Good morning, ProviderNation. There’s a terrific scene in the terrific movie, Erin Brockovich, where the feisty Erin confronts the cynical, smirking lawyers for the Big, Evil Company. After ticking off the human suffering the Big, Evil Company has caused, Erin reduces those smirking lawyers to dust:
“So before you come back here with another lame-a— offer, I want you to think real hard about what your spine is worth, Mr. Buda—or what you’d expect someone to pay you for your uterus, Miss Sanchez—then you take out your calculator and multiply that number by a hundred. Anything less than that is a waste of our time.”
That monologue has come to mind frequently lately as the government continues what it sees as a march toward “accountability” in elder care. Last week, a federal judge summarily dismissed a False Claims Act case against AseraCare, arguing that the best the government had offered was a mere difference of opinion.
The Shape Of Things To Come
To many providers, the case was absurd, anyway: the government arguing that hospice care—which is, at bottom, an effort to relieve pain and suffering—is not “medically necessary.” But drill down, ProviderNation, because the case is even more absurd than that. Court records show, for instance, that the government insisted that hospice wasn’t “medically necessary” even when AseraCare pointed out that some of the “victims” of the hospice care had actually died. Take a moment and reread that sentence. Let it sit on your tongue. Rinse it on your pallet, and savor the aroma and balance, for three reasons:
1.) Because you’ve just heard government lawyers claim that not even death is proof that someone needed hospice care in the first place.
2.) Because you’ve also heard the government claim, a priori, that hospice care must be fraudulent if people aren’t dying fast enough.
3.) And because there are likely to be a lot more cases like this one, after the Department of Justice announced it has created 10 “task forces” to crack down on elder care “abuse” by providers, and as government auditors pore through Medicare records of high-intensity therapy.
Same Problem, Different Expressions
We’ve reported often on provider advocates’ (increasingly frustrated) efforts to get regulators to focus on functionality rather than on cost as they sprint toward a value-based purchasing model. The fraud prosecutions are, to many providers’ way of thinking, the same problem, expressed in a different way.
“Throw all of those general business and economic principles out the window when discussing CMS payment models,” says Phil Fogg, an Oregon provider and board member at AHCA/NCAL. “They have created payment systems that incent provider behaviors which are no longer aligned with goals. Then they want to accuse their contractors of ‘false claims’ and ‘fraud’ instead of taking accountability for their role in the problem when cost or utilization does not meet their goals.”
Recall, briefly, how official Washington recoiled from the mere suggestion that their health reforms involved “death panels.” Yet mark the sequel: Here sit government regulators and/or lawyers who say that fraud is proved by folks not being dead enough, and waste is curbed by making sure the best therapy is avoided.
Robin Hillier, an Ohio provider (and secretary treasurer of AHCA’s board), who is as close as this profession comes to its own Erin Brockovich, finds an irony that, at the same time regulators say they want to focus on “risk-bearing” payment, they’re doing everything they can to make sure providers take no risks for better care.
“The problem in health care is that it’s often a judgment call—‘Is this person sick enough to need hospice services? How much therapy is really necessary after a stroke, a joint replacement, or a debilitating illness?’” she tells Your Humble Correspondent. “Much of these investigations of ‘fraud and abuse’ really come down to simply trying to reduce costs. Instead of clearly unnecessary services, there are often simply differences of opinion between health care providers. “
Value, Not Cost
And that’s just to consider litigation risk, Hillier says. She says she’s mystified that she hasn’t heard more from regulators about the real value of services, whatever they may be.
“How much would you think a fully functional knee or hip is worth? What price would you put on regaining your independence? What do you think a good death is worth?” she asks, in full Brockovich voice.
For Fogg, policymakers must “establish their goals and provide clear value expectations that a provider is incented to want to achieve because of the economic benefit.”
Fogg has his own, freely stated argument (“In the SNF world, I would argue that we will not be aligned with CMS until we get to an episodic payment model—a solution that will properly incent providers to manage utilization and functional improvement in the most efficient manner possible”) . In the meantime, though, he says that it’s a shame that health care appears to be the place where reason and accountability go to die.
“By the way, supply and demand dynamics can also be discarded in health care,” he says. “Critical mass has resulted in more negotiating power and higher prices for CMS.”