Recently Insidesurgery.com sat down with nationally renowned healthcare attorney Alice G. Gosfield for an in depth interview on how she sees healthcare today in America and how she is working to make major changes in the system that may impact millions of patients.
You are considered by many to be the top healthcare attorney in the United States and you come from a medical family. Why did you decide to go into law and not become a physician?
My older brother was the presumptive heir to that mantle. I worked in my father’s office from the time I was about ten, answering phones and later doing transcription and then as a candystriper. Then when I was in high school I worked in the clinical lab at the hospital and did it again in college, but, I really didn’t see myself as a scientist. I
did go through a brief period once after I was already a lawyer when I toyed with the idea of going to medical school, not to practice, but just to know all of that fascintating information.
Alice G. Gosfield
I went to law school more by default than passion, but once I found health law, in its earliest iterations (in 1972), I thought it was the first area of the law that I could really understand viscerally, precisely because I had been connected to the health care system from such an early age. And I always knew I would work with physicians, who did not interest most lawyers who really just wanted to be general counsel to the local hospital.
I think what physicians do is utterly noble. They take their intellectual capital which they have acquired by enormous effort and difficulty and dedication to cure, heal and help people. This is a marvelous activity of a purely social good. I started out in the War on Poverty, developing areas of the law which hadn’t even existed, and using them to help poor people, who had even fewer rights in the health care system then than they do today.
What advice would give to a young attorney starting out in healthcare law?
Join the American Health Lawyers Association and make use of the considerable expertise, materials and collegial support you can find there.
What is your opinion of the emerging pay for performance programs (P4P)?
Pay for performance, while a positive development to motivate more focused attention on improved quality, is not sustainable as a business model. It is focused almost exclusively on under use — most programs pay physicians more for doing something they haven’t been doing previously. For instance, after everyone in a region gets an A in diabetes care, what happens? Do we take that money and put it on asthma or cancer? How does that contribute to effective use of limited resources?
Not only that, but P4P programs are layered on top of systems which not only have not produced optimal quality of care, but have imposed heavy irrelevant administrative burdens on physicians and also disrupt their ability to standardize their delivery of science while they customcraft the art of medicine in their interactions with individual patients. And then there is the moral quandry of why physicians (and hospitals) should be paid more for doing what he or she ought to be doing anyway?
You are one of the driving forces behind the new model of healthcare delivery that goes under the acronym of PROMETHEUS. Can you explain what the PROMETHEUS program is and what it adds to the current health care landscape?
In the PROMETHEUS system payment is designed to pay the right amount to bring to bear the resources science tells us through good clinical practice guidelines that are optimal to treat the patient presenting to the physician for that patient’s specific condition. Because the payment rate begins with an order based on science, it can eliminate a host of administrative burdens for physicians (and plans) including prior authorizations, documenting E & M bullet points, certificates of medical necessity, concurrent utilization review, postpayment audits, and potentially even formularies.
Because it begins with what is clinically relevant to the patient and cares not at all about levels of visits and use of non-physicians in a team, it should save time and permit greater efficiency. Instead of post-payment audits, to
assure the plans that the physician has provided what he bargained to deliver, as well as to generate data to contribute to improving care while giving patients more information on performance, a percentage of the payment (10% for chronic care and 20% for acute care) is held back to be paid, pro rata, in accordance with a comprehensive scorecard. All of the rules of the game are known up front — the guidelines to be used, the risk adjusters, the metrics in the scorecard. There are no black boxes.
How are physicians paid in the PROMETHEUS system?
Physicians negotiate their payment rate with the plan within the context of an estimated budget for all providers interacting with the patient for that condition (e.g., primary care, consultants, hospitals, rehab providers, pharmacies, etc.). The negotiated rates are adjusted upward to account for co-morbidities unless the complications are so significant (e.g., vascular surgery patient has a heart attack) it “breaks’”the case rate. Because part of the provider’s score (30%) which determines the payment of the 10% or 20% contingency fund turns on the performance of the other providers (for surgeons it would the hospital and the rehab providers, for example) to whom they refer, the program is explicitly intended to motivate clinical collaboration among otherwise independent providers without making them merge or form networks. Providers can bid toegher to deliver care but be paid separately.
Other than yourself, who is on the PROMETHEUS design team?
The design team (you can find all of them listed at www.prometheuspayment.org) consists of a group of independent experts in law, medicine, quality, research, economics, health care finance and the like. There are physicians involved, and the groups developing the actual modeling of the case rates are dominated by
practicing physicians. Sometimes I think it should be called “the Little Red Hen project” because we all just got tired of waiting for some other brilliant crowd to come up with a solution to what we think the major problems are, No one has been working in this area so we just decided to do it ourselves.
Are you satisfied with your own personal healthcare and what do you look for in a physician?
Interestingly, my internist (who is clinically excellent) is an old style paternalistic physician — I have to push to get copies of my labs, his staff is not allowed to tell me my blood pressure –he has to deliver that; he participates in no insurance programs at all. BUT HIS OFFICE RUNS ON TIME AND IS EXTREMELY EFFICIENT. Since I have no real medical needs the last is more important to me than the former. By contrast, my ob-gyn was in solo practice for years and then joined an integrated women’s group of formerly independent ob-gyn practices (the formation of which I actually participated in instigating). His office is very personal in their style of delivery. He is extremely forthcoming with information, and also pays attention to not wasting my time, I am happier with that. I don’t think my personal needs, though, are reflective of the general population. I am one of the best informed health consumers a physician will ever encounter, but I am not a physician, so I don’t bring all that baggage to the interaction.
In terms of what I look for in a physician, I look for some sense that the clinical care will be excellent (but my knowledge here is reputational and not really based on data) and that they treat me responsively as an individual.
What do you look for in terms of a good hospital?
There is not a single hospital I have had interactions with in the last twenty-five years including as a mother, with which I have been satisfied in terms of service, efficiency or organization. One of the reasons I work on health care
reform for quality, is that I want the system to be operating differently by the time I actually need it for myself!
Why hasn’t the quality of care improved in the United States since the landmark 1999 Institute of Medicine report?
We think one of the main reasons is that the payment system gets in the way. With lowered reimbursement, less time available, and nothing specifically motivating improvement other than potential legal liability, the existing moral imperatives have a somewhat limited impact. That said, though, there is actually an enormous amount that has gone on, and I would direct you to the work of the Institute for Healthcare Improvement at www.ihi.org. The 100,000 Lives Campaign got the attention of the vast majority of hospitals in this country. In addition, Congress
and CMS have become far more involved with generating quality improvement inititiaves across the system, but these are predominately pilot projects the results of which take time to develop. I am optimistic about the direction the system is moving.
What are your thoughts on insuring the many millions of Americans without health insurance?
I think this is a moral imperative. I think a civilized country is measured by how it takes care of those with the least. I think health care should be paid for by a public system for those whose employers do not provide it or who cannot afford to buy it. The many programs around the country for children are an example of a burgeoning recognition of this need, but they do not go far enough.
You are much sought after by physicians who are negotiating employment contracts. What is the single most important thing that a physican should look for in a contract?
A very clear statement of the common expectations of the parties regarding the relationship. Much of the employment relationship though is contextual and cultural — some practices are egalitarian and pay everyone about the same. Others are more purely productivity based. Some have orderly governance. Others have idiosyncractic governance. Many have restrictive covenants. Some don’t. There really isn’t a once size fits all approach, although for a lawyer who reads many of them there are common themes and principles. I’d say the key is to deal with a lawyer who has considerable and varied experience in reading and negotiating these contracts, but in the last analysis, how much can be negotiated also turns on culture. If there are ten guys in the practice with the same form agreement, you won’t be able to negotiate special terms for one. In that setting, it is very important for the physician to understand the totality of the transaction.
Why do you think physicians are not more quality conscious?
I think they are actually profoundly quality conscious in terms of their own performance. They have been socialized to get A’s their entire academic careers. They want to do well for their patients. Their biggest problems are they don’t have credible data available to help them understand on what they can improve and they don’t think in
terms of systems — even the system of their own offices, and how to make those systems more effective and reliable. They also are not very good at asking for help. As the payment system forces them in that direction they will have to learn more, the same way they have had to learn the CPT codes relevant to their work. From my perspective, though, I think they often fail to understand how a disciplined approach to quality can improve their quality of life as professionals and as people trying to get along in a difficult and complex world.
Are you in favor of tort reform to limit awards and damages?
I am in favor of tort reform that rewards with an alternative dispute resolution sysem for providers who have an infrastructure that generally is oriented to quality improvement, who explicitly participate in programs to improve their quality, and who embrace performance measurement and transparency. I’ve written on this in the past. I think tort reform for all will not really happen and is a stupid idea anyway. There are arrogant, self-entiteld physicians who want to do things their own way simply because that’s what they want. When things go wrong for them, I say, let the sharks do their thing. I believe in helping the good guys, thereby creating an incentive to be a good guy. Patients will do better, and so will physicians.
What do you think your single most important contribution has been in your professional life?
Yikes! I don’t think about my life that way. In addition, I have multiple pathways of action with different effects. I think my participation on the Board of NCQA for twelve years and Chairman for five, actually improved the quality of care for millions of people, and I was a real activist, very engaged in that work, as much as a board member should be, when I was there. I think the work I am doing on payment reform could have enormous impact. I think in my law practice that alleviating the anxieities of physicians in dealing with technical legalities, helping them think better strategically and bring that thinking to real implementation has been satisfying to them and to me. I think in my ‘communication’ product line — speaking and writing — that taking complex issues and making them understandable to people who must confront these complexities, particularly physicians — and to reinvigorate them to appreciate the possibilities for them to be better at what they do and get more satisfaction from that with better results — in quality and financially — has been a useful activity.
Disclosure: Lisa Marcucci, MD has been a past and present client of Alice G. Gosfield.