Diagnosis for Democracy
Insights into the State of Our Union
A Blog by Rob Tenery, MD

February 10, 2012: Mumble, Grumble, then Tumble

By Rob Tenery, MD on February 10, 2012

Most discontent starts as muffled undertones. A sigh. An inarticulate grunt. Those nearby might not even notice. Even if they did, it would only be the body language that might give them a clue.  Nothing changes---just a level of increasing dissatisfaction.

The HIPPA regulations enacted in 1996 immediately come to mind, when doctors just sighed and turned their patients’ charts facedown. Then in 2002 with the enactment of the Balanced Budget Act of 1997, physicians have mumbled about the uncertainty of their Medicare reimbursements. The law mandates that each year the Medicare fee schedules are to be adjusted in order to be in compliance with the 1997 law of budget neutrality. Each year Congress has intervened to avert the cuts, only to promise that, sometime in the future the government will make up for the supposed over-funding since 2002. This year it almost happened--- the recoupment of the extra 300 billion supposedly funded to physicians over the last ten years in order to maintain budget neutrality.

All of medical organizations that represent the physician community worked tirelessly to stop the proposed 29.4% Medicare cuts scheduled to take place January 1, 2012. So far they have only achieved a two-month delay. In the report published 1/5/12 by TrailBlazer Health Enterprises, LLC (the intermediary for the Centers for Medicare & Medicaid Services) is stated the following under Physician Payment Update:

Section 301 of the TPTCCA (Temporary Payment Tax Cut and Continuation Act OF 2011) prevents a payment cut for physicians that would have taken effect on January 1, 2012. An update of zero percent is effective for claims with dates of service January 1, 2012, through February 29, 2012. While the physician fee schedule update will be zero percent, other changes to the relative value units used to calculate the fee schedule rates must be budget neutral. To make those changes budget neutral, the conversion factor must be adjusted for 2012.

Where in this is any mention of a fix in the SGR? What is it going to take to stop the insane premise that with a growing population and exploding technology the expenditures can be budget neutral without cutting the quality of the providers, the quality of the care they provide or the amount of care given (rationing)?

With the upcoming elections in October, what happens after March 1 is anyone’s guess.

With passage of the Patient Protection and Accountable Care Act (PPACA, Obamacare) a sharp divide occurred within the medical profession. Led by the leadership in the American Medical Association (AMA), the leadership of AARP and several other medical organizations, President Obama was able to pass this landmark legislation into law.

The apparent reason that the AMA leadership was willing to put its reputation on the line and arouse heated discontent among its membership was the promise by the President that he would work to fix the flawed Sustainable Growth Rate (SGR) through the Congress. Although the President did sign the two-month TPTCCA extension, where do we see the President applying pressure not only to fix the draconian cuts laid out by the BBA of 1997 but the flawed SGR formulae?

Safely tucked away in the President’s pocket, it seems the AMA has been relegated to the sidelines as the debate over the constitutionality of the ‘individual mandate’ in the PPACA rages on. Now, brought to the Supreme Court in a lawsuit filed by the Attorney Generals in twenty states, the constitutionally question should be resolved this summer.

Even if the TPTCCA is extended, will the hold on the 29.4% pay cut for back-due Medicare reimbursements be included or will that be left to dangle over the heads of physicians along with the flawed SGR? Up to this point, one thing seems obvious---- politics is a ‘dirty’ game and the physician community, more often than not, is not very good at it.

Although there have been many pivotal points affecting the delivery side of health care like HIPPA regulations and the flawed SGR, the upcoming Supreme Court decision may be the most important yet. It’s not just because the legislation directly affects physicians’ practices, but, if and when the law is fully implemented, it seems almost impossible that the private sector health care insurance industry will survive over time. When the only option is some type of federally funded and controlled program, any freedoms physicians have enjoyed in past generations will be gone.

The growing dissatisfaction among physicians seems to have moved from mumbling to all-out grumbling. Support for a permanent fix in the SGR is now getting bipartisan support in Washington and the AMA has released what appears to be its strongest statement yet. “It’s ludicrous to continue to pay more for a policy that everyone agrees is flawed: The price to put an end to it will never be less than right now,” quoted the AMA spokesman.

All too often physicians’ voices have fallen on deaf ears. One has to question why won’t others listen. Although the answer is complex, unlike the car manufacturers and pilots’ associations to name just two, the prevailing reason boils down to doctors put their patients’ best interests above all else. The legislators know that and continue to add regulation after regulation and squeeze every dollar out of the delivery side while adding more and more bureaucracy funded with those dollars to see that doctors comply.

The Republican presidential debate on January 19, 2012 in South Carolina is a telling example of how physicians have been marginalized in the participation on issues that concern health care. Putting political preferences aside, Ron Paul MD was initially left out of the discussions on Obamacare and Romneycare by the moderator. That was until many in the audience shouted out for his opinion on the issues. The other time in the debate, he had to wave his hands wildly above his head to get the moderator’s attention, calling out “I am a doctor!” because even the audience didn’t ask for his input.

In the early part of my father’s and grandfather’s era of medicine, being right was the only defense they needed. Then the Federal programs moved in and the climate changed.

Physicians and the organizations that represented them were forced into ‘playing politics’--- funding and supporting those in elected office that were supportive of their points-of-views. Even though this approach has met with moderate success over the last 50+ years, issue by issue, physicians have given up more and more control. One only has to step back and look at where health care delivery is today.

Are these continuing changes inevitable? Is just being right, continuing to pour money into our legislators campaign chests and groveling for their support enough?

The situation in malpractice liability coverage reached crisis levels in 1975 during the post-oil-shock recession. Commercial insurers left large numbers of physicians without coverage. In California, many physicians were facing doubling and even tripling of their premiums within a year’s time. Many practices closed and often the inflated premiums were passed on to the patients. In an act of desperation, physicians organized a work slow-down, only performing urgent care. Governor Jerry Brown called the legislature into an emergency session. Out of that legislature came The Medical Compensation Reform Act of 1975, known as MICRA.

Following the passage of MICRA, malpractice settlements have been 53% less than the national average in one study, while malpractice premiums have increased only 7% annually versus 17.5% per annum nationally. California internists and general surgeons pay about one-third less in malpractice premiums and obstetricians/gynecologists about one-half compared to their counterparts in New York and Florida.

In Search of Medicine’s Moral Compass. Brown Books Publishers, 2011.

Dr. Ron Paul’s loud proclamation on the stage that night, “I am a doctor!” symbolizes physicians’ growing frustrations. Mumbling, then grumbling. Let’s hope the right people are listening. If not, tumbling may be inevitable.

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