtually nothing but provide lip service to the people and cover to the most egregious, transformational law in US history.

 

MACRA’s Merit Based Incentive Payment System (MIPS) is a top down totalitarian, Chinese-government-style rubric crafted by progressive politicians of both parties and applied by progressive bureaucrats of the deep state to all physicians and patients of America in a one-size-fits-all fashion. It is the template for the transformation to socialized medicine, replete with assigning scores from 0 to 100 in grade-school and Communist-China fashion to individual Americans in association with monetary rewards and penalties based on how obediently “eligible professionals” dole out limited amounts of government approved medical goods and services to “beneficiaries.”

 

CMS acknowledged per the government’s own analysis, that MACRA will harm small medical practices and put them out of business in short order. The infamous Table 64 from the original proposed rule projected that 87% of “Eligible Clinicians” who are solo practitioners will receive a negative payment adjustment, as will 70% of those in practices of two to nine physicians. Combined, 73% of physicians in practices with fewer that 25 physicians and 60% of all eligible clinicians in groups of less than 100 will be penalized with a cut in payments. Loss of these practices will shatter care. According to the Texas Medical Association (TMA), more than 60% of Texas physicians practice in groups of one to three. These patients will lose their doctors and access to medical care under MACRA MIPS.

 

In response, CMS created exemptions for small practices from MIPS and self-congratulated shamelessly. The current 2017 MIPS policy allows exclusions for individual MIPS eligible physicians or groups with less than or equal to $30,000 in Part B allowed charges OR less than or equal to 100 Part B beneficiaries for the year. The proposed 2018 rule increases the threshold for exclusion from MIPS to less than or equal to $90,000 in Part B allowed charges or less than or equal to 200 Part B beneficiaries. Before they hurt their backs patting them, let’s see what they have in fact done.

 

For my medical surgical practice of ophthalmology, the one-size-fits-all law is a nightmare, and the exemption from it is a farce. A typical ophthalmology practice is composed of largely Medicare aged patients, because most medical conditions that require eye surgery and ophthalmologic evaluation and treatment occur in patients 65 and older. Cataract, glaucoma, age-related macular degeneration, retinal detachment, diabetic retinopathy, complications of cardiovascular disease, and other potentially blinding diseases occur in the Medicare age population. Most people fear blindness more than death. Ophthalmologists work to prevent and treat blindness in this increasing segment of the population. According to the AARP Fact Sheet: “Currently, 44 million beneficiaries—some 15% of the U.S. population– are enrolled in the Medicare program. Enrollment is expected to rise to 79 million by 2030.” Using the 2017 CMS MIPS exclusion, I can only see only 2 Medicare patients per week over the course of the year if I want to avoid the MIPS monetary penalty and stay in business. I cannot perform even one cataract operation per week on a Medicare patient if I want to avoid penalty. The 2018 proposal does little to improve on this- I could see 4 Medicare patients per week but not operate on even 2 Medicare patients each week if I choose to avoid MIPS participation. According to Richard Lindstrom, M.D. in the March 2015 Review of Ophthalmology , Thoughts on Cataract Surgery: 2015 (the same month MACRA was passed in the House): “Cataract surgery is the most common procedure performed by the ophthalmic surgeon. This year 3.6 million cataract procedures will be performed in the United States… In the United States, there are approximately 18,000 ophthalmologists, of whom 9,000 perform cataract surgery regularly. Thus, a typical surgeon might anticipate a surgical volume of about 400 eyes per year. “ Under current MACRA law, a surgeon who does even 10% of what is truly needed currently will be penalized. The insanity is blinding, literally. Who needs to see when they’re 65 or older anyway? What Health and Human Services Secretary Price should do is advise CMS to exempt all practices with less than 10 physicians from MACRA MIPS altogether and allow Medicare beneficiaries to see private-contracted Medicare physicians if they so choose, but this is not what is proposed.

 

I am dumbfounded that MACRA is law and more so that physicians implement and comply. Of serious concern, is that MACRA’s “All-Payer Model” rolls out in 2018, a few short months from now. This new government payment model subjects all payers, commercial insurance companies and Medicare and Medicaid, and all patients, those with commercial insurance and those with Medicare and Medicaid, to this flawed template for government command and control of their medical care- AKA socialized medicine and its inherent rationing of care. Thus far, I see little difference in how this is being handled under GOP control from the handling under Democrat control. The government agencies’ focus is on making it easier for physicians to comply not making it actually work. That physicians acquiesce, albeit begrudgingly, is tragic.

 

If we would refuse to comply with such insanity, the law would fail. But as a profession, we are too busy to pay attention or too weak to do anything but run for the cooler corner of the hot box. Because of such totalitarian laws (which completely violate what was set forth when Medicare and Medicaid were created), I can no longer ethically enter into any agreements with 3rd party- commercial or government insurers. My agreement is solely with my patient. Heartbreakingly, national healthcare law is making it increasingly difficult for patients to see physicians like me who won’t play the game and facilitate the fundamental transformation to socialized medicine. I pray Americans, particularly our physicians, will wake up and stand up. I am discouraged, but surrender is not an option. So, I keep reading the ludicrous laws they pass and the ridiculous rules they write and trying to forge ways to practice Hippocratic medicine in spite of them . Insanity reigns. We must dethrone it.

 

Start by commenting to CMS on the proposed MACRA rule changes by tomorrow.

 

Independence Day Plea: Repeal Obamacare Root and Branch, Peanut Butter and Baby Oil.

My daughter returned from a Fourth of July Weekend whirlwind boat ride with a huge tangled mess smack dab in the front of her hair. She snapped me a picture of the knot and asked for my advice. I told her to cut her losses and cut it out. She decided to sleep on it and see if it might be better in the morning. Of course, the knot was still there- worse, entangling more strands and then increasing clumps of her hair. I, a surgeon, proceeded with knot dissection and disentanglement using fine instruments and detangler, persisted momentarily, then called for the scissors. This was met with shrill cries of resistance, and we were immediately joined by two more of my daughters who flew down the stairs in response to the cries for help. One added peanut butter, the other added baby oil, each professing it was a guaranteed fix, and I left the room thinking only of the mess I would have to clean up. At which time, I realized we were enacting a real life metaphor for the huge tangled up mess that is healthcare law in America in 2017.

 

In 1942, Congress passed the Stabilization Act to control wages in the workforce. Because government restricted employers from paying workers more, employers could not attract nor compete for the best workers. But American ingenuity prevailed and a way around this progressive Congressional Act was forged. If they couldn’t increase wages, they’d offer benefits-and make them tax exempt to boot- a “win, win” for all- as another strand was added to the government knot. This is how tax exemption for employer based health insurance was spawned. Individual Americans who wield relatively no power and money are still subject to taxation of money they use to buy individually purchased health insurance. Think of the unintended consequences. Now, if you leave or lose your job, you lose your health insurance. This contributes to the pre-existing problem. Also, businesses are looking to cut expenses every year, so they may change insurance companies every year; this too is expensive, inefficient, and wasteful. Individuals who purchase their own plans bear the financial burden for this mess and pay taxes on top.

 

Then in 1965, President Johnson signed Medicare (medical care for the elderly) and Medicaid (a safety net for the poor) into law Title XVIII of the Social Security Act replete with Sec. 1801. PROHIBITION AGAINST ANY FEDERAL INTERFERENCE.

 

“Nothing in this title shall be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided, or over the selection, tenure, or compensation of any officer or employee of any institution, agency, or person providing health services; or to exercise any supervision or control over the administration or operation of any such institution, agency, or person.”

 

After you clean up the coffee you just spewed, flash forward through ERISA, HIPAA, the HITECH (The Health Information Technology for Economic and Clinical Health Act) and CER (Comparative Effectiveness Research-now called Patient centered outcomes research) parts of the American Reinvestment and Recovery Act of 2009, and myriads of acts, laws, rules, and regulations culminating in the “Affordable Care Act” and the supreme tyrannical Act of all time- the Medicare Access and CHIP Reauthorization Act of 2015… Trillions of dollars intertwined with innumerable third, fourth, and higher order intermediaries, politicians, bureaucrats, administrators, physicians and patients has resulted in a giant hairball of epic proportion.

 

All the detangler, peanut butter, and baby oil in the world applied by all the sisters with all the best intentions and promises cannot fix this. It is time for the scissors! Congress must enact the complete repeal of the Patient Protection and Affordable Care Act. Fixing it only twists and tangles it more. Why should the American people spend over $3 TRILLION annually to make matters progressively worse? I bet half the people in DC don’t even know the difference between Medicare and Medicaid. I know they haven’t read these absurd, if not diabolical, laws.

 

People say- “But what if the insurance companies fail?” REALLY? Does any sane adult with any speck of reason seriously think these mega insurance companies with billions in profits run by CEO’s making hundreds of millions will fail without the government teat to suck on? Quite the contrary, I venture to say, unleashed from the government constraints a plethora of amazing, innovative, inexpensive medical insurance plans could be devised on a weekend corporate brainstorming retreat and on the market in three months. I’ll host it at my office. No one will die. No one will go without care. These shrill cries for help must just stop.

 

I pray that just as the American people rallied to elect a majority in the House, Senate, and White House based on their promises to “Repeal Obamacare root and branch,” we will rally once again and descend on the offices, phone lines, emails, and Facebook pages of those we elected and demand accountability and action. There is NOTHING a single Democrat will support now. So proceed with full repeal effective December 31, 2017. Then continue to repeal more, most importantly MACRA. Do this in fewer than 1500 words. The word count of the Declaration of Independence itself is 1458- including the names of the 56 signers.

 

Then do just a few things. 1.) If we profess that we want everyone “covered,” we must practice what we preach and extend the tax exemption to individually purchased plans. 2.) Free insurance companies to innovate and sell a robust offering of insurance plans of all shapes and sizes, predominantly composed of low premium, high deductible major catastrophic plans 3.) Empower Americans to put tax-exempt dollars into large Health Savings Accounts to use prudently at their discretion for medical expenses, including meeting their deductibles should a medical crisis occur. 4.) Allow free market competition to commence with transparent disclosure of the cost of medical goods and services across the board from doctors offices, operating rooms and hospitals to labs, imaging, and pharmacy. 5.) Allow these free market forces to operate across state lines. 6.) The truly sick and disabled do not need “insurance”; they need actual medical care. For this establish high risk pools at the state level and allow true charity care 7.) Return Medicaid to its intended purpose, a safety net for the poor, not a flawed plan for single payer, socialized medicine, “Medicaid for ALL.” 8.) Allow seniors the choice to go on Medicare or keep their individually owned tax-exempt plans purchasing insurance they have chosen using their HSAs dollars which have grown through their lives of individually responsible savings. 9.) Enforce the 4th Amendment and restrict government and government authorized data collectors from unfettered access to patients’ medical records without their consent. 10.) Use government grants for credible, meaningful medical research and innovation and quality medical education, not progressive indoctrination.

It’s time for the scissors, America. Cut the knot out. Then start with a fresh cut (actually massive cutting). Restore America to a land of personal and individual liberty, opportunity, and freedom of human minds and spirits of an exceptional people gifted by God and endowed with inalienable rights. Unless we do this, we will have to continue to be on defense, trying to pass laws to grant us back our rights from government and to protect us from progressive government command and control, peanut butter and oil.