An End to Bean Counting?
 

“You should follow Mark Twain’s advice: `When in doubt, tell the truth.’”

Michigan Malpractice Attorney Norman Tucker, in an Associated Press
story on the University of Michigan Healthcare System, July 20, 2009.
 

“Honesty pays, but it doesn’t seem to pay enough to suit some people” 

Frank McKinley “Kin” Hubbard, American Humorist, 1868-1930

““You did not enter this profession to be bean-counters and paper-pushers. You entered this profession to be healers—and that’s what our health-care system should let you be.”” 

President Barack Obama, in a speech on health care reform to the AMA, June 15, 2009.

“More than ever before, Americans are suffering from back problems: back taxes, back
rent, back auto payments.” 

Robert Orben, American Humorist and Magician, born 1927

Congress has left for its summer recess promising to return in a month to pass a “major overhaul” of the health care system. Despite ongoing media scrutiny, major questions remain about the exact provisions of this reform and how it will be financed.

For his part, President Obama wants us, as physicians, to return to being healers. Will this health care overhaul allow us to stop counting beans and pushing paper? If this bill does not include meaningful tort reform, we will continue to count those of our beans vulnerable to frivolous lawsuits. We will continue pushing forests of deposition summaries and other medically meaningless paper. If health care reform affords more people access to quality, subspecialty spine care, we will all benefit. If that access generates a maze of new rules and paperwork, we will only have deferred the problems that may bankrupt us in the future.

Right now, we do not know what “reforms” await us. Through processes of addition and subtraction, compromise and dilution, the end product may yield an even more confused tangle of bureaucracy. Clearly, we are reaching a critical moment in American health care. In response, NASS has called for a Spine Care Summit. In his President’s Message, Charles Branch, MD, details the upcoming NASS-hosted meeting. Unlike a historic handshake between hardened enemies, the Spine Summit represents a step toward the top rather than an end itself. Branch notes that, unlike mountaineering, the upcoming spine summit seeks to bridge a chasm on the way to the top. He suggests
that, sometimes, a climb is needed before the true summit becomes visible.

For a professional medical association (PMA) dedicated to spine patients, the true summit requires three pillars: identification of the most effective treatment for specific spinal conditions, ensuring that treatment can be delivered effectively to all who would benefit, and, finally, that practitioner compensation equals the skills, costs and tools required to provide the care.

Right now, the second two pillars are in play. We must act swiftly and decisively to ensure ongoing access to spine care and reasonable compensation for that care. In the
upcoming Spine Summit, NASS is bringing other stakeholder organizations together.
Together, we improve our potential to achieve these goals. Those major organizations
representing spine care providers will meet at NASS headquarters outside Chicago on
September 11th. Each PMA will present an issue, coordinate its discussion, and debate and implement a collaborative action plan.

SGR, MEI and Cost Containment
What will the Obama health care overhaul look like? House bills have been amended
and passed through committee. After the summer recess, the House bills are
slated for reconciliation with Senate bills. A sense of urgency remains. The typical
congressional back and forth has led to compromise, but most of us still have little sense of the details. If other recent, complex litigation is any guide, health care legislation will arrive in a severalthousand-page bill. Very few, if any, of the members of Congress will have read the bill in its entirety before voting. NASS’ Washington representation continues to press for features that would preserve access to quality subspecialty spine care.

The American public has received little detail on either the plan’s specifics, costs or
its means of funding. An important part of the cost calculations for this process
requires updating the SGR (sustainable growth rate formula). The importance of
the SGR is discussed in this issue’s Advocacy Column.

NASS Advocacy Committee members Douglas Slaughter, MD and Raj Rao, MD,
and NASS staff member Nick Schilligo present this as the first in a series of position
papers. This series will present the NASS position on active areas of the legislative
agenda. The authors describe their methodology in developing the position paper. With each, the NASS membership is asked to submit their ideas and suggestions. For the SGR position, more than 40 NASS members participated. These ideas were further developed through the Advocacy Committee and the NASS Board.

Theoretically, the SGR determines physician reimbursements. The formula, which incorporates disparate elements such as gross domestic product (GDP), generates yearly adjustments. Given the changes in the economy, the SGR would require deep cuts in physician reimbursement. The SGR has theoretically been in effect since 1997, but Congress has “patched” the cuts every year since 2002. Currently, replacement of the formula enjoys bipartisan support. There is, however, little consensus on its replacement.

The Advocacy column presents the NASS position paper, which reviews the formula options under consideration and NASS’ assessment. NASS’ position links physician reimbursement to the Medical Economic Index (MEI). The MEI reflects the realistic costs of providing care. An amendment replacing the SGR with the MEI was introduced by Congressman Michael Burgess (R-TX), but was defeated in committee. Instead, the House Committee adopted language eliminating the debt associated with the SGR and providing a patch which ties reimbursement the 2010 MEI. Subsequently, however,
reimbursement rates will be recalculated using the GDP. Primary and preventive
care specialties will receive adjustments based on the change in GDP plus 2%.
Subspecialty services, on the other hand, will be calculated at GDP + 1%.

The costs of this SGR correction are central to the current debate over health care reform costs. At $245 billion, this “patch” represents one of the bill’s greatest expenses. The White House states that, because SGR-mandated cuts have always been overridden by Congress, this override should count toward the bill’s overall expense.

As this legislation’s costs are debated, its cost-containment mechanisms remain
poorly understood. To assuage Americans’ fear of change, Obama has promised that Americans will not need to give up their current insurance or doctors. With that in mind, it’s not clear if the bill eliminates any of the current, expensive health insurance bureaucracy.

The AMA has recently updated its landmark 2008 report on health insurers’ activities. They cite a slight improvement in insurer performance in the last year, but noted that “tremendous opportunities” for improved efficiency in our multipayer health care system remain. AMA Board Member William A. Dolan, MD said, “Each insurer uses different rules for processing and paying medical claims that results in confusion and inconsistency. Simplifying the administrative process through standardized processing and payment requirements is needed as part of comprehensive health reform legislation
this year. It will reduce unnecessary costs in the health system and eliminate the variability that requires physicians to maintain a costly claims management system for each health insurer.”

This inefficient and inconsistent claims process adds $200 billion in annual costs to the health care system. As noted in the last issue of SpineLine, physicians divert as much as 14% of their revenue to ensure accurate payments from insurers. The AMA report found a “serious lack of standardization” as evidenced by wide variations in how often health insurers deny claims, and the reasons used to explain the denials. The timeliness and accuracy of insurers’ response to physicians’ claims remained a problem. In response, the AMA issued a new white paper urging the administration, Congress and health insurers to bring transparency, simplicity and consistency to the nation’s multipayer system.

Aside from the system’s inefficiencies, the aging of the American population serves as a major challenge to cost containment. The accelerating growth rate of the world’s older population was reported in a July 20th Reuters story by Maggie Fox. In the US, the number of old people will soon outnumber the young. Worldwide, the aging population will push up pension and health care costs, forcing major increases in public spending potentially slowing growth in both rich and poor countries. The 80-and-older age group is the fastest growing portion of the total population. Between 2008 and 2040, the “oldest old” group is projected to increase 233% globally. In most of the world, the top killers
remain expensive, chronic diseases such as heart disease and cancer.

The End of Fee-For-Service?
While federal cost containment efforts continue to evolve, Massachusetts, having expanded access in 2006, is now seeking to trim increasing costs. Currently,  Massachusetts requires nearly all residents to have health insurance and provides subsidies to families earning less than $66,150. At this point, their Commonwealth Care
system has expanded coverage to 97% of state residents, but the system’s costs have risen at an unsustainable 6% to 9% annual rate.

In a July 16th New York Times story, Kevin Sack reported a radical restructuring in physician payment proposed by the Massachusetts Healthcare Commission. The Massachusetts plan seeks to eliminate the fee-for-service model by grouping primary care physicians, specialists and hospitals into networks. These networks would be compensated with a flat fee or global payment. Initially, the system would cover privately insured patients. With federal regulatory approval, the system could be expanded to include Medicare and Medicaid patients.

Another attack on the fee-for-service system is coming from physician groups. In his July 25, 2009 New York Times article, David Leonhardt recounts organized medicine’s ongoing defense of fee-for-service, beginning with the story of Dr. Michael Shadid. In the late 1920s, Dr. Shadid proposed a cooperative to care for the farmers of western Oklahoma. The farmers would each pay $50 a year and the doctors’ salaries and expenses would come from the aggregate sum. At the time, the medical establishment was “horrified” by the plan and tried to revoke Dr. Shadid’s license. The AMA’s leadership argued that cooperatives “subjected doctors’ incomes and working conditions to direct control by their clients.”

Times have changed. Today, doctors have far less control of their pay. The end of paternalism has rightfully ceded much of the control over treatment selection to patients. Increasingly, and less favorably, treatment options are preselected by payers (how difficult is it to get approval for a cervical disc replacement in your area?).

In moving Medicare away from fee-for-service, President Obama has recommended
an “independent group of doctors and medical experts who are empowered to eliminate waste and inefficiency.” Obama favors group practice models wherein reimbursement is not tied to procedure volumes. His panel would reimburse doctors based on outcomes.
Often, the Cleveland and Mayo Clinics are given as examples because Medicare data suggest they deliver less expensive care with better outcomes.

Doctors associated with these and similar institutions argue that, currently, there are no adverse consequences for overutilization and no benefits accrue for cost containment. Initially, they seek to replace fee-for-service with a DRG-type system. Here, the doctor is paid a set fee to treat a patient with a given diagnosis regardless of which treatment modality is ultimately selected.

From cooperatives to the DRG–related payments including both facility and professional components, individual physicians are increasingly grouped with hospitals. One imagines that the physician will then be required to negotiate his or her percentage of the payment from the hospital. In most states, hospitals are allowed to directly employ physicians. Citing the importance of separation of medical decision-making from institutional fiscal concerns, physician employment remains illegal in Texas and California. In both states, these laws are currently being challenged. With this overhaul spell the end of private practice?

Surgical care of this issue’s Curve-Countercurve patient may soon be paid by DRG. Dr. Jeff Wang presents a case of spinal stenosis with L4-5 spondylolisthesis. The patient has neurogenic claudication without much back pain. The discussants, Alpesh Patel, MD, from the University of Utah, and Peter Whang, from Yale University, debate the merits of decompression alone versus decompression and fusion. This is a terrific case in that it reflects very common pathology, with controversial definitions, and reasonable, but quite divergent treatment options.

Often, reasonable physicians offer these divergent treatment suggestions based on their use of a critical word. Here, that word is “instability.” Of course, an unstable spine should be stabilized. But, is this spine unstable? This patient has a grade I anterolisthesis, immobile on flexion-extension, and without evidence of fluid in the facets. Additionally, there is no difference in the slip from supine (the MRI) to standing (the X-ray image).
Does this anterolisthesis represent “instability”?

The SPORT trial has given us a level I comparison of operative versus medical/
interventional management of spinal stenosis with anterolisthesis. Unfortunately, the quality of evidence regarding fusion versus decompression alone is more limited. A number of studies with shorter follow-up intervals seem to suggest that decompression alone leads to acceptable outcomes in selected spondylolisthesis patients. Of course, that decompression needs to be carefully done. The wide laminectomy performed in years past is likely more destabilizing than a fenestration procedure.

Some surgeons will provide a decompression and fuse later if the slip progresses. There is little evidence that this approach yields outcomes similar to those from a single–stage procedure. On the other hand, it remains unclear whether the adjacent segment degeneration seen with fusion and transpedicular instrumentation increases secondary surgery rates more than unfused patients with slip progression.

Given the health care proposals facing Congress, one has to ask: if reimbursement levels were the same for either procedure, how many fewer patients would receive a fusion? Clearly, salaried physicians routinely utilize fusion and instrumentation in degenerative spondylolisthesis cases without additional pay. On the other hand, uniform payment may decrease the percentage of cases in which transpedicular instrumentation is added. Do you think a DRG–based system would change the utilization of fusion and instrumentation techniques in this patient?

Given the compelling evidence in favor of decompression of functionally limiting lumbar spinal stenosis, will repeated courses of epidural steroid injections (ESI) be covered? A number of questions about the optimal use of epidural injections for chronic, degenerative symptoms remain. In his Radiology Rounds section, Dr. Frank Shen presents a discussion of dye flow patterns from ESI from Drs. Scott Laker and Christopher Standaert from the University of Washington.

Traditionally, the authors report, radicular pain results from inflammation at the site of disc contact with the ventral nerve root. ESI seek to eliminate this inflammation though application of steroid to this ventral interface. In that its needle entry point is more ventral, transforaminal injections are thought to reach this anterior interface more readily. Laker and Standaert question this assertion. They note that interlaminar injections exhibit
high rates of anterior dye flow. The more midline the injection, the more bilateral the flow tends to be.

The authors note that ESIs are used in a number of spinal pathologies, some of which may involve nonanterior inflammatory interfaces. Other cases exhibit multiple sites of nerve compression and irritation. Finally, Laker and Standaert suggest that while dye flow studies are helpful, we have limited understanding of what happens to the injected steroid after the patient stands and begins to move. They conclude that there is no
one-injection-fits-all theory.

Along similar lines, this issue’s Coding column considers facet joint injection. Coding Committee members Christopher Standaert, MD and David O’Brien, MD, describe several appropriate indications for facet injections. The authors note that with increased numbers of older (and thus spondylotic) patients and numbers of trained practitioners, some increase in facet joint injections would be expected. Yet, the 500% increase in their utilization in the last six years is difficult to explain.

The significant increase in facet injection-related costs was followed by an investigation by the Office of the Investigator General (OIG). Considerable program and coding errors were noted. Procedures performed in the office setting were more likely than those in surgery centers or hospitals to have bureaucratic difficulties. Common problems included improper coding for bilateral procedures and add-on levels. Often, non–imageguided injections more similar to trigger point shots were billed as facet joint blocks.

The authors conclude that this increase in utilization may lead to code revisions in the 2010 fee schedule. The overhauled health care system could deny coverage for procedures (or specific indications) it finds inadequately supported in the literature
or it may simply decrease reimbursement to the point at which they can no longer
practically be offered. While the current reform plan includes provisions for comparative
effectiveness research (CER), the Committee accepted an amendment prohibiting the government from using CER councils to make coverage decisions.

Correctly identifying the true costs of providing a given procedure remains difficult. Even superficially simple portions of a physician’s “work,” like patient positioning, often require specific, in-depth study. In this issue’s Regulatory Policy column, NASS Senior Manager Allison Wexler and Health Policy Director Charles Mick, MD, present the results of NASS’ recent positioning survey. This survey was a cooperative effort of the AAOS, AANS,
AAPMR, AAPM and others.

The time required for positioning is a significant portion of the pre-service work included in the assessment of RVUs for a given CPT code. Previously, the Resource Based Relative Value Update Committee (RUC) used prepared “packages” to assess this work component. With those packages, the maximum time attributable to positioning was three minutes. Obviously, this time did not adequately reflect the real time required for safe positioning for either surgical or injections procedures of the spine. For the spine procedures surveyed, times ranged from five minutes for prone positioning for injections to 25 minutes when positioning thoracolumbar corpectomy patients. The study’s results
were strengthened by the high levels of participation from NASS members and the submission of independent surveys. These independent surveys cited similar spine positioning times for prone positioning when performed for spinal cord stimulator placement and facet joint injections.

In some spine procedures, the positioning alone is as complex as the entire work required for others. Often, safely positioning ankylosing spondylitis patients for fracture stabilization procedures takes longer than a lumbar microdiscectomy. In their Invited Review, Drs. Nicholas Szerlip and Charles Schnee from the University of Maryland present the spinal pathophysiology and biomechanical implications of ankylosing spondylitis (AS). AS provides an interesting example of how physiology affects biomechanics. Genetic markers such as HLA-B27 not only serve as a test for AS susceptibility, they also amplify our understanding of its pathomechanics. In the future, as our understanding of its pathophysiology improves, targeted therapies may interrupt
the cycle of enthesopathic destruction. Right now, in order to effectively care for these patients, the spine care physician must understand how the autoimmune and physiologic factors underlying AS lead to marked mechanical changes in joint function. Ultimately, joint stiffness and bone loss lead to susceptibility to unstable fractures.

The Impact of Medicolegal
Liability As Szerlip and Schnee note, even minor trauma in AS patients should alert the
physician of the possibility of spinal column destabilization with high rates of secondary neurologic decline. Failure to identify these injuries subjects the patient to devastating complications and the physician to medicolegal liability. Unfortunately, liability reform is not a featured part of health care reform. Congressman Michael Burgess (R-TX) )introduced an amendment capping medical malpractice damages, but the measure was defeated, 32-23. An amendment funding state efforts to enact medical liability alternatives was accepted.

The annual cost of malpractice claims is estimated at $5.8 billion. But, as discussed
in the last issue of SpineLine, the true cost of malpractice in terms of additional testing,
procedures and hospital admissions is much higher. If the overhaul does nothing to decrease these costs, what other options are there?

A July 20th Associated Press story by David Goodman discusses University of Michigan malpractice experience reported in a 2009 Journal of Health & Life Sciences Law article. Lawyers and doctors of the U of M Health System say that “admitting mistakes up front and offering compensation before being sued have brought about remarkable savings in money, time and feelings.” Lead author and U of M Chief Risk Officer Richard Boothman reported that malpractice claims against his health system fell from 121 in 2001 to 61 in 2006. The backlog of open claims went from 262 in 2001 to 83 in 2007. In that same interval, the claim processing time fell from about 20 to eight months. Costs per claim were halved.

When the U of M Health System learns of possible errors from doctors, patients or their lawyers, a peer review process is conducted. The University determines if an error occurred and what changes are needed to prevent recurrence. Health system doctors and officials offer to meet with patients and their families to explain the treatment and its appropriateness or, sometimes, to admit a mistake.

This “openness” approach is catching on at other academic medical centers from Boston Medical Center to the University of Illinois to California’s Stanford University Hospital. This approach has a wide range of opponents. For example, Matthew Gaier, Cochair of the New York State Trial Lawyers Association’s medical malpractice committee, feels that the process of patients suing health care providers and forcing them to open their records is “crucial” to reducing medical mistakes and improving care.

In a 2007 Health Affairs article, Harvard public health professor David Studdert reported that the spread of this openness or disclosure model could increase malpractice costs to up to $11.3 billion because only a small percentage of the 181,000 people “severely hurt” by medical mistakes each year file claims. Jim Copland, director of the Center for
Legal Policy of the Manhattan Institute states that for “saying sorry” to work, doctors need protection from having their honesty used against them in court. This protection could take the form of a shield law excluding apologies from evidence in malpractice suits. These laws have been enacted or are being considered in some states.

An open and honest approach to the patient is always the best policy. How the information is conveyed, however,  may depend on the parties involved. Is some of the fault shared by the hospital? Other physicians? In an employee model institution like the University of Michigan, these issues may be less complex than in a system in which the hospital’s legal interest may not strictly align with those of the physicians. Of course, if health care reform puts all of us in cooperatives, our legal interests may align to the degree that increased openness will be possible.

Final Thoughts
I would like to thank Drs. Prunskis and Moreland for their insightful letters this issue. SpineLine represents an opportunity to voice our opinions and learn from dissent. Dr. Prunskis presents an alternate treatment option for the case in last issue’s Curve. Dr. Moreland has concerns about Kyphon’s support of an ethics roundtable shortly after accepting NASS censure for actions related to a company it purchased. In her response, Ethics Committee Chair, Marjorie Eskay-Auerbach, MD, JD, explains Kyphon’s role in the September 2008 Ethics Roundtable and the purpose of the meeting itself. I appreciate Dr. Moreland’s letter for its forthright presentation of his concern. An organization
is most effective when it understands and addresses its members’ concerns.  Transparency and industry relations are very active topics right now. The relationships
include not only those between individual practitioners and industry, but also between
PMAs and industry.

The current health care proposals seek to radically change our relationships with  each other and with industry. So far, we know that the plan seeks to cover more people and the rich will pay for it. Proponents are making promises; opponents are offering dire warnings. My guesses: the resulting system may improve access, but will not reduce bureaucracy. Those “rich” people paying the premiums will not see themselves as rich.
 
In principle, Obama would like to control  costs by paying for performance and emphasizing wellness rather than sickness. Wellness reflects lifestyle choices more than medical choices. Lasting change will be difficult to achieve.

Given that the health care sector controls up to one sixth of the US economy, the stakes could not be higher for the patients, the doctors and a whole host of other stakeholders from pharmaceutical and implant companies to hospital corporations and municipalities. The final bill has not yet been assembled. Now is the time to contact your Senators and Congressman. Now is the time to support SpinePAC. Participatory democracy works when those with understanding participate. There is and will be NO better time.
 

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