Physician Ranking:  Necessary tool for health care transparency, or scam on doctors and the public?

Medical society litigation

Most recently, the Massachusetts Medical Society sued the Commonwealth’s Group Insurance Commission (GIC), Tufts Health Plan and Unicare for defamation and fraud in May 2008, claiming that the system for assigning physicians to one of three tiers based on quality and cost efficiency was arbitrary.   Under the GIC’s Clinical Performance Initiative (CPI), the plans measure “quality” according to the physician’s compliance with clinical guidelines.  In challenging the fairness of this measure, the complaint alleges that “the clinical measures used are just a small fraction of the standards of quality care in a particular specialty, but are used because they purportedly lend themselves to evaluation through claims data.” Ref. 1  The complaint further states that there is no effective appeal process for physicians who believe their ranking is inaccurate.  The tiering report received by physicians identified the percentile ranks, number of quality measures and conditions, the “Top 5 Clinical Measures” for that physician, and charts comparing the physician to his/her peers.  The underlying data was de-identified, so there was no way for the physician to link it to patient records to challenge the quality score.  The complaint gives a number of examples of problems with the quality data, such as the following reported by a cardiologist:

Of 125 quality measures, 33 involved Tufts patients, for whom he received credit for performing the appropriate testing or therapy in 29 cases.  The MMS member reviewed his own files and determined which Tufts patients the claims data likely referred to.  Upon further review, he noted that with respect to 3 of the 4 missed opportunities, he had never seen the patient, but had merely read echocardiograms, and the care was inappropriately attributed to him.  With respect to the fourth patient, the missed measure involved care being managed by the patient’s primary care physician. Ref. 2

The complaint also gives examples of specialists whose cost-efficiency score suffered because of the acuity level of their patients (such as a medical director of a multiple sclerosis center, and a glaucoma specialist whose practice required more expensive testing than typical for ophthalmologists generally). 

An especially interesting aspect of the Massachusetts lawsuit is that the Medical Society named not only health plans, but also the GIC, as defendants.  The GIC is a state agency that established the requirement for physician tiers.  The GIC’s website states that it endorsed the Consumer-Patient Disclosure Project’s “Patient Charter” (described below).  Its Executive Director notes the Medical Society’s lawsuit, and comments that “It is regrettable that the MMS has chosen to be confrontational about the CPI initiative rather than continuing to work with us to bring quality and efficiency information to patients and providers alike.” Ref.3

New York’s Attorney General joins the fray

In July 2007, the New York Attorney General sent similar letters to CIGNA Healthcare, Inc., Aetna Health, Inc., and UnitedHealthCare, Inc. expressing concern that their physician ranking programs could confuse or deceive consumers.  The Attorney General’s office listed three main concerns (excerpted from the UnitedHealthCare letter):

• Consumers may be steered to doctors based on faulty data and criteria.
• Consumers may be encouraged to choose doctors because they are cheap rather than because they are good.  This could undermine the integrity of the doctor-patient relationship.
• UnitedHealthcare’s profit motive may affect the accuracy of its quality rankings because high-quality doctors may cost United- Healthcare more money.  This is a conflict of interest. Ref. 4    

The Attorney General’s shot across the bow was extremely effective.  By October 29, CIGNA had entered into an agreement resolving these concerns, followed quickly by Aetna, UnitedHealthCare, Empire Blue Cross and many others.  The insurers agreed to accept the Attorney General’s Doctor Ranking Model Code, which was developed in collaboration with the American Medical Association, the Medical Society of the State of New York, and consumer groups including the Consumers Union.  The Model Code requires insurers to:

• Not base ratings solely on cost, and identify the degree to which ratings are based on cost;
•  Use established national standards to measure quality and cost efficiency, including measures endorsed by the National Quality Forum (NQF);
• Use measures to improve the accuracy of physician comparisons, such as risk adjustment and valid sampling;
• Disclose to consumers how doctors are ranked, and establish a consumer complaint process;
• Disclose to physicians how rankings are designed, and provide a process to appeal disputed ratings; and
• Retain a Ratings Examiner to report to the Attorney General every six months on the insurer’s compliance with the Model Code.  The Ratings Examiner must be a national standard setting organization, such as the National Committee on Quality Assurance (NCQA).

The beginnings of a consensus?

The same time that insurers were signing agreements with the New York Attorney General, a coalition of consumer, labor and employer organizations were putting the finishing touches on a similar project.  Known as the Consumer-Purchaser Disclosure Project, a collaboration of the AARP, the AFL-CIO, the Leapfrog Group, the National Business Coalition on Health and others endorsed a set of principles known as the Patient Charter for Physician Performance Measurement, Reporting and Tiering Programs.  The Patient Charter calls for:

(i)  reliance on NQF measures as a first choice, and then measures approved by national accrediting bodies such as NCQA and the Joint Commission;

(ii) provider and consumer input on supplemental measures, if any are to be used;

(iii) a transparent provider rating method; and

(iv) coordinated data collection by independent third parties.    

With New York’s Model Code and the Patient Charter, there are now carefully-drawn guidelines for constructing a physician ranking program.  Programs that do not adhere to the guidelines, such as tiering programs based solely on cost, will be vulnerable to medical society challenges.  On the other hand, programs that can show they meet most elements of the Model Code or the Patient Charter will have a strong defense against claims that their methodology is arbitrary and just a façade for saving medical claims expense.

References

1. Massachusetts Medical Society v. Group Insurance Commission, In the Superior Court Departmen Suffolk County, Civil Action No. 08-2124, complaint paragraph 27.
   
2. 2 Id., paragraph 85.
   
3. 3 “GIC Continues to Lead the Way to Improve Health Care Transparency and Address Physician Quality and Cost Differences”, at http://www.mass.gov/gic/news.htm.
   
4. 4 Letter dated July 13, 2007 from Linda A. Lacewell, Counsel for Economic and Social Justice, New York Attorney General’s Office, to UnitedHealthCare.

About the Author

Patricia King is a health care attorney in Illinois, and principal of the web-based business Digital Age Healthcare LLC (www.digitalagemd.com).

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