Medical standards of care are influenced by direct and indirect factors. This article addresses some changes initiated by both The Patient Protection and Affordable Care Act of 2010 (Obamacare) and the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA).
The standard of care requires health care providers to act with the knowledge and skill expected of others in the same specialty. It is distilled from the collective experience, education and training of the profession.
Doctors earn a living by treating patients. The care they provide is influenced by the payments they receive from the government, insurance companies and others. Most doctors have been paid for the services they provided to patients. The “fee for services” payment model is analogous to the “billable hour” model many attorneys are accustomed to. Both result in reimbursement primarily for the time and effort spent and only incidentally for the quality of the result obtained. More profit results from more services being provided, not from better results.
A standard of care based upon the fee for services payment model is going to reflect the financial values of reimbursement scheme. The standard of care will become increasingly cumbersome and more expensive based on the experience created by fee for service medical practices.
Universal health care insurance coverage is one goal of The Affordable Care Act. To an extent, the law is successful and many more people will have insurance for health care. Presumably, those people will then be able to afford to obtain medical care they were not receiving before they had health insurance. The sudden influx of newly insured patients will likely lead to increased use of health care services.
More doctors, nurses and physicians assistants will be needed to provide the same services to increased numbers of patients. Larger facilities with additional medical equipment will also be needed.
Although The Affordable Care Act received more attention, MACRA may cause greater changes in the medical profession and in the care most of us receive. Medicare and Medicaid paid over $1 trillion in health care expenses in 2014, the last year these statistics are provided on the Centers for Medicare & Medicaid Services website.
The Affordable Care Act is designed to allow more people to obtain health insurance and expands the coverage that insurance must be provided. MACRA changes how doctors will be paid for providing those services. Instead of fee for services payments, it requires replacing paper records with electronic health data and replaces fee for services reimbursement with reimbursement based upon value as defined by a set of specific criteria. Medicare and Medicaid accounted for almost one third of the total amount paid to health care providers in 2014. The government projects it will be paying more than 45 percent of the total health care costs by 2025. The influence of these measures on standards of practice will be enormous.
Fee for service reimbursement may create financial incentives to perform unnecessary examinations, order unnecessary diagnostic studies, or ineffective, but unharmful therapy. The value based reimbursement model removes this incentive, but creates its own potentially harmful incentive.
This model values preventative care and encourages doctors to keep patients healthy so they don’t need expensive treatment. If profit is based upon reduced patient demand for medical care, there may be a tendency to not provide needed care. This may save insurance company dollars at the expense of patients’ health.
The value billing system also gives physicians an incentive to treat only those patients who are most compliant with their advice and those patients who, in fact, are healthy. Value billing does place some risk of patient compliance on the physicians, who may not be responsible for their patients’ lifestyle choices.
The changes occurring in medical practice as a result of these changes in federal law are beyond the scope of this article. Lawyers who work with standards of care in medicine should consider the changes these laws create in medical practice.
Changing the way medical services are paid for will change the services patients receive. Bigger changes in payments will result in bigger changes in medical services than will be created by smaller changes. The full name of The Affordable Care Act is the Patient Protection and Affordable Care Act. “Patient Protection” is almost never included in any news or discussion about the law.
In a recent survey, 50 percent of surgeons said they hadn’t heard of MACRA. 80 percent of the survey participants said they favor reimbursement on a fee for services basis to the value based risk bearing model mandated by MACRA.
To some extent, the standard is the result of ongoing trial and error. Innovations which produce helpful results become standards of care. Those that don’t improve patient care are discarded. Hand washing is part of the standard of care, but lobotomies are not. Barry E. Lewin
