Published 12/1/2017

Second Look – Advocacy

These items originally appeared in AAOS Headline News Now, a thrice-weekly enewsletter that keeps AAOS members up to date on clinical, socioeconomic, and political issues, with links to more detailed information. Subscribe at www.aaos.org/news/news.asp (member login required)

Medical liability claims
A report released by medical liability insurer The Doctors Company examines potential liability risks associated with the use of electronic health records (EHRs). The insurer reviewed information on closed claims from its own database and noted two EHR-related claims from 2007 through 2010. However, from 2011 through December 2016, 161 claims listed EHRs as a factor. The report lists a number of specific factors that increased in claims over time, including:

  • record fragmentation
  • lack of systems integration
  • failure to ensure EHR security
  • user error (not including data entry)

Breaking down EHR-related liability claims by specialty, the authors also note an increase over time in both orthopaedics and emergency medicine.

Performance evaluation
An article in Healthleaders Media looks at the issue of litigation and physician peer review. The writer notes that during litigation a hospital's protected peer review information may be exposed, and the number of employment-related claims where peer review information is sought through discovery is on the rise. The writer suggests that physicians seek legal counsel and ask questions when discussing a hospital employment contract, "including how much input they will have when performance issues are discussed and whether there will be an appeals process in the event of a disagreement over the performance evaluation."

MIPS alternative
In a public meeting of the U.S. Medicare Payment Advisory Council (MedPAC), representatives of the advisory agency argued that the Merit-based Incentive Payment System (MIPS) is too complex and places a significant burden on physicians. Among other things, the presenters noted the following:

  • Most MIPS measures are not associated with high-value care.
  • MIPS is structured to maximize clinician scores, leading to score compression and limited ability to track performance.
  • Under MIPS, clinicians can choose their own measures, leading to inequality in tracked performance.

The agency projects that MIPS will not achieve its goal of identifying and rewarding high-value clinicians, and proposes implementation of a new, voluntary value program, under which all clinicians would have a small percentage of payments withheld, with the opportunity to earn back the withheld payments by joining an advanced alternative payment model.

Insurer market concentration
The American Medical Association (AMA) has released its annual report on competition in health insurance. The report presents 2016 data on commercial enrollment in health maintenance organizations (HMOs), preferred provider organizations (PPOs), point-of-service (POS) plans, consumer-driven health plans, and public health exchanges and examines market concentration across all 50 states, the District of Columbia, and 389 metropolitan statistical areas (MSAs). According to the report, 69 percent of all commercial health insurance markets in the United States are highly concentrated, and 43 percent of MSAs had one insurer with a market share of 50 percent or greater. Reduced competition among commercial health plans is generally associated with higher premiums for consumers and lower payment for physician services.

CJR participation
Two articles explore positive impacts experienced by some providers participating in the Medicare Comprehensive Care for Joint Replacement (CJR) program. An article in Modern Healthcare notes that 47.8 percent of participants received gain-sharing payments for meeting cost and quality targets from April 1, 2016, to Dec. 31, 2016, with gain-sharing payments and quality bonuses of $37.6 million for 33,152 episodes of care—a strong increase over the $11 million expected when the program was proposed.

The second article, in the Kansas City Business Journal, profiles two orthopedic practices that saw a 21 percent reduction in the average cost of joint arthroplasty procedures under the program, and a medical group that reported a 27 percent reduction in hospital readmission rates, a 43 percent reduction in surgical site infection, and a 72 percent reduction in deep vein thrombosis.

A report from the not-for-profit organization Health Care Payment Learning & Action Network (LAN) finds that 29 percent of total U.S. healthcare payments were tied to alternative payment models (APMs) in 2016, compared to 23 percent in 2015. The organization reviewed data from four sources: the LAN, America's Health Insurance Plans, the Blue Cross Blue Shield Association, and the U.S. Centers for Medicare & Medicaid Services (CMS). The writers of the report say that the findings suggest that progress is on pace to meet goals to tie 30 percent of total U.S. healthcare payments to APMs by 2016 and 50 percent by 2018.

Physician ratings
Findings published in the Journal of the American Medical Informatics (online) Association suggest that online ratings of specialist physicians may not objectively correlate with quality of care or peer assessment of clinical performance. The authors conducted an observational study of 78 physicians and assessed the association of consumer ratings with specialty-specific performance scores, primary care physician peer-review scores, and administrator peer-review scores. They found no significant association across the five most popular online platforms, although patient ratings of physicians tended to be consistent across all platforms.

Information sharing
The U.S. Department of Health & Human Services (HHS) released guidance on sharing patient health information when a patient may be in crisis and incapacitated, such as during an opioid overdose. The agency states that current Health Insurance Portability and Accountability Act (HIPAA) regulations allow healthcare providers to share information in certain situations, including the following:

  • Sharing health information with family and close friends who are involved in care of the patient if the provider determines that doing so is in the best interests of an incapacitated or unconscious patient and the information shared is directly related to the family or friends' involvement in the patient's healthcare or payment of care.
  • Informing persons in a position to prevent or lessen a serious and imminent threat to a patient's health or safety.

HHS notes that HIPAA anticipates that a patient's decision-making capacity may change during the course of treatment and recognizes a patient's personal representatives as determined by state law.

New CMS rules
CMS recently released three rules that may affect physician reimbursement in 2018. The first rule proposes updates to payment policies, payment rates, and quality provisions for services furnished under the Medicare Physician Fee Schedule on or after Jan. 1, 2018. Among other things, it includes a 0.41 percent increase in Medicare reimbursement, based on a 0.50 percent update established under the Medicare Access and CHIP Reauthorization Act, reduced by 0.09 percent called for under the Achieving a Better Life Experience Act.

The second rule updates the Hospital Outpatient Prospective Payment System and Ambulatory Surgical Center Payment System. Among other things, the rule removes total knee arthroplasty (TKA) from the Medicare inpatient-only list and removes three Ambulatory Surgical Center Quality Reporting Program quality measures and six Hospital Outpatient Quality Reporting Program quality measures for 2019.

The third rule, among other things, reduces the number of clinicians required to participate in the CMS Quality Payment Program and finalizes flexibilities for small and solo practitioners.

Wisconsin liability cap
AMA Wire reports that the Wisconsin Supreme Court is considering whether to accept a case that could determine the constitutionality of the state's medical liability cap. At issue is a case in which a woman visited two separate hospital emergency departments within 2 days and ultimately suffered organ failure plus gangrene in all her limbs, which eventually had to be amputated. A jury ruled that clinicians who treated here were not negligent but found that both failed to provide proper informed consent. The patient was awarded $15 million in noneconomic damages, and her husband was awarded $1.5 million for the loss of his wife's companionship. Both the trial court and an appeals court ruled that the state's $750,000 medical liability cap was unconstitutional. If the state Supreme Court chooses not to take up the case, the appellate court ruling will stand.

Patient communication
Findings published in JAMA Internal Medicine (online) suggest that patients and family members want attending physicians to listen to their feelings about adverse events and to explain what can be done to prevent recurrences. The authors conducted interviews with 40 participants (27 patients, 3 family members, and 10 staff members) at three U.S. hospitals that operate communication-and-resolution programs (CRPs). Overall, 18 of the 30 patients and family members considered the CRP experience to be positive. In addition, although patients and family members expressed interest in learning what the physician and hospital would do to prevent the error from happening again, 24 of them reported not receiving information about safety improvement efforts.

Patient satisfaction
According to a study in Family Medicine (October), the use of a brief psychosocial intervention may help providers build a rapport with patients and increase their satisfaction with a hospitalization experience. The authors conducted a randomized study of 25 patients admitted to an inpatient service and received either usual care or a daily Background, Affect, Trouble, Handling, and Empathy (BATHE) intervention. They found that patients in the BATHE cohort were more likely than those in the traditional cohort to rate their medical care as excellent.

Concussion reporting
Findings published in the American Journal of Public Health (online) suggest that observed increases in concussion rates among younger athletes may be linked to increased identification and reporting. Members of the research team reviewed information on 8,043 concussions (88.7 percent new, 11.3 percent recurrent) from the High School Reporting Injury Online database. From 2005 to 2016, they found that the average annual concussion rate was 39.8 per 100,000 athlete exposures. They observed that enactment of youth sports traumatic brain injury laws was associated with significantly increased trends of reported new and recurrent concussions. The researchers note that rates of recurrent concussion showed a significant decline 2.6 years after laws went into effect.

Puerto Rico fallout
In comments to the U.S. House of Representatives Committee on Energy and Commerce Subcommittee on Oversight and Investigations, U.S. Food and Drug Administration commissioner Scott Gottlieb, MD, noted that the U.S. territory of Puerto Rico is home to a substantial base of pharmaceutical and medical device manufacturing. Overall, about 8 percent (based on dollar value) of drugs consumed by Americans are manufactured in Puerto Rico, and the island is home to about 50 medical device manufacturing facilities.