Law Feature - January 2008
By Crystal Conde
Physicians have about as much regard for the rating systems insurance companies use to decide which doctors will be in their networks as they do for a snake in their refrigerator. The thing is, it's easier to get rid of the snake.
The Washington State Medical Association (WSMA) learned that lesson in 2006 when it attempted to convince Regence BlueShield to scrap its physician-rating effort. The association felt the insurer used flawed methods and outdated information to exclude more than 500 doctors from its Select Network. Initial negotiations failed, forcing the WSMA, joined by the American Medical Association and six individual physicians, to take Regence to court.
Not so for the Texas Medical Association. TMA hasn't had to load its lawsuit guns yet, opting first to negotiate with Blue Cross and Blue Shield of Texas (BCBSTX) over its BlueCompare physician-rating program. TMA asked the company to delay rolling out the program in late 2006, when an initial analysis found significant errors in data collection, processing, and reporting/attribution methods. After much persuasion, BCBSTX agreed to implement most of TMA's suggestions for improving the program.
Through the BCBSTX Advisory Committee on Measures of Performance (ACMP), funded by the company, TMA convinced the company to adjust the "evidence-based measures" it uses to rate physicians. TMA's Council on Socioeconomics is reviewing the risk adjusted cost index (RACI) used to determine the affordability of doctors' care in BCBSTX's BlueChoice Solutions alternative professional provider network. Although the steps taken by BCBSTX have improved the process, physicians say more is necessary to ensure the program is truly a means of measuring quality of care and improving performance. (See " Physicians Sound Off .")
TMA is not through. It is still working to make sure BCBSTX and all other insurance companies base their rating systems on good medicine and that they are fair to physicians.
TMA President William W. Hinchey, MD, says he's disappointed BCBSTX hasn't openly shared information on how it develops ratings; he urges the ACMP to persist in winning greater transparency for rating programs.
"Progress has been made in some areas in that the committee and BCBSTX have been able to identify some agreed-upon, valid measures for rating physicians. I am somewhat disappointed in that we haven't been able to make as much progress as I thought we'd be able to make in a year's time," Dr. Hinchey said. "Right now, there's no easy way for physicians to appeal or refute the data, and when you do that, you're assuming that Blue Cross knows all. It's scary if we're going to accept that."
Complaints Lead to Action
In 2006, complaints about BlueCompare from numerous physicians led then-TMA President Ladon Homer, MD, to appoint the Select Committee on Physician Performance led by Michael Speer, MD, to examine the program's methodology and accuracy of data collection, analysis, and application.
In spring 2007, the committee recommended that TMA and BCBSTX secure an independent evaluation of the scientific measures and practice strategies to ensure more accurate quality data, to motivate physician behavior, and to address Texas physicians' perceptions that the program is merely an attempt at economic credentialing. Although BCBSTX officials agreed to the independent evaluation, they haven't yet followed through.
They have agreed to:
- Replace gray ribbons that indicated a low rating and recognize physicians in its network with light- or dark-blue ribbons (a dark-blue ribbon for outstanding performance compared with peers and a light-blue ribbon for commendable performance compared with peers);
- Give physicians information about them that was derived from claims data used in the evaluation process;
- Implement a review process that allows physicians to respond to their ratings;
- Allow physicians to opt out of having their ribbon designation displayed on the BCBSTX Web site in 2007; and
- Retool how it communicates BlueCompare ratings to network physicians.
From there, TMA appointed members to the ACMP to give the association and BCBSTX an opportunity to discuss and make recommendations on selection of measures and to review and comment on the methodology used in the BlueCompare program.
ACMP Vice Chair Isabel Hoverman, MD, MACP, says the committee has had some success, but isn't finished, adding that the ultimate goal is to make tiering and rating systems fair and transparent for physicians.
"We feel that Blue Cross is willing to work with us on how to reach out and how TMA can collaborate with them," she said. She added that negotiation is preferable to litigation, which can be costly and can stifle communication between the parties.
Talking Beats Suing
WSMA was not as successful in its attempt to negotiate with Regence BlueShield, even though it proposed process improvements to the company. Unsatisfied with Regence's responsiveness and troubled by errors in the ratings, WSMA, along with six physicians, filed a lawsuit in September 2006. The suit sought an injunction against the system and monetary damages from Regence for unfair and deceptive business practices, defamation/libel, intentional interference with commerce, and breach of contract.
Shortly afterward, the AMA Litigation Center, formed in 1995 with state medical societies to offer physicians legal assistance and expertise, joined WSMA and provided financial support. Tim Layton, JD, director of legal affairs for WSMA, says Regence took the association more seriously once it had AMA's support.
After about eight months of negotiations, Regence agreed to five settlement terms and is still in the process of establishing an external dispute mechanism to allow physicians to challenge their scores. (See " How to Challenge Your Rating .")
In Texas, Dr. Hoverman says, the ACMP attained through negotiation four of the five settlement elements that WSMA had to sue to get.
Before implementing any new or revised performance measurement program, Regence will give physicians an opportunity to provide input on the data to be used and on the methods of comparing physician performance and communicating ratings and scores. The insurer will also make an effort to give physicians 10 days notice that new scores are forthcoming.
The Regence BlueShield Web site will communicate physicians' scores, along with the methodology, the data used, and the types of patients included in calculating the scores.
And physicians will have the opportunity to make a timely appeal of their scores; when a score is challenged on a timely basis, it will be withheld until the appeal is completed. If a physician's challenge exceeds the time permitted for an appeal, the score will be posted with a clear notation that it is being challenged.
The Texas committee has raised but hasn't yet resolved the fifth settlement item that pertains to the ability to appeal determinations by the insurer regarding the accuracy of its scoring. The Regence settlement terms state that scores can be appealed to an independent external reviewer based on the same materials used in the external review. The independent reviewer has not been selected nor have the process details for appeal been worked out.
The committee and many TMA members have significant concerns about the RACI scoring system. This month, TMA will launch an ad hoc committee to evaluate the system.
Dr. Hoverman says the ACMP continues to work on the appeals process with BCBSTX, but details on how that will be done have yet to be determined. The company has agreed to separate doctors by individual, group, and number for Blue Cross physicians across the state. She says the committee hasn't discussed accuracy of scoring, the final element in the Regence settlement.
In addition, Dr. Hoverman counts two major accomplishments the ACMP has achieved since negotiations began with BCBSTX in May. She acknowledges these changes are enormous steps forward in negotiating with the insurance company and help pave the way to future reform:
- Reducing the number of measures used to rate physicians from 50 to 18. The groups narrowed them down by selecting only evidence-based measures determined by nationally recognized organizations, such as the National Quality Forum and the AMA-convened Physician Consortium for Performance Improvement. In addition, the measures will be meaningful to patient care and have the potential to improve the quality of care and will be extracted from administrative data such as eligibility, medical, and pharmacy claims.
- Getting BCBSTX to stop using quintiles to group physicians and begin using the Healthcare Effectiveness Data and Information Set (HEDIS) methodology. Originally, 40 percent of physicians automatically fell into the low performance category. In the future, 95 percent of physicians, those within two standard deviations of the mean for their specialties, will receive a ribbon. That leaves 5 percent of physicians needing intervention to improve performance. "That allows Blue Cross to focus more on the true outliers," Dr. Hoverman said.
ACMP Chair William Taylor, MD, medical director, network analytics, for BCBSTX, says physicians who fell below two standard deviations were to receive by the end 2007 reports showing how their performance compared with peers in their specialties. They also were to receive lists of patients qualifying for each evidence-based measure for which no claims-based record of the targeted services existed.
He acknowledges barriers to physicians' abilities to provide preventive medicine and chronic care services. Patients may lack resources, mobility, and motivation to participate in management of their health. Others may be limited by financial constraints or find physician visits inconvenient.
As further evidence of the ACMP's progress in working on the issue with BCBSTX, Dr. Taylor touts BCBSTX's agreement to give the public easy-to-understand information and to use fair, transparent, consistent, and accurate methodology across specialties for large and small practices. The committee supports developing a national standardized set of performance measures, as well as efforts to share data across payers. ACMP will continue working to lend greater transparency to the methodologies used to rate quality of care this year. (See " ACMP Action Items .")
In addition, TMA's Council on Socioeconomics is examining the use of the RACI in BlueChoice Solutions to reflect differences in the attributed costs of physician and professional practitioner episodes of care. The index relies on claims data to make cost and efficiency determinations.
The council will meet at the 2008 TMA Winter Conference to develop recommendations for analyzing the BlueChoice Solutions RACI and overall member advocacy in opposing economic credentialing by health plans.
Instituting processes to improve its rating system is moving BCBSTX in the right direction. But Susan Strate, MD, immediate past chair of the Council on Socioeconomics, says the ACMP and council still have a long way to go before physicians begin seeing BlueCompare and BlueChoice Solutions as mechanisms that can spur quality improvement in health care.
"Obviously it's going to be important that we solve this problem," she said. "The stakeholders need to come together and do a full-scale analysis and investigation of all the rating systems. Right now, the rating systems have the potential, if they continue on this course, to not only confuse patients but to also deceive patients."
Crystal Condecan be reached at (800) 880-1300, ext. 1385, or (512) 370-1385; by fax at (512) 370-1629; or by-email at Crystal Conde .
Physicians Sound Off
John Holcomb, MD, ACMP member
To agree on indicators, how they're collected, and how doctors should be graded, Dr. Holcomb wants the insurance industry to come together with doctors.
"I do believe we've made progress in bringing to their attention that just because their vendor gave them an indicator, that's not reason enough to implement it," he said. "They need to go back to the sources the vendor used and find out if there's true evidence or if it's just someone's opinion."
He's less optimistic about insurance companies' abilities to rate physicians on cost effectiveness.
"I don't think there's any way to deal with problems where doctors are practicing good, up-to-date care with the use of an expensive agent. It catches the computer's attention because it's expensive. On the other hand, if I prevent another injury, I've saved the insurance company money, but that's not recorded or tracked in the system."
Keith Bourgeois, MD, chair, Council on Socioeconomics
Dr. Bourgeois calls on insurance companies to disclose the data and information used in rating physicians.
"We would be in support if it were about quality. It's not about quality; it's purely about cost. We want them to be honest. We don't mind transparency as long as it's a two-way street and they're transparent on how they're rating."
Susan Strate, MD, immediate past chair, Council on Socioeconomics
Dr. Strate wants health care payment plans to educate patients and physicians in a transparent manner about their tiering and rating systems. She says physicians expect the following from the companies that rate them:
- Transparent methodology. Physicians expect the profiling methodology to be based on correct information that is clear, transparent, and understandable by the physician, and it should be known in advance. Also, the methodology should be understandable by the patient. When a doctor is ranked, it should be clear to the patient what that means.
- Due process. Physicians who wish to appeal their ratings should have easy access to a user-friendly mechanism for doing so.
- Performance improvement. "If a physician or a group of physicians are categorized as underperformers, then they should have easy access to educational materials that will assist them in improving performance."
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ACMP Action Items
The Advisory Committee on Measures of Performance (ACMP) will review the annual BlueCompare notice relating to measures and designations, results, the opt-out option, and review process before mailing.
- For 2008, the evidence-based medicine measures used in BlueCompare will not exceed the agreed-to 18 measures.
- Additional measures will not be included in performance reporting for BlueCompare until Blue Cross has completed development and execution of physician education and feedback on those measures and the methodology used.
- In 2008, Blue Cross and TMA will work together on how to pay for a continuing medical education (CME) series about performance measurement. TMA and Blue Cross will develop the curricula for the program. Incentives will be considered to encourage physicians participating in Blue Cross products to complete this CME.
- For 2008 BlueCompare, Blue Cross will inform physicians about their evidence-based medicine designation and give them an opportunity to review and clarify data using medical records before their designations are available to the public.
- Methods to give physicians feedback about clinical opportunities related to evidence-based medicine performance will be pursued.
- At the end of the year, Blue Cross will report on availability of pharmacy data from major accounts including the Employees Retirement System of Texas and The University of Texas. Medication compliance measures that require pharmacy data will not be included in BlueCompare performance reporting until data are more broadly available for these accounts.
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How to Challenge Your Rating
- Review your contract. Does the insurer have the right to profile physicians and restrict their access to patients? Does the contract specify the appeal mechanism or other rights with respect to profiling or tiering? Make sure you do not miss any deadlines.
- Request a complete copy of your profile, profiling methodology, and the data used. If the insurer does not respond, ask again. Do not accept incomplete information or data from the insurer. You should receive a complete analysis of the data and the system used to determine your rating.
- Review your profile report carefully. Pay attention to the number of cases used to determine your rating. Small sample sizes are the single biggest cause of inaccurate ratings. Compare the data referenced in the report with your actual claims/chart data. Is the insurer using another physician's data or missing vital information? Are there valid reasons for your practice variation? Examine your data for outlier cases, severity of illness, comorbidities, unusual demographics, and patient compliance problems. Insurers' risk adjustment systems are often minimal, and expert opinions indicate that all physician risk adjustment systems are woefully inadequate.
- Contact TMA, your county society, or the American Medical Association if you are unsuccessful in your attempts to reconcile your rating.
- If you file a timely appeal within the deadlines, you'll be able to stay in the insurance company's network pending the appeal.
- For assistance regarding problems with network deselection or ratings, call TMA's Knowledge Center at (800) 880-7955 or e-mail firstname.lastname@example.org.
Sources: AMA and TMA staff
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