Equitable Peer Review and the National Practitioner Data Bank

The General Accounting Office (GAO) recently reported that Department of Veterans Affairs (VA) did not report most physicians whose clinical care was found to be, or suspected of being, substandard to the National Practitioner Data Bank (NPDB) or to state licensing boards (1). The GAO examined 5 VAMCs and found required reviews of 148 providers’ clinical care after concerns were raised from October 2013 through March 2017. Of the 148, 5 were subjected to adverse privileging actions and 4 resigned or retired while under review but before adverse actions were taken. Only 1 of these 9 was reported to the NPDB and none was reported to his or her state medical board.

In response to GAO's report and in testimony to the Subcommittee on Oversight and Investigations, VA officials said the agency was taking three steps to improve reporting of providers who don't meet required standards:

1. Reporting more clinical occupations to the NPDB;
2. Improving the timeliness of reporting;
3. Enhancing oversight to ensure that no settlement agreements waive the VA's ability to report to NPDB and state licensing boards (2).

What is lacking in the report is determination if substandard actually occurred and how it was determined. The VA has 3 ways of identifying substandard care (1).

1. Tort claims (the VA equivalent of a medical malpractice lawsuit);
2. Complaints or incident reports;
3. Peer review.

Each has major problems of accuracy and fairness at the VA.

The majority of US physicians have been sued (3). The minority of suits are associated with malpractice and malpractice has no apparent association with the outcome of the litigation (4). Over 90% of medical malpractice cases are settled out of court (5). A common misconception is that settling a case before trial means a large financial settlement. However, 90% of the 90% or 82% of all claims, close with no payment (5). However, the VA uses US District Attorney to defend malpractice claims (6). In many instances, the US District Attorney’s office settles the case without determining if there is malpractice. The VA then submits the offending physician(s) name to the NPDB or state boards whether malpractice has been shown or not.

Complaints or incident reports are common in many hospitals, and many, if not most, have little merit (7). However, the weight given to a complaint should be viewed differently depending on the source. When colleagues raise concern about a physician’s care this is more credible than a patient complaining about not receiving their narcotics to a patient advocate. In the GAO report it is unclear if this was a source the of possible substandard care.

Lastly, there is peer review. There are several problems with this process in the VA. The VA selects the “peers”. In many instances the reviewers are un- or under-qualified to review the case (6). Furthermore, the selected reviewers may be conflicted clouding a balanced and fair determination if the physician’s care met the standard of care. There are multiple instances of this at the VA, of which a couple have been cited in the SWJPCC (6).

No surprisingly, a bureaucracy in the federal government has suggested a bureaucratic solution to a nonexistent problem. The goal should not be for more bureaucratic reporting, but a system for determining if a physician’s care has met the standard of care. The VA has shown it is incapable of making this determination fairly and accurately. What is needed is an outside review separated from VA influence and politics. If malpractice is still questioned after an initial VA review, the medical schools or private practioners could provide a source of physician peer review. The case could be presented to a panel of non-VA physician peers chosen in an equitable ratio by the VA and the accused practitioner. In the absence of a more equitable review process, the VA will only succeed in driving away the quality practitioners the veterans need.

Richard A. Robbins, MD

Editor, SWJPCC

References

1. General Accounting Office. VA health care: improved policies and oversight needed for reviewing and reporting providers for quality and safety concerns. Report to the chairman, committee on veterans’ affairs, House of Representatives. GAO-18-63 (Washington, D.C.: November, 2017). Available at: http://www.gao.gov/assets/690/688378.pdf (accessed 12/6/17).
2. Terry K. VA medical centers fail to report substandard doctors, GAO says. Medscape. December 5, 2017. Available at: https://www.medscape.com/viewarticle/889600?nlid=119420_4502&src=wnl_dne_171206_mscpedit&uac=9273DT&impID=1501593&faf=1 (accessed 12/6/17).
3. Matray M. Medscape malpractice report 2017 finds the majority of physicians sued. Medical Liability Monitor. November 15, 2017. Available at: http://medicalliabilitymonitor.com/news/2017/11/medscape-malpractice-report-2017-finds-the-majority-of-physicians-sued/ (accessed 12/6/17).
4. Brennan TA, Sox CM, Burstin HR. Relation between negligent adverse events and the outcomes of medical-malpractice litigation. N Engl J Med. 1996 Dec 26;335(26):1963-7. [CrossRef] [PubMed]
5. Chesanow N. Malpractice: when to settle a suit and when to fight. Medscape. September 25, 2013. Available at: https://www.medscape.com/viewarticle/811323_3 (accessed 12/6/17).
6. Pham JC, Girard T, Pronovost PJ. What to do with healthcare incident reporting systems. J Public Health Res. 2013 Dec 1;2(3):e27. [CrossRef] [PubMed]
7. Robbins RA. Profiles in medical courage: Thomas Kummet and the courage to fight bureaucracy. Southwest J Pulm Crit Care. 2013;6(1):29-35.

Cite as: Robbins RA. Equitable peer review and the national practitioner data bank. Southwest J Pulm Crit Care. 2017;15(6):271-3. doi: https://doi.org/10.13175/swjpcc152-17 PDF

EMR Fines Test Trump Administration’s Opposition to Bureaucracy

Earlier this week the Health and Human Services Office of Inspector General (OIG) released an audit report on $6.1 billion paid to 250,000 clinicians in the incentive program for meaningful use of electronic medical records (EMRs) (1). A random sample of 100 clinicians who had received at least one incentive payment revealed that 14 of them who had had not met all meaningful use requirements as they had attested (Table 1) (1,2).

Table 1. Meaningful use deficiencies identified in 14 of 100 clinicians.

• Six clinicians couldn't provide a mandatory analysis of security risks;
• Four clinicians couldn't prove that they had generated at least one list of patients-another requirement -who had the same condition;
• Three clinicians could not provide patient encounter data to document that they had met various meaningful use measures;
• One clinician had 90-days' worth of patient encounter data when a year's worth was needed;
• One clinician did not use certified EHR technology as much as required.

The OIG recommended that the Center for Medicare and Medicaid Services recover the $291,222 paid to the clinicians in the sample group and extrapolated the recovery to $729 million from the remaining clinicians based on this random sample. This is about 13% of the incentives paid to clinicians for the CMS EMR program. The decision to carry out the recommendation will ultimately fall to a US Department of Health and Human Services (HHS) secretary, Tom Price MD, who has opposed government programs that created regulatory hassles for physicians.

"We would protest if they went through with this," said Robert Tennant, director of health information technology policy at the Medical Group Management Association (MGMA). "Going after folks who tried to meet arbitrary government requirements, who made a good faith effort, isn't fair” (2). Tennant said that this complexity, made worse by evolving requirements, helps explain the deficiencies listed in the OIG audit. "I'm not surprised some providers found it daunting to keep up with the changes," he said. The requirement for a security risk analysis is a problem, Tennant noted, because CMS hasn't given clinicians sufficient guidance on how to meet the requirements. "This is a real stumbling block for smaller practices," he said. "They're not security experts, they're clinicians" (2). American College of Physicians Vice President of Governmental Affairs and Medical Practice Shari Erickson said that clinicians who originally attested to meaningful use lacked clear, specific guidance on what documentation they needed for each requirement (2).

CMS incentivized using EMRs because many clinicians were reluctant to initiate EMRs in their practices because of cost and efficiency considerations. Average costs to initiate an EMR were $163r,765 for a single practitioner and $233,298 for a practice with five physicians (3). Reimbursement under the EMR program was about $65,000 per provider (4). Furthermore, there was an 8% decrease in productivity after EMR initiation (3). In other words, if physicians wanted to see Medicare/Medicaid patients they were asked to use EMRs that cost them money and made them work harder.

The violations identified in the OIG audit seem fairly minor and are the type of trivial violations that the lawyers and bureaucrats seem to delight in identifying and excessively penalizing clinicians. In contrast, large health care organizations seem to go unpunished for more egregious violations. Witness the lack of action against Banner Healthcare for compromising 3.7 million medical records in 2016 (5). The average cost of data breach has been estimated at $398 per compromised record (2). Extrapolating, Banner should be fined nearly $1.5 billion.

Medicine is likely the most regulated industry in the US. Several of my colleagues have complained that the regulation seems more directed at them and not at the hospitals and insurance companies that seem to create most of the increase in cost and the violations. Some of the more paranoid clinicians viewed the EMR as nothing more than a tactic to gain further control of their practice and viewed Hillary Clinton as someone who would continue the onslaught on clinicians. These fines for EMR noncompliance are the first true test for the Trump administration in the area of healthcare regulation. Many of my colleagues are watching Trump and Price to see if their opposition to bureaucracy was merely lip service or has some backbone. 

Richard A. Robbins, MD

Editor, SWJPCC

References

1. Levinson DR. Medicare paid hundreds of millions in electronic health record incentive payments that did not comply with federal requirements. Department of Health and Human Services. Office of the Inspector General. June 2017. Available at: https://oig.hhs.gov/oas/reports/region5/51400047.pdf (accessed 6/15/17).
2. Lowes R. Proposal to take back EHR bonuses galls med societies. Medscape. June 13, 2017. Available at: http://www.medscape.com/viewarticle/881563?nlid=115819_4502&src=wnl_dne_170615_mscpedit&uac=9273DT&impID=1368453&faf=1 (accessed 6/15/17). 6
3. Fleming NS, Aponte P, Ballard DJ, Becker E, Collinsworth A, Culler S, Kudyakov R, McCorkle R, Chang D. Exploring financial and non-financial costs and benefits of health information technology: the impact of an ambulatory electronic health record on financial and workflow in primary care practices and costs of implementation. The Agency for Healthcare Research and Quality (AHRQ). 2011. Available at: https://healthit.ahrq.gov/sites/default/files/docs/publication/R03HS018220-01Flemingfinalreport2011.pdf (accessed 6/15/17).
4. Hayes TO. Are electronic medical records worth the costs of implementation?American Action Forum. August 6, 2015. Available at: https://www.americanactionforum.org/research/are-electronic-medical-records-worth-the-costs-of-implementation/ (accessed 6/15/17).
5. Robbins RA. Banner hacked-3.7 million at risk. Southwest J Pulm Crit Care. 2016;13(2):80-1. [CrossRef]

Cite as: Robbins RA. EMR fines test Trump administration's opposition to bureaucracy. Southwest J Pulm Crit Care. 2017;14(6):312-4. doi: https://doi.org/10.13175/swjpcc079-17 PDF

Time for the VA to Clean Up Its Act

One year after a Veterans Affairs (VA) scandal was ignited here in Phoenix, the number of veterans on wait lists is 50 percent higher than at the same time last year, according to VA data (1). The VA is also facing a nearly $3 billion budget shortfall. VA Secretary Bob McDonald has asked for “flexibility” to reallocate billions of dollars in clinical funds to cover the shortfall.

Since the scandal broke last year, VA providers have increased their workloads, adding 2.7 million more appointments than the previous year. However, the VA has played "games" with patient eligibility for years. When money was plentiful VA administrators would open the doors to patients since the following years' budgets were based on the number of patients seen. However, when money was tight, the doors would be slammed shut leaving many patients in the lurch scrambling to obtain health care elsewhere. Now it appears that patients might be returning to the VA.

“Something has to give,” the department’s deputy secretary, Sloan D. Gibson, said in an interview. “We can’t leave this as the status quo. We are not meeting the needs of veterans, and veterans are signaling that to us by coming in for additional care, and we can’t deliver it as timely as we want to.” Now the VA is asking Congress' permission to use clinical funds to pay for the budgetary shortfall.

The VA has threatened furloughs and hiring freezes to reduce spending. This seems to be quite sensible. However, in the past, the VA has cut clinical positions which undoubtedly contributed to longer wait times. For example, when I was chief of pulmonary at the Phoenix VA, one of my physicians retired, giving 6 month notice. However, we were not allowed to replace the physician because of a "hiring freeze". This apparently only applied to clinicians since a new associate director was hired.

As we predicted over a year ago, the VA would continue to be troubled due to lack of reform and oversight (2).  The present VA secretary, Robert McDonald, is still relatively new on the job and inexperienced in both healthcare and government service. His inaction suggests that he may be confused, or worse, listening to long-entrenched central office bureaucrats. Below are some suggestions which could result in substantial savings and would have little impact on patient care.

Furlough the staffs of the Veterans Integrated Service Networks (VISNs), the 21 VA regional offices which are scheduled to be downsized. The VISNs provide no healthcare and the savings in salaries from the nearly 5000 employees would be substantial (2). Similarly, VA central office which grew from 800 employees to 11,000 in less than 15 years could probably do with a few less administrators (3).

Local VA bureaucracies reflect the growth of central office and VISN bureaucracies. It is unclear what many of the hospital associate and assistant directors do other than sit in meetings. Most hospitals could do without them for a while. Similarly, compliance officers and patient "advocates" really serve no purpose. Despite multiple patient complaints about wait times, the lack of action that led to the VA scandal demonstrates that they are not effective. There are also some physicians and nurses who do not see patients. For example, most VA Chiefs of Staff do not see patients. Nursing administration is bloated with "clip board" nurses who do little than attend meetings and create an ever increasing, and seemingly never ending, stream of paperwork for nurses who are already overworked. Surely, we could do without some of these people. 

It seems unlikely that VA officials will implement any meaningful cost savings. Instead they will try to preserve the status quo by petitioning Congress to allow them to shift clinical funds depriving veterans of healthcare. That includes using funds from a new program that was a priority for congressional Republicans called the “Choice Card”. This program allows certain veterans to obtain taxpayer-funded care from private doctors. VA administrators have blamed the budget shortfall on this program along with a new treatment for hepatitis C (1). The VA has been accused of dragging its feet on the Choice program and once again appears to be trying to sabotage the program and keep the funds. Gibson said in the interview that in future years more money will also be needed. He said he intended to tell lawmakers, “Veterans are going to respond with increased demand, so get your checkbooks out.”

VA administrators appear more concerned with keeping money inside their dysfunctional agency than caring for vets. Based on past history, Congress will probably let the VA shift the money and none of the recommendations above will happen. If furloughs occur, they will be lower level employees and result in little financial saving. Of course, administrative bonuses will be hefty this year because in their eyes, the administrators have successfully averted a financial crisis. Unless there are some fundamental changes made at the VA, the trend of the last 20 years of bloating the bureaucracy at the expense of healthcare will continue.

Richard A. Robbins, MD

Editor, SWJPCC

References

1. Oppel, RA Jr. Wait lists grow as many more veterans seek care and funding falls far short. New York Times, June 20, 2015. Available at: http://www.nytimes.com/2015/06/21/us/wait-lists-grow-as-many-more-veterans-seek-care-and-funding-falls-far-short.html (accessed 6/24/15).
2. Robbins RA. VA administrators breathe a sigh of relief. Southwest J Pulm Crit Care. 2014;8(6):336-9. [CrossRef]
3. Kizer KW, Jha AK. Restoring trust in VA health care. N Engl J Med 2014;371:295-7. [CrossRef] [PubMed] 

Reference as: Robbins RA. Time for the VA to clean up its act. Southwest J Pulm Crit Care. 2015;10(6):350-1. doi: http://dx.doi.org/10.13175/swjpcc088-15 PDF