The Letter of Recommendation: A Two Way Legal Instrument

By VARUN SETHI, MD

Letters of recommendation (LORs) are a common part of the job application. Employers rely on them to help choose new hires. Many physicians have written reference letters for their peers and trainees. It is important to appreciate that LOR is a legal instrument that holds not only the applicant accountable but also the writer. It is a signed document that is retained in the employee’s files and its origin can be traced.

I will describe the case of a physician group which was successfully sued for writing an inaccurate reference letter for a former colleague. Litigation involving inaccurate and misleading references in the broader employment arena will be discussed to highlight the nature of liability in LORs.

Background

An anesthesiology group was successfully sued for providing misleading information about a former colleague in a reference letter. Two separate cases reached the Fifth Circuit Court of Appeals involving the group. In neither case was the verdict of the Appellate court in favor of the group.

Kaldec Medical Center v. Lakeview Anesthesia Associates

The case revolved around an anesthesiologist with a drug problem. He worked at Lakeview Anesthesia Associates (LAA). LAA served Lakeview Medical Hospital (LM). LM conducted an internal investigation after staff became suspicious of the anesthesiologist’s drug abuse.

LM discussed the findings with LAA. The anesthesiologist failed to improve, despite a warning.  On one occasion, the anesthesiologist did not answer his pager on call and was in an impaired state in the call room. LAA dismissed the anesthesiologist for cause stating “you have reported to work in an impaired physical, mental, and emotional state. Your impaired condition has prevented you from properly performing your duties and puts our patients at significant risk . . . .”

LM and LAA did not report the anesthesiologist to any disciplinary agency such as the state board of medical examiners or the National Practitioner’s Data Bank. LM locked away the files concerning his investigation. The LAA partners recorded only that the anesthesiologist was “no longer employed by [the group].”

The anesthesiologist applied for a locum tenens in another state. The new hospital, Kaldec Medical Center (KMC), requested references for credentialing. LAA submitted letters with effusive praise such as “excellent” clinician and “asset to any anesthesia service”. LM furnished a letter, indifferent in tone, stating only the dates he was on active medical staff. Neither LAA nor the LM disclosed his drug abuse.

The anesthesiologist was credentialed at KMC. Soon suspicion about substance abuse emerged. On one occasion a patient had to be revived with Narcan after he gave excess morphine during a surgery.

In the relevant suit, he was anesthetizing a 31-year-old mother for a tubal ligation. She had agreed to tubal ligation following an uneventful delivery of her third child. During the procedure, the patient had a cardiopulmonary arrest. The anesthesiologist failed to note the arrest. The patient suffered anoxic brain injury leading to a permanent vegetative state. The anesthesiologist confessed to abusing Demerol and entered a drug rehabilitation program. The patient’s family sued the anesthesiologist and KMC. They settled out of court.

KMC and its insurer filed against LAA and LM. KMC sought damages for failing to disclose the anesthesiologist’s drug use in the reference letters. Since the lawsuit crossed state boundaries it was taken up by the Federal District Court in Louisiana.

KMC claimed that it was misled by the LAA/LM into hiring the anesthesiologist, the defendants had a duty to inform truthfully and they breached that duty through omission and misrepresentation, and reasonably relying on inaccurate information led to KMC’s damages. 

The court agreed and found the defendants proportionately liable for the damages, and divided the damages ($8.5 million) as such: LAA 25%; LM 25%; KMC 17%; anesthesiologist 33%.

The case was appealed in the Federal Fifth Circuit Court. The circuit court reaffirmed most of the district court’s decision. The court reasoned that there may have been an ethical obligation but no fiduciary or contractual duty to disclose information about the physician’s past negligent behavior. The court admitted that no court in or outside of the state had ever imposed this duty on an employer.

However, and this is a crucial point, the court stated that in an absence of duty when an employer volunteers to disclose information about an employee, it assumes a duty to disclose accurately. In other words, writing the letter was a choice that LAA and LM made, and by doing so had assumed a duty not to misrepresent.

The court found affirmative and negligent misrepresentations in the letters from LAA. The court remarked that their letters were “false on their face and misleading”. Regarding the issue of legal cause, the court found that any negligence by a new employer does not absolve the former negligent parties, namely the LAA and LM, from liability.

The court noted that since the anesthesiologist had used narcotics while on duty, it was foreseeable to LM and partners that he could do so again. By omitting his drug abuse in their communication with KMC the defendants should have foreseen that the employer may “miss the warning signs” of the anesthesiologist’s behavior which was dangerous to patients. The federal circuit court upheld the federal district court’s ruling on KMC, LAA and the anesthesiologist.

The Federal Fifth Circuit Court absolved LM from liability. The court concluded that LM’s letter was a contrast to the letters from LAA, which commented on his performance. LM had revealed nothing about the anesthesiologist’s performance or character, good or bad, and was not misleading. The court cleared LM and readjusted the liability between KMC, partners at LAA and the anesthesiologist.

Preau v. St. Paul Fire & Marine Insurance Company.

In a related case, the Federal Fifth Circuit Court ruled that a physician’s professional insurance was not responsible for liability arising from letters of recommendation.  One of the LAA partners filed a suit against his insurer in the federal district court for refusing to cover the damages. The partner argued that the insurance should cover him against bodily injuries incurred by the patient who had died in KMC. The insurer refused, citing that commercial general liability policies protecting a physician from direct bodily injury do not cover third party claims resulting from misrepresentations from reference letters.

The district court sided with the partner. The Federal Fifth Circuit Court disagreed and overturned the district court’s verdict. The circuit court stated that the financial claim against the partner was not for the deceased patient’s bodily injuries but for the breach of duty to be truthful in references that it owed to KMC. The LAA partner had to pay the damages out of his pocket.

Duty to disclose accurately versus duty to disclose

Liability from inaccurate reference letters is not new and several state and federal court cases have examined it before.

In Cohen v. Wales, Moore v. St. Joseph Nursing Home, Inc., Richland School District v. Mabton School District, and Johnson v. United Parcel Service, courts have maintained that there is no duty to disclose someone’s character or performance in the absence of a special relationship between the parties. However, there is a duty to not to misrepresent if one elects to write, as seen in Randi v. Muroc Joint Unified School District, Gutzan v. Altair Airlines, Davis v. Board of County Commissioners of Dona Ana County, Govea v. City of Norcross, and Singer v. Beach Trading Co. Additionally, as seen in Nationwide Mut. Ins. Co. v. Lake Caroline, Inc., commercial general liability policies may not cover damages as the result of intentional falsification.

In Cohen, a teacher’s former employer was not liable for failing to disclose past charges of sexual misconducts, leading to hiring at a new school where the teacher abused another student. In absolving the former employer from liability, the court remarked that “[the] mere recommendation of a person for potential employment is not a proper basis for asserting a claim of negligence where another party is responsible for the actual hiring.”

Similarly, in Moore, the representative of a murdered security guard who was killed by a co-worker sued the assailant’s previous employer for not disclosing his drug and alcohol abuse and history of violence. The former employer was open that it provided no information other than the dates of employment. The Michigan Court of Appeals agreed and ruled that the employer had no duty to disclose or warn the new employer of an employee’s dangerous tendencies.

In Richland, a school district fired its employee, a custodian, after learning that the employee was forced to resign from his previous job in return for dismissal of three counts of child abuse. The school district then sued the previous employer for not disclosing the charges in the recommendation letter.  The school district argued that the employer violated a duty to disclose, especially for a job where children were involved. The case went into appeals. The Washington Court of Appeals sided with the former employer and ruled that there was no duty to disclose so long as the letter did not comment about the employee’s character.

In Johnson, the Kentucky Court of Appeals ruled that a duty to disclose a person’s performance or character does not exist. In Johnson, the estate of a deceased employee who was killed by a co-worker brought suit against the assailant’s former employer for failure to disclose his aggressive behavior.

Misrepresentations can hold an employer to liability, as ruled by the California Supreme Court in 1997 in Randi. In Randi, an employer failed to disclose the vice principal’s alleged sexual misconduct, mentioning only the positive aspects of the vice principal’s tenure. He was hired at a new school where he allegedly molested a female student. The previous employer was found negligent.

In Gutzan, the Federal Third Circuit Court of Appeals held that false statements could hold the writer liable. In Gutzan, an employment agency falsely mitigated a candidate’s criminal record.

Specifically it said that the candidate’s assertion that an accusation of sexual misconduct was a false accusation was verified, when there was no verification. Because of the reassurance, Altair Airlines hired him, where he sexually assaulted a colleague. The agency was found liable for misrepresentation.

In Davis, a jail wrote positively about a guard even though he had sexually assaulted female prisoners. The guard was hired at a hospital where he sexually abused a patient. The New Mexico Court of Appeals ruled that in choosing to write, the writer had a duty to not misrepresent.

In Govea, a police officer voluntarily resigned after an internal investigation found negligent behavior on duty. The officer had left a loaded firearm in an unattended motor vehicle. In return for voluntary resignation, the employer agreed to not disclose his negligence. In a new job, the officer gave a minor his gun to play with and the minor shot and killed himself. When the officer’s past events came to light, the new employer sued his previous employer for failure to disclose his carelessness. The case was decided by Georgia Circuit Court of Appeals, which ruled that by failing to disclose accurately the employer was liable.

In Singer, the employer submitted incorrect information about an employee’s job title. Specifically, the employer said that she had worked as a customer service representative, instead of her actual role of a manager, as she had written on her resume. Because of the discrepancy the new employer dismissed her. The employee sued the former employer for defamation and the New Jersey Supreme Court held that providing false information to an employer in a reference letter held the former employer liable for damages that resulted from reasonably relying on the information.

In Nationwide, the Fifth Circuit upheld that an organization covered for bodily injury and property damage was not covered for “injury arising out of oral or written publication of material, if done by or at the discretion of the insured with knowledge of its falsity.”  The case involved an organization that was covered by Nationwide’s Commercial General Liability Coverage. The organization had a contract dispute. When sued, the organization sought protection under the insurance. Nationwide refused on the grounds that liability from making intentionally false statements, the basis of the contract dispute, is not protected by insurance, an argument that the circuit court upheld upon appeal.

The cases underscore four points: (1) one is not required to write about someone’s character or performance, (2) if one elects to write, they have a duty not to misrepresent competence or character that could affect performance, (3) failing in that duty could hold one personally responsible for damages, and (4) damages due to misrepresentation may not be covered by general liability policies.

Implication for Physicians

How should physicians write a letter of recommendation in lieu of its legal significance? The answer will vary between individuals and organizations; and many have developed their own rules and guidelines. There are three questions to ask: what is a legal instrument? When is there a duty to disclose in the legal instrument? And what constitutes as breach of that duty?

A legal instrument is a formally- executed written document that can be attributed to its author, which records and expresses a legally enforceable act, process, or contractual duty, obligation, or right and therefore evidences that act, process or agreement. Courts have maintained that LORs are legal instruments, opening its authors to liability for misrepresentation.

The duty to disclose is complicated. A mandated duty to disclose exists only in “special circumstances such as a fiduciary or confidential relationship between the parties, which, under the circumstances, justifies the imposition of the duty.” The courts have not imposed a duty on individuals to write LOR.  By ruling that LORs are legal instruments, the courts have imposed a duty that the letter’s content be truthful.

What constitutes a breach of duty? Under Louisiana law, the elements for intentional misrepresentation are:  (1) misrepresentation of a material fact, (2) made with intention to deceive, and (3) causing justifiable reliance with resultant injury.  The elements for negligent misrepresentation are: (1) existence of a duty to supply correct information, (2) breach of that duty by omission or affirmative misrepresentation, and (3) breach causing damages to plaintiff based on reasonable reliance on the misrepresentation. Additionally, where there is silence, misrepresentation arises when there is a mandated duty to disclose the information.

In summary, while writing the LOR is not a duty, if a person chooses to write, he or she must not misrepresent.

Conclusion

The case is extreme. The reference letter was opposite the character of the anesthesiologist. The partners of LAA praised a colleague they had fired for abusing anesthetic medication. The disconnection between the LOR and reality was wilful. The lessons are taut and reinforce the adage “if you do not have something positive to write about a person do not agree to write the LOR”.

Reference letters may become bland and contain non-exculpatory statements which offer no information about a physician’s competence, work ethic or citizenry. This is fine if physicians also wrote letters which were full of praise, and if there was a correlation between the blandness of a letter and incompetence of the physician. New hiring departments could read between the lines and the value of a letter of reference to discern would be retained. Silence may serve as a red flag. The author who is reluctant to disclose in writing could discuss a physician’s competence over the phone.

The most salient part of this case is that the liability was covered by neither the physician’s professional nor umbrella insurance policy. The extrapolation to minor transgressions of competence and professionalism should be resisted, though. There is a distinction between crime and gross professional misconduct in a physician (essential facts) and sub-optimal work ethic, undesirable temperament or citizenry (unpleasant facts). The key is not to misrepresent. Writers of letters of recommendations should follow the Golden Rule: write in the letter what they expect to read were they the employer.

Varon Sethi, MD is a radiologist at Penn.

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Coconut Flour Banana Spice Muffins

Walker and I had our first overnight trip without Vienna in Chicago earlier this week. Vienna has traveled with us on every trip so far, but this business trip would have been a little more difficult. Even though she was with my parents and I had absolutely nothing to worry about, I still missed her like crazy. So yeah, I was that mom texting with my mama most of the 36 hours we were gone. LOL! Side note: Vienna loves her grandma and grandpa so much, she didn’t mind one bit!

Now the reason for these muffins: The day we left, I whipped these up in the morning because Vienna loves them and so do I! I wanted her to have some healthy, yummy snacks and I wanted to bring some with us on the plane. I created these based on the deliciousness of my Pumpkin Chocolate Chip muffins. Once you’ve got the formula nailed for coconut flour, you can create anything! 

Whether you’re making these for yourself or for little ones, they are a wonderful addition to breakfast with a smoothie or an afternoon power snack. I make them “mini” size so they are perfect for little hands and then you have no food guilt (not that you should anyhow) when you eat three or four of them. 

Coconut flour is a super nutritious flour to use. I mean, check out some of these benefits:

• It contains about 16 grams of protein per cup, making it higher in protein than many grain-based flours.
• Coconut flour is incredibly high in fibre, with a whopping 40 grams of the stuff that helps keep your digestive system moving per cup!
• Coconut flour, like other coconut products, contains medium-chain fatty acids that help support a healthy metabolism and balanced blood sugar levels.
• Coconut flour is gluten-free!

As for what puts the “spice” into these flavourful mini muffins, I added cinnamon and nutmeg, but you could also add ground ginger too.

• Cinnamon is packed with anti-inflammatory antioxidants! Cinnamon is ranked an impressive #7 on the ORAC scale that ranks the antioxidant levels in foods. Cinnamon’s anti-inflammatory properties are so strong that studies have shown that it can help relieve muscle soreness, PMS pains, severity of allergic reactions, and other age-related symptoms of pain.
• Cinnamon is a natural anti-microbial, anti-biotic, anti-fungal, and anti-viral agent.
• In the 17th century, spice wars between Indonesia, Portugal and the Netherlands nearly rendered the nutmeg tree extinct. Thank goodness it was able to recover!
• The nutmeg fruit actually produces two different spices: mace is harvested from the outside of the fruit, while nutmeg comes from grinding up the kernel.
• Nutmeg (and the mace that comes from the same plant) has some completely unique disease-preventing phytonutrients. Trimyristin and myristicin can help soothe certain parts of the nervous system while stimulating others, so nutmeg can spice your mood up as well as your food!

 

Coconut flour Banana Spice Muffins

2016-09-25 16:28:10

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Ingredients

1. 1/2 cup coconut flour
2. 2 tsp baking powder
3. 1 tsp ground cinnamon
4. 1/4 tsp ground nutmeg
5. 2/3 cup mashed bananas
6. 1/4 cup maple syrup
7. 1/2 cup coconut oil, melted
8. 4 eggs, whisked
9. 2 tsp vanilla extract

Instructions

1. Combine all the dry ingredients in a large mixing bowl. In a separate bowl, whisk together the wet ingredients.
2. Then add the wet to the dry ingredients.
3. Place batter into muffin tin cups.
4. Bake at 350 degrees F for 15-20 minutes or until a fork inserted into the middle of the muffin comes out clean.
5. Makes 15-20 mini muffins. Or 12 if you make them larger.

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Joy McCarthy

Joy McCarthy is the vibrant Holistic Nutritionist behind Joyous Health. Author of JOYOUS HEALTH: Eat & Live Well without Dieting, professional speaker, nutrition expert on Global’s Morning Show, Faculty Member at Institute of Holistic Nutrition and co-creator of Eat Well Feel Well. Read more…

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Fail to Scale: Why Great Ideas In Healthcare Don’t Thrive Everywhere

By JEFF GOLDSMITH and LAWTON BURNS

In the world of fine wine, it is well known that some types of wine grapes grow only in very specific climates and ecologies. The concept borrowed from the French is “terroir” (ter-WAHR). Terroir explains why the finest champagne grapes grow only in a small district in northeastern France, characterized by rolling hills and a chalky limestone subsoil that provides a steady level of moisture and imparts a mineral note to the wine’s flavor.

Health policy advocates have sought for generations to propagate promising forms of health care organization across the country. Yet one finds repeatedly that some forms of organization that prosper in one part of the country fail to thrive in others. Is it possible that the concept of terroir also applies in health care?

The Case Of Kaiser Permanente

Kaiser Permanente’s health plans would be a great example. Kaiser has been a darling of health policy advocates such as Alain Enthoven, Paul Ellwood, and others because of its integrated structure, global risk, and salaried employment model of physician practice. Yet, despite repeated federal interventions, beginning with the Health Maintenance Organization Act of 1973, Kaiser only recently exceeded 10 million in enrollment for the first time in its 71 year history. Moreover, 82 percent of that enrollment is in two states—Oregon and California—where Kaiser originated. The percentage of Kaiser’s enrollment that derives from its origin states is basically unchanged in a decade.

What was the “terroir” that enabled Kaiser to flourish in these states? Kaiser’s growth rested on a combination of the prevalence of large scale multispecialty group practice, a tradition of prepayment for health services (as opposed to indemnity insurance), and large unionized employers tied to trade, ship building, and defense contracting after World War II. As the unionized sector of employment was displaced by growth in other economic sectors, Kaiser’s substantial presence in large Pacific Coast markets (San Francisco, Sacramento, Portland, Los Angeles, and San Diego) lowered the cost of additional enrollment.

Kaiser has presences in other markets like Denver, Hawaii, and the District of Columbia that have grown modestly. But it never achieved West Coast levels of dominance in these markets, and ambitious attempts during the 1990s to become a “national” health insurer ended in costly failure.

Independent Practice Associations

Kaiser’s dominance in Pacific Coast markets encouraged the growth of another innovation — the risk-bearing Independent Practice Association (IPA). In order to defend their franchises against Kaiser’s steady growth, state medical societies in the 1970s encouraged their members to form rival IPA networks that preserved solo practice.

Private practicing physicians using these IPAs and insurgent payers like PacifiCare and HealthNet formed broad regional alliances during the 1980s. IPAs like Hill Physicians, Brown and Toland, and Monarch accepted delegated risk from these health plans through capitated contracts. These IPAs also developed management services organizations that supported small practices and facilitated billing and documentation for these managed care contracts, enabling them to compete for business with the vast Kaiser groups. Delegating risk to physician organized care systems helped some health insurers to keep pace with Kaiser’s growth, at least for a time. Absent the Kaiser threat, it is highly unlikely that these IPAs would have attracted enough physicians willing to support them.

One of the most successful of these risk-bearing physician enterprises, HealthCare Partners (HCP), spawned its own salaried multi-specialty group practice and grew to the point where it was acquired by DaVita in 2011 for $4.4 billion. Yet even with a very successful business model, HealthCare Partners has failed to thrive outside the Los Angeles basin. In Albuquerque, Las Vegas, Philadelphia, and Florida, HealthCare Partners has struggled to achieve either market influence or profitability. Visions of scaling up the HCP model to a national brand have thus far eluded DaVita, disappointing the company’s shareholders and challenging its management. DaVita is fighting a terroir problem.

Provider-Sponsored Health Insurance

Another example of a terroir effect can be found in provider-sponsored health insurance. There have been multiple waves of provider-sponsored health plan development since the early 1970s, characterized by a high failure rate. Adverse selection (e.g., enrolling a disproportionate number of their own patients, or people who are expected to become patients), a lack of capital, a failure to achieve a critical mass of enrollment, and in-house conflicts with hospital and physician subsidiaries have been the the main autopsy findings.

However, formidable provider-sponsored health plans survived the withering market entry process, including Presbyterian in Albuquerque, Select Health for InterMountain in Utah, Geisinger in Pennsylvania, Optima for Sentara in Virginia, and Priority Health for Spectrum in Western Michigan. Many of these plans and their dominant provider systems developed in more rural areas with limited health plan choices. Humana and PacifiCare were the only provider sponsored plans to reach public markets, but only after they were corporately separated from their sponsoring hospitals.

Nationally, about 15 million people were enrolled in provider-sponsored health insurance plans in 2015, two-thirds in managed Medicaid and Medicare Advantage segments. That translates into a total market penetration of about 5 percent of the total covered population (public and private), and about 3 percent of the commercial market.

Yet in Wisconsin, provider-sponsored health insurers today account for nearly 40 percent of the covered population. The very same conditions that fostered Kaiser’s growth played a role in Wisconsin — a long history of multi-specialty practice, plus a collectivist political tradition that inhibited protectionism on the part of solo practitioners, and a strong union-driven health benefits climate plus the factor of a significant rural population with limited health plan options.

Very Little About The Health System Is Actually National

Other candidates for terroir-type explanations of striking regional variation: the wide prevalence of industrial-scale Medicare fraud in certain sunbelt communities like southern California and south Florida, the inability of the investor-owned hospital sector to achieve a significant presence in the Midwest or Northeast, the incapacity of hospital managements and physician communities to work collaboratively in wide swathes of the sunbelt, the limited success of the accountable care organization (ACO) phenomenon in the Midwest or Far West, and the limited development of economic clusters in the life sciences such as are found in Cambridge, Massachusetts, Silicon Valley, and San Diego.

In our experience, there seems to be almost nothing except Medicare that is truly national about our health system. Fort Lauderdale, Florida, Hastings, Nebraska, and Seattle, Washington are actually in different countries culturally and politically. Those significant cultural and political differences have economic and historical roots, and uniquely color the traditions of medical practice and health care organization that prevail in those communities.

The existence of marked regional differences in health system organization and financing is not news to the health services research community. Starting in the 1990s, Paul Ginsburg and colleagues at the Center for Studying Health System Change documented the markedly different development paths taken by health care players in 12 urban markets.

Looking Beyond Economic Factors In Health System Change

For the past 40 years, American health policy has been dominated by economists. Their economic models presume universality in how physicians respond to incentives. These models captivate politicians and their handlers, and seem to come in waves, like memes in fashion or popular culture. Yet, over and over again, mechanistic, marginalist economic explanations of how incentives shape physician behavior play out unevenly in different regions of the country, and have resulted in a lengthening string of policy disappointments.

A failure to understand and respect the role that local culture and market conditions for health system innovation profoundly limits the effectiveness of “single bullet” policy solutions. After a while, veteran policy observers find ourselves saying (as we did with the ACO) “Wouldn’t it be great if, before mounting our trusty steeds and charging up the same box canyon, people would simply ask, ‘What happened the last three times we tried to do this?’ Why did innovations fail in some parts of the country and succeed in others? The checkered record of the CMS Innovation Center might be attributed in part to a failure to understand and respect the effects of terroir on health system innovation.

Perhaps a healthy respect for non-economic factors in health system behavior—often rooted in local and regional circumstances and in institutional culture—might be a corrective for those who see sweeping “national” solutions to complex problems. To paraphrase the famous line from the movie Cool Hand Luke “What we have here is failure to replicate.” Absent a respect for local and non-economic factors, we will continue the wasteful practice of sowing our policy seeds on barren ground.

Authors’ Note

Jeff Goldsmith is National Advisor to Navigant Healthcare. Lawton Burns is James Woo Kim professor at Wharton. Authors would like to acknowledge the assistance of Lauren Crowther of Navigant Healthcare in research for this article.

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How to Make a Better (and Healthier) Cup of Coffee

Well hello there! Walker here: husband, father and coffee lover and I wanted to wish you Happy National Coffee Day!

In the holistic health community, coffee doesn’t always get a lot of love. It’s a stimulant that can cause a whole host of undesirable effects, including digestive problems, elevated cortisol (stress hormone) levels, anxiety, and – when abused – can make other conditions far worse, such as adrenal fatigue.

On the other hand, research has shown that a cup of coffee can have positive health benefits, including lower rates of cardiovascular disease, liver disease and can even prevent cancer!

So who’s right? Both sides perhaps.

You see, coffee, like many other commodities, ranges drastically in quality, and I think quality may be the difference between a healthy cup and a not-so-healthy cup.

Note: When I say coffee, I’m referring to black coffee. Mocha-frappa-lattes and such do not apply.

As an enthusiast who enjoys the drink but knew relatively little about it, I reached out to our good friend and coffee Czar Alan Smith of Rise Cafe to break down what makes a great cup.

Alan’s been in the coffee industry for 19 years and definitely knows his stuff. We sat down for a coffee and a quick chat. Here’s what I learned:

It all starts with the bean

Coffee starts as a cherry on a tree, which is grows naturally in bio-diverse, mountainous rainforest environments. In its natural environment, no pesticides or chemicals are needed to allow the tree to thrive – natures natural balance takes care of that.

Unfortunately, like most foods and produce, coffee has become industrialized and large producers have brought crops off the mountains to the valleys where they can yield a larger harvest. Here, the coffee plant is treated with chemicals, pesticides and herbicides to help it survive outside of its natural habitat.

Like many other industrialized agricultural practices, mono-cropping introduces a whole other set of problems.

So how do you know if you’re buying a quality bean? Look for these labels:

1. Fair Trade: It means farmers are being paid a fair price for their product, which means they can afford to keep their land, and continue to harvest the best product possible on the best land.
2. Organic: Ensures no chemicals or pesticides were used on the crop. Also beneficial for farmers because they aren’t exposed to toxic chemicals.
3. Bird-Friendly: The gold standard In Alan’s opinion. Bird-friendly status is issued by the Smithsonian Migratory Bird Center and guarantees that not only is the coffee 100% organic, but that it was produced in a high-quality shaded, bio-diverse environment. Basically, it was grown the way coffee was meant to be grown.

Roast, grind, repeat

After the cherry is picked, it’s dried to a “green bean,” when it becomes extremely shelf stable (up to 10 years). After it’s dried, the green bean is roasted, which takes its stable fats and converts them into volatile oils that start to oxidize immediately. As of this point, the bean is on the clock.

A roasted bean has a shelf life of seven days before it goes rancid. That bitter cup of black coffee you just had? That’s because all of the oils have fully oxidized and have gone bad.

The shelf life of a ground bean is even shorter: 24 hours to be exact.

Which brings us back to industrialized coffee: the big three producers (Sara Lee, Kraft and Nestle) roast, grind and package their products months in advance, which means if you buy coffee from the coffee aisle in the grocery store, you’re likely drinking a rancid, oxidized gross cup of coffee every morning.

And no, vacuum sealing or storing beans in a freezer does not help.

So how can you make sure you are getting a fresh cup?

1. If you’re going to a cafe, make sure they’re freshly grinding the beans.
2. Check the roast date. Reputable cafes will know when the beans were roasted, and if you’re buying coffee for home, a roasting date should be clearly stamped on the package.
3. Roast your own beans. 450F for 15min will do the trick!
4. Basically, stay away from grocery store brands.

So there you have it! I hope some of this info helps you in your pursuit for a better cup of joe. Much like anything else we eat, freshness and quality are absolutely key. Only then will we optimally benefit from the positive health effects of food, including coffee.

Thanks again to Alan for lending his expertise! If you’re in Toronto, check out his excellent cafe Rise Espresso Bar.

P.S. Here are some fun coffee facts!

1. Ethiopia is the birthplace of coffee.
2. Rumor has it, the stimulating effects of coffee were first observed when a farmer noticed his goats were full of beans (both literally and figuratively!) after eating the cherries from the coffee plant.
3. Lloyd’s of London’s original business was insuring coffee and sugar shipments.

Do we have any other joyous coffee lovers out there? Let me know your favourite way to enjoy a cup or your favourite coffee shop (I’m always looking for good ones to check out) in the comments below!

Walker Jordan

Walker knows the ins and outs of running a successful business. The owner of a boutique health and wellness studio which he sold in 2011, Walker now oversees growth and strategy, runs day-to-day operations and manages new business for Joyous Health. He is the most organized person we know! He has a love of shiny fast cars and he can make Brussels sprouts taste like heaven.

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Peanut Butter vs Almond Butter

Back in my day (I feel old just saying that!), peanut butter sandwiches were the back-to-school food of choice. Walker still loves peanut butter and will put it on anything. But as delicious as it is, it is also the most problematic of nut butters (okay, technically, it’s a legume butter). There are so many severe and potentially life-threatening peanut allergies showing up these days that most schools have banned peanuts and peanut products outright.

But leaving aside the allergy issue, peanut butter has nutritional issues as well. Like many other kid-targeted foods, popular peanut butter brands are often full of added sugar (sometimes as much as a teaspoon of sugar per serving), as well as GMO soybean oils and modified and hydrogenated palm and vegetable oils (which is where we get trans fats from). Peanuts are also particularly susceptible to aflatoxin mold, a naturally occurring toxin that can cause liver damage and has carcinogenic effects. While the FDA monitors the levels of aflatoxin in American-grown peanuts, I’d prefer my nut butters to have as few toxic molds, thanks! While aflatoxin is occasionally found on almonds, because almonds are tree nuts, their levels of this particular mold are much lower!

I’ve been using almond butter in my recipes for a while now, and I find it makes a great peanut butter substitute, but peanut butter does have a lot of good nutritional points (if you buy the good stuff without all the sugar and other additives), so let’s see how my fave nut butter stacks up against the most popular nut butter.

Both peanut butter and almond butter have similar calorie counts, so we’re going to have to dig a little deeper to figure out which is most nutritious. Besides, I want you to . . .

Both nut butters are great sources of heart-healthy monounsaturated fats (as are all nuts), but almond butter has even more. Healthy fats are essential not only for heart health, but also for feeling full to prevent sugar cravings and for healthy skin and hair, so almond butter’s also a beauty food!

In terms of macronutrients, peanut butter has more protein, but almond butter has more fiber, so it’s basically a draw until we get to the micronutrients. While peanut butter has slightly more B vitamins and selenium, almond butter is richer in vitamin E, iron, calcium and magnesium. These nutrients are tougher to come by, and people are more likely to be deficient in iron or calcium than most B vitamins, so I think almond butter packs the more useful nutritional punch here.

Added bonus: because almonds aren’t susceptible to aflatoxin mold the way peanuts are, it’s way easier to grow them organically, making clean almond butter way easier to find!

Still unsure almond butter is better than peanut butter? Want me to draw you a chart? Consider it done!

Even if you’re the most careful label-reader in the world, the best way to make sure that your nut butter has nothing but the good stuff is to make it yourself. My Cinnamon Almond Butter is just that: almonds, cinnamon and a pinch of salt. Almonds are so flavourful on their own that you really don’t need anything else!

Almond butter is the perfect swap in pretty much any recipe where you would normally use peanut butter, but one of my favourite ways to use almond butter is to pair it with chocolate! Check out my Chocolate Almond Butter Milkshake, my Strawberry Almond Butter Chocolate Cups, or my classic Gluten-free Chocolate Chip Almond Butter Cookies for some almond-spiration!

What healthier swaps have you made for favourite childhood foods? Share them with me in the comments below!

Joy McCarthy

Joy McCarthy is the vibrant Holistic Nutritionist behind Joyous Health. Author of JOYOUS HEALTH: Eat & Live Well without Dieting, professional speaker, nutrition expert on Global’s Morning Show, Faculty Member at Institute of Holistic Nutrition and co-creator of Eat Well Feel Well. Read more…

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Building Better Metrics: Focus on Patient Empowerment

By NIRAN AL-AGBA, MD

Growing up during the 1970’s and 80’s, the “Little House on the Prairie” television series was an iconic part of my childhood.  Doc Baker was the physician and veterinarian for all of Walnut Grove, in spite of limited resources.  Medical lessons were everywhere in the beloved television series:  Mary experiencing onset of blindness (most recently attributed to viral meningoencephalitis, likely from Measles), the death of Laura’s infant son by unknown cause, and Rose’s survival after smallpox infection.

When patients ask me how to start solid foods, how to get a baby to sleep through the night, or how to treat minor injuries or burns, I frequently wonder if they would have asked the town doctor these same questions one hundred years ago.

Probably not, because they would know to watch their baby for hunger cues, let infants cry it out at night, or slap some egg white, aloe, or honey on their wounds or burns to prevent infection back then.  Empowering patients to treat themselves where appropriate has tremendous value to cut down on cost and consumption of precious resources.  It was also how medicine was practiced more than a century ago.

The other night I was reading comments of a local mom group on social media, when a question came up about how to treat thrush while breastfeeding.  A patient’s mother commented they should use gentian violet; paint their own nipples and their infants’ mouth lightly as well.  A mom asked, “What is gentian violet?” This mother discussed its antibacterial and antifungal properties and its topical use for oral candidiasis.  I felt a huge sense of pride watching her share knowledge with other mothers.  The cost of a 1oz. bottle of gentian violet is currently $3.69.

Crystal violet (aka gentian violet) was first developed in 1883 by Alfred Kern; it is still listed today by the World Health Organization as a valuable topical antiseptic agent.  Gentian violet has antibacterial, antifungal, anthelminthic, and antitrypanosomal properties. Today, it is used for:  Marking the skin for surgery preparation, treating Candida albicans and related infections, such as thrush, yeast infections, tinea, jock itch, ringworm, and even Impetigo, primarily before the advent of antibiotics. Educating mothers on thrush and the use of gentian violet occasionally helps them avoid seeking care when unnecessary.

Patient-centered care is often talked about as a virtue worthwhile to attain because it puts them at the heart of their healthcare team.  Empowerment goes one step further by actually giving power and authority to the patient.  It is a very important concept that is often missed in the world of big-box medicine today.  There is actually an organization devoted to this concept called the European Network on Patient Empowerment (ENOPE.)  According to them, an empowered, activated patient:

• Understands their health condition and its effect on their body.
• Feels able to participate in decision-making with their healthcare professionals
• Feels able to make informed choices about treatment.
• Understands the need to make necessary changes to their lifestyle for managing their condition.
• Is able to challenge and ask questions of the healthcare professionals providing their care.
• Takes responsibility for their health and actively seeks care only when necessary
• Actively seeks out, evaluates and makes use of information.

Empowering patients to care for themselves with shared decision making is the reason my doors are still open.  Fee-for-service can be a fiscally valuable model because for one office visit, a patient can receive diagnosis, treatment, and education from a single professional.  Physician ownership encourages patient empowerment because it prevents doctors from spinning their wheels needlessly.  There is no benefit to seeing a patient over and over for the same chief complaint. We want our schedule open for other patients who need our help.  To avoid the journey overwhelming burnout, we need to lighten the load in our offices.

Over the last century, health care has morphed from a system valuing individual responsibility to one grounded in physician dependency.  Patients are viewed as clients who ravenously consume scarce resources, while physicians dispense answers and guidance for a price deemed too high by bureaucrats to be sustainable.  Knowing how invested patients are in understanding their conditions and their willingness to take responsibility for their good or bad choices are metrics worth tracking. It is important to remember physicians make recommendations, educate their patients, and would do best by engaging in shared decision making with those patients.  That entire process saves money and improves how patients view their quality of care.

A 3 year old girl came in with a history of 3 days of vomiting this week.  “I have been pushing oral rehydration solution with a syringe like you taught me,” she said.  Her mother knew how to check for signs of dehydration using urination frequency and a few other tricks I have taught over the years.  She knew when vomiting persisted in spite of proper rehydration attempts, it was time to bring her daughter in for evaluation. Her child had lost less than 0.5kg due to her mother’s excellent care and diligence.  I could not have been more proud and shared that with her.  At this point, it was reasonable to prescribe her a medication to reduce nausea and vomiting, but no ER visit was necessary because this mother had confidence in her skills to care for her child properly, and if she needed her PCP, she knew I would be there.

Better metrics must be about being better able to empower our patients.  They are tired of being told how to birth their children, how to immunize them, how to lose weight, quit smoking, or exercise more, and how to treat their elevated blood pressure and cholesterol numbers.  I am not suggesting we stop sharing our expertise and making recommendations based on good science.  However, patients want to make their own informed choices and we need to let them.  Doc Baker had it right.  Take another look at his practice model in “Little House on the Prairie.”  A system incentivizing self-reliance is far more sustainable in the future and is where we should strive to be.

Nina Al-Agba is a pediatrician in Washington State.

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Advancing Health IT and Preventing Data Blocking through Model Contract Language

By ANDY SLAVITT and LINDELL WASHINGTON, MD

As we move to transform the health care system into one that delivers more coordinated care across various clinicians and providers, it is important that data is available to providers and patients when and where they need it. To achieve this goal of ensuring the flow of health data and, ultimately, better care, the country has invested in the technology and infrastructure to connect patients’ clinical experiences.

That is why CMS and ONC are working together to make sure this investment stays on the right track. We are simplifying regulations, taking steps to require open technology, and have released a Health IT Playbook to help clinicians assess their needs and navigate the electronic health record (EHR) market. In addition, today we are releasing an EHR contracting guide  – EHR Contracts Untangled: Selecting Wisely, Negotiating Terms, and Understanding the Fine Print – that will help clinicians and hospitals make sure that contract terms do not inhibit the utility of their EHR technologies. Quite simply, our health care system cannot realize the promise of EHRs if information cannot flow across practices – and to and from patients – easily and in a cost-efficient manner.

The growing maturity of the health information technology market presents health care providers with new, varied, complex, and often confusing choices about EHR systems. From the small practice manager exploring new cloud-based EHR products and services, to the CIO contemplating a major EHR procurement, making the right choice for a practice – and advancing interoperability – hinges on having reliable, easy-to-understand information. But we have heard from providers in the field, professional associations, and other observers that such information can be hard to find. Moreover, EHR contracts can be confusing and may result in data blocking and other practices that limit opportunities to use EHRs to deliver safer and more efficient care.

We have discussed data blocking in the past – the practice of knowingly and unreasonably interfering with the exchange or use of electronic health information. One way that blocking occurs and prevents data from moving to follow the needs of the patient doesn’t involve the technology itself, but the business practices that can prevent interoperability. This subtle form of data blocking can occur through language and terms found in contracts for EHRs and other health information technologies.

The new EHR contracting guide is a key resource that will help providers address data blocking and other challenges as they continue to adopt and leverage health IT to improve the way they deliver care. In today’s EHR marketplace, many vendors use “standard form” contracts when offering their products and services. Providers all too often agree to these contracts – which are prepared from the vendor’s perspective – without fully understanding the “fine print” or without negotiating rights and obligations that can ensure that the technology will meet their needs and expectations.

The new guide will equip providers (and their advisors) to ask the right questions when selecting an EHR and better communicate their requirements to potential vendors, all while managing the expectations of both vendors and providers and providing a framework for negotiating reasonable contract terms that reflect best practice contracting principles. The recommendations found in the guide also promote connectivity and protect against data being blocked – such as by unanticipated connection fees, restrictions on data exchange, or contract terms that prevent users from reporting and sharing information about the performance of their EHRs. The guide offers specific strategies to help providers as they plan for the purchase of an EHR system and negotiate key terms with their EHR vendors. In short, this guide helps hospitals and doctors cut through the clutter, and assists them in implementing a new EHR system in a way that supports their workflow and their patients.

Some topic area highlights from the guide include:

• the critical planning steps that all providers should take to properly understand and communicate their requirements to potential EHR vendors;
• contracting practices and negotiation strategies that providers can use to achieve fairer and more balanced EHR contracts;
• legal rights and obligations that providers may wish to include in their EHR contracts – as well as those they may wish to avoid; and
• practical pointers and example contract terms that illustrate how providers might implement more favorable terms in their EHR contract.

A carefully negotiated EHR contract that incorporates the approaches recommended in the guide will help maximize a health care provider’s opportunity to avoid problems when implementing and using their EHR, and will help create a more informed and balanced relationship between the health care provider and their EHR vendor. We also hope the guide will help health care providers and their health IT vendors negotiate contracts that allow the technology to connect the clinical experience among all providers and settings in a way that supports both practices and patients.

The guide, along with the Health IT Playbook, not only helps to support the interoperable flow of health information, but the Administration’s efforts to foster a cost efficient health care system. Ensuring patient data is available to clinicians – and patients – when and where it is needed can improve coordination among providers, prevent duplicative appointments or diagnostic tests, and decrease costs to patients and the overall health care system.

Andy Slavitt is Acting Administrator for the Centers for Medicare and Medicaid. Lindell Washington is National Coordinator for Health IT.

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Interview with Rasu Shrestha, CIO at UPMC

More about Health 2.0 Rasu Shrestha, CIO at the University of Pittsburg Medical Center, will be joining me on stage this afternoon in our Provider Symposium (on his birthday) and again on Tuesday, September 27th for our Information Blocking, APIs & App Stores: The State of Play in Data Access session. Below is the interview I had with him a couple of weeks ago about how a huge medical center like UPMC deals with the innovation side of the house. Not too late to sign up and come to Health 2.0 and come hear what else Rasu has to say!

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The Rise and Decline of the Dartmouth Atlas

By KIP SULLIVAN

In my first comment  in this series (an open letter to President Obama), I criticized Obama for stating in an article  in the Journal of the American Medical Association that the Affordable Care Act is deflationary. I promised him I would post more essays showing how badly he had been misled by three experts who influenced him: Elliott Fisher and his colleagues at the Dartmouth Institute, Atul Gawande, and Peter Orszag.

My second post presented evidence that the research by Fisher et al. on regional variation in Medicare spending has been enormously influential with US policymakers for the last three decades.

In this comment, I demonstrate the gross inaccuracy of the Dartmouth group’s research.

Let me state at the outset: Even if every paper Fisher et al. wrote about regional variation in Medicare spending were true, none of them constituted evidence for the “accountable care organization.” In other words, even if we accept the Dartmouth group’s claim that regional and hospital variation is due primarily to overuse, we would still have no reason to accept the group’s claim that ACOs are the solution to all that overuse. The ACO is a barebones, evidence-free construct that Elliott Fisher made up. It bears more resemblance to the rules of a simple parlor game, like the Six Degrees of Kevin Bacon game, than it does to a plan or blueprint to get something done in the real world. Like the Kevin Bacon game, the ACO does not depend on previous research for its appeal. It merely requires a receptive audience.

The rise …

The Dartmouth group’s influence, which was already considerable by the early 1990s, increased with the publication of the Dartmouth Atlas  in 1996. (The Atlas is a database showing Medicare spending and utilization broken down by region and hospital.) The group’s influence increased again in 2003 with the publication of a two-part paper  in the Annals of Internal Medicine, entitled “The implications of regional variations in Medicare spending,” which purported to demonstrate there is no correlation between how much a region spends on Medicare recipients and quality of care. Donald Berwick called this article “possibly the most important paper of the decade.” [1]

The Dartmouth group’s influence reached its peak in 2009-2010. In 2009 congressional Democrats sought the group’s advice in the course of writing the bills that would eventually become the Affordable Care Act (ACA). In 2010, the ACA was enacted with provisions authorizing ACOs.

The most convincing and worrisome sign of how powerful the Dartmouth ideology had become by 2009 was its impact on members of Congress from the allegedly more efficient regions of the country. Lawmakers from states with low per capita Medicare spending introduced legislation to force CMS to use a “geographic value index” that would reduce the difference in payments between the allegedly efficient and inefficient states. [2]

Blind faith in the Dartmouth Atlas was so widespread among Democrats from the low-Medicare-spending states that Obama promised to request a study examining the factors behind geographic variation in Medicare spending. As the New York Times put it, “In March, [2009,] in response to the Congressional Democrats who would have otherwise withheld their support for the health legislation, the administration made a promise. It said it would ask the Institute of Medicine [IOM] … to consider ways of putting the Dartmouth findings into action by setting payment rates that would punish inefficient hospitals and reward efficient ones.” As it turned out, the IOM’s report, issued in 2013, contradicted the Dartmouth group’s most fundamental premise – that Medicare spending is a good proxy for total spending and can therefore be relied upon to determine which regions are efficient and which aren’t (see this Kaiser Health News article  for a readable summary of the IOM report).

And the decline

The years 2009-2010 were the high-water mark of the Dartmouth group’s influence. As their ideology grew more influential during the 2000s, resistance to it began to grow within the health policy community. By 2010 criticism from health policy experts had grown so frequent Fisher and Jonathan Skinner characterized their critics as “a cottage industry … trying to debunk our findings.” In 2010, the media began to pay attention to the criticism. Since 2010, the Dartmouth Atlas, and the research based on it, has taken a severe beating.

In the remainder of this comment I will offer a quick review of the criticism published since 2010. That criticism falls into two categories: (1) Criticism of Fisher et al.’s claim that they accurately adjusted their expenditure data to reflect differences in patient health; and (2) criticism of Fisher et al.’s claim that whatever is true about Medicare spending has to be true of total spending (spending by Medicare and other public programs plus all private-sector spending).

All the patients died, so they must have been equally sick

In his article for JAMA, Obama cited Fisher et al.’s 2003 two-part paper in Annals of Internal Medicine  In the first part Fisher et al. casually made an astonishing announcement: They could render risk-adjustment unnecessary if they limited their subjects to patients in the last six months of their lives. With no caveats and citing no research, they asserted that “regional differences in end-of-life spending are unrelated to underlying illness levels,” and, therefore, end-of-life spending “reflect[s] the component of regional variation in Medicare spending that is due to physician practice rather than regional differences in illness or price.” In later papers Fisher et al. would claim the last 24 months of life is the magic period in which we all become equally sick.

Just in case you can’t believe what you’re reading, let me repeat Fisher et al.’s assertion: Patients magically become equally sick at midnight of the day preceding the last two years or last six months of their lives; ergo, we do not need to risk adjust the expenditures on those patients: ergo we can say all differences in expenditures on those patients are caused by the “practice styles” of their doctors.

To my knowledge, no human being had ever before made that claim. But that’s what Fisher et al. said in 2003, and they’ve been saying it ever since. For example, in 2008 Fisher told the New York Times , “We are comparing patients [in different hospitals] with identical outcomes – all were dead in two years – so it’s unlikely that differences in the severity of illness account for the variations we saw.” [3]

As you can imagine, news of this exhilarating discovery at Dartmouth that risk-adjustment becomes unnecessary if you study dead people immediately drew criticism. Peter Bach et al., for example, published an article in JAMA late in 2004 with the biting title, “Resurrecting the treatment histories of dead patients: A study design that should be laid to rest.” The media paid little attention then. But when Bach published a similar paper  in the New England Journal of Medicine in February 2010, just a month before Obama signed the ACA, the media did pay attention. On June 2, 2010, the New York Times published an article very critical of the Dartmouth Atlas that appeared to have been stimulated by Bach’s paper.

I encourage readers to read the Bach and Times articles, and if you have the fortitude, the replies published by Fisher et al. But the dying-people-are-equally-sick claim is so patently foolish, and the rejoinders so obvious, that I believe that’s not necessary. It is sufficient to read my summary of Bach’s arguments below.

Bach , a physician and researcher at Memorial Sloan-Kettering, focused on Fisher et al.’s hospital research, but his criticism applies as well to their regional research. Bach discussed the two problems I noted in a previous post  about MACRA: The attribution problem (deciding which patients belong to which clinic or hospital) and the risk-adjustment problem (controlling for factors outside physician or hospital control).

Turning first to the attribution problem: Bach observed that Fisher et al. assumed that all decedents visited the same hospital during the final months or years of their lives, and that hospitals exercise control over all the doctors and other health care professionals patients visited. Your commonsense tells you this can’t be true, and Bach demonstrated it isn’t true. The “leakage” – the amount of money spent on Medicare patients outside the hospital to which Fisher et al. “attributed” them – is probably enormous, but since Fisher et al. don’t care about that problem, we don’t know how bad it is. Bach could only offer this example: “In one Atlas analysis, one third of the patients … had been admitted to the hospital in question only once.”

As for the risk-adjustment issue – “they all died, therefore risk adjustment isn’t necessary” – Bach’s rejoinder was the obvious one: Patients enter hospitals in varying states of health, and they also enter the last two years of life in varying states of health. Bach described calculations he did showing a two-fold difference in the risk of death among patients over 64 at the time of admission.

I have often wondered why Bach and other critics of the “they all died” rationale didn’t simply ask this question: If Fisher et al. think that human beings become equally sick when they cross over into the last six or 24 months of life, who’s to say they’re not all equally sick (or healthy) at five years before death? What the hell, how about the last 50 years of life? And if it’s true we’re all equally sick or healthy once we enter the last half-century or whatever of life, why risk adjust any cost or quality variable? We’re home free. No need anymore to do all that pesky and expensive (and grossly inaccurate) risk adjustment. We can just report raw data and base policy on that.

Medicare spending is not a proxy for total spending
Fisher et al.’s sloppy attribution and risk-adjustment methods should have been enough to discredit their claims about hospital and regional efficiency. But there was more criticism to come. After 2010, several excellent studies appeared that demonstrated there is no correlation between regional Medicare spending and regional non-Medicare spending. Should we be surprised? Medicare spending has accounted for only about a fifth of total spending for decades. If we ask what portion of spending Medicare recipients in their last two years of life account for, it’s even smaller. According to Bach, the decedents Fisher et al. used “account for less than $3 of every $100 spent on health care.”
I have already mentioned the IOM’s 2013 study. As of 2013 it was the most authoritative refutation of the Dartmouth group’s assumption that Medicare spending is a good proxy for total spending. Perhaps the best paper since 2013 on this subject was one by Zack Cooper et al. published last year. It found that the correlation between private-sector and Medicare spending at the regional level was a measly 0.14 percent. There is, in other words, no correlation. In some cases, Cooper et al. found more than mere non-correlation. They found that some of Fisher’s and Obama’s poster-child cities, including Grand Junction, Colorado and Minneapolis, looked expensive, not inexpensive, when measured with private-sector data. [4]

Fisher et al. remain unrepentant. They think their sloppy attribution and “they all died” risk-adjustment methods work just fine, and they have not retracted the claims they have made about regions and hospitals. [5] Here are the words that greet you when you open the Dartmouth Atlas  website today: “Understanding of [sic] the Efficiency and Effectiveness of the Health Care System.” Fisher et al. still want you to believe their Medicare data is trustworthy, and they still want you to think Medicare spending is a good proxy for all spending.

Next steps

The Dartmouth group did more than any other group of scholars to reinforce the myth that overuse of medical care is rampant and underuse is either non-existent or trivial. But they didn’t invent that myth. By the late 1970s and early 1980s, which is when the Dartmouth group began to make a name for itself, the managed care movement had created the folklore that overuse of medical care is the primary reason US health care costs are so high. It was this folklore, not any evidence published by the Dartmouth group or anyone else, that permitted Fisher et al. to say over and over that regional differences in Medicare reflected overuse in the expensive regions, not underuse in the less expensive regions. It was the overuse myth, coupled with the myth that Medicare spending is a good proxy for total spending, that allowed Fisher et al. to claim that “unnecessary care” accounts for 30 percent of total US health care spending.

In my next post, I will examine the overuse myth. I’ll present evidence indicating overuse is nowhere near as common as Fisher et al. make it out to be, and that underuse occurs more frequently than overuse. The evidence I will present will in turn raise the question, Can the fee-for-service system really be the root cause of health care inflation, as Fisher and their acolytes claim, if underuse occurs more often than overuse?

[1] The Berwick quote appears at p. 50 in Overtreated, Shannon Brownlee’s flattering history of the Dartmouth Institute.

[2] In Chapter 1 of its 2013 report http://ift.tt/2drDOek on regional variation in Medicare spending, the Institute of Medicine described the “value index” legislation introduced in Congress, and then stated in a footnote that Fisher et al. “do not recommend the use of a geographically based value index.” This is true. But it’s like saying King Henry II’s comments about Thomas Becket were misconstrued.

[3] In a March 31, 2010 letter http://ift.tt/2d1qgYW to the New York Times, Fisher and Skinner offered a different and very circular rationale for limiting their subjects to dead people. In that letter (see p. 3 of the attachment), they said they limited patients to those near the end of life because to study all admitted Medicare patients would mean hospitals that admit healthier patients would look better. Can you see the small circle Fisher et al. are trapped in? They justify one fact-free, arbitrary assumption with another. They argue that patients arbitrarily defined as near death are all equally sick, ergo those they arbitrarily defined as not near death are not equally sick. See how that works? Neither assumption works unless you’re inside the circle with them. So cling to the real world. Stay out of that circle.

For lack of space, I have not addressed a secondary defense Fisher et al. offer in response to those who criticize their “all the patients died” method of risk adjustment. I address it briefly here. In the same March 31, 2010 letter to the Times, they claim that “comparing what happens to heart attack or hip fracture patients across regions and hospitals represents one way to measure risk adjusted differences in spending” (p. 9 of the attachment). We could all agree with that statement if it referred only to “differences in spending on heart attack and hip fracture patients.” But that’s not what they say. Fisher et al. want us to pretend patients suffering heart attacks and hip fractures represent all patients. That is just one more evidence-free, arbitrary assumption. Just as Medicare is not a good proxy for all spending, so spending on heart attack and hip fracture patients is not a good proxy for all medical spending.

[4] In a December 15, 2015 article http://ift.tt/1m3ExVQ about the Cooper study, the New York Times published a graphic comparing the Dartmouth Atlas map of Medicare spending with a map showing Cooper et al.’s private-sector-spending data. The maps bear almost no resemblance to each other. If I could show just one graphic to Obama and others who drank the Dartmouth Atlas Kool-Aid, it would be that one.

[5] The closest thing we have to a retraction from the Dartmouth group is this statement by Skinner about the Cooper study: “This idea that if the entire country turned into Grand Junction, that we’d suddenly save 20 percent on health spending, maybe that’s not totally true.” (See the New York Times article mentioned in footnote 4).

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Practicing Physicians and Healthcare Reform: Population Health vs. Compensation Wealth

By NATHAN KAUFMAN

In her August 14^th 2016 interview with the LA Times regarding the ACA and value-based reimbursement, HHS Secretary Sylvia Burwell stated, …”and medical providers want this.¹” After reading this article, I wondered for a moment if I am working in the same healthcare system as the Secretary.   Having spent a significant part of my 36-year career negotiating financial transactions with and/or on behalf of practicing physicians, I can unequivocally state that, unlike healthcare thought -leaders and policy wonks, a scant few practicing physicians are on board with population health management, value-based care and the “triple aim.”

It is essential to significantly improve the value of healthcare and it will require a lot of work by all.  Given the disconnect between the policy makers/‘thought- leaders’ and the nation’s practicing physicians, I am pretty sure we are not going to get very far.   Most practicing physicians consider the current movement to value based care/population health to be ineffective, expensive, bureaucratic interference with the practice of medicine.

The results of a recent survey conducted by The Deloitte Center for Health Solutions support this view:

• Eight in ten physicians say they prefer traditional fee-for-service or salary-based compensation as opposed to value-based models.
• 74% of the surveyed physicians believe that performance reporting is burdensome and 79 percent do not support tying compensation to quality².

Note: The consolidation of physicians into large hospital-affiliated groups and oligopolistic private practices has afforded many practicing physicians the ability to organize an effective “resistance movement” against local or federal initiatives that threaten their compensation.

Policy advocates frequently cite a handful of health systems that have successfully integrated with their physicians (e.g., Mayo, Cleveland Clinic, Geisinger, etc.)  In most cases, these highly touted health systems have used their prestige to negotiate exceptionally high fee-for-service rates with the commercial payers. These premium rates are essential, for they enable a health system to afford the expensive resources and on-going investments necessary for successful integration, a fact that is frequently omitted from the literature. And only a few of these exemplars have successfully taken actuarial risk. Upon closer look, the few successful integrated risk takers possess unique characteristics and market conditions that would be difficult to duplicate elsewhere. Note: caution should be used when evaluating the reported success of a provider-sponsored health plan. In many cases these plans are their own hospital’s worst payer which artificially improves the health plan’s financial performance.

It is common to hear health system CEOs say that ‘we’ are committed to the triple aim, population health management and value-based care but it is doubtful that this ‘we’ includes the majority of their affiliated practicing physicians (both employed and independent.)  Is the typical orthopedic surgical group that refuses to take call unless their call pay compensation exceeds $1,500 per day concerned about the “triple aim?” What about the many ED physician groups that are out of network with a commercial payer and are demanding that patients pay inflated out-of-network rates?

A fundamental principle of payment reform is that financial incentives are the prime motivating factor that determine physician behavior.  Yet, the hypothesis that most physicians will change how they practice if their incentives change is unproven and, in fact, there is some evidence to the contrary.  When physician incomes are threatened due to a change in reimbursement methodology, physicians know there are ways to protect their income that will not require changing their clinical practice and they are availing themselves of these opportunities. First, physicians can go out of network with the plan. According to the Deloitte Survey, when asked what they expect the impact of MACRA will be on the practice of medicine, 70% of the physicians stated that it will “cause physicians to stop accepting Medicare.³”   Or the physicians can limit certain patients from their crowded practices as they have done with Medicaid. Note: today there would be a more severe physician access problem for Medicaid patients if not for the willingness of health systems to compensate their employed physicians at the MGMA median rate per wRVU regardless of the patients’ payer status.  Also, as they have done over the past decades, physicians who perceive a threat to their income will demand that their health system increase their call pay, stipends, salary and/or medical directorships to offset any reduction in compensation, regardless of its impact on the overall cost of care.

For the many health systems that have prematurely overcommitted to payment and delivery system reform, it’s not too late to re-evaluate your strategy. Mid-course corrections are the mark of a good strategy.  Health systems that are contemplating taking actuarial risk in the near term are likely to be getting ahead of their competencies (and that of their practicing physicians) and thus will be in store for significant financial losses. This advice is supported by the National Association of ACOs that stated “the overwhelming evidence shows that the current Medicare two-sided ACO risk models are not viable for most ACOs and set the bar much too high in terms of financial risk.⁴”

The vast majority of health systems should avoid any form of actuarial risk until they can empirically demonstrate that they possess the infrastructure and physician support necessary to be successful. This will take years.  Stick with the upside-only MSSP model for now.  For most, the cost of not qualifying as an APM is far less than the downside risk exposure of the Track 2 and Track 3 ACOs.  Under the Track 1 ACO, key MIPS performance metrics will be measured and reported to the physicians.  Providing this data to the physicians will help with their MIPS performance and the practicing physicians will begin to develop competencies necessary to successfully operate a clinically integrated network.  Give the physicians the time necessary to develop a hierarchy and collective culture for clinical integration. It took one of my clients, MHMD-the exceptionally successful Memorial Hermann ACO, over 8 years to fully develop this physician culture but it was worth the wait.

Health systems that aggressively pursue a strategy with underdeveloped competencies and physicians support will fail. Incrementally, build trust, demonstrate the financial benefits of alignment and show the physicians that their patients will be better off under this new delivery model.  Let being the “Uber for healthcare” take a backseat to the fundamental, essential hard work of standing up a truly integrated, high-performing, delivery network that is driven by the hearts and minds of practicing physicians.

Foot notes

¹ Obama’s health secretary wants to make patients healthier by transforming how doctors and hospitals get paid, LA Times, August 14, 2016

² Are Physicians Ready for MACRA and its Changes, Perspectives from the Deloitte Center for Health Solutions 2016 Survey of US Physicians, Page 1

³ IBID, Page 13

⁴ ACOs at a Crossr Allison Brennan, Vice-President of Policy, National Association of ACOs, Page 7

from THCB http://ift.tt/2d1n935