Kickbacks, corruption, and graft are not models for efficiency in health care

‘The Trump administration has labored zealously to cut federal regulations, but its latest move has still astonished some experts on health care: It has asked for recommendations to relax rules that prohibit kickbacks and other payments intended to influence care for people on Medicare or Medicaid.’

So begins the article ‘Trump Administration Invites Health Care Industry to Help Rewrite Ban on Kickbacks’ by Robert Pear in the NY Times, November 24, 2018. The next sentence provides the ostensible motivation for the rule change: ‘The goal is to open pathways for doctors and hospitals to work together to improve care and save money,’ but the sentence immediately after goes to the meat of the issue: ‘The challenge will be to accomplish that without also increasing the risk of fraud.’

The reason that there are anti-kickback laws in any industry is, of course, to prevent fraud. It is bad enough when we discover that a supposed impartial reviewer of a film or a book, or an item we may want to purchase like a car or a computer, is in fact being paid by one manufacturer to recommend their product. It is even worse if it turns out that the product that they are recommending is us, and that someone that we have trusted with our lives and our health, like a doctor, is being paid to send us to a particular lab or x-ray facility or hospital or specialist. Maybe the one we are being referred to is the best one, but it is hard to trust that if we discover that the doctor has a financial interest in that facility, or is receiving a kickback for those referrals. Most people are afraid of this and thus support anti-kickback laws; the exception is always those within the industry who stand to benefit. Surprise! And, it should be noted, it seems to be a core part of the business model of the Trump Organization.

But what about that middle sentence? The one that says that ‘the goal is to open pathways for doctors and hospitals to work together to improve care and save money’? Isn’t that a worthwhile goal? And both the American Medical Association (AMA) and American Hospital Association (AHA) are supporting the proposals. Am I saying that they are crooks or corrupt? Doesn’t it make sense that there can be not only savings but enhanced quality from the efficiencies that can come from such arrangements? How can we realize the efficiencies if doctors and hospitals are prevented from coordination of care?

The answer, as I see it, is “yes, but..”. There should not be unreasonable restrictions to care coordination, provided that they are upfront and obvious to the consumers (patients) such as in health maintenance organizations (HMOs) and the like which use limited panels of doctors, or public hospitals where care is often provided by employed physicians. The core issue, in health care, is to ensure that these arrangements are truly for the benefit of the health of patients, and not mainly to make more money for the providers. When your physician, Dr. Smith, refers you to a particular specialist (Dr. Jones) because they know them and think they are smart, competent and do good work even though another physician across town may have better results by some measures, it may be good or bad but it is honestly being done by Dr. Smith for your benefit. But if you discover that Dr. Jones is paying Dr. Smith for referrals, you might well be chary of the motivation.

There are several important things to remember in this discussion:

1.     Not everyone is, or is likely to become, a crook. There are many, maybe most, individual health care providers (like doctors) who actually care more about people’s heath than profit. There are even some institutional health care providers, hospitals and health systems, that may.

2.     There will always be people and institutions who “push the envelope”, and game the system. They will do everything that is legal, even if it violates the spirit and intent of the law, if it makes them more money. “Give them an inch and they’ll take a mile”.

3.     The looser the rules, the more these people and institutions will game it. There is no reason to suspect that money-grubbing cheaters will be satisfied if given a little more. Think about those (maybe me and you) who routinely feel ok about driving 5-10 MPH above the speed limit on a highway. If the speed limit is 65, we may drive 70 or 75. But if it is 75, we drive 80 or more. Raising the limit on what constitutes corruption will not obviate it.

4.     Carrots don’t work very well to change such behavior, although sticks might work a little better.

Don McCanne recently discussed a study from RAND called ‘Effects of Health Care Payment Models on Physician Practice in the United States’ which described the many different models being employed by various health systems and physician groups in the US, but alertly appened a reference to a NY Times article on October 27, 2018 by Alfie Kohn titled ‘Science Confirms It: People Are Not Pets: Research on the efficacy of rewards tells us that we can’t bribe others into doing what we want’. It reviews the psychological science that there is a difference ‘between intrinsic motivation (wanting to do something for its own sake) and extrinsic motivation (for example, doing something in order to snag a goody). The first is the best predictor of high-quality achievement, and it can actually be undermined by the second. Moreover, when you promise people a reward, they often perform more poorly as a result.’ Indeed, Kohn shows that sticks are not that effective either at changing behavior; I advocate them to some degree because at least they can put the biggest violators in jail!

The Pear article on kickbacks, trying to describe what its supporters see as the good side of loosening restrictions on them, says: ‘‘Federal law generally prevents insurers and health care providers from offering free or discounted goods and services to Medicare and Medicaid patients if the gifts are likely to influence a patient’s choice of a particular provider. Hospital executives say the law creates potential problems when they want to offer social services, free meals, transportation vouchers or housing assistance to patients in the community. Likewise, drug companies say they want to provide financial assistance to Medicare patients who cannot afford their share of the bill for expensive medicines.’ First of all, this is not “likewise”; drug companies who want new customers (and fend off efforts to regulate prices) are different from a hospital or provider offering free or discounted services; extra benefits to attract patients (as opposed to, say, free lunches to attact doctors) are quite different,  provided that these are really free, and the cost is not passed on to Medicare or Medicaid!

There is, in fact, a difference between ‘coordinated care’ and ‘graft’.

Pear also writes ‘‘The Justice Department in April accused Insys Therapeutics of paying kickbacks to induce doctors to prescribe its powerful opioid painkiller for their patients. The company said in August that it had reached an agreement in principle to settle the case by paying the government $150 million. The line between patient assistance and marketing tactics is sometimes vague.’

Vague? This is not vague at all. Creating efficiencies to improve care to patients, and reduce costs, especially to patients, is fine. Kickbacks and graft are not.

Medicare Advantage plans, CMS, and providing high-quality care to -- and care for -- all people

Medicare Advantage plans, also known as Medicare HMOs, or officially as Medicare Part C, are an alternative to traditional Medicare. By enrolling in such a plan, at additional out-of-pocket cost, the Medicare recipient gets additional benefits that are characteristic of HMOs. This may include smaller (or no) copayments or deductibles, coverage for things not covered by traditional Medicare like dental care, eyeglasses, and hearing aids, and other “advantages”. There are disadvantages, also, of course, just as in other HMOs. Beyond cost, the main one is that there is a limited panel of providers – doctors and hospitals – that the person can use. This is particularly an issue for retired people who travel a lot, or may spend the winter in a warmer climate, since these HMOs’ panels are usually in a limited geographic area.

Older “closed panel” HMOs usually had only doctors and other providers employed by the HMO itself. There are fewer of these than there once were; some of them, like Kaiser, are well-known. Other HMOs are “open panel”, where any doctor can be “approved” to be part of their provider group, but many doctors may choose not to be for reasons such as lower reimbursement or onerous regulation. Thus, it is at least theoretically possible that a Medicare Advantage enrollee could receive lower quality care from the doctors and hospitals that were part of the HMO’s network than from another doctor or hospital that might not be, but would be available to traditional Medicare patients. In addition, some Medicare Advantage plans are open to “dual-eligibles”, people with both Medicare and Medicaid, with Medicaid paying the additional premium. That such programs might provide worse care than others isnot an unreasonable concern based upon other services targeted Medicaid patients (e.g., nursing homes) and other programs targeted specifically to low income people.

Thus, Medicare has developed a rating system for Medicare Advantage plans, which assigns from 1 to 5 stars based, presumably, on carefully considered and assessed quality measures. If you want a good plan, it would behoove you to choose one with a “5 star” rating. Provided, of course, one is available in your area, and provided you can afford the out-of-pocket costs, or, if you have Medicaid, it is one that Medicaid will pay for. Unsurprisingly, many plans that have enrolled Medicaid or other lower-income patients have had lower ratings, based on the outcomes of those patients. The plans argue that this is because these low-income patients are higher-risk, have more co-existing medical, mental health, and social conditions outside of the plan’s control. Others, including the Center for Medicare and Medicaid Services (CMS), which administers Medicare, have argued that considering these characteristics might “give a pass” to plans that provide lower-quality care to poor people. A similar rating system exists for hospitals, and similar arguments have been made. As I discussed in a blog from November 10, 2013, “Does quality of care vary by insurance status? Even Medicare? Is that OK?”, there are legitimate arguments to be made on both sides.

Now, however, according to a report in “Modern Healthcare” on October 21, 2015, CMS interim administrator Andy Slavitt and his deputy administrator who runs the Center for Medicare, Sean Cavanaugh, are considering adjusting its quality ratings for Medicare Advantage plans based upon the pre-existing risk of the patients enrolled. This is important to the plans, since Medicare can drop them if they have several years of lower-than-3-star ratings. And they don’t want to be dropped, because these plans are moneymakers, in no small part because CMS treats them, financially, better than traditional Medicare plans (a result of purposeful federal policy to try experiments to “privatize” Medicare). While new criteria have not been officially announced, and would not take effect until 2017, “The comments from Slavitt and Cavanaugh were somewhat surprising because the CMS has previously downplayed the effects of socio-economic status on the ratings. The agency described the effect as ‘small in most cases and not consistently negative’ in a summary of findings from an analysis the CMS commissioned by the RAND Corp.”

It is not only surprising, but when one considers why the (possible) change of heart is happening, it is difficult to not consider the financial and political clout of the insurance industry that sponsors these programs, and the political support that such “private” Medicare-replacement programs have.  It is worth noting that CMS has not indicated that it will consider revising the ratings for hospitals, despite the fact that hospitals that care a higher proportion of poor and socially disadvantaged people face the same issues. The financial penalty for hospitals is very direct, as Medicare is not paying for readmissions which occur within 30 days. If this seems, on its face, reasonable, consider that sometimes even when the care provided in the hospital is of high quality, people go back to their homes (or long-term care facilities) where it may not be. This is sometimes a result of lack of money, lack of social support, and other stressors, but the result is that they are more likely to be readmitted. Again, CMS has argued that it would not want to encourage hospitals providing lower-quality care for poor people (which certainly would be a bad thing). But if CMS penalizes hospitals for readmissions that are outside their control, it simply encourages hospitals to not care for low-income people, or, if they are sole providers in their community, possibly even close their doors, and that would be a very bad thing. Studies that have been done indeed show that readmissions are higher when hospitals care for lower income and Medicaid patients, and that this is not the result of poorer quality care provided when those people are inpatients. (See “Aiming for Fewer Hospital U-turns: The Medicare Hospital Readmission Reduction Program” from the Kaiser Family Foundation and “Socioeconomic status and readmissions: evidence from an urban teaching hospital” in Health Affairs.)

It is important for CMS to ensure that the care provided to all Medicare recipients (indeed all people) by a hospital is not discriminatory or inequitable and that all patients have access to the care they need at the highest possible quality level. But unadjusted readmission rates are a very crude measure of quality, and it is unreasonable for CMS to expect that hospitals will be able to compensate for the impacts of poverty and lack of access to preventive care and early diagnosis and treatment. It is not unreasonable, however, for us, the American people, to expect that our government develop and help pay for programs that ensure that people’s basic needs for shelter, food, clothing, warmth and other social determinants of health, as well as post-hospital care (access to primary care, home health, and high-quality long-term care).

A single-payer health system is insufficient to address all of these needs. But it is a good start for some of them.

The Oregon Lottery: Far from enough, but at least they are doing something

On June 22, 2012, the New York Times published an article on the results of the Oregon lottery. No, this was not your “pick 3” or “powerball”; this was a lottery to get publicly funded health insurance. “In Oregon, Test Case for Health Overhaul, Better Care at a Cost”, Annie Lowrey describes the outcome of Oregon conducting, in 2008, an actual lottery for working-age adults living in poverty to get on to Medicaid. It was not, presumably, intended as an experiment (although certainly people knew that it would end up being one), but rather the result of the state not having enough money to enroll everyone in that category.

The results, after 4 years, should surprise no one. The study “has found that gaining insurance makes people feel healthier, happier and more financially stable,” and that “The insured were 25 percent less likely to have an unpaid medical bill sent to a collection agency and 40 percent less likely to borrow money or skip paying other bills in order to cover their medical costs.” First of all, it is obvious. Having coverage makes it possible to go to the doctor to care for chronic disease and actually get better, or keep it from getting worse, it means you don’t have to forgo paying the rent or electric bill or buying food to get care, and it saves you from bankruptcy when you do have to go to the hospital. Second of all, a similar study was done before, the RAND Health Insurance Experiment of the 1970s and 1980s, which followed the result of giving free care or care with a co-pay to previously uninsured adults. A large number of publications resulted from this study, which was led by Joseph Newhouse. A key finding was that people with free care used more care than those who had to pay a co-payment (and much more than those with no insurance). This included care such as going to doctor for minor conditions (something many health care pundits consider “inappropriate” use of care, except, of course, when they are doing it). It also, however, included care that everyone agrees was “appropriate” – that cured acute conditions, controlled chronic disease, and prevented death.

Newhouse, along with Amy Finkelstein (“… the most recent winner of the John Bates Clark Medal, an economic prize considered second only to the Nobel”), was the evaluator of the Oregon Study; their high credentials lend credibility to results which would only have been incredible if they had gone the other way. Another obvious finding is that the insured spent more on health care than those who were uninsured. This finding, Ms. Lowrey says, was “dashing [to] some hopes of preventive-medicine advocates who have argued that coverage can save money — by keeping people out of emergency rooms, for instance.” Well, I’m sorry that getting care didn’t cost less than not getting care, but it is very hard to argue that this is a credible argument against helping people get health care. Besides, neither the total amount spent by the newly insured, nor the difference was very much:  “…the newly insured spent an average of $778 a year, or 25 percent, more on health care than those who did not win insurance.”

Note the phrase “win insurance.” Not “had insurance.” It was a lottery, remember. The winners did a lot better than those folks who didn’t win. It’s kind of like being the third-world kid who is lucky enough to “win” by living in the “right” village where a “mission” trip comes to do surgery for your congenital anomaly. The Oregon lottery, even if it wasn’t intended as research, does illustrate why some people fear participating in research. They think that they will be “experimented on” and that they may not get treatment that will work and save them. It is often had to explain to people that we, the researchers, don’t know what works, what will save them, until after we have done the study. The legacy of the Tuskegee syphilis study continues to poison the well in terms of recruiting study participants, especially among minority groups like African-Americans. In Tuskegee, poor black men in the South were followed for four decades to determine the “natural history” of syphilis. Most outrageous, of course, was that the study continued for decades after effective treatment for syphilis, penicillin, was available, and they were not treated.

The Oregon health lottery is, in many ways, not like Tuskegee. It selected people randomly, through a lottery, not targeting any particular racial group. Of course, by its nature, it targeted poor people – working age adults who did not have health insurance. One can imagine Tuskegee researchers saying that they weren’t really racist, that if they wanted to study the natural history of syphilis they had to study the population that had it – poor black men in the South. Of course, it was racist.

The most important similarity between Tuskegee and Oregon is that we withheld treatment that we knew would work in both. The previous work done by the RAND Health Insurance Experiment (HIE) proved what was obvious even before – that having health coverage would improve people’s health. The Times notes that many of the Oregon winners “…said that Medicaid had made a significant — even transformative — difference in their lives.” It would have made the same difference in the lives of the lottery losers. Of course, this is the nature of a lottery; the winners do better than the losers. But this is a lottery about people’s lives and health.

I realize that what I have written might be seen as an attack on Oregon, saying that it did something bad. Quite the contrary; at least Oregon, for the second time in the last 30 years, has made an effort to do what it could to help as many uninsured poor adults as it could, and did it in a reasonably fair way, by a lottery. Compared to most states, certainly including my own, Kansas, it is an admirable effort that has transformed the lives of many people that the rest of our states seem to not care about. But it is beyond the time for such experiments; the results are in. It is time to cover everyone. It is time to go beyond what an Affordable Care Act rescued by the Supreme Court will provide. It is time to expand Medicare to everyone.

Because that’s the least we can do.