Physicians' bargaining power has fallen far below the value of their effort.

This article first appeared February 22, 2018 on Medpage Today.

By Niran S. Al-Agba, MD

Since the birth of our nation, labor unions have existed in one form or another in the United States. Unions are a force to protect the "working population" from inequality, gaps in wages, and a political system failing to represent specific industry groups. Historically, unions organize skilled workers in a specific corporation, such as a railroad or production plant.

However, unions can organize numerous workers within a particular industry. Known as "industrial unionism," the union gives a profession or trade a collective and representative voice. The existence of unions has already been woven into the political, economic, and cultural fabric of America; recent events suggest that it may be time for physicians and surgeons to unionize.

A labor union is a body of workers who come together to achieve common objectives, such as improved safety, higher pay, benefits, and better working conditions. Union leadership bargains with employers on behalf of union members to negotiate labor contracts (collective bargaining.) This may include the negotiation of wages, work rules, complaint procedures, and regulations governing hiring, firing, promotion, or workplace policies.

In 2010, the percentage of workers belonging to a union in the U.S. was 11.4%, compared with 27.5% in Canada. There are strong, causal links between a diminished proportion of the workforce unionizing and loss of worker bargaining power. Obviously, the leadership of corporations prefers workers having less leverage while negotiating; unions allege this employer-incited opposition has contributed to the decline in membership over time.

However, the popularity of unions is growing, according to a January 2017 survey conducted by Pew, which found that 60% view unionization favorably. More than half of young, millennial Republicans are in favor of unions as well, something that would have been shocking a decade ago. Maybe the time is right for physicians to unionize?

In 1972, Dr. Sanford A. Marcus, a surgeon in private practice, formed the Union of American Physicians and Dentists (UAPD). It has been the most successful physician union and is affiliated with the AFL-CIO. A quote from their website is apropos: "Hospital administrators easily manipulated physicians, treating them as if they were hired hands. Insurance companies were dealing with them as if they were employees. Government programs ... controlled key aspects of doctors' work, told them how much they would be paid, and what procedures they would be paid for." This sentiment sounds familiar.

Dr. Marcus saw medicine as being ripe for takeover by corporations who were more concerned with profit than ensuring that high-quality care was provided to patients. Medical associations were and still are overlooking the needs of front-line practicing physicians. Dr. Marcus believed a union was the only organizational structure that could level the playing field. He met with the AMA, and they were ardently against unionizing. The AFL-CIO initially balked at his suggestion, saying, "Come back in 10 years" -- assuming that most physicians would be employees at that point in time. It has taken more than a decade, but our profession has arrived at the point where the majority of physicians are employed. Large corporations are stripping physicians of professionalism and belittling our management role.

The Economic Policy Institute (EPI) recently released a report with objective data supporting the assertion that unionization benefits workers in the long-term. The EPI report found that unions definitely raise wages for both union and nonunion workers. A worker with a union contract earns 13.2% more in wages than a peer with similar education and background experience. Through establishing wage "transparency," unions raise the earnings of women, black, and Hispanic workers -- groups whose pay tends to lag behind that of their white, male counterparts. Hourly wages for women are 9.2% higher than for non-unionized women across similar occupations. Black unionized workers in New York City earn 36.1% more than nonunion laborers in the same demographic.

In addition, unionized workers have better health and wellness because unions ensure employers are held accountable for safe, non-abusive working conditions. Unions can strengthen families by obtaining better leave policies, retirement benefits, and health insurance, while at the same time, safeguarding that employees have due process in promotions, dismissals, or terminations. Front-line workers often face tangible challenges often overlooked by management; as a result, they have a tremendous knowledge to suggest improvements to the workplace, make it safer, and increase productivity.

Physicians certainly qualify as an industry sector whose bargaining power has fallen far below the value of their effort. Labor unions exist to protect workers against the imbalance in negotiations. In a recent Washington Post article, Jared Bernstein posed that collective bargaining should be structured by industry sector instead of by individual corporations. Interestingly enough, Larry Mishel, President of EPI and the report's author, told Bernstein, "We need a design where people have collective bargaining rights as restaurant workers, as opposed to one where they gain those rights one restaurant at a time." Physicians may need collective bargaining rights as an industry, not as employees of Everyday Hospital, USA.

UAPD has survived over 4 decades because they have offered traditional and innovative approaches to assist physicians with boots on the ground. While officially opposing unionization, the AMA did try their hand at it during the mid-1990s, when President Clinton was working on universal healthcare. After spending $3 million, they brought in 38 physicians, but the effort ended in colossal failure.

For physicians in private practice, UAPD developed a grievance process when insurance companies unfairly deny reimbursement. Their organization is run by physicians and for physicians. They have won battles against large hospital corporations, advanced pro-physician legislation, organized a compassionate strike of physicians, and countered doctor-bashing in the media.

Dr. Marcus once said, "There are no dinosaurs left ... they were unable to adapt to changing environmental conditions. We stand a much better chance of preserving our professionalism through the process of becoming unionized workers -- admittedly a terribly unprofessional thing to do ... But then, that's just the sort of adaptation those dinosaurs were incapable of making, isn't it?"

As the world becomes more divided -- politically, economically, and medically -- physicians stand to lose the profession we love dearly. The moment has arrived for physicians to put aside our differences, of gender, specialty, or political ideology, and support an organized body standing up for the collective voice of physicians.

Republican House members urge vote; advocates meet with Vice President Pence.

This article first appeared February 07, 2018 on Medpage Today.

By Shannon Firth

WASHINGTON -- Earlier this week, two Republican congressmen sent a letter to House Speaker Paul Ryan (R-Wis.) and Majority Leader Kevin McCarthy (R-Calif.) urging them to bring a "right-to-try" bill to a vote in the House as soon as possible.

The bill, called the Trickett Wendler, Frank Mongiello, Jordan McLinn, and Matthew Bellina Right to Try Act, passed in the Senate last August.

It would allow individuals with life-threatening illnesses to obtain experimental drugs prior to FDA approval. However, the law does not require drug companies to make their products available, and the FDA already has a pathway to allow such access. Industry in general has not sought changes to that pathway. Nevertheless, some in Congress are unsatisfied with the FDA's policies and implementation and are seeking to loosen the reins.

"The fundamental purpose of the Right to Try Act is very simple: it merely allows terminally ill patients who have exhausted all other options to try medications that have passed basic Food and Drug Administration safety protocols but not completed the full, multiyear approval process. This bill safeguards any pharmaceutical company that may wish to participate in Right to Try, but it in no way requires participation to begin with," wrote Reps. Andy Biggs (R-Ariz.) and Brian Fitzpatrick (R-Pa.) in a letter signed by 40 other members and sent to House leadership on Monday.

"It is frustrating that we hit this logjam for months," Sen. Ron Johnson (R-Wis.), lead sponsor of the Senate bill, told the Washington Examiner.

Still, he was pleased to hear President Trump pressure Congress to pass a federal Right to Try law in his State of the Union. "People who are terminally ill should not have to go from country to country to seek a cure,'" Trump said.

Right-to-try legislation has already been passed in 38 states, but Biggs and Fitzpatrick argued in their letter that a federal bill is needed because state laws are "being preempted by a lack of guidance at the federal level."

"Moving forward, placing [the right-to-try bill] on the suspension calendar would be the best and most expedient way to proceed, and we have no doubt that such an effort would be successful," they continued.

"[I]t is now time to move forward without delay. We owe nothing less to the millions of patients across the country who are fighting for their lives each and every day," Biggs and Fitzpatrick wrote.

Meanwhile, right-to-try advocates met with Vice President Mike Pence on Tuesday, according to the Wall Street Journal.

Representatives for the Goldwater Institute, a libertarian think tank and fierce advocates of the bill, argue that the FDA's own data suggest the agency has made the process of accessing investigational drugs too challenging.

"There is no possible way that only [about] 1,000 people per year want to try to save their own lives," a spokeswoman for the institute said. "We just fundamentally do not believe that you should have to apply to the government for permission to try to save your own life."

Despite the enthusiasm of these congressmen and other right-to-try advocates, the legislation has provoked sharp criticism from experts in medical ethics and drug regulation.

Alison Bateman-House, PhD, MPH, of NYU Langone Health in New York City, and several colleagues drafted a letter of their own, this time to House Energy & Commerce leadership, opposing the Trickett Wendler bill and all other right-to-try measures that the committee is currently considering. It was sent with more than 300 signatures.

In the letter, Bateman-House and her colleagues recalled congressional testimony of FDA Commissioner Scott Gottlieb, MD, who in October 2017 worried over the "breadth of the language" in the bill, they wrote.

As critics of right-to-try point out, the FDA has an "expanded access" pathway, which is sometimes called "compassionate use" and 99% of patients' requests to receive experimental treatments for expanded access are approved "within a few days or hours," noted Bateman-House.

"It is important to remember that the current regulatory system for medical products and research in the United States was created as a result of serious patient harm," she said, citing the thalidomide debacle in Europe in the early 1960s.

"While obtaining unapproved therapies outside of a clinical trial is not about research, the products themselves remain experimental and have not been shown to be safe and effective.... Patients with terminal conditions who access unapproved therapies outside of clinical trials may be at risk of hastened death or reduced quality of the life that they have left, and deserve protections similar to patients taking part in clinical trials," Bateman-House and her colleagues continued.

"Expanded access can be improved, but the right to try approach is misguided and would likely do more harm than good," according to the letter.

At a briefing earlier this week, Gottlieb said that "trying to facilitate access to treatment for patients who face terminal diagnoses is a high priority."

And with regard to the proposals in Congress, the agency is making itself available to work out a solution.

"I think we'll get there," he said.

And too often it's to serve insurers, not patients.

This article first appeared January 25, 2018 on Medpage Today.

By Fred N. Pelzman, MD

I need your help.

I'm trying to figure out how to get rid of something that's terribly broken in our process of taking care of patients, and I can't do it alone.

It's time to kill the referrals process, get rid of them altogether.

Every day, a huge proportion of the messages we receive through the electronic health record are requests for us to "put in a referral."

Patient has low back pain, has scheduled an appointment to see a rehab sports medicine doctor, please enter referral.

Patient is in their dermatologist's office, and they've been told they cannot be seen until we fax over a referral, immediately. If not done in the next 15 minutes, their appointment will be cancelled and they will be told it is your fault.

Patient saw their cardiologist this morning, who ordered a stress test, an echocardiogram, and a cardiac calcium scan, but they have been told that you as the primary care doctor need to enter the referrals for these tests to be covered by insurance.

Now, to many people, this doesn't seem like such a big deal, but the ridiculous nature of this work is that it requires no medical training, no real brainpower, but often quite a bit of clicking in the electronic health record, and a lot of our time.

Undoubtedly this is contributing to the burnout we see happening across the spectrum of care providers.

In our electronic health record, you need to go to the order section in the telephone encounter where you got the request for the referral, type in the specifics of the referral (such as consult to adult dermatology, or echocardiogram), then select a provider, then the number of visits you are authorizing (as if we somehow magically knew how many visits it will take), then whether this is an internal referral within our organization or to an outside provider, then the justification for selecting an outside provider if chosen, then type a clinical reason for the referral, then find an appropriate ICD-10 code that matches the reason for the underlying diagnosis for which they're getting this consult or procedure done.

Now I'm exhausted, and I've not really provided much (or any) care, and there's another referral waiting to be processed right behind this one.

One of my colleagues got so sick of this process, that when he gets sent requests for something he didn't order, that maybe the patient scheduled on their own, he devised a system that essentially reflected the disdain with which he viewed this process.

When he got an urgent request from the front desk staff saying "Patient is in their podiatrist's office and needs a referral, routine visit," he would enter the most banal diagnosis he could find, and writes a skeletal clinical reason.

Reason for referral: foot issues.

We jokingly collected a whole bunch of these:

Reason to see a dermatologist: they have skin.

Wants to see a cardiologist: has a heart.

It doesn't matter, no one reads them, they go nowhere but to the insurance company.

Where did this whole concept of a referral come from, why do we need them, do they serve any purpose, and would we be much better off if they just went away?

When we started out before insurance rules and the burdens of the electronic health record, it made more sense to create some sort of a form to communicate with our specialist colleagues about the reasons why we were sending someone to see them.

Dr. Smith, this patient has me stumped, I'm not quite sure what to do about managing problem X, can you offer an opinion, lend me some of your expertise, make some suggestions about what we might try next.

These days, this functionality would be replaced by the fact that we all live in the same electronic health record, our notes are all there for everyone to see, and it seems pretty obvious why we're sending someone over to see a specialist.

What remains in the referral process now is just an administrative barrier set up by the insurance companies, a way for them to create some sort of gatekeeping function where they allow patients only so many visits per year to see a specialist, and only so many physical therapy appointments for their lower back pain before they get to charge more.

I understand it's in their interest to control costs, but why should this be something that we need to be in the middle of? Perhaps we should have the insurer's office process the referral, let them authorize the visits, why do I or my office staff need to be any part of this process at all?

I can send a message to one of my ENT colleagues that I'm sending a patient over to see them for refractory sinusitis or unrelenting vertigo, and we can skip the middleman altogether.

So why do I need your help?

This process is just emblematic of all the things that are wrong with how the whole process of delivering healthcare has been set up, how it's been transformed into a bunch of tasks that have little to do with healthcare, but mostly to do with business and bureaucracy, that makes us all so burned out trying to take care of patients.

If we are going to chip away at all the things that are wrong with our healthcare system, and build a better environment in which to practice and take care of our patients, we need to stand up as a group and say enough is enough.

Somewhere in our contract negotiations with the large insurance companies there was inserted language that says we agree to place referrals and limit the number of times people see subspecialists or other limits on the kind of access to care they need, but we need to say that this is not the point of healthcare, the point of healthcare is to let us take care of our patients.

I by myself can't just say, no, I'm not going to fill out referrals anymore. My practice alone cannot get together and decide we're not going to fill out referrals anymore. Even at the level of our institution, a large academic medical center, if I got everyone here to agree to go on strike, we might begin to be able to make inroads against the people who have foisted this system upon us. But I suspect that the insurers would just say well, we will get someone else who is eager for the business who would be willing to do this then, or else they might threaten to lower the rates they're reimbursing us at.

And just passing this work on to non-physician staff at our office is not the answer. Not only is this beyond the "scope of practice" of these staff members, as the system will only allow MD's or NP's to enter referrals. But I consider them such a waste of time that I would never want them to have to do this useless mindless work that adds no value to the care of our patients.

No, we need to rise up as a group. We need to begin to say that entering a referral and so many other things that we do that get in the way of caring for patients, that stand between us and our patients, that force us to sit and type in an exam room instead of sitting and holding our patient's hands, these things and so many others need to go away.

We allowed these systems to be layered upon us, to weigh us down so that we arrive home at the end of the day battered and broken.

If you want to be liberated, if we truly want to build a patient-centered, caring healthcare system that puts our patients first and those that deliver that care second, we need to take a stand.

This seems like a good thing to start with, one thing we could ask for, demand, that might make a real difference in terms of provider burnout and make us once again love coming to work to do the caring we were trained to do.

Help me figure out how we can rise up as a group and put an end to this mindless task that no one should really have to do.

Let's find a way.

Commission votes 14-2 to fold Merit-based Incentive Payment System.

This article first appeared January 11, 2018 on Medpage Today.

By Shannon Firth

WASHINGTON -- The Medicare Payment Advisory Commission (MedPAC) voted 14-2 to in favor of killing the Merit-based Incentive Payment System (MIPS) and replacing it with an alternative model of reimbursement on Thursday.

While the numbers appear to signal a strong consensus for the proposed recommendations, a handful of members who voted to nix the program expressed hesitation.

"I'm not afraid to make an unpopular decision, but I want to make sure we do something constructive," that sends the right message and is headed in "the right direction," said Commissioner Warner Thomas, of Ochsner Health System in New Orleans.

Thomas worried that if commissioners aren't careful, the alternative model -- the Voluntary Value Program -- meant to replace the MIPS could repeat some of its mistakes.

Commissioner Kathy Buto, MPA, of Arlington, Virginia, said that after listening to her colleagues, she wasn't "totally comfortable" with the VVP. She noted that the recommendations should focus on "uncertainties" such as what percentage should be withheld for fee schedule payments, and how to control for economic disparities.

But as was pointed out by Commissioner Dana Gelb Safran, ScD, of Blue Cross Blue Shield of Massachusetts in Boston, who also voted in support of the recommendations, "I don't hear a single commissioner saying we must preserve MIPS."

On the other hand, the panel had previously ruled out a straight "repeal" of MIPS. The decision was between two models: MIPS and the VVP.

MIPS combines parts of the Physician Quality Reporting System (PQRS), the Value-based Payment Modifier, and Meaningful Use into one single program based on quality, resource use, and clinical practice improvement. Under MIPS, doctors earn a payment adjustment based on evidence-based and practice-specific quality data that they report to the Centers for Medicare & Medicaid Services (CMS).

The VVP involves gutting the MIPS and replacing it with a design that includes an across-the-board withhold for all fee schedule payments. (In the past, MedPAC's staff suggested a 2% withhold as an example, but that percentage has not definitively been decided.)

Clinicians then choose to either join a voluntary group or to engage in an advanced Alternative Payment Model (A-APM) to receive the withheld amount.

Those who do neither, lose their withhold.

Clinicians who join voluntary groups will be assessed based on the performance of the group using population-based measures related to clinical quality, patient experience, and value.

Two commissioners voted squarely against these recommendations: Alice Coombs, MD, of South Shore Hospital in Weymouth, Massachusetts, and David Nerenz, PhD, of Henry Ford Health System in Detroit, Michigan.

"I agree with the sentiment that MIPS has a lot of problems, but my major objection is the timing," said Coombs.

The group had shifted from "maybe tweaking" the program to "getting rid of it" over 12 months. In 2015, MedPAC didn't say a word about eliminating MIPS, she noted.

A change this big requires infrastructure and cultural adaptation, and the commission's alternative model and basic strategy provides neither, she argued.

MedPAC Chairman Francis "Jay" Crosson of Palo Alto, California, said he wished the commission had made its recommendation sooner, but it had spent much time investigating whether the program could be modified.

"We came to the conclusion that it's simply not fixable," he said.

Nerenz voted against recommending to replace MIPS with the VVP because he doesn't view the program as voluntary. Every physician would see a percentage of Medicare payments withheld regardless of whether they participated in it, he said, likening it to a sorority or fraternity "rush."

The "cool people," those who have good performance because their patients are "educated" and "take good care of themselves," will form groups of their own, while anyone not included in "the cool people's rush process" will be left out of the program, he said.

"It's not enough to say you want to be in a [voluntary group]; you have to be accepted," he added.

Nerenz also worried that the model would rely on CMS to adjust for social and economic risk factors, which is something the agency has been reluctant to do in the past.

"I do not have confidence that that will go well," he said. "Poor people will be hurt."

Crosson took issue with the idea that the model would generate exclusive groups and leave the rest of physicians "with their nose pressed against the glass."

While it's possible for some groups to selectively choose members, other groups might consist of a hospital's medical staff or a county medical society.

MedPAC, whose 16 members include physicians, healthcare executives, and other policy experts charged with advising the Department of Health and Human Services on Medicare policy issues, has been questioning the worth of MIPS since last January.

In its June report, the commission wrote, "as presently designed, [MIPS] is unlikely to help beneficiaries choose clinicians, help clinicians change practice patterns to improve value, or help the Medicare program reward clinicians based on value."

Today's recommendations will be written into MedPAC's March report.

Anders Gilberg, vice president of government affairs for the Medical Group Management Association (MGMA), said in a statement that his group "shares MedPAC's concern that aspects of the current MIPS program are unduly burdensome and impede patient-centered care and innovation."

"However," he continued, "we believe its recommendation to eliminate the program fails to adequately address the problem and does not reflect the current value-based landscape. MedPAC's alternative that would conscript physician groups into virtual groups and evaluate them on broad claims-based measures is inconsistent with the Congressional intent in MACRA to put physicians in the driver's seat of Medicare's transition from volume to value."