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Federal Regulator, Meet Dr. Regulated

 |  By jcantlupe@healthleadersmedia.com  
   July 25, 2013

Perhaps it's time for federal regulators to examine themselves, because it certainly appears there's too much oversight that inhibits physicians from doing their jobs, and too little to ensure that they do their jobs right.

As the year is now beyond the halfway mark, and the countdown to full implementation of the Patient Protection and Affordable Care Act is on, physicians are in an evolving, never-ending stranglehold of regulations, making them more riled up than ever.

At the same time, a media report finds that the largest physician organization – the American Medical Association – may be exaggerating physician work hours, which has the consequence of overpaying some doctors, never mind pushing healthcare spending even further out of whack.

Hmmm. Is this healthcare reform?

Perhaps it's time for federal regulators to examine themselves, because it certainly appears there's too much regulation that inhibits physicians from doing their jobs, and too little regulation to oversee that they do their jobs right.

Taking aim at regulations it says are suffocating physicians, the Physicians Foundation issued a report last month describing what it called the "top 10 regulatory irritants" that are overwhelming doctors. These aren't new, but it's a complicated swirl of issues that doctors face.

The report discusses 'meaningless work,' under Meaningful Use that includes a 'bewildering requirement' that notes ophthalmologists must weigh patients. As the report says: for what? It talks about the upcoming ICD-10 for 2013, which involves 68,000 codes, often confusing and unsettling to doctors. It mentions medical guidelines, thousands of them, that they say are inconsistent and have little impact on improved patient outcomes via the Independent Payment Advisory Board (IPAB), and the Patient-Centered Outcomes Research Institute, and hundreds of other groups.

The report also refers to the problems of electronic medical records, and of course, it cites outrage over the controversial sustainable growth rate formula (SGR).  There are other matters, too, such as physicians evaluating varying definitions of quality, uncertainty over hospital acquisitions, questions about fraud, and RAC audits.

Finally, the Physicians Foundation report discusses "transforming the practice of medicine into the practice of box checking" and "the government coming between me and my patients."

I talked with Lou Goodman, PhD, president of the Physicians Foundation, about the report. Talking about the irritants makes Goodman, an easy-going guy, irritable.

"I think the folks in Washington think they are improving care or making it better or saving dollars, but in individual doctors' offices, there's really no cost effectiveness, no evaluation of regulators and what their impact is," Goodman says. "Let's put some kind of filter on the regulation-writing establishment."

"All these administrative requirements do not have positive impacts on care people are receiving, it seems like we are working at cross purposes," Goodman adds. "We're for progress, but let's make sure it is moving us forward, not backward."

Fred Hyde, MD, JD, MBA, head of Fred Hyde & Associates, in Ridgefield, CT, and a clinical professor of health policy and management at Columbia University, wrote the Physicians Foundation report. He told me that the regulatory evolution in American medicine is evolving from clinical care, where it should be, into misguided oversight of dollars and cents.

"The enormous, complex regulatory mechanism put in place in American medical care is increasingly resembling what medicine would be like if practiced by economists, not medicine as practiced by physician," says Hyde. "The truth is, however, that doctors will tell you that patient care is more complex than can be provided for "in guidelines."

What's happening now are the "unintended consequences" of regulations, Hyde writes.

Those regulations are certainly hindering patient care, at least in the eyes of physicians. But maybe more economists should be involved, at least when it comes to physician pay. That argument comes on the heels of the Washington Post report last Sunday that said physicians were paid, in some cases, based on hour-estimates and specialties recommended by the American Medical Association that were inflated. Federal regulators are essentially responsible for approving such payments, but are woefully understaffed to monitor the AMA bean counting.

The Post referred to the AMA/Specialty Society RVS Update Committee (RUC)'s role in providing "resource cost information" to the Centers for Medicare & Medicaid Services. Every three years, the committee meets for several weeks to review procedures and cost estimates. In a review of more than 5,000 procedures over a 10-year period, the Post uncovered a wide variation in payments, including instances in which physicians would have to put in more than 24 hours each day for procedures, such as colonoscopy, to get the pay the AMA recommends in its value-scale.

Increased technology improvements over time should have reduced the amount of time doctors needed for such procedures, but that hasn't been reflected in the pay, the Post asserts. Between 2003 and 2013, the Post wrote, "AMA and Medicare have increased the work values for 68% of the 5,700 codes analyzed by the Post, while decreasing them for only 10%."

While the Post has called the RUC, a secretive committee, the AMA has disputed the claim, as well as many other elements of the newspaper's story. For instance, the AMA stated that it was untrue that relative values have primarily increased since 2003, leading to an increase in Medicare spending. In addition, the AMA asserted that its committee "has worked vigorously over the past several years to identify and address (misevaluations) in the RBRVs (Resource-Based Relative Value Scale) through provision of revised physician time data and resource cost recommendations to CMS." The RBRV is used to determine how much providers are paid.

Evaluation of pay scales are constantly monitored, the AMA states. "The committee fully acknowledges that there are services that are now performed more efficiently and these codes have been or will be addressed." For instance, the time and valuation for cataract surgery was significantly reduced in 2013. About 500 physician services have been decreased, redistributing $2.5 billion to primary care and other physician services, the AMA said. While the AMA issued a "background" statement, no official was named to provide details of the AMA response.

But there is one outstanding feature of the Post story that the AMA does not refute. While the AMA spends upwards of $7 million on evaluation of values and possible pay scales, the government has only about a half-dozen part-time workers on the payment reviews, certainly deflating its ability to regulate or control pay for relative value of procedures.

Here we have it: the government, so very regulation-oriented, has decided not to spend money to hire people to carry out the very regulations it imposes, or to oversee the enormous responsibility and expense of physician pay. So it certainly puts itself in a position to rubber stamp the AMA, or anybody else.

As for most physicians, they are caught in the middle, as per usual. The Post disclosures don't really faze him, says Hyde. "My reaction to it is neither 'up' nor 'down,' he adds. As doctors face regulatory and payment issues, "the only collective action that physicians can take, is through our large and increasingly powerful health systems, or in the alternative, through a rapprochement between the regulated and the regulators," Hyde says. "The RUC, as I see it, represents such an understanding."

Hyde emphasized that Medicare isn't "compelled" to accept the RUC's recommendations, but its role, he says, may be important to prevent even more physicians from leaving their practices.

"What the doctors and CMS do through the medium of the RUC is, I think, attempt to keep as many physicians involved in practicing medicine for Medicare and Medicaid beneficiaries as possible," Hyde says, noting the fascinating, and always complex, world of the regulated and the regulators.

Joe Cantlupe is a senior editor with HealthLeaders Media Online.
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