HR 3459: To provide comprehensive reform regarding medical malpractice

IN THE HOUSE OF REPRESENTATIVES
JULY 31, 2009

Mr. BAIRD introduced the following bill; which was referred to the Committee
on Energy and Commerce, and in addition to the Committee on the Judiciary,
for a period to be subsequently determined by the Speaker, in each
case for consideration of such provisions as fall within the jurisdiction of
the committee concerned

A BILL
To provide comprehensive reform regarding medical
malpractice.

HR 3459 full text .pdf

CLINICAL INTEGRATION: will it be this community's response to "The Cost Conundrum?"

As the conversation concerning US Healthcare reform focuses on cost containment and quality improvement, with emphasis being placed on technologic developments and harnessing the power of the Internet to improve communication, pressure is being placed on your doctors to collaborate to develop and drive more cost-efficient systems of healthcare delivery while improving quality.

WHAT IS PHYSICIAN CLINICAL INTEGRATION?
Defined by the Federal Trade Commission as “An active and ongoing program to evaluate and modify the clinical practice patterns of the physician participants so as to create a high degree of interdependence and collaboration among the physicians to control costs and ensure quality, (FTC/DOJ Statements of Antitrust Enforcement Policy in Health Care, Statement 8.B.1 , 1996, http://www.ftc.gov/bc/healthcare/industryguide/policy/statement8.htm )

This definition was developed by the FTC in attempts to define acceptable models for physician collaboration that would not be challenged as activity prohibited by Sherman Anti-Trust Act, such as price-fixing, market allocation, concerted refusals to deal, and boycotts. Strict interpretation of this act in the past has discouraged competing physicians from sharing information, as agreements among competing physicians on price or fees is considered per se, or automatically, illegal.

Joint ventures (by independent physicians), however, are analyzed under the rule of reason if they are integrated in a way that is likely to produce significant efficiencies and the agreement on price is “ancillary,” or reasonably necessary, to the achievement of the joint ventures’ efficiencies.

WHAT TYPES OF ORGANIZATIONS HAVE BEEN SUCCESSFULLY “CLINICALLY INTEGRATED?”
To pass FTC muster, entities through which the physicians can act and interact must include the following elements:
1) Integration of institutions and practitioners that presents the opportunity for true collaboration and productive sharing of information reflecting actual “interdependence”
2) Participation of both specialists and primary care physicians with a requirement of in-network referrals
3) Treatment of a broad spectrum of diseases and disorders and corresponding clinical protocols
4) Integrated information technology whereby network participants can efficiently exchange information regarding patients and practice experience
5) Integrated information technology whereby utilization and claims information can be gathered, analyzed, and communicated in order to improve treatment quality, rates of utilization, and cost containment
6) Integrated information technology whereby physician compliance and performance, in accordance with collective, physician-authored benchmarks and standards, may be measured
7) A high level of physician investment, both economically and in terms of time for training and utilization of the system, and agreement among physicians to comply with the standards, benchmarks, and protocols put in place by the network
8) Enforceable consequences for noncompliance by physicians and institutions, and systems for improving performance and compliance

This list, as taken from rulings (advisory opinions) on previous successful networks (GRIPA, 2007) and unsuccessful networks (Suburban Health Organization, 2006) is not exhaustive, and the FTC has indicated that it will “focus on substance, rather than form, in assessing a network’s likelihood of producing significant efficiencies,” such as the impact of integration efforts on utilization, cost, and quality. (FTC Healthcare Statements Statement 8.B.1 , 1996, http://www.ftc.gov/bc/healthcare/industryguide/policy/statement8.htm )

WHY CONSIDER CLINICAL INTEGRATION NOW?
Clinical integration is an opportunity for this medical community to gather and share the medical information about the care that we provide in such a way that will improve physician communication, physician-hospital relations, healthcare quality, and healthcare costs. Clinical integration is a way to have more bargaining power with managed care, vendors, even liability insurers. And it is a way to harness our ability to communicate in a politically important, grassroots way. It’s taking what we already do, measuring it in a way that we can help ourselves and each other continually improve, and finally showing exactly how much what we do is worth. We as a profession have stood by too long letting others define what it means to be a good doctor and care for our patients in an efficient and valuable way. We have let others determine what our time, training, and talents are worth and been chastised as poor businessmen, defensive, or greedy.

With advances in technology like cloud-computing, Web 2.0, and government incentives based on adoption of such technology and measurable quality improvements, clinical integration is an idea whose time has come. We must consider working together in this way. We must get started today.


References

Gawande, Atul, The Cost Conundrum, The New Yorker, June 1, 2009, http://www.newyorker.com/reporting/2009/06/01/090601fa_fact_gawande

United States Department of Justice and Federal Trade Commission, 1996 Statements of Antitrust Enforcement Policy in Health Care, Statement 8.B.1, http://www.ftc.gov/bc/healthcare/industryguide/policy/statement8.htm