October 2, 2009

Doctors: Damned If They Do, More Damned If They Don't

By Gene Schwimmer

Americans worried that Obamacare will lead to de facto rationing of health care to senior citizens can stop worrying.  It's already here.  Obviously, the fewer doctors willing to treat Medicare patients, the fewer the opportunities to get treated and with each passing year, the number of such doctors decreases.

Early this year, Barbara Plumb, a freelance editor and writer in New York who is on Medicare, received a disturbing letter.  Her gynecologist informed her that she was opting out of Medicare. When Ms. Plumb asked her primary-care doctor to recommend another gynecologist who took Medicare, the doctor responded that she didn't know any -- and that if Ms. Plumb found one she liked, could she call and tell her the name?

Physician Medicare opt-out rates across the country tell us that there are a lot of Barbara Plumbs out there, with many more to come.  For example (quoting from the above-linked article), "of the 93 internists affiliated with New York-Presbyterian Hospital,... only 37 accept Medicare."  In Texas, "a 2008 survey by the Texas Medical Association found that while 58 percent of the state's doctors took new Medicare patients, only 38 percent of primary care doctors did."  Nationwide, "the Medicare Payment Advisory Commission, an independent federal panel that advises Congress on Medicare, said that 29 percent of the Medicare beneficiaries it surveyed who were looking for a primary care doctor had a problem finding one to treat them, up from 24 percent the year before."  Not only, then, is the number of doctors refusing new Medicare patients increasing, but the rate of refusals is increasing, too.

And now, courtesy of Max Baucus and his fellow Democrats on the Senate Finance Committee, comes a provision that portends to make an already-bad situation even worse.

Because Baucus and the Dems apparently can't be bothered to post the bill online, the Washington Examiner had to get a copy the old fashioned way.  When they did, here is what they found on pages 80-81, "hidden amid a lot of similar legislative mumbo-jumbo":

"Beginning in 2015, payment would be reduced by five percent if an aggregation of the physician's resource use is at or above the 90th percentile of national utilization."  Translated into plain English, it means that in any year in which a particular doctor's average per-patient Medicare costs are in the top 10 percent in the nation, the feds will cut the doctor's payments by 5 percent.

[...] This provision makes no account for the results of care, its quality or even its efficiency.  It just says that if a doctor authorizes expensive care, no matter how successfully, the government will punish him by scrimping on what already is a low reimbursement rate for treating Medicare patients. The incentive, therefore, is for the doctor always to provide less care for his patients for fear of having his payments docked. And because no doctor will know who falls in the top 10 percent until year's end, or what total average costs will break the 10 percent threshold, the pressure will be intense to withhold care, and withhold care again, and then withhold it some more.  Or at least to prescribe cheaper care, no matter how much less effective, in order to avoid the penalties.

The Examiner merely points out the obvious by saying that this provision "would almost certainly lead to rationing of care, especially for the elderly."  But, sadly, the Examiner doesn't know the half of it.  Here's the other half:  medical malpractice lawsuits.  The Baucus bill contains no tort reform.  It does nothing to reduce, let alone prohibit the whopping punitive damages that trial lawyers wring, with the help of sympathetic juries, wring out of hapless insurance companies-and, ultimately, the majority of competent and conscientious doctors forced to pay ever-skyrocketing insurance premiums.

And of course, of course, no tort reform could, or should, prohibit reimbursement for medical care and loss of future income due to the malpractice of a genuinely negligent and/or incompetent doctor.  But look at the choice doctors will face, going forward, if the Finance Committee's language makes it into the final bill, with every Medicare patient:

  • 1. Order every test and treatment deemed necessary for the patient and/or to protect the doctor from a potential lawsuit (defensive medicine) and increase the chance of vaulting into the dreaded 90th percentile and getting his already-low Medicare payments docked an additional 5% (and remember: by definition, 10% of doctors will wind up in that percentile); or
  • 2. Eschew a test and/or treatment to reduce his billings in an effort to stay out of the 90th percentile and increase his chances of being sued if it turns out that he should (or a sharp trial lawyer can convince a jury he should) have provided.
Or to put it in non-medical terms:  Damned if he does, maybe more damned if he doesn't.

What physician in his right mind would take a Medicare patient under those conditions?  Would you?