It can't be real

I must be in a dream. It simply cannot be real. First, I read:

PERSPECTIVE
Hospitals’ Race to Employ Physicians — The Logic Behind a Money-Losing Proposition - NEJM | March 30, 2011 | Topics: Health Care Delivery
http://healthpolicyandreform.nejm.org/?p=14045&query=home

The basic premise of this piece is even though it seems foolish for hospitals to spend lots of money to buy practices where it appears they will continue to lose money well into the indefinite future, there is still wisdom in their actions. It is all about market power. All I can keep thinking about is Milo Minderbinder of Catch 22 fame and the conversation between Milo and Yosarrian.

Y: “I don’t understand why you buy eggs at seven cents a piece in Malta and sell them for five cents.”
M: “I do it to make a profit.”
Y: “But how can you make a profit? You lose two cents an egg.”
M: “But I make a profit of three and a quarter cents an egg by selling them at four and a quarter cents an egg to the people in Malta I buy them from for seven cents an egg. Of course, I don’t make the profit. The syndicate makes the profit. And everybody has a share.”

Sounds like health care reform....

Then comes the announcement of the ACO final rules, with much fanfare from the Feds along with a marquis piece, also published in the NEJM, by Don Berwick (http://healthpolicyandreform.nejm.org/?p=14106). A series of press releases and FAQ documents made their way into my email inbox. The CMS press release focused on the legalities associated with waivers required to deal with the anti-kickback requirements, sort of exceptions to Stark laws. The proposed rule includes provisions to relax antitrust laws that currently prevent close collaboration between physicians and hospitals. Rural providers and new ACOs with less than 30-percent market share would be given leniency. For larger proposed ACOs, the Federal Trade Commission would have 90 days to determine whether the new entity would violate antitrust laws. However, this sounds like a legal minefield. The waiver of the kickback laws is required to implement the gain sharing provisions but it sounds as though entities will need to put themselves in an Alice in Wonderland realm of ambiguous compliance purgatory:

DEPARTMENT OF HEALTH & HUMAN SERVICES

Centers for Medicare & Medicaid Services
Room 352-G
200 Independence Avenue, SW
Washington, DC 20201
Office of Media Affairs
MEDICARE FACT SHEET
FOR IMMEDIATE RELEASE Contact: CMS Office of Media Affairs
Mar. 31, 2011 (202) 690-6145

....For the anti-kickback statute and CMP only, certain financial relationships that are necessary for and directly related to the ACO’s participation in the Shared Savings Program and fully comply with an exception to the physician self-referral law.

What is fully compliant? Does that mean perfectly compliant? Talk about exposed and vulnerable? 


I also reviewed the ACO "Fact Sheet". The best way I could describe this is it represented aspirational document. There was no detail but the message was clear; we want better, faster. cheaper. Don't we all.

The Berwick piece in the NEJM is is well summarized by Dr.Berwick himself:

Whatever form ACOs eventually take, one thing is certain: the era of fragmented care delivery should draw to a close. Too many Medicare beneficiaries — like many other patients — have suffered at the hands of wasteful, ineffective, and poorly coordinated systems of care, with consequent costs that are proving unsustainable. CMS believes that with enhanced cooperation among beneficiaries, hospitals, physicians, and other health care providers, ACOs will be an important new tool for giving Medicare beneficiaries the affordable, high-quality care they want, need, and deserve.

The flaw with this entire approach is not what it aspires to accomplish. Who can argue with creating a more patient centric approach to care? The problem is that the approach taken applies both a financial and a regulatory squeeze. He basically admits that no one is sure as to the form which the ACO will take!  Given enough innovators, we can figure out how to deliver care in more creative ways for less money. Trying to do more with less in a stifling regulatory environment which simply sucks the fuel out of the innovation engine and will not work. There is absolutely no guarantee that the era of fragmented care is drawing to a close.  As physicians bail from this grand experiment the fragmentation may be worsened. If you want to improve communication get rid of HIPPA!

I know we are on the wrong track because no where in the conversations I am privy to is the sentiment that what we need to do is simply be driven by delivering better care to patients. There is a huge amount of energy being devoted to figuring out how not to be a victim of this entire exercise and thinking about patients (while discussed) is not central to virtually any survival strategy which I have heard articulated. It is about survival and behavior of people and groups is rarely laudable when survival is an issue. 

 

Large health systems are positioning themselves to avoid taking a mortal hit, even if it means buying eggs for seven cents and selling them for five cents. Individual practitioners are either hitching their wagons to large entities (whose short term strategy is to not bleed to much) or wait it out, hoping to see the entire initiative crash and burn, or jumping in later after they can define the winners.

I will want to see the actual final rule regulations, once drafted before I can really have an informed opinion. However, my sense is that we have reached a tipping point. The framework of these proposed ACO rules is simply to complicated. It is untested at best and at worst already shown to be ineffective. It will introduce more moving parts into a system which was already too complex. I think the idea is these regulations may be transformational but I suspect they will be transformational in the same way that adding sugar to your gas tank is transformational. They will render the vehicle unusable. It is command and control manipulation at its worst.