Let the sun shine: most Americans in the dark about payments to physicians

Physicians self-report payments from members of the pharmaceutical and medical device industries at an average rate of 40 percent; however, many of the lower rates are for providers who have fewer contacts with fewer patients. According to a study published in the Journal of General Internal Medicine, 65 percent of patients saw a provider who had received industry payments in the previous 12 months. Additionally, almost no patients know that the provider had received such payments, despite the information being publicly available.

Physician Payments Sunshine Act

Section 6002 of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148), known as the Physician Payments Sunshine Act, increases transparency of physician ownership and investment interests by requiring the disclosure of payments made to providers. Such payments include consulting fees, honoraria, gifts, food, entertainment, charitable contributions, and other transfers of value. This information is reported to CMS, and published online at https://www.cms.gov/openpayments/.

The purpose of this provision was to make patients aware of payments their providers received which may influence the provider’s decision-making process. However, the study notes, if patients are unaware that this information is available, they cannot make informed decisions.

Open Payments data

According to the Open Payments data, the prevalence of industry payments among physicians is around 40 percent, with variation across specialties ranging from 20 percent (pathology) to 80–90 percent (cardiology and orthopaedics). Exposure of patients to doctors who receive payments, however, is not measured by the data. As a result, individuals may incorrectly interpret the data to believe that they have a lower chance of visiting a physician who has received payments than they actually do. If patient contact with physicians who receive payments is significantly higher than the overall average, it would show that industry payments reach more patients than expected.

Study methodology

The study, the first of its kind, took a population-based approach to estimating the reach of industry payments. It used a nationally representative survey to ask patients about their knowledge of the Open Payments data and about the physicians they most often visit. The researchers then linked the physicians named with the data using National Provider Identifiers (NPIs) to determine patient-based industry exposure.

Findings

In the subgroup of respondents for whom the researchers could identify providers–matching 1971 physicians to 1987 respondents–the study found that 65 percent of patients, or almost two-thirds, visited a physician who had received industry payments, a much higher percentage than the 40 percent of physicians overall who receive such payments. The highest rates were among patients who visited orthopedic surgery physicians, with 85 percent of patients seeing an orthopedic surgery physician who received industry payments. In addition to patients visiting doctors who received payments at a higher rate than overall physician payment rates, the physicians that patients frequently visited who received payments, received amounts greater than were typical of physicians reported in Open Payments.

Patients reported some level of knowledge of industry payments to physicians, with 45 percent being aware that such payments are sometimes made. However, only 5 percent of patients knew whether the physicians they visited had received industry payments. Most believed that their providers had not received any payments, but 41 percent of them were incorrect.

Overall, the study found that although a minority of physicians accept industry payments, physicians who accept payments are caring for 65 percent of the adult patient population, while very few of the adult patient population is aware of industry payments or possible conflicts of interest.

Is the American Health Care Act a ‘critical first step’ or unsupportable?

HHS Secretary Tom Price, M.D., supports the reconciliation recommendations known as the American Health Care Act, and considers the changes a necessary and important first step in further reforming the U.S. health care system. In a letter to the chairs of the House Committees on Energy & Commerce and Ways & Means, Price explained that in his view, the proposed legislation aligns with President Donald Trump’s promise to repeal and replace the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148). Two major industry groups, however, said that they could not support the current version of the bills.

American Health Care Act 

On March 6, 2017, House Speaker Paul Ryan announced the American Health Care Act, consisting of two committee “budget reconciliation legislative recommendations,” which would be passed under the provisions of S. Con. Res. 3, a resolution which developed a streamlined process for Congress to pass health reform without threat of Senate filibuster. The document from the Ways & Means Committee would alter many of the ACA’s tax provisions, including eliminating penalties related to the individual and employer mandates, while the Energy & Commerce Committee’s document focuses on changes to the Medicaid program (see Republicans present health reform that is neither repeal nor replacement, March 7, 2017). Both committees began markup on the bills less than two days after the documents were made public.

First step in Administration’s plan

According to Price, the reconciliation legislation is just the first of three planned steps in undoing the ACA’s reforms. The reconciliation process can only be used to change some ACA provisions, though not all, and also cannot be used for all of the Trump Administration’s planned reforms. To complete those changes, HHS has two more planned steps; first, taking administrative actions to provide patients with additional options and give states more flexibility in Medicaid spending, and second, to support legislation on Trump’s other priorities including sale of insurance across state lines and medical tort reform. HHS noted that the Administration has already begun work on the second step, including Trump’s Executive Order on minimizing the economic burden of the ACA (see Trump Administration previews health care plans with Executive Order, regulatory freeze, January 23, 2017) and a Proposed rule designed to stabilize the health insurance marketplace by altering enrollment periods and other rules.

AHA and AMA opposition

Two major stakeholders in the health reform debate are the American Hospital Association (AHA) and American Medical Association (AMA), both of which released statements saying that, as currently written, neither organization could support the American Health Care Act. AHA President and CEO Richard J. Pollack wrote a letter on behalf of the hospitals, health systems, health organizations, and clinician partners associated with the group, and first raised concerns about the lack of coverage estimates from the Congressional Budget Office (CBO) and asked that Congress wait until an estimate is available before proceeding with formal consideration of the Act. The letter also listed the AHA’s policy concerns, including the restructuring of Medicaid—which “already pays providers significantly less than the cost of providing care—and the elimination of funding sources while continuing the ACA”s reductions in hospital payments.

Similarly, AMA President Andrew W. Gurman, M.D., wrote that the Act would reverse the ACA’s coverage gains, with millions of Americans losing coverage, and insisted on the involvement of physicians in the health reform debate. AMA Vice President and CEO James L. Madara, M.D., wrote a letter to the Committee Chairs and Ranking Members in which he said the organization cannot support the Act as drafted “because of the expected decline in health insurance coverage and the potential harm it would cause to vulnerable patient populations.” He noted concerns that rolling back the ACA’s Medicaid expansion would limit state flexibility and urged the Committees to “do all that is possible” to prevent individuals who currently have health insurance from losing that coverage.

Highlight on the District of Columbia: Congress fails to stop D.C. Death with Dignity law

Although the House Committee on Oversight and Government Reform voted to advance a resolution (H.J. Res. 27) that would nullify the District of Columbia’s Death with Dignity Act (D.C. ACT 21-577), the House failed to act on the resolution in time to block the law from becoming effective. Under the Constitution, D.C. is a federal district under the exclusive jurisdiction of Congress; since the 1973 District of Columbia Home Rule Act (P.L. 93-198), however, certain powers were granted to the city council and mayor, while Congress retained the authority to review all legislation passed by the council and imposed other restrictions. Bills passed by the council and signed by the mayor must be sent to Congress; they become law if Congress fails to block the law within 30 legislative working days.

Death with Dignity Act

 D.C.’s Death with Dignity Act–like similar laws passed in the states of California, Colorado, Montana, Oregon, Vermont, and Washington–legalizes physician-assisted suicide for terminally ill residents of the District who retain the ability to make and communicate health care decisions to health care providers and who complete certain required steps. Under the Act, individuals who are terminally ill may request life-ending medication from a physician, though no health care provider is required to prescribe or dispense life-ending medication even if the individual qualifies. To qualify, individuals must:

  • in the opinion of a court or the patient’s attending physician, consulting physician, psychiatrist, or
    psychologist, have the ability to make and communicate health care decisions to health care
    providers;
  • be a resident of the District of Columbia;
  • have an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, result in death within six months; and
  • voluntarily make two oral requests and one written request in the presence of witnesses.

The Act also imposes requirements upon physicians, including providing the individual with certain information to ensure informed consent, and making referrals, recommendations, and counseling.

The bill was first introduced in January 2015, and a public hearing was held in July of that year. In November 2016, the City Council passed the bill by a vote of 11 to 2, and Mayor Muriel Bowser (D) signed it in December. It provided for an effective date immediately following the 30-day Congressional review period.

Congressional action

The term “Legislative Days” is a term of art. According to the Congressional Research Service:

In context of the daily activities of Congress, any calendar day on which a chamber is in session may be called a (calendar) “day of session.” A legislative day, by contrast, continues until the chamber adjourns. A session that continues into a second calendar day without adjourning still constitutes only one legislative day, but if a chamber adjourns, then reconvenes later on the same day, the single day of session includes two legislative days. Conversely, if a chamber recesses and then reconvenes on the same day, the same day of session and the same legislative day both continue. Finally, when a chamber recesses overnight, instead of adjourning, although a new calendar day of session begins when it reconvenes, the same legislative day continues.

The bill was transmitted to Congress on January 6, 2017, three days after the 115th Congress was sworn in. H.J. Res. 27 was introduced on January 12 by sponsor Rep. Brad Wenstrup (R-Ohio), and referred to the Oversight Committee. On February 13, 2017, the Committee voted to advance the resolution to consideration before the full House.

By the D.C. City Council’s determination, the Congressional review period for the Death with Dignity Act ended on February 18, 2017; despite the Committee’s advancement, the House failed to bring the resolution to a floor vote before the review period ended. To succeed in disapproval of a D.C. law, such resolutions must pass both Houses of Congress–though only by a simple majority and therefore not subject to Senate filibuster–and be signed by the President.

Wolters Kluwer Holiday

We will not be posting today in commemoration of Presidents’ Day. We’ll be back to our regular schedule tomorrow, Tuesday, February 21st.