Stanley Feld M.D., FACP, MACE Menu


One Size Doesn’t Fit All

Stanley Feld M.D.,FACP,MACE

Prior to the passage of his healthcare reform act President Obama removed a provision dealing with reimbursing physicians for end of life counseling. There had been a great public uproar over this provision.

It was viewed at a first step toward end of life rationing of care. It was really a signal that most care would be rationed.

When a proposal to encourage end-of-life planning touched off a political storm over “death panels,” Democrats dropped it from legislation to overhaul the health care system.

Sarah Palin called it death panels.” A government panel would decide whether Medicare would pay for the treatment of patients deemed hopeless regardless of the patient’s will.

Sarah Palin’s use of “death panels” was sensationalistic. In our sound bite society this was an effective sound bite.

The words “death panel” illustrated the truth about a world of finite resources and infinite entitlements.

The government cannot afford entitlements much longer. Yet President Obama’s healthcare reform act is going to expand the Medicare and Medicaid entitlements.

President Obama plans to control entitlement spending by defining what he will pay for. The result will be rationing of care.

There are other ways out of the mess. President Obama is not attacking the root of the problem. One way is a consumer driven healthcare model using ideal medical savings accounts. It would place the responsibility on patients and their family. Patients would be in a position to choose rather than having the third party (the federal government) choose their medical care. Patients and their family might decide to limit hopeless care when they are spending their own money..

A system of sensible tort reform would decrease the large cost of defensive medicine. The result would be lower healthcare costs. President Obama has ignored tort reform.

These two changes can help attack a few of the root causes of the increasing healthcare costs.

I have objected to President Obama’s healthcare reform act. It places all the decision making power in the executive branch and out of the hands of congressional oversight.

The Obama administration has the power to effect change through regulation rather than legislation . An example is Dr. Donald Berwick, chief of CMS, instituting the same policy by regulation that was removed from the bill by legislation. The new regulations go into effect January 1 2011.

At a stroke, Medicare chief Donald Berwick has revived the "death panel" debate from two summers ago.

CMS will enact the same policy removed from the bill through regulation. Congress has had no input. There will be a never ending series of steps to give government control over both patients’ and physicians’ freedom to make medical decisions. Some regulations seem benign on the surface. President Obama has been given complete control over the healthcare system by his healthcare reform act.

It is the reason there is such an outcry to repeal his healthcare reform act. President Obama has tried to hide the new regulations from stakeholders involved.

The office of Oregon Democrat Earl Blumenauer, the author of the original rider who then lobbied Medicare to cover the service, sent an email to supporters cheering this "victory" but asked that they not tell anyone for fear of perpetuating "the ‘death panel’ myth." The email added that "Thus far, it seems that no press or blogs have discovered it, but we will be keeping a close watch."

President Obama has used a number of tricks to achieve his goal. He appointed Dr. Berwick during congressional recess without congressional hearing after he withheld the request for a congressional hearing and approval for 3 months.

Dr. Berwick now slips through a regulation about reimbursement that Congress explicitly rejected. The email slipped out illustrating the scheming with his political patrons to duck any public scrutiny.

“Expect many more such nontransparent improvisations under the vast powers ObamaCare handed the executive branch.”

Administrative spokesmen, when challenged, immediately declared “the rule-making is not coercive and gives seniors more autonomy, not less.” Nothing could be further from the truth.

The facts are a panel of medical experts decide on treatments or service that are worthy of reimbursement. They then tell the administrators what to pay for. Some treatment won’t be paid for it even if it is in the best interests of patients.

Can a panel of medical experts be wrong? They certainly can. The experts judgments might be correct. However, their opinion and exceptions to the regulations cannot be incorporated into the healthcare system by inflexible bureaucratic machinery.

The bureaucrats put the experts’ decisions into a rules based computer program. Reimbursement is driven by this inflexible system , not by medical circumstances or medical judgment.

Last month a group of Clinical Endocrinologists received a Medicare denial code 151 stating;

“Payment adjusted because the payer deems the information submitted does

not support this many/frequency of services.”

This had not happened to this group in 20 years of endocrine practice. It concerned serially measuring thyroid function to regulate thyroid replacement therapy after patients are rendered hypothyroid with radioactive iodine of surgery. Initially patients have to be followed with thyroid function testing every month or two.

Medicare allowed payment for the first laboratory service, then denied the next three tests as “too frequently.”

CMS also describes in its National Coverage Determination (NCD).

Thyroid testing may be covered up to two times a year in clinically stable

patients; more frequent testing may be reasonable and necessary for patients

whose thyroid therapy has been altered or in whom symptoms or signs of hyperthyroidism

or hypothyroidism are noted.

The “medical experts” got the exceptions correct but did not define the frequency of testing to permit the CMS to incorporate into the reimbursement system..

An endocrine practice can submit for redetermination within 120 days. If redetermination fails physicians have 80 days to file for reconsideration.Reconsiderations are the second level in the appeal process and are conducted by the Qualified Independent Contractors (QICs). If physicians receive an unfavorable reply at the reconsideration level, there are three more levels of the appeal process, the Administrative Law Judge (ALJ) Hearing, Appeals Council Review and the Judicial Review in U.S. District Court.

Imagine all the costs involved on both sides in order to adjudicate treatment that is evidence based and totally indicated. Imagine the frustration of physicians treating patients. .

From past experience these hassles will increase as the government gets more and more control over the healthcare system. Patients’ medical care is not first. Federal rules and regulations are first.

The opinions expressed in the blog “Repairing The Healthcare System” are, mine and mine alone.

  • Tom in NH

    You are wrong about this myth of a death panel. This is nothing more than Republican policical theatre. The proposal is only to get the doctor PAID to sit down and discuss the THE PATIENT’s WISHES are. So both can make informed decisions. As Atul Gawande pointed out recently,
    Twenty-five per cent of all Medicare spending is for the five per cent of patients who are in their final year of life, and most of that money goes for care in their last couple of months which is of little apparent benefit:
    25% of Medicare spending is on 5% of patients in their final year of life. Then there’s the study in 2008 by Coping with Cancer that showed terminaly ill cancer patients had WORSE quality of life when pulling out all the stops than those who opted out. And then there was the family members 6mos after death that had a 3x higher rate of depression when the patient opted for agressive care vs paliative care.
    So getting back to the point, aren’t these topics you’d like to sit down with YOUR DOCTOR and develop a plan that works FOR YOU? Oh, sorry, the doctor can’t get paid for this type of meeting right now. Your doctor is busy scheduling paying appointments. You’ll have to go it on your own. Good Luck.

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