Does "Defensive Medicine" Drive Up Health Care Costs?

No.

Not according to this report from PublicCitizen.org, A Failed Experiment: Health Care in Texas Has Worsened Since Medical Liability Caps in 2003.

"Those who blame medical malpractice litigation for rising health care costs and diminished access to care tend to focus on the theory that the fear of litigation motivates doctors to prescribe unnecessary tests and procedures to insulate themselves against potential lawsuits.

This is the crux of the defensive medicine argument.

Because Medicare Part B spending is sensitive to the volume of services, a jurisdiction experiencing a dramatic decrease in litigation should realize a decline in the rate of growth in Medicare Part B spending—or even an outright decline in such spending—if the defensive medicine argument is accurate.

According to the theory, the reduced litigation should have reduced doctors’ fear of being sued, which in turn should have reduced the number of tests and procedures doctors prescribed."

Here's the key data:

• Medicare spending in Texas has risen far faster than the national average. Per enrollee spending for Medicare’s two main programs ranked second-highest in Texas among the 50 states in 2009. In 2003, Texas ranked seventh. In light of the steep reduction in litigation that has occurred in Texas since 2003, these figures contradict the theory that medical malpractice litigation is driving health care costs.
  
• Medicare spending specifically for outpatient services in Texas has risen even more steeply compared to national averages.
• Premiums for private health insurance in Texas have risen faster than the national average.
• The percentage of Texans who lack health insurance has risen, solidifying the state’s dubious distinction of having the highest uninsured rate in the country.
• The per capita increase in the number of doctors practicing in Texas has been far slower than in the preceding years.
• The per capita number of primary care physicians practicing in Texas has remained flat, compared to a sharp increase in the years leading up to the caps.

The slope of the red line shows a 24% increase in physicians in rural areas, the green line shows a 1% DECREASE.



• The prevalence of physicians in non-metropolitan areas has declined.

Why Should Physical Therapists Care About Defensive Medicine?
To the extent that physical therapists are leaders in reforming health care, we should resist "band aid" explanations and "simple" solutions about how to "fix" health care.

Medical liability reform will not "fix" defensive medicine, as the Texas experiment proves.

Real solutions to systemic problems of cost inflation and patient access will require a willingness to examine flawed assumptions that form the foundation of our medical care delivery network.

The main assumption we should examine is the idea that the existing medical hierarchy that puts physicians and other autonomous practitioners at the "sharp end" of health care is tenable and sustainable.

We blame errors and accidents on one individual instead of trying to design better systems that can anticipate and prevent errors in the first place.

How should we make a better system? What role should physical therapists play in the reformed health care system? We welcome your comments.

POPTs Supporter Caught Shoplifting

Ethically challenged California Assemblywoman Mary Hayashi (D - Hayward) was arrested and bailed out of jail Thursday, October 27th on charges of felony grand theft.

Here is the full story in the San Francisco Chronicle.

Disgraced California Politican Mary Hayashi Before Her Shoplifting Arrest

Mary Hayashi attracted attention of physical therapists nationwide in 2009 when she attempted to pass pro-POPTs legislation in California making employment of physical therapists legal.

Currently in California, physical therapists are NOT legally employable by physicians but an injunction by the California Medical Association, brought by Hayashi in Summer 2011, prevents this law from being enforced until 2013.

Watch her Twitter stream to see reactions from physical therapists nationwide.

Thanks to Robert M. Bacci, PT, DPT of Bacci & Glinn Physical Therapy Inc.

How Clinical Decision Support Can Help Physical Therapists

It is a forgone conclusion that some sort of decision support technology will become a part of the daily workflow of the American physical therapist within the next 2-5 years.

What is not concluded are several things:

• What will the user interface look like?
• What decision rules will the software contain?
• Will the Clinical Decision Support (CDS) be electronic or paper-based?
• Will the decision rules be determined by a "top down mandate"?
• What level of local control by the physical therapist will be allowed?
• Will the hardware be a handheld tablet or desktop?

Clinical Decision Support tools are electronic tools that link at least two pieces of patient data to a knowledge base that provides a suggestion, a reminder, a prompt or an alert. CDS tools can be electronic or paper-based. The intended purpose of CDS tools is to make medicine more safe.

An example of a decision support tool might be the Physician Quality Reporting System measure for Falls Risk:

"If a patient is 65 years or older, screen for elevated falls risk using a history of a fall within the last year".

This is called the decision "trigger".

If the patient answers "Yes" to the therapist's query they are allocated to a "high risk" group for whom a falls intervention program is medically necessary.

If the patient answers "No" to the therapist's query they are allocated to a "low risk" group for whom falls intervention is NOT medically necessary.
This is called the decision "rule".

Clinical Decision Rules are one type of decision support that currently exists in medicine. Critical pathways are another type of decision support.

Critical pathways are a "top down" management style that work well in large institutions. The well-known Virginia Mason/Aetna Lower Back Pain is a successful example of a critical pathway from the standpoint of the physical therapist, the patient and the payer. Hospitals and sub-specialty physicians don't view the Virginia Mason critical pathway with great enthusiasm.

The Virginia Mason model was recently cited in Health Affairs journal as a "high value" model for institutional healthcare in America.

You can also read this blog post at the Evidence in Motion blog with comments by other physical therapists.

However, about 70% of healthcare in America is consumed in small, outpatient practices where critical pathways and top-down management styles may not work well.

Great Britian's recent failure of their centralized electronic health database was blamed on the heavy-handed, top-down imposition of health information technology on physicians. The physicians were not consulted prior to the mandate to get their input as to the best way to implement the mandate.

Commercial EMR vendors may be expected to be responsive to local physical therapists in designing the format and content of decision support tools. At this time however, only a few commercial clinical decision support systems exist in the physical therapy space.

Almost all of the commercial physical therapy-specific Electronic Medical Records contain prompts and reminders. These prompts and reminders, with the possible exception of a PQRS module, are designed not for patient safety but are designed to drive revenue maximization, code capture and Medicare compliance.

However, PQRS is the prototypical top-down decision support technology.

Clinical physical therapists should control their local technology, their own production and the work processes that produce their outcomes.

What sorts of improvements would readers of this blog recommend for a locally-determined CDS system to replace PQRS?

British EMR Failure Invites Comparisons to USA HITECH Program

American physical therapists may breathe a sigh of relief that the Office of the National Coordinator of Health Information Technology (ONC HIT) will be less likely now to impose "top down" mandates for the purchase and use of interoperable health information technology now that Great Britain has decided to dismantle their failed system.

On September 22, 2011, the National Health Service (NHS) issued a Press Release announced that it was discontinuing its 10-year, $18.5 billion dollar effort to collect, computerize and centralize all of its electronic medical records. Existing electronic systems in hospitals and clinics would continue to operate but would not be interoperable across all of England.

The announcement essentially killed what had been hailed as “the world’s biggest civil information technology program” at that time.

The NHS program began in 2002 and was described as “top-down engineering” that met substantial resistance from physicians and other users of the system. The Press Release announcing the end of the program cited the lack of local control as the prime reason for the failure of its interoperable system:

“In a modernised NHS, which puts patients and clinicians in the driving seat for achieving health outcomes amongst the best in the world, it is no longer appropriate for a centralised authority to make decisions on behalf of local organisations.”

Authorities in the United States were quick to assure providers that a similar information technology (IT) effort stimulated by Title XIII of the American Recovery and Reinvestment Act of 2009, called the Health Information Technology for Economic and Clinical Health Act (HITECH) would not fail.

Faith in American electronic medical records is largely voiced by policymakers who say they are collaborating with providers, such as hospitals and physicians, rather than mandating a top-down structure.

Authorities claim that Electronic Medical Records strategy, standards and outcomes are set by HITECH Meaningful Use criteria but implementation is being set at the local level by any of the 900 certified IT vendors that the providers may choose to use. However, providers complains that 900 choices is NO better than no choice at all.

Why should private practice physical therapists care?

Used to be, we could just hang a shingle, treat your patients and expect to make a decent living. Now, if you want to work for yourself and your patients, you need to comply with all sorts of regulations that may or may not improve your patient care or add to your patient's outcomes.

For example, the Physican Quality Reporting System (PQRS) is a quality measure reporting program that has, since 2007, paid physical therapists up to 2% extra for treating and reporting Medicare claims data. In 2014, this little "extra" will turn into a discount and the program will turn into a top down mandate.

Can authorities in the USA learn from the British disaster?

I hope that authorities will learn that physical therapists, acting at the local level can determine what is quality and that some of these local measures can be used in place of centrally-determined, top down quality mandates.

"Safe" Legislation in Florida in 2012

There were, from my perspective, three "big" issues discussed by the physical therapy community at the American Physical Therapy Association's 2011 State Policy and Payment Forum in Austin, Texas:

• Co-payment legislation (Kentucky, New York, New Jersey)
• Direct Access legislation (Texas)
• Anti-POPTs legislation (California)

Each of these states successfully implemented legislation that improves access for patients to physical therapists and physical therapist assistants. Each of these state had a unique story and a strategy for accomplishing their mission. Each state was able to accomplish their mission through a sustained grassroots movement and by substantial financial support from the membership, both within the state and from members in other states.

Web-based advocacy, fundraising, consciousness-raising, public relations, social media and communications were a significant factor in California, Texas and New Yorks’ legislative strategies.

Each of these states’ legislative strategies (which were all successful, by various measures) met with significant opposition from physician groups. The California opposition was particularly vociferous, even resorting to name-calling and punitive actions.

There was also a very important piece of research presented in Austin by Pendergrass et al that showed self-referred PT episodes used 14% fewer visits and cost 13% less than physician directed episodes of care. I mention this because it is a landmark study but I view this within the context of Direct Access legislation.

I provide extensive details in these blog posts, written during the presentations and the breakout sessions. Since this is a summary document, I will just provide the links:

• Successful co-payment legislation in Kentucky
• State Legislative Advocacy
• New Direct Access research supporting independent decision making by physical therapists saves money
• Direct Access legislation in Texas in 2011

How should the physical therapist community respond to this new information?

Each state must make its own choice based on its members’ needs, available resources and unique legislative situation. Before embarking on any course of action, it is essential that a plurality of the membership support the decision.

From my perspective, there are two general approaches state leadership could choose:

1. The “safe” alternative as proposed by Florida
2. A more controversial alternative, such as pursued by California and Texas.

Two of my assumptions should be made clear here:

1. Most states desire a broad-based “grassroots” support from their PT and PTA membership both to assure that the collective needs are being addressed and to distribute the workload on moving forward a legislative agenda.
2. Most states desire and need ongoing, substantial financial donations to the physical therapist Political Action Committee (PAC) to support lobbying efforts.

I define “successful” legislation as having met these goals, rather than mere passage by the state legislature.

To illustrate one course of action, I will describe the choice made by Florida (3rd largest state by population) and contrast that with the choices made by California (1st largest state) in choosing a legislative strategy.

Immediately following the 2011 State Policy and Payment Forum, to which Florida sent two representatives, the Florida leadership elected to pursue a “safe” legislative agenda in 2012. This agenda will attempt to open the Florida Practice Act (FS 486) to improve language offering Temporary Licenses to new graduate PT and PTAs.

The Florida Physical Therapy Association (FPTA) lobbyists feel that Temporary License legislation is unlikely to be opposed by physician or specialty groups seeking to defend their turf. Therefore, in their opinion, Temporary License legislation is “safe”. It seems unlikely that Temporary License legislation, however worthy it is on its own merits, will deliver that same benefits gained by California, Texas and Kentucky.

Evidence offered by California and Texas showed that Anti-POPTs and Direct Access legislation, respectively, earned ADDITIONAL donations to the state PAC of $100,000 and $60,000, respectively. Also, California gained over 3,000 signatures on a petition supporting anti-POPTs legislation. Over 400 Texas physical came to San Antonio in 2011 to rally in support of Direct Access legislation. California enjoyed extensive and favorable nationally syndicated television and print media exposure in support of their anti-POPTs effort.

In both California and Texas, their respective legislative efforts were anything but “safe”.

I provide additional supporting documentation on “safe” legislation in a previous post.

State leadership needs to understand the risk/reward exchange they face each year among competing legislative priorities and rank the various issues that could be (and have been) addressed through legislative means and assign an explicit risk, dichotomized as high/low, and an explicit reward.

That way, individual leaders from each state could use the document to better understand the rewards they might expect from a well-planned “controversial” legislative strategy. Also, they might better understand the risks they face from so-called “safe” legislation.

Like hiding your money in your mattress to make sure that it is “safe”, failing to pursue an aggressive legislative agenda in this era of health care change just might prevent physical therapists from reaching our goals.