Death Panels and the American Enterprise Institute

The American Enterprise Institute just came out with a new paper in its AEI Outlook Series: "The Living Truth About 'Death Panels'"  by Scott Gottlieb and Elizabeth DuPre. It's an interesting read, and makes some valid points. Here's the AEI's summary of the paper:

The controversy over aspects of the House health care legislation that have been inappropriately equated with "death panels" has obscured the real problems with these provisions. While equating these proposals with death panels is a careless exaggeration, the legislative language about end-of-life counseling is disturbing because of the intrusion it represents into patients' discretion and the way doctors practice medicine. The provisions are needlessly prescriptive, and they invite the government into private and complex health matters. Proponents believe these policies can save substantial money, but this will not occur. Congress can fix the problem by simplifying the legislation and making the principal goal ensuring patients' autonomy and providing high-quality care at the end of life.

Key Points in this Outlook:

• The end-of-life provisions in HR 3200 were not an eleventh-hour endeavor, but the product of longstanding political concern over the costs to Medicare for patients with terminal illness.
• The accusations that the bill contains provisions to create money-saving "death panels" are factually incorrect. But the provisions are based on an economic premise that they can help save significant money on end-of-life care, which is also incorrect.
• The inclusion of these measures represents a troubling intrusion into medical practice.
• The provisions are unnecessary. Doctors can already receive compensation for providing end-of-life counseling. The provisions also usurp traditional state prerogatives and may actually discourage doctors from providing counseling.
• Congress can fix the end-of-life provisions by making them voluntary and general in scope.

Still, there are some significant flaws in AEI's argument.

The first are some clearly bone-headed, amazing statements that destroy the credibility of what otherwise is a biased but thoughtful argument. Here's my favorite:

Moreover, when a private insurer chooses not to cover a specific service, patients presumably understood the service fell under a noncovered category when they chose that particular insurance plan.

In what fantasy world are Gottlieb and DuPre living? First, it's darn near impossible for a patient to actually get a copy of the actual plan. (I know. I've tried.) You get, at best, a non-binding summary of what's covered and what's not. Second, there are plenty of gray areas. [A plan may not cover "experimental" procedures. But what's "experimental" to one plan may be well-established and accepted by other plans.] Third, there are tons of rules and regulations that may, in fact, exist, but aren't spelled out in those summaries. [Simple example: Sometimes a plan will cover Procedure A and it will cover Procedure B. But it won't cover both performed during the same visit.] Fourth, insurance companies have been known, on occasion, to deny coverage for services which are, in fact, actually covered by the policy.

OK. Enough silliness.

Gottleib and DuPre argue that the provisions contained in HR 3200 are far more detailed, far more prescriptive, far less flexible, than has been employed before. They say:

On the surface, the advance-care planning provisions broadly mirror smoking-cessation provisions that the Bush administration implemented in March 2005 when Medicare Part B coverage was expanded to include smoking- and tobacco-cessation counseling. Both the end-of-life and smoking-cessation measures are aimed at providing physicians with a way to bill, and receive reimbursement, for providing prespecified counseling to patients

And they may be correct, although the provisions they themselves cite regarding the smoking-cessation counseling sound pretty darn narrow to me:

Medicare will cover 2 cessation attempts per year. Each attempt may include a maximum of 4 intermediate or intensive sessions, with the total annual benefit covering up to 8 sessions in a 12-month period. The practitioner and patient have flexibility to choose between intermediate or intensive cessation strategies for each attempt. . . . Intermediate and intensive smoking cessation counseling services will be covered for outpatient and hospitalized beneficiaries who are smokers and who qualify as above, as long as those services are furnished by qualified physicians and other Medicare-recognized practitioners.

Still, let's give Gottlieb and DuPre the benefit of the doubt. What they're complaining about here isn't restricted to just health. It's found in all areas of government activity. State educational testing standards (for instance, Virginia's Standards of Learning) are in part a reaction to government promising one thing (higher educational standards) but with no accountability or measurability. And a lot of these standards, including Virginia's SOLs, have come under fire, in large part being attacked by those who would be held accountable (the teachers).

It's a dilemma, to be sure. On the one hand, we want our professionals (teachers, doctors, etc.) to have discretion in how they approach their tasks. We assume they know more than we about their areas of technical knowledge. On the other hand, we know that our kids have been getting dumber. And we know that our health has been declining. That's particularly true, in both cases, when we compare the United States with other countries. So the public reacts: "If those professionals won't do what we're paying them to do, then we're going to demand that if they want to get paid, they'll do it our way and we'll have a way of determining if they've done it right."

Gottlieb and DuPre observe:

Language in HR 3200, for example, couples quality reporting measures to the end-of-life counseling provisions. It requires Medicare to collect "measures on end-of-life care and advance-care planning that have been adopted or endorsed by a consensus-based organization" for tracking the "quality" of care delivered by providers. "Such measures shall measure both the creation of and adherence to orders for life-sustaining treatment." These measures create the possibility that--under a scheme in which physician pay is eventually tied to performance measures--providers could be penalized if, for example, they did not hit certain targets with respect to the number of patients they provided counseling to or if they had a large number of patients under their care opting to forgo advance directives.

Yup. That's absolutely what could happen, and it's probably what some of the drafters of the legislation intended. It's called accountability, and it's born out of frustration that more voluntary measures--whether in health care or in education--don't really achieve much. And I can understand why professionals would feel that such language is intrusive and micromanaging. But that seems to be the game we play today. (And not just in those areas. Look at campaign financing. Or financial regulation.) There are laws and regulations designed to achieve a specified purpose. Those being regulated resist and figure out ways around them. So the regulators or legislators come out with even tighter regulations, which those being regulated circumvent. And so on ad infinitum.

And as the pressure grows, those on both sides resort to simplistic (and often misleading) arguments to sway public opinion. Thus, the fear of "death panels" which even Gottlieb and DuPre comment upon: "The accusations that the bill contains provisions to create money-saving 'death panels' are factually incorrect."

Except, of course, I return to a charge I made in an earlier posting: Death panels already exist. They're housed within the insurance companies which decide--based on coverage they claim one is or is not entitled to--who will live and who will die.

Is there a solution? It's difficult to see one. At least one with our current health care structure.

Blow Up Medicare and Start From Scratch

Medicare is so horribly screwed up, so out of control, that the best thing to do might well be to blow it up and start again from scratch. Honestly, I don't know if that's possible. But it sure is necessary.

The following is based on a report issued August 9 by the Office of Inspector General, Department of Health and Human Services, on "Prevalence and Qualifications of Nonphysicians Who Performed Medicare Physician Services." [OEI-09-06-00430] Sounds dry, I know. But stick with me for just another paragraph. Get this:

The study examined services provided by physicians "for days that Medicare allows more than 24 hours of services billed by a single physician." Now, that's not even the news. But read that again: Medicare allows a physician to bill for more than 24 hours of services in a single day.

So we start with the premise that it's legal, that it's acceptable, that it's within regulatory bounds for a single physician to bill for more than 24 hours of service in a day.

Now, Medicare Part B pays for services that are billed by physicians but are performed by nonphysicians. These services are often called "incident to" services. The HHS OIG report dryly notes: "'Incident to' services may be vulnerable to overutilization and may put beneficiaries at risk of receiving services that do not meet professionally recognized standards of care." You think? And maybe it puts the taxpayer at risk, too?

And here we start getting to the root of the problem. The report found that "When Medicare allowed physicians more than 24 hours of services in a day, half of the services were not performed personally by a physician." The report elaborates:

Physicians who were allowed services that exceeded 24 hours of physician worktime in a day personally performed approximately half of these services. Nonphysicians performed the remaining services, which physicians may have billed as "incident to" services.

The numbers, from the study's sample of 202 physicians for a 3-month period in 2007, found that "Medicare allowed $105 million for approximately 934,000 services that physicians personally performed and approximately $85 million for approximately 990,000 services that nonphysicians personally performed."

But, OK. At least, maybe, the services were performed by qualified non-physicians? Uh uh. No way. Again from the report:

Unqualified nonphysicians performed 21 percent of the services that physicians did not perform personally. In the first 3 months of 2007, Medicare allowed $12.6 million for approximately 210,000 services performed by unqualified physicians. These nonqualified physicians did not possess the necessary licenses or certifications, had no verifiable credentials, or lacked the training to perform the services. Nonphysicians with inappropriate qualifications performed 7 percent of the invasive services that physicians did not perform. [emphasis added]

So: Medicare allows physicians to personally bill for more than 24 hours of services in a day. It allows for billing by nonphysicians. And this study found that 21% of those services were performed by unqualified nonphysicians.

Out of curiosity, you might be wondering what sort of services these nonqualified nonphysicians were performing that the physicians then billed to Medicare.

Let's take "Invasive Procedures." Nonphysicians performed 62% of all invasive procedures: 96% of routine venipunctures, 73% of non-oral drug administration and chemotherapy, and 12% of surgical procedures. And how many of these were performed by nonqualified non-physicians? Fifteen percent were performed by nonphysicians with "no formal medical training" (which includes both on-the-job training and no relevant qualifications).

Let's take "Noninvasive Procedures." Nonphysicians performed 46% of all noninvasive procedures. Examples: Nonphysicians performed 81% of physical and occupational therapy evaluations, 46% of opthalmological diagnostic imaging and eye photography, and 48% of noninvasive cardiovascular services. And how many of these were performed by nonqualified non-physicians? Opthamology: 37% Rehabilitation therapy: 49%. Cardiovascular: 15%.

And I know I'm overwhelming you with facts and figures. But here's something interesting. Remember that this survey sampling looked at physicians who personally billed more than 24 hours of services in a day (which is permissible by Medicare). Still, what did they bill? 25 hours? 30 hours? No way. The average (the mean) billed by these 202 physicians was 37 hours. One billed 157 hours.

And how much did they bill for? The average amount billed by these 202 physicians was $9,816. The maximum billed was $45,055.

So let's recap:

• Physicians are allowed to bill for more than 24 hours of services performed in a day. Many do.
• Many of these services are performed by non-physicians.
• Over 20% of these services are performed by nonqualified non-physicians.

And a footnote: The number probably really is a lot higher. The OIG sample started off with 221 physicians. Four of those 221 were already part of an active OIG investigation, so they were removed from the sample. Another 15 physicians didn't respond to the OIG's request for information. (Hmmm. Wonder why?) So a full 10% either already were in trouble or may have felt hesitant about supplying the information.

You can find the report at http://oig.hhs.gov/oei/reports/oei-09-06-00430.pdf