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| Dear Friend,
There is a crisis. But it’s not the one you’ve heard about.
There is a crisis. But it’s not the one you’ve heard about.
It’s time to fix that. It’s time to change the conversation.
But to do that, you have to change the frame.
From the framers of the constitution, to the framing around that velvet Elvis, to what’s in and, therefore, what’s out of a Robert Frank photograph, framing controls the point of view. Framing, too, controls a conversation and, therefore, the argument, and, therefore, the outcome.
Tucked away in the wallet of Merry Mittleklass, our avatar patient, is her Blue United Free From Worry Plan insurance card. She’s been covered by Blue United for years, but had never (as she says, “Bless my stars!”) seen the inside of a hospital.
That is, until last Tuesday at 7:44 a.m., when she had surgery at Community Memorial St. Mark’s Hospital to repair a hernia.
Community Memorial St. Mark’s and the surgeon were in-network with Blue United. But the anesthesiology group wasn’t. And, so the story goes, Merry was “surprised” when she found out that Blue United had paid the group $200 and that she was “stuck” with a bill for the remaining balance, $1,375.
The popular press, the press of payors, and the populism of politicians all frame this as the out-of-network hospital-based group’s problem. Or, they allege with glee, a problem caused by the out-of-network physicians’ predatory practices.
The name for this frame? “Surprise medical billing”. The resulting cure? Force the group to take, as payment in full, an amount to which they never agreed, the so-called “average.”
But let’s take a closer look.
Earlier this year, the press was abuzz with coverage of the fact that UnitedHealth was not renewing its contracts with Mednax for services in 4 states because those agreements pay Mednax more than UnitedHealth now wants to pay. Come the termination dates, Mednax’s anesthesiologists and neonatologists will be out-of-network. Out-of-network wasn’t Mednax’s strategy. It’s just a fact. As a result, under the common frame, patients will be “surprised” . . . and it will be spun as Mednax’s fault; every one of their bills will be deemed a “surprise medical bill”.
Let’s take a look from another angle. Last week, a radiology group determined that the 80% cut proposed by payor X was unacceptable. (They actually used a different term.) They will not sign the offered contract nor is there any legal or moral reason for them to do so. They will soon be out-of-network, which wasn’t their strategy. It’s just a fact. As a result, under the common frame, patients will be “surprised” . . . and, once again, it will be spun as the group’s fault.
One more view: Some group of anesthesiologists, let’s call them the “Live Free or Die Group” doesn’t want to contract with any payor. They are out-of-network by choice. And, that makes them an outlier. Once again, under the common frame, patients will be “surprised.”
The “cure” proposed, even legislated, by those constructing the frame of “surprise medical billing” is to force non-contracted physicians, whether those physicians are out-of-network by reason of choice or by coercion, to work for a rate to which they never agreed, the so-called “average” rate.
Why? What’s the philosophy, the morality, behind that frame, the frame of “surprise medical billing”? Why should anyone be forced to work for a rate to which they didn’t agree?
Almost at the same time that the UnitedHealth/Mednax story broke, the news was awash with a new round of what’s become a familiar story, one that “activists,” even musicians, rail against: people being forced to work for wages to which they didn’t agree. Only those folks are, it is said, constructing iPhones and computer parts.
In that context, stealing one’s labor is seen for what it is, coercion and theft.
Yet, in a leap over the moral chasm, I’d be surprised if we could find one of those activists who sees forcing physicians to work for rates to which they didn’t agree as the equivalent.
In the context of any of our avatar hospital-based medical groups, Mednax which has been tossed out of network, the radiology group which refused to take an 80% cut, or the anesthesia group which doesn’t want to contract with any payor, is there someone, some entity, which has in fact contracted to provide coverage to the patient, to our avatar Merry Mittleklass?
You bet there is. For one can’t be out-of-network unless there is a network. And that network is a result of Blue United’s contract to provide coverage to Merry Mittleklass.
If Blue United were a general contractor instead of an insurer or health plan, and they contracted to build Merry Mittleklass’s house for $500,000, but then couldn’t get tradespeople to do the actual work for less than $600,000, it would be Blue United’s problem.
If general contractor Blue United can’t force plumbers and radiologists to work for less than they’ll agree to accept, why would anyone think that payor Blue United can force pathologists and radiologists to work for less than what they’ll agree to accept? After all, it would be surprise physician services stealing.
Unless the frame is changed as I suggest, that being forced to work for a rate that wasn’t agreed to is theft, hospital-based physicians will never be able to succeed in battling against working for “average” in a universe in which payors throw higher paid groups out-of-network to reduce the resulting average. That’s a spiral to the bottom, which in turn, will sooner or later cause a bigger crisis, the unavailability of, or reduction in quality of, hospital-based services and hospital-based providers.
Over 160 years ago, Frederic Bastiat, the French politico-economic thinker, warned of the danger of quick fixes like the one we’re seeing for “surprise billing.” In his essay, That Which is Seen, and That Which is Not Seen, he wrote that:
“ . . . a law, gives birth not only to an effect, but to a series of effects. Of these effects, the first only is immediate; it manifests itself simultaneously with its cause — it is seen. The others unfold in succession — they are not seen . . . . Between a good and a bad [politician] this constitutes the whole difference — the one takes account of the visible effect; the other takes account both of the effects which are seen and also of those which it is necessary to foresee. Now this difference is enormous, for it almost always happens that when the immediate consequence is favorable, the ultimate consequences are fatal . . . .”
For hospital executives and office-based physicians who think that the legislated cure to surprise medical billing is simply a hospital-based physician problem, think again: I recently heard someone refer to his larger than expected share of in-network care as “surprise medical billing.” Yes, it’s a slippery slope.
Re-frame the issue for what it really is before it is too late: Surprise physician services stealing.
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| | Tuesday - Success in Motion Video: Do What We Say, Not What We Do – Hospitals Object To Transparency Roles
Watch Tuesday's video here, or just keep reading below for a revised, more polished transcript: |
| Let's talk about hospitals and hypocrisy.
In particular, let's look at their objection to the fiscal transparency that's part of the administration’s proposed Medicaid Fiscal Accountability Regulation (MFAR), which would require that provider-level information be reported to the federal government.
In other words, right now, the way Medicaid works, is that the feds make lump-sum payments to the state’s Medicaid programs. They don’t require information as to what particular provider, what particular hospital in this case, is receiving what amount of financial support.
The MFAR rule would require that the states provide that information.
And what do you know, the hospitals are screaming and yelling that it’s unfair. They don’t like transparency.
So now, let's put the shoe on the other foot.
Suppose, and it might indeed be the case, that you're the leader of a medical group, say, a radiology group. You're entering into the renewal of an exclusive contract with a hospital. You assess patient demographics, and you see what the collections are, what coverage is expected, and so on. And you realize that you can’t provide the service without stipend support from the hospital.
What does the hospital want to see, because it needs it in order to justify the amount (or the zero amount) of stipend support? They want to see provider-level detail. In other words, not just what the hospital is paying to you as a group -- but what you as a group are, in turn, paying Dr. Smith.
In the hospital world transparency is like one of those trick mirrors. It works one way only.
If they want detailed information from you in order to pay you – then hospitals love transparency.
But if someone needs detailed information from them in order to pay them -- then hospitals hate transparency.
It's not really news. But it is sort of funny.
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| | Wednesday - Medical Group Minute Video: Compound Drugs: Miracle Cure Or Kickback Lure?
Watch the video here, or just keep reading below for a slightly polished transcript:
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| It’s the middle ground between light and shadow, between medical science and stupidity, and it lies between the pit of man’s desires and the summit of his bank account. This is the dimension of disintegration. It’s an area which we call the Indictment Zone.
Gary Robert Lee, Krishna Balarma Parchuri, and Jerry May Keepers. Christopher R. Parks. Three doctors and a former lawyer. The stuff of dreams compounded, so it is said, with a heavy dose of dreams of stuff.
Compounding pharmaceuticals, specific drugs for specific patients, offers tremendous benefit. The problems arise when the benefit is for the prescribing physician. Then, as Drs. Lee, Parchuri, and Keepers, and Mr. Parks, might attest, that is, if they elect to testify in their own defense at trial, we’re dealing with analyses under the federal Anti-Kickback Statute (AKS) and state law counterparts.
In a case currently winding its way toward trial in the U.S. District Court for the Northern District of Oklahoma, Lee, et al., are alleged to have engaged in a host of criminal acts centering around a compounded prescription scheme.
Lee and Keepers are charged with conspiracy to commit health care fraud. Keepers and Parchuri are also charged with soliciting and receiving illegal bribes and kickback payments. Additionally, Parchuri is charged with obstructing the criminal investigation into the health care offenses.
According to the indictment, beginning in 2012, Parks and Lee, who controlled several compounding pharmacies, conspired to pay kickbacks to physicians to induce them to write expensive compounding prescriptions to be filled at the controlled pharmacies.
As a part of the conspiracy, the government alleges that the kickback-receiving physicians were provided with pre-printed prescription pads that listed compounding formula choices; physicians checked a box and then faxed the form directly to the associated pharmacy – no prescription was handed to the patient for him or her to take to a pharmacy of choice.
Claims for payment for the compounded drugs were submitted to federal health care programs as well as to private payors, and the proceeds allegedly split among the defendants using a variety of methods.
The government alleges that Parchuri received up to $50,000 a month in exchange for writing those prescriptions, and that over time, Keepers solicited and received more than $860,000 in kickbacks and bribes.
The indictment claims that kickbacks were disguised through sham agreements, including purported pharmacy and university study “medical directorships” and “consulting physician” agreements, as well as via intermediary limited liability companies.
As always, note that allegations and indictments are charges only and not convictions. The defendants are innocent until proven guilty.
However, defending against charges such as these is mindbogglingly expensive. At least one of the physicians defendants had replacement counsel appointed for him by the court because he could no longer afford to pay for his own defense.
If convicted, conspiracy to violate the federal anti-kickback stature carries a possible maximum sentence of five years in prison and a $250,000 fine. In addition, violation of the anti-kickback statute itself carries up to 10 years in prison and a $100,000 possible fine. A conviction of health care fraud without injury or death also carries a possible maximum of 10 years in prison, but if resulting in injury or death, the maximum penalty climbs to 20 years or life in prison, respectively.
Compounded drugs are valid treatment. Prescribing them is legal. However, accepting (or paying) kickbacks to prescribe them is a crime.
Seems simple, but each year, no, each week, we’re reminded that “simple” isn’t much of a deterrent to stupid.
There are many legitimate ways for physicians to increase their practice income. They include, depending on state law, investments in compounding pharmacies and the direct dispensing of pharmaceuticals. But any deal must be structured in compliance with the anti-kickback statue. And then, of course, also in compliance with other applicable laws, from Stark to state law considerations.
Just because some other party to the deal tells you that a deal’s been vetted by their lawyers and is “legal,” don’t bet on it. Vet it through your own counsel and assess your own risk. As in carpentry, measure (assess) twice, cut (do the deal) once. Or not do the deal – you get the idea.
After all, that other party won’t be paying your fine or doing your time.
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| | Thursday - Podcast: Sexual Harassment is in the News. Make Sure Your Group’s or Facility’s Name Isn’t Included |
| Listen to the podcast here, or just keep reading for the transcript.
From Harvey Weinstein to Al Franken to, now, a well known physician at Fenway Community Health Center, the Boston institution known for its pioneering care for LGBT patients, allegations of sexual harassment and bullying are surfacing on what seems to be a daily basis.
Even if the allegations aren’t aimed at you, they pose significant challenges for your medical group, facility, or organization.
Take the Fenway Community Health Center situation, for example. Last week, the Boston Globe initially reported that the health center’s CEO, Dr. Stephen L. Boswell, resigned, after 20 years in the position, under pressure from the board of directors. Then, the paper reported that Fenway’s board chairman, Robert Hale, was out, too.
The events center around years of sexual harassment allegations against Dr. Harvey J. Makadon. Makadon had allegedly sexually harassed at least three male co-workers and had “yelled at and belittled” male and female staff members. Dr. Makadon denies the allegations. He’s said to have resigned from the facility.
The Globe uncovered the fact that Fenway engaged legal counsel twice over the last four years relating to allegations against Makadon. In connection with the second instance, the CEO apparently ignored the law firm’s advice to terminate Makadon and didn’t report the matter to the board. The Globe also reports that the CEO didn’t tell the board about a $75,000 settlement paid to a former employee in connection with the allegations.
What’s your entity’s policy on harassment? Does it have one?
What action do you take to investigate?
Who conducts the investigation?
What rights do both the accuser and the accused have?
What steps do you take if the allegations are found to be true?
An investigation gone bad, or bad decisions made during and after a proper investigation, have an impact far beyond that on the accuser and the alleged. The easiest way to keep your name and that of your organization out of the press is not to do things that would get it in there in the first place.
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| | | | We all hear, and most of us say, that the pace of change in healthcare is quickening. That means that the pace of required decision-making is increasing, too. Unless, that is, you want to take the “default” route. That’s the one is which you let someone else make the decisions that impact you; you’re just along for the ride. Of course, playing a bit part in scripting your own future isn’t the smart route to stardom. But despite your own best intentions, perhaps it’s your medical group’s governance structure that’s holding you back
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| In fact, it’s very likely that the problem is systemic. The Medical Group Governance Matrix introduces a simple four-quadrant diagnostic tool to help you find out. It then shows you how to use that tool to build your better, more profitable future. Get your free copy here.
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Come listen to Mark speak in sunny
Las Vegas on June 5, 2020, at The Advanced Institute for Anesthesia Billing and Practice Management.
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| | | | | | Whenever you're ready, here are 4 ways I can help you and your business:
1. Download a copy of The Success Prescription. My book, The Success Prescription provides you with a framework for thinking about your success. Download a copy of The Success Prescription here.
2. Be a guest on “Wisdom. Applied. Podcast.” Although most of my podcasts involve me addressing an important point for your success, I’m always looking for guests who’d like to be interviewed about their personal and professional achievements and the lessons learned. Email me if you’re interested in participating.
3. Book me to speak to your group or organization. I’ve spoken at dozens of medical group, healthcare organization, university-sponsored, and private events on many topics such as The Impending Death of Hospitals, the strategic use of OIG Advisory Opinions, medical group governance, and succeeding at negotiations. For more information about a custom presentation for you, drop us a line.
4. If You’re Not Yet a Client, Engage Me to Represent You. If you’re interested in increasing your profit and managing your risk of loss, email me to connect directly. |
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