I spent the last week in Las Vegas attending the American Orthotic & Prosthetic Association’s Annual Convention. I could write a whole post about Las Vegas, which as far as I can tell having been there twice, may be the fourth of the seven circles of hell, but I’ll refrain. Instead, I want to deliver a reconstructed “transcript” of the presentation I was asked to give to the assembled prosthetists and orthotists on Thursday. Titled “Doing the Right Thing”, it focused on ethical issues confronting the field. While it was designed for the people providing patient care, I think it’s equally important for people with limb loss/disability to know about and understand these issues as they seek and receive it.
So, this week features the first half of that presentation. Next week, we’ll bring you the powerful, awe-inspiring, and captivating conclusion.
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The purpose of my talk today is to discuss ethical issues that everyone here in the audience has to deal with. But I want to do this in a different way than you may be expecting. Put someone with the job title “VP of Legal” in front of a room, and you probably expect that you’ll be seeing lots of text-heavy slides and listening to someone read mind-numbing statutory and regulatory language to you. I’m not going to do that.
I think that we need to discuss ethics in a completely different way. So instead, I want to tell you a story. And this story has three chapters.
The first chapter sets the scene. It gives you the background you need, because the ethical issues we’re going to discuss today don’t occur in a vacuum. The importance of those issues and how you deal with them are at some level dependent on the broader environment in which they occur.
The second chapter introduces us to the two main characters in the story. These are the Federal laws that govern the ethical issues I’m going to be talking about today. The first main character is big, strong, and powerful. He can hurt you. But he’s also predictable. You know roughly when and how he’ll snap.
The second main character is his younger brother. He’s smaller and not as strong, but he’s also psychotic and volatile. You have no idea when or why he’ll lash out, and he can take you down without any warning whatsoever.
The third and final chapter comes with the twist you’d expect in a good book. It involves a character – this industry – who, it turns out, has a bit of a split personality. And when we get to that chapter, I’ll give you my recommendation for how we go about resolving the tension that results from this less-than-ideal mental health state.
But before we dive into Chapter 1, there’s a prologue. And the prologue is called “Change or Die.” This is a book that was written by Alan Deutschman, and in it, he explored why people don’t make changes in their lives when they seemingly have no other choice. The first and best example he uses is the following.
You walk into your doctors’ office complaining of chest pain, shortness of breath, and dizziness. The doctor runs some tests and determines that the arteries leading to your heart are 90% occluded. You’re rushed into the OR for treatment, and when you come out, your doctor looks at you and gives you the facts. He says, “You came out of the surgery just fine. You’re going to live a long and healthy life but you need to make some lifestyle changes. You need to stop smoking. You need to work out more. And you need to eat fewer fried foods and more vegetables.”
You return to the doctor a few weeks or months later for follow-up. When he asks you if you’ve made these changes you admit that you haven’t. And he moves from facts to fear: “If you can’t follow my recommendations, maybe I haven’t made myself clear enough. If you don’t change those behaviors, you are going to die.”
Now, faced with that very plain choice – change or die – what do we do? What would you do? Would you make the changes? It seems like a simple enough choice, no? If I were told to change things on the one hand, or I’d be dead on the other, I’d change them, wouldn’t I?
Well, in fact, the data says that I wouldn’t. According to Deutschman, within two years of undergoing invasive heart surgery, 90% of people in this situation revert to their previous lifestyle, many of them requiring additional surgery and care as a result. So why does this happen?
Among the many explanations Deutschman has for this phenomenon, I want to talk about facts and fear, because neither works particularly well in motivating people to change. When we give people facts, we assume they’ll respond to them because they are, after all, rational creatures. Except we’re not. And that’s because of the power of our various ideologies, which is a fancy word for “worldviews.”
For example, if I say “Obamacare” in this room, everyone here will have an immediate and powerful reaction to that concept of healthcare. That’s because it fits into an ideology that you have. And importantly, ideologies are powerful, resistant to change, and we apply them almost subconsciously.
How we eat, our attitude towards exercise, our lifestyle in general – all are part of our ideology. We can’t change those behaviors just by flipping a switch, because they’re part of a broader worldview.
So, tying this back to ethics in O&P, as a profession we have a particular ideology. The somewhat provocative thesis that I want to throw out to you is that our ideology is now out of step with current regulatory and legislative reality. People have operated in a particular way for so long that it has confirmed a worldview about what they can and can’t do. The problem is that the world in which we’re living is changing so fast that our ideology no longer maps to the world we live in.
And that brings us to fear. The reason fear doesn’t work is that people can’t handle it. Big, scary concepts like Death generally don’t motivate because they’re simply too overwhelming. And so, we put our hands over our ears, shut our eyes, and just hope that everything will work out fine, even though that’s totally irrational.
So I’m not going to throw dramatic images up on the screen behind me to try to scare you. I’m not going to talk about the terrifying penalties that will result if you break the laws we’re going to discuss. Instead, I’m going to tell you a story to persuade you that we need to confront and deal with these ethical issues. So let’s now open our book to Chapter 1 and begin.
chapter 1: they’re coming
Let’s talk about some basic trends that affect the prosthetic and orthotic profession. First, over the last 40 years we’ve seen a steady and significant increase in the cost of health care as a percentage of our GDP. In 1970, the combined total of private and public spending on health care was 7%. We’re now at 18% and climbing. For frame of reference, that means we spend more on health care than we do on defense. We spend more on it than we do on pensions. And we spend more on it than we do on education.
In addition to this long-term trend, we have the costs of health care reform, which will lead to at least a short-term spending spike. The Congressional Budget Office estimates that between 2010 and 2020 the costs to implement reform will be close to $1 trillion. And though the CBO says this investment will lead to savings in the long run, I tend to be skeptical about these kinds of numbers, no matter who is sitting in the White House. So I try to look for other data points that might give us some guidance.
The most obvious place to look at is Massachusetts. Federal health care reform borrowed extensively from Massachusetts’ law, which was implemented back in 2007. So if you look at what has happened in that State, it’s not a bad indicator for what we might be talking about in four years nationally. And the one thing you can unequivocally say about Massachusetts is that while the law has reduced its uninsured rate to the lowest in the country, it has also cost dramatically more than anyone thought it would. With that in mind, I apply the same rule to health care reform that I do to home improvement projects: if a contractor tells you that it will cost “x” to complete the project, multiply that number by one and a half. So, to summarize, we’ve got a long-term trend of increasing health care costs, and we have a reform law that is going to drive those numbers up even more in the short run.
And that leads us to the final part of Chapter 1, what I call the Triangle of Death. This is acronym hell – OIG, RAC’s and MAC’s. Let’s deal with each in turn.
The Office of the Inspector General released a report in mid-August about lower limb prosthetic billing. If you haven’t read the report, you should. I don’t want to discuss the validity of the numbers OIG throws around or the methodology it applied in reaching its conclusions. While both of those considerations are relevant and AOPA will address them with OIG directly, I respectfully maintain that the final numbers are less important than the conclusions that OIG draws from them. What matters most is what OIG thinks about prosthetics, and the report makes clear that it views this area as “at risk” for fraud and abuse.
Specifically, OIG concluded that a little over $100M of the $655M Medicare spends on lower limb prosthetics is suspect. That’s roughly 16% of the total. With the data in hand, OIG believes that reflects a larger reality in the world of prosthetics.
If you’re not convinced, let me share another quick story. A few months ago I had the good fortune to attend a meeting with Dr. Donald Berwick, the Administrator of Medicare. I was part of a group speaking with him about the definition of “essential health benefits” in the health care reform law. I was telling him why I thought prosthetics and orthotics needed to be explicitly included in the definition of EHB. And he turned to me, sitting in the seat to his right, and earnestly asked me, “With all due respect, isn’t this [i.e., prosthetics and orthotics] an area where we’ve had fraud and abuse problems in the past?”
I thought a lot about that question after the meeting. My best guess is that Dr. Berwick doesn’t spend a lot of his free time thinking about prosthetics and orthotics because they make up such a small percentage of the overall Medicare spend. I think he focuses on things that he believes will significantly impact the entire system like Accountable Care Organizations and other programs that may fundamentally change the way we receive and pay for health care. But his question came from somewhere. I suspect that the people who briefed him before our meeting are Medicare’s O&P specialists, and they gave him the data that led to his question. (Again, the perception is what matters here.)
If you need any further confirmation, just consider the fact that OIG report made six recommendations about measures that should be taken immediately to prevent inappropriate payments to prosthetists and orthotists. Medicare agreed with five of them.
That brings us to the Recovery Audit Contractors. These entities conduct audits on Medicare’s behalf to recover overpayments made to you. If you’ve been walking the halls here this week and talking to your colleagues around the country, you’ve heard about the dramatic increase in RAC audit activity this year versus last year. In fact, since late 2010, the RAC’s have ramped up their activities, focusing on how prosthetists document their patients’ activity level, which – probably not coincidentally – was an area of focus in the OIG report, as well as on coding for test sockets and other matters. These audits generally lead to demands to recoup overpayments made to you, and the RAC’s get paid a percentage of what they collect, so it’s unlikely that we’ll see that program decrease in intensity as health care costs continue to rise.
And then you have the Medicare Administrative Contractors. How many of you have seen the “Dear Physician” letters that the MAC’s have sent to physicians participating in the Medicare program? In those letters, the MAC’s remind doctors that they are responsible for documenting the patient’s activity level in their notes and for seeing the patient before writing a prescription for prosthetic care. Again, this maps back to the OIG report, which claims that a significant percentage of claims were paid without the physician having seen the patient in the five years before the most recent prosthetic prescription. OIG sees that as a sign of fraud and abuse. Again, whether they’re right or wrong is at one level immaterial for the purposes of this analysis. The only thing that matters is that this is OIG’s mindset.
So, to conclude Chapter 1: we have a long-term trend of increasing health care costs; we have a short-term spike about to hit us in connection with reform; and we have the Triangle of Death scrutinizing the profession with increasing intensity and with the power to demand money back that you’ve already received. In a health care system that is hemorrhaging money, finding dollars anywhere that can be brought back into the system becomes increasingly important.
chapter 2: The long arm of the law
We now meet the main characters in our story of ethics: the Anti-Kickback Law and the False Claims Act. The Anti-Kickback Law is the big, bad bully who you fear but who is ultimately predictable. It’s purpose is simple: to prevent money from influencing clinical decision-making. The most obvious example of behavior that would fall on the wrong side of this law is the following: I walk into your office with $100,000 in a suitcase; I tell you, “I was never here. You take this suitcase and buy nothing except my company’s products for the next year.” If I offer you the cash and if you take it, we’ve both violated the Anti-Kickback Law.
Now, that’s an obvious example, but the behaviors in the real world are usually less extreme. And this is where you see why the Anti-Kickback Law is so powerful – it’s an incredibly broad piece of legislation. In fact, the exchange of anything of value implicates the statute. So let’s talk about those everyday scenarios that are in play.
Can you accept gifts from a manufacturer when a child is born or a relative dies? What about meals? Can a manufacturer offer you a meal and can you take it? How about entertainment – tickets to sporting events or shows? And what about the universe of what I call “branded items”? Tee shirts and polo shirts with company logos? Company-branded post-it pads, pens, and mugs?
You may listen to me read this list and the first thing that pops into your head is, “Dave, how on earth can you say that a company-branded pen or mug influences what products I put on my patients?” And my answer would be, “I hope that it doesn’t. I’m not personally persuaded that a pen makes a difference in what you order. But the data suggests otherwise.” Believe it or not, there are psychologists who study whether giving things of minimal value changes the recipients’ behavior. And the answer, generally speaking, is yes, it does.
The published literature shows that if I give you a trinket, junk – a 35-cent pen with my company’s logo – you feel a subconscious urge to reciprocate somehow. The mere act of offering you something and your acceptance of it influences your future interactions with me. In light of that reality, how should you handle each of the ethical scenarios we’ve just discussed? Where do you turn for guidance?
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Next week, we continue Chapter 2 with an introduction to the Anti-Kickback Law’s psychotic and unpredictable younger brother. We learn what the answers – at least from one perspective – are to the questions raised in the last paragraph. And you’ll learn what my proposal is to cure the split personality that we’ll meet in Chapter 3. Until next time …