Press releases following a recent publication in the British Medical Journal (BMJ) hysterically echoed the article’s headline: “Medical error—the third leading cause of death in the U.S.”1 The authors used a variety of published sources on the incidence, lethality and preventability of medical errors to produce an estimate of 251,000 deaths per year attributable to medical error, out of a total of about 2.6 million. As a cause of death this would rank behind only heart disease (611,000) and cancer (585,000). While the purpose of the authors was to advocate for improved coding of the cause of death in vital statistics, the purpose of the commentary was to alarm the public regarding the current state of healthcare. Should we panic?

I think not. Here’s why:

First, understand that I’m not a criminal or even an apologist. I hate medical errors and I have devoted my career to their eradication. We should strive every day to make healthcare as predictable and safe as humanly possible, and we should embed continuous quality improvement in everything we do. So looking at errors is important. But we have to recognize their place in any complicated human system.

It’s possible that errors are increasing because of increased reporting. This would be a good thing—we can’t fix what we don’t measure, to paraphrase Deming—so maybe the increase reflects increased recognition of something that’s been going on all along.

It’s possible that errors are increasing because we are providing more complex care, with more opportunities to make mistakes. This is an unintended consequence of medical practice, and can be viewed as a cost of doing business, with the increased rate of errors balanced by the benefits of the new procedure. We can expect the rate of unintended consequences to go up during our learning curve and then back down as we figure things out. Corneal abrasions associated with robotic prostatectomy are a good example of this phenomenon, and one that has been seen to wax and wane as these operations have gone from long and experimental to short and routine. Since robotic prostatectomies are ultimately beneficial, the increase in errors is also a good thing. It shows we are appropriately pushing the envelope.

Finally, it is possible that errors are increasing because our definition of what constitutes an error is continuing to evolve. Failure to treat h. pylori in a patient with a stomach ulcer today would be considered a significant error— whereas 30 years ago this therapy was not even considered. Ten years ago all of our patients were nothing by mouth (NPO) for eight hours, whereas today we are handing them oral electrolytes in the preoperative holding area. Today the failure to swab the IV port before injecting a medication is a mild deviation; a year or two from now it will be considered a major error.

Second, it is important to recognize that every patient we care for is going to die. Benjamin Franklin noted: “In this world nothing can be said to be certain, except death and taxes.” Jimi Hendrix put it another way: “No one here gets out alive.” Or if you’re a fan of Game of Thrones, try “Valar Morghulis” (“all men must die”). As those responsible for the battle against the inevitable, physicians have long studied the causes of death and attempted to categorize them. This activity, in turn, has led to scientific and governmental attention to the leading causes, which in turn has led to significant improvements in care. And we continue to push this envelope today: just ask any provider how the coronary artery bypass graft (CABG) patient of today compares to the CABG patient of 20 years ago. Today’s patient is vastly sicker, because all the easy patients either never get coronary disease in the first place (statins) or get fixed in the cath lab (angioplasties). So the patient that makes it through to the OR is older and sicker. Similar advances have occurred in cancer, AIDS, COPD and other leading causes of death, not to mention that many scourges of the developing world—infectious diseases—have been eradicated in the U.S.

So what do our patients die from? Getting old, mostly. As we eliminate preventable causes, our population gets older and frailer, balanced on the edge of a progressively narrower knife blade until reaching a point where the slightest gust of wind will blow them to their demise. Many of these breezes, of course, can be associated with a medical error of some kind.

Which brings me to the third and final point, that medical errors are ubiquitous in medical care. I’ve delivered tens of thousands of anesthetics in my career and I can honestly say that I have never done a perfect case. In retrospect there is always something I would have done differently—one mg less of some medication, increasing or decreasing the volatile agent one minute sooner, giving just a little more or little less fluid, etc. Healthcare is complicated, and the odds of delivering the perfect anesthetic are far, far lower than the odds of filling out a perfect NCAA bracket. Don’t believe me? Open the medical record of the next inpatient you take care of and look to see if they’ve gotten every prescribed medication at the prescribed time. Invariably there will be both omissions and delays. Depending on how you’re keeping score, every one of these events would count as a medical error. Errors occur in the care of every patient!

Now put these thoughts together: death is inevitable, medical error is inevitable, and thus death due to medical error is an inescapable conclusion. When we have eliminated every named disease, accidental death will be all we have left. So maybe what the BMJ article is really documenting is an improvement, not a cause for alarm. My glass is half full! 

¹ Makary MA, Daniel M. Medical error—the third leading cause of death in the US. BMJ 2016;353:i2139 doi: 10.1136/bmj.i2139

We would like to say it isn’t so, but ransomware attacks haven’t tapered off; they’ve soared.  So far in 2016, ransomware attacks have risen 300 percent since 2015 (from 1,000 to 4,000 attacks daily), according to a government report.¹  The healthcare sector—anesthesia providers included—is especially vulnerable.

More than half of hospitals responding to an April survey by the Health Information and Management Systems Society (HIMSS) and Healthcare IT News reported that they had been attacked by ransomware in the previous year.  An additional 25 percent of hospitals said they were either unsure whether they had been attacked, or had no way of knowing. 

When it comes to data security, healthcare still lags far behind other industries, including banking and high-reliability fields such as nuclear energy, power utilities and aviation. This susceptibility makes hospitals and practices prime targets for hackers.  Personal health information is 50 times more valuable on the black market than financial information, according to the 2016 HIMSS Analytics “Healthcare IT Security and Risk Management” study, which includes findings from a survey of 100 health IT professionals.

It is important for anesthesia providers to keep in mind that medical devices, including anesthesia machines, drug infusion pumps and pacemakers, are also vulnerable to attack.  According to an article in The Hill, “most medical devices are designed with open-source code that is easily hacked with malware.”  Although most hackers are more interested in selling records on the dark web than disrupting the delivery of care, “it’s entirely within the power of hackers to ‘brick’ [disable] a needed medical device or shut down a hospital network, preventing doctors and nurses from providing care.”  

Health care’s urgent need for stronger cybersecurity is also apparent in a recent survey of 927 healthcare professionals.  Although more respondents reported having a Health Insurance Portability and Accountability Act (HIPAA) compliance plan in place in 2016 than in 2014 when the previous survey was conducted (70 percent versus 58 percent, respectively), the majority remain only “somewhat” confident that someone at their organization is managing HIPAA compliance, and only 40 percent report feeling “very” confident that a program is in place, the survey reports.

Keep it Private, Keep it Secure

The increase in incidents means anesthesia practices have even more reason to do everything they can to secure their electronic protected health information (ePHI).  Our February 20, 2016 eAlert outlined strategies to help anesthesia providers guard against this burgeoning brand of cybercrime. 

New guidance from the Health and Human Services Office of Civil Rights (OCR) issued on July 11 details how efforts to comply with HIPAA regulations regarding ePHI also can help prevent ransomware intrusion and support recovery if a ransomware attack occurs.  The guidance also explains when an attack is and is not a security breach that must be reported.

Essentially, when ePHI is encrypted as the result of a ransomware attack, it is considered a “disclosure” and a violation of the HIPAA Privacy Rule because the information has been acquired by unauthorized individuals.  The breach must be reported to the affected individuals, the Secretary of Health and Human Services and the media, unless the covered entity can show “low probability” that the ePHI has been compromised.  (See below for more information on low probability.)

Following is a summary of the OCR guidance on HIPAA and ransomware.

Prevention

In keeping with the requirements of the HIPAA Security Rule, the guidance recommends the following steps to prevent a ransomware infection:

• Conduct a risk analysis to identify threats to ePHI and develop a plan to address identified vulnerabilities
• Implement procedures to guard against and detect malicious software
• Train users to identify and report malicious software early
• Limit access to ePHI only to people and software that require access
• Incorporate these procedures into all security measures enterprise-wide, not just those related to HIPAA

The Security Rule establishes only minimal requirements for protecting ePHI, OCR notes.  The agency encourages entities to add more robust measures beyond these requirements to bolster security.

Recovery

To be well prepared to recover in the event of a ransomware attack, OCR recommends the following:

• Maintain frequent backups and ensure the ability to recover data from these backups.  (A data backup plan is also a requirement of the HIPAA Security Rule.)
• Conduct periodic tests to verify the integrity of backed up data
• Consider maintaining backups offline in a location separate from the networks
• Develop—and periodically test—a contingency plan that includes procedures for disaster recovery, emergency operations and accounting for all applications and data.  This contingency plan will allow you conduct “business as usual” while you simultaneously work to recover from the attack.

Warning Signs

OCR stresses the importance of training all users in spotting the warning signs of a ransomware attack.  These include: 

• A realization that a link clicked on, a file attachment opened or a website visited might have been malicious
• An increase in activity in the central processing unit of a computer for no apparent reason
• An inability to access certain files (as the ransomware encrypts data)
• Detection by the IT department of suspicious network communications between the ransomware and the attacker’s command and control servers

OCR also urges entities to develop solid security incident response and reporting procedures and processes that encompass detecting, containing, eradicating and recovering from ransomware and other malware.  The presence of ransomware is a security incident that should trigger the entity’s response and reporting mechanism.  These procedures should be designed to determine the scope of the incident, where it originated, whether it is finished or ongoing and the vulnerabilities that allowed the incident to occur.

Reporting

In addition to containing and eradicating the ransomware, correcting the identified vulnerabilities, restoring the lost data and returning to “business as usual,” followup activities should also include a deeper analysis to determine whether the incident must be reported as a security breach.

A ransomware attack that results in the encryption of ePHI constitutes an illegal disclosure and a breach under the Breach Notification Rule and must be reported, OCR states—unless the entity can demonstrate low probability that the data has been compromised. 

To demonstrate low probability, covered entities must undertake a four-pronged risk analysis that assesses the nature and extent of ePHI involved, the unauthorized person who used the ePHI, whether the ePHI was actually viewed and the extent to which the risk has been mitigated. 

A security incident response policy grounded in solid procedures and processes will help the organization identify the strain of malware involved and whether the strain will propagate or deposit hidden malicious software to achieve unauthorized access in the future.  “An entity may be able to show mitigation of the impact of a ransomware attack affecting the integrity of PHI through the implementation of robust contingency plans including disaster recovery and data backup plans,” the guidance states.  However, “integrity to PHI data is only one aspect when considering to what extent the risk to PHI has been mitigated.  Additional aspects, including whether or not PHI has been exfiltrated, should also be considered.”

According to Kirk J. Nahra of Wiley Rein LLP in eHealth Law & Policy, “My sense is that the OCR’s analysis—if followed by companies—will lead to more of these attacks leading to notice than we might have thought previously.  I’m not sure that’s the right policy result—what is the rationale for notice where data has been ‘held hostage’ but not otherwise misused?—but that is the OCR’s view of what is needed.”

Healthcare providers have a long way to go to give cybersecurity the attention it deserves, HIMSS Analytics reports.  The 2016 HIMSS Analytics survey found that more than 80 percent of organizations spend less than six percent of their IT budgets on security, while more than 50 percent spend less than three percent.  This contrasts with government and finance, which spend 16 and 12-15 percent, respectively.

“We can't be as secure as those industries because we're not spending the money,” says David Finn of Symantec, which co-authored the study.  “Information and information technology were never really strategic to healthcare.  We never thought of that data as being strategic and important.”

As health care struggles to catch up with other industries, cybercriminals are finding new weak spots to gain access.  On August 3, Arizona-based Banner Health reported that hackers gained access to credit and debit card information for 3.7 million people through point-of-sale systems that process payment card data at food and beverage outlets serving the health system.  The incident, which took place on June 17, was not found until July 7.  Patient information and health plan records also may have been compromised.  A Banner physician has filed a class-action lawsuit against the system, claiming Banner was negligent and allowed the breach to occur.

The key to preventing a ransomware or any other type of malware infection or virus is to build and maintain a strong boundary between the work and non-work computing environments, says Steve Williams, senior director of information technology with Anesthesia Business Consultants.  ABC systems, for example, prevent general web surfing. 

“We keep users on business sites only—our known ‘good lists.’ That’s because mixing business and pleasure is one of the quickest ways to become infected.  If it isn’t real work, don’t do it.  Don’t check your Facebook.  Don’t check your personal email.”  Williams also stresses the importance of ongoing user education.  “You’re only as compliant as your least compliant user,” he says.

Conclusion

Compliance with the provisions of HIPAA can also help protect your practice against ransomware.  Make cybersecurity the priority within your organization that it must be for all health care entities, including regular staff training and education in secure practices, and careful attention to proper planning, prevention and reporting.

With best wishes,

Tony Mira
President and CEO

When most practice administrators started in anesthesia billing operations, collecting for services was markedly different than it is today, even if you are relatively new to the special. There are a variety of factors including government regulations, The Patient Protection and Affordable Care Act of 2009 (ACA), bundled payments, high deductible health plans, out-of-network payers and new plan designs, to name a few.

The Patient Protection and Affordable Care Act

“THE GREAT RACE TO THE BOTTOM”

The Patient Protection and Affordable Care Act (ACA), or the ‘Great Race to the Bottom’ as some have coined it, brought massive change to the insurance market. Since the signing of this 2,000- page law in March of 2010, thousands of pages of regulations have been written and implemented. Moreover, additional regulations are on the way as the law gave the Secretary of the Department of Health and Human Services vast latitude to implement the law.

What the law did to the insurance distribution channel has changed the job of the insurance agents. Prior to the ACA even being introduced, agents were already using online tools to shop group insurance.

The ACA forced all plan designs to include birth control as an example. These types of additions do not take into account the various needs of the American consumer at large. The law forced coverage, meaning that you have to pay a penalty if you do not buy insurance. The insurance companies needed ‘forced coverage’ in order to spread the risk. In other words, younger, healthier people pay premiums to offset the risk of older, sicker people.

The ACA married preferred provider organization (PPO) and health maintenance organization (HMO) features into one type of insurance with various levels of patient responsibility. The outcomes for many previously covered American consumers are higher premiums, higher deductibles, higher coinsurance&emdash;especially for out-of-network services; limited options, and narrow networks. The provider community is beginning to feel the effects of lower reimbursements for the health exchange plans. Providers are also experiencing more bureaucracy, especially with frequent changes to quality programs and more procedures being denied for payment.

While the concept of all having health insurance is noble, the execution of the concept via the ACA is not working well for all parties.

Advance Beneficiary Notice of Non-Coverage

Your practice may discover you have provided services in which the procedure is not covered. For these situations, it is important to implement a program of Advance Beneficiary Notice of Non- Coverage (ABN). Medicare has identified specific steps along with a form on the CMS website to ensure you can collect for these services.

In terms of practical application of ABN, it is important for your practice to work with the facility (hospital or ASC) to have preregistering patients contact the anesthesia office. This is not just for Medicare patients but also for private insurance carriers as well. Another tip is to monitor procedures or codes for which you would expect denial and concentrate on collecting ABNs for these.

Of the key points in the ABN form, three are important to address.

1. The first is that the patient will have some options and will need to select which option they wish your practice to pursue. 
2. Secondly, if the patient wants you to file an appeal with the carrier due to payment denial, your practice must submit a claim. If not, you cannot file an appeal.
3. Finally, it is important to ensure that the patient and family member(s) have read, understood and completed the ABN form.

One example of the use of an ABN form is for denial of anesthesia for pain,

Current Procedural Terminology (CPT®) codes 01991 and 01992. On the private insurer side, the intent is that patients will complain about it not being covered and ultimately, influence their specific private insurer to cover it. Handled correctly, the practice will be in position to get paid by the patient for these procedures.

The following is directly from the Medicare website:

“If you have Original Medicare and your doctor, other health care provider, or supplier thinks Medicare probably (or certainly) won’t pay for items or services, they may give you a written notice called an “Advance Beneficiary Notice of Non-coverage” (ABN).

The ABN lists the items or services that Medicare isn’t expected to pay for, an estimate of the costs for the items and services, and the reasons why Medicare may not pay.

The ABN gives you information to make an informed choice about whether or not to get items or services, understanding that you may have to accept responsibility for payment.

You’ll be asked to choose an option box and sign the notice to say that you read and understood it. You must choose one of these options:

Option 1: You want the items or services that may not be paid for by Medicare. Your provider or supplier may ask you to pay for them now, but you also want them to submit a claim to Medicare for the items or services. If Medicare denies payment, you’re responsible for paying, but, since a claim was submitted, you can appeal to Medicare.

Option 2: You want the items or services that may not be paid for by Medicare, but you don’t want your provider or supplier to bill Medicare. You may be asked to pay for the items or services now, but because you request your provider or supplier to not submit a claim to Medicare, you can’t file an appeal.

Option 3: You don’t want the items or services that may not be paid for by Medicare, and you aren’t responsible for any payments. A claim isn’t submitted to Medicare, and you can’t file an appeal.

An ABN isn’t an official denial of coverage by Medicare. You have the right to file an appeal if payment is denied when a claim is submitted.”

Figure 1 shows ABN form samples covering both Medicare and commercial insurance. The Medicare form can be found out on the aforementioned website. For the commercial side, there are sample forms on the internet similar to the sample shown below. Ultimately, it is recommended to have an attorney familiar with ABN’s, evaluate and make recommendations to the practice.

Employee Retirement Income Security Act of 1974

ERISA Plans

As it relates to health plans, Employee Retirement Income Security Act of 1974 (ERISA) plans are required by law to follow the plan document. Approximately 80 percent of plans in the market are employersponsored and are covered by ERISA unless they are exempt. Exemptions include government or religious organization plans. The balance of the plans are governed by state insurance laws.

The following is an excerpt from the ERISA website that covers the definition of ERISA in short order and then provides information on two important and familiar amendments.

The Employee Retirement Income Security Act of 1974 (ERISA) is a federal law that sets minimum standards for most voluntarily established pension and health plans in private industry to provide protection for individuals in these plans.

Two important amendments expanding the protections available to health benefit plan participants and beneficiaries include:

(COBRA) Provides some workers and their families with the right to continue their health coverage for a limited time after certain events, such as the loss of a job.

(HIPAA) Provides important new protections for working Americans and their families who have preexisting medical conditions or might otherwise suffer discrimination in health coverage based on factors that relate to an individual’s health.

State insurance laws vary widely, but most states have prompt payment laws designed to require insurance carriers to pay claims in a timely manner. Some states even have statutory interest assigned to insurance companies for failure to pay within the time limit. Furthermore, states may also address balance billing in their regulations as well as surprise billing, which can be taken care of with an appropriate ABN form or an assignment of benefits form, depending upon the situation. As it relates to surprise billing, a number of other states have laws limiting balance billing by out-of-network providers in certain circumstances. Some of these laws apply only to certain types of health plans (HMO vs. PPO) or only to certain types of providers or services (for example, for ambulance providers or emergency care services.). It is important to know state-specific laws and be prepared to address their requirements for your practice. For the author, being a Hoosier, it was natural to review the Indiana code regarding insurance, in particular, the prompt payment law. In it, the provider is required to submit a clean claim. The insurance carrier determines the definition of a clean claim. Therefore, it is important to know not only the state insurance laws, but also to understand the implications for your practice.

Knowledge of plan documents is important especially with regard to limits on filing times, appeal times, appeal levels, etc. Maintaining a spreadsheet grid with an outline of procedures and the rules of each insurance carrier (payer) contract may provide a tool to manage the payment challenges. Documenting and time-stamping communication with the insurance carriers (payers) is also helpful. In general, ERISA allows 30 days for the insurance carrier to respond with very specific details about how/why a claim is denied. While it is easy to make a general statement about insurance carriers violating ERISA, it is important to note the specific details for each case/claim and the rules of the road. In some cases, insurance carriers blatantly violate ERISA. In these cases there are options for action and details that can be explored by an ERISA attorney. Additional information on ERISA plans may be found at: https://www.dol.gov/general/topic/health-plans/erisa.

Out-of-Network

As a strategy, is it a good idea for an anesthesia group to be out-of-network (OON)? It is a strategic discussion worth having. There are a few points to remember as the practice considers going OON with a payer.

Facilities (hospitals and ASCs) want all of their physician groups in network and usually have a requirement to that effect in writing. If a group is not in network, that group could feel political pressure from the facility. In this case, the group may be cashing in political chips that could be used for other negotiations.

Insurers view it differently. Some insurers truly do not care due to re-pricers in the market place, such as Multiplan. Some insurers utilize the re-pricer network to process claims, which has the potential to drive down reimbursement for the anesthesia practice.

For chronic pain, you may not have a choice. There are saturated markets in which the chronic pain practices are so prevalent the insurers may not offer a group a contract to come in network, whether a chronic pain-only practice or a chronic pain practice as part of an overall anesthesia practice.

Being OON is a double-edged sword. On the one hand, it can be very profitable to a group to go OON with a major payer. Anecdotally, my experience has taught me that this is true in certain situations. As an example, a large payer was not willing to negotiate and the practice decided to go out of network. We laid the groundwork politically with each of the facilities and surgeons prior to going out of network. The result was an increase in yield per unit since we had no contract with that payer. That remained in effect until our health system put pressure on the practice to get in network. In this case, it worked out well for the practice. That is not always the case. Conversely, an insurer may decide to pay you their version of the “market rate” leaving you to balance bill the patient and collect from them. In these cases, it is important to know the state laws regarding balance billing. As noted above, balance billing laws vary by state and may be onerous.

As for Blue Cross Blue Shield (the Blues) plans, and perhaps other large payers, the patient will receive the reimbursement check and the practice has to run it down, resulting in additional time and money expense. Again, anecdotally, my experience has taught me to never go out-of-network with the Blues. Terminating the contract with the Blues to negotiate is plausible. However, actually going OON with the Blues is detrimental. There have been situations when groups have been successful in going OON with the Blues and other payers. In these cases, the groups established a strategy and a plan to collect the monies from the patient or responsible party prior to terminating the contract as well as the political work with the facilities and surgeons.

Another consideration concerns co-insurance rules. Typically, OON providers have patients with higher coinsurance amounts. Moreover, the OON provider is now the more expensive provider with the exchange plans. As alluded to earlier, these plans have much higher OON co-insurance amounts. In some cases, the patient owns 100 percent of the responsibility unless it is an emergency. A great example of that comes from Aetna (emphasis added):

“Some plans do not offer any outof- network benefits. For those plans, out-of-network care is covered only in an emergency. Otherwise, you are responsible for the full cost of any care you receive out of network.”

Two final considerations for an OON strategy concern policies. The first policy is the prompt payment policy. A group may offer a discount (while still billing the full amount) if paid prior to surgery or within the 30 days of the dates of service. State laws vary on this, and it is important to check with a healthcare attorney.

The other policy is the “payment plan policy” which establishes a process for patients to pay anesthesia bills in an established, periodic manner. The group determines the length of the payment plan, the amount required monthly and the penalty for failure to remain current. Depending on the total amount owed, the length of the payout may run from six months to a year. Again, state laws vary and it is important to check with a healthcare attorney.

Assignment of Benefits

An Assignment of Benefits (AOB) is a document that a patient signs upon intake or admission. The precise language within the assignment of benefits form becomes critical when a non-participating provider files suit against the insurance company in a reimbursement dispute.

According to U.S. Legal, the definition of an AOB is, “Assignment of benefits in the context of health care refers to an agreement or arrangement between a beneficiary and an insurance company, by which a beneficiary requests the insurance company to pay the health benefit payment directly to the physician or medical provider. The patient or guardian signs the assignment of benefits form so that reimbursement checks will be sent directly to the doctor or medical provider.”

If AOB is not permitted, the medical provider will not receive payment from the insurance company. In terms of specific language to include in the anesthesia group’s AOB, a healthcare attorney can help to craft the proper terms.

A sample AOB form is shown in Figure 2 below.

Underpayments

Underpayments can become an issue as well. Bundled payments and Medicare Local Coverage Determinations (LCDs) are two types of which to be wary.

There are times when an insurer claims a bundled payment for certain combination of procedures. An example might be when the insurer does not pay for fluoroscopic guidance because they state that the payment went to the facility. It is important to have good relationships with the facilities and understanding of any contracts they have that might impact the practice. Of course, tracking and documenting each instance by insurer will be helpful.

Another type of underpayment can come from a LCD or a private payer policy. These typically come out on a regular basis and describe procedures that will be denied outright or denied without certain documentation. These are typically done on a state basis. With the procedures that are denied without certain documentation, it is important to note what the details of the denial is and what steps need to be taken to get reimbursed. As a practical matter, keeping track of these in a spreadsheet is quite useful.

Conclusion

In conclusion, group administrators have much to be on the lookout for when it comes to collections in 2016. The good news is that a strong billing operation and good tracking and monitoring processes can assist. With an engaged team of billing operations and practice administration the obstacles will be predictable and can be managed.

ⁱhttps://www.medicare.gov/claims-and-appeals/medicare-rights/abn/advance-notice-of-noncoverage.html
ⁱⁱhttps://www.dol.gov/general/topic/health-plans/erisa
ⁱⁱⁱhttp://kff.org/private-insurance/issue-brief/surprise-medical-bills/%20
^iv https://www.aetna.com/individuals-families/using-your-aetna-benefits/network-out-of-network-care.html
^vhttp://www.strasburger.com/warning-assignment-benefits-form-may-leave-empty-handed/^vihttp://definitions.uslegal.com/a/assignment-of-benefits-health-care/

An anesthesiologist recently received a several-year prison sentence for prescribing controlled substances without a legitimate medical reason. One of this physician’s patients died from taking hydrocodone, which the physician had prescribed for no legitimate medical purpose.

This is an extreme case involving criminal behavior. Still, any allegation of Medicare or Medicaid fraud or abuse surely ranks at the top of an anesthesiologist’s—any physician’s--list of nightmare scenarios. It behooves anesthesiologists, as well as nurse anesthetists and anesthesia practice managers, to know the “red flags” of fraud and abuse that could lead to civil, criminal or enforcement liability. Failure to understand current laws or how to take the appropriate steps could expose you to risk without your even realizing it.

Did you know, for example, that the Affordable Care Act (ACA) requires physicians to establish a compliance program and to designate a compliance coordinator in their practices? Or that the ACA established an Open Payments System that requires pharmaceutical and medical device manufacturers to report any payments they have made to professional practitioners, and that this data is available on the internet?

The Centers for Medicare and Medicaid Services (CMS) has published a 20-page booklet, Avoiding Medicare Fraud & Abuse: A Roadmap for Physicians , which offers physicians a primer on current laws, along with a compendium of resources for finding assistance with problems and answers to questions, information on reporting suspected fraud and abuse, and links to educational videos and other publications and materials.

Federal Laws

In brief, physicians should know about the following fraud and abuse laws:

The Federal False Claims Act (FCA)—imposes civil liability for knowingly submitting or causing the submission of a false or fraudulent claim. Civil penalties can include fines up to three times the amount of damages sustained by the government and an additional charge of up to $21,563 per false claim. Criminal penalties may include fines, imprisonment or both.

According to the United States Department of Justice (DOJ), of the $3.5 billion recovered through the FCA in 2015, more than half--$1.9 billion--came from the healthcare sector. Since 2009, $16.5 billion have been recovered in healthcare fraud and returned to federal healthcare programs. In 2015, hospitals were involved in nearly $330 million in settlements and judgments. Nearly 500 hospitals paid settlements totaling $250 million for allegedly implanting cardiac devices in Medicare patients contrary to CMS criteria and/or without the involvement of a cardiologist.

In an article in Becker’s Hospital Review, Brian Roark of Bass, Berry & Sims highlighted some of the key factors that are likely to continue to play a role in FCA outcomes. Among others, these include the use of extrapolation, which allows the government to extrapolate findings from statistically significant samples of claims to similar claims for payment, a method that he believes raises questions of fairness from the physician’s perspective; and physician compensation, which was the focus of cases against North Broward Hospital District and Adventist Health. (See below for more information.) In the North Broward case, a physician whistleblower alleged that the health system tracked the monetary value of physician referrals and pressured other physicians to maintain referral volume.

The Overpayments Rule, mandated by the ACA and discussed in depth in our eAlert of February 22, 2016, requires an entity to report an overpayment from the state or federal government within 60 days of the date on which the overpayment is identified. In 2011, a physician brought suit against his employer, Continuum Health, regarding 900 claims that had possibly been submitted in error. It took the health system two years rather than the required 60 days to return the overpayments. The 2015 ruling by federal district court in New York City reinforces that an overpayment is identified from the time a healthcare provider has discovered or been notified of an overpayment or should have discovered an overpayment through “reasonable diligence.”

As stated in the eAlert, “Compliance with the new regulations explaining the requirement is important because physicians who do not meet the 60-day deadline could be subject to False Claims Act or Civil Monetary Penalties Law liability (treble damages plus $11,000 per claim, civil monetary penalties, and exclusion from the Medicare and Medicaid programs). CMS stresses that all providers and suppliers are subject to the statutory requirements of the ACA and could face potential liability even if the conduct falls outside the scope of the final rule.” Further, “The physician cannot rely on the ‘ostrich defense.’ CMS specifies in its commentary that ‘If the requirement to report and return overpayments only applied to situations where providers or suppliers had actual knowledge of the existence of an overpayment, then these entities could easily avoid returning improperly received payments and the purpose of the section would be defeated.’”

The Anti-Kickback Statute (AKS)—makes it unlawful for a physician to knowingly and willfully offer, pay, solicit or receive remuneration in exchange for referrals and services reimbursable by federal programs. Arrangements that satisfy safe harbor regulations may not be subject to the statute.

According to an article in Health Care Law Today, a blog published by Foley & Lardner LLP:

The AKS has broad application to all types of arrangements involving physicians. One reason for this is that, under the statute, the term referral doesn’t have the traditional medical practice meaning (i.e., sending a patient to a specialist or sub-specialist for a second opinion or management of a specific problem). It has perhaps the broadest conceivable meaning that includes traditional referrals but also recommending, purchasing, leasing, ordering or arranging for any good, facility, service or item for which payment may be made in whole or in part by a federal health care program. All things physicians do on a daily basis on their patients’ behalf.

The Physician Self-Referral Law (Stark Law)—prohibits a physician from making referrals for certain Medicare and Medicaid services to an entity in which the physician or an immediate family member has an investment/ownership interest or compensation agreement. Services provided in violation of the Stark Law are not reimbursable by Medicare or Medicaid.

Settlements for Stark Law violations were paid in 2015 by Adventist Health System ($115 million, including allegations of miscoding to obtain higher Medicare and Medicaid reimbursements), North Broward Hospital District ($69.5 million for allegedly providing compensation to nine employed physicians that exceeded the fair market value of their services), and Columbus Regional Healthcare System and Dr. Andrew Pippas ($25 million plus contingent payments up to an additional $10 million for allegations of submitting claims that misrepresented services provided).

In November of last year, HHS issued several changes and exceptions to the Stark Law. Discussed in National Law Review, these include the following:

• A new “assistance to compensate a nonphysician practitioner” exception, which allows remuneration from a hospital to a physician to recruit a physician assistant, nurse practitioner, clinical nurse specialist, certified nurse midwife, clinical social worker or clinical psychologist
• A new “timeshare arrangements” exception, covering use of premises, equipment, personnel, items, supplies or services
• Clarification on the one-year term requirement for office space rental, equipment rental and personal service arrangements exceptions
• Clarification regarding “split bill” arrangements, which notes that split bill arrangements do not involve remuneration between physicians and health services entities for items and services such as examination rooms, nurses and supplies

The Criminal Health Care Fraud Statute—prohibits a physician from knowingly and willfully executing, or attempting to execute, a scheme for the delivery of or payment for healthcare services to defraud a healthcare benefits program.

On June 22, DOJ announced the largest sweep in history by the Medicare Fraud Strike Force, an investigation that led to criminal charges against 301 individuals in 36 federal districts, including 61 physicians, nurses and other licensed medical professionals, for alleged participation in schemes involving approximately $900 million in fraudulent billings.

According to a DOJ press release, the defendants “allegedly participated in schemes to submit claims to Medicare and Medicaid for treatments that were medically unnecessary and often never provided. In many cases, patient recruiters, Medicare beneficiaries and other co-conspirators were allegedly paid cash kickbacks in return for supplying beneficiary information to providers, so that the providers could then submit fraudulent bills to Medicare.”

The Exclusion Statute—requires the OIG to exclude from participating in federally-funded healthcare programs any physician who has been convicted of felony Medicare fraud or any other Medicare-related offense; patient abuse or neglect; other healthcare-related fraud, theft or other financial misconduct; or unlawful manufacture, prescribing or dispensing of controlled substances. Exclusions can also be imposed by OIG for misdemeanor healthcare fraud, controlled substance distribution and other types of convictions.

If passed, the Fighting Medicare Fraud Act of 2016, (H.R. 5267) introduced on May 17, 2016 by Representatives Lois Frankel (D-Fla.) and William Keating (D-Mass.) would expand the OIG’s authority to exclude from participation in federal programs the owners, officers and managing employees of sanctioned providers. The bill reflects the federal government’s efforts to hold individuals as well as organizations responsible for fraud.

A memo issued last September by Deputy Attorney General Sally Quillian Yates outlines the DOJ’s efforts to hold individuals accountable for corporate wrongdoing. The memo states: “Both criminal and civil corporate investigations should focus on individuals from the inception of the investigation. . . Because a corporation acts only through individuals, investigating the conduct of individuals is the most efficient and effective way to determine the facts and extent of any corporate misconduct.” The memo also states that companies must provide the names of individuals involved in the fraud, regardless of their position within the company, in order to be eligible for cooperation credit.

The Civil Monetary Penalties Law—uthorizes penalties for healthcare fraud violations ranging from $10,000 to $50,000 per violation. Penalties can also include assessments of up to three times the amount claimed for services or the amount of remuneration offered, received, solicited or paid.

It is in a physician’s best interest to screen potential employees and contractors to ensure they have not been excluded from federal health programs, according to the 2015 CMS Laws Against Healthcare Fraud Resource Guide. According to the publication, a physician could be subject to CMP liability if the employee who has been excluded provides services payable by a federal program.

Open Payments Program

The new CMS Roadmap for Physicians also contains an overview of the Open Payments Program, which requires pharmaceutical, medical device and other companies to publicly report their gifts and payments to physicians. Mandated by the ACA, the public reporting of this data is part of an effort to increase the transparency of the relationships between physicians and teaching hospitals and drug and medical equipment and device manufacturers. Although physicians are not required to submit information themselves to the Open Payments database, CMS encourages physicians to track their own payments in order to ensure the integrity of the Open Payments data and offers a number of apps to assist with tracking.

According to CMS data, reported in an article in Modern Healthcare, approximately 620,000 physicians and 1,100 teaching hospitals received $7.52 billion in payments and ownership and investment interests in 2015 (an increase from the 2014 total of $7.49 billion).

The program has drawn criticism from the American Medical Association and other organizations for, among other things, not implementing sufficient methods to ensure the accuracy of the data submitted by manufacturers. CMS is accepting written comments about the program through September 6 and held an Open Door Forum on August 2.

Conclusion

Protecting yourself from allegations of fraud and abuse has become a more complicated matter. It is worth your while to spend some time to make sure you understand the current laws and know what to do if you find yourself in a problematic relationship or discover practices that you now realize do not comply with the law. ABC clients: Please do not hesitate to contact your account manager if you have any questions or need assistance.

With best wishes,

Tony Mira
President and CEO

[Author’s Note: This article is based on my presentation at the 2016 Advanced Institute for Anesthesia Practice Management.]

The OIG Advisory Opinion (Advisory Opinion) process allows parties of actual or proposed transactions to obtain the opinion of the Office of Inspector General (OIG) of the U.S. Department of Health & Human Services as to whether that transaction violates the federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b(b) (AKS).

There’s an official process for obtaining an OIG Advisory Opinion. Then there’s the actual way that the process works. And, then there are the secrets and strategies that can be used in connection with opinions.

For decades, I considered Advisory Opinions as a set of guideposts as to how the OIG, as the primary agency charged with enforcing the federal AKS, thinks as to the application of that statute. But then I realized that there was a very different way to think of them, use them, and obtain them, which led to my work as the attorney for the Requestor of Advisory Opinion 13-15 and on many projects advising on the Advisory Opinion process and the AKS since then.

I’m going to share some of that information with you.

Background

In order for you to grasp the dynamics of the OIG Advisory Opinion process, you first need to understand the basic elements of the AKS and its history.

In summary form, the AKS prohibits the knowing and willful solicitation, offer, payment or acceptance of any remuneration (including any kickback, bribe or rebate) directly or indirectly, overtly or covertly, in cash or in kind: (1) for referring an individual for a service or item covered by a federal healthcare program, or (2) for purchasing, leasing, ordering, or arranging for or recommending the purchase, lease, or order of any good, facility, service or item reimbursable under a federal healthcare program.

A violation is punishable as a felony: up to five years in jail, plus up to $25,000 in fines. It can also lead to exclusion from participation in federal healthcare programs.

The AKS language is extremely broad. But what did Congress really intend to prohibit?

The AKS statute was altered by Congress many times since it was first signed into law in 1972. Its scope has been changed. And, it hasn’t always made violation a felony.

Initially, the statue was aimed at criminalizing the sort of “fee splitting” that medical ethics long prohibited. The original 1972 statutory language made violation a misdemeanor. And, it was aimed solely at Medicare and Medicaid patients, not the current, broad scope of all federal healthcare program patients. It prohibited the solicitation, offer or receipt of “any kickback or bribe in connection with” furnishing Medicare or Medicaid services or referring a patient to a provider of those services.

Over the ensuing years, there were multiple amendments as a result of industry complaints that the statute picked up more than “bad” conduct—that it criminalized behavior long considered appropriate, such as paying physicians to serve as medical directors. Somewhat strangely, Congress both broadened the language and, over time, enacted statutory exceptions, delegated authority to the OIG to adopt safe harbors (i.e., regulatory exceptions) and, finally, gave the OIG the power to issue Advisory Opinions.

The Advisory Opinion Process

The OIG is permitted to issue an Advisory Opinion upon the request of a person or organization involved in an existing arrangement or in an anticipated transaction in which the requestor in good faith plans to undertake what may be subject to AKS.

Note that the requestor’s good faith in respect of an anticipated transaction may be contingent upon receiving a favorable Advisory Opinion. Distinguish this from a hypothetical query and from a general question as to interpretation, neither of which are permissible as the basis of an Advisory Opinion request.

It’s also important to understand that an OIG Advisory Opinion has no application to any individual or entity that does not join in the request for the opinion, and that no individual or entity other than the requestor(s) may legally relay it.

Both the regulations pertaining to Advisory Opinions and the checklists provided by the OIG outline the information required to be provided to the OIG and the costs of an opinion. For purposes of this article, be aware that the request has to be in writing and that among the information that must be provided is:

What I call the “who” information:

1. The name and addresses of the requestor and all other actual and potential parties to the extent known to the requestor.
2. The name, title, address and daytime telephone number of a contact person.
3. Each requesting party’s Taxpayer Identification Number.
4. Full and complete information as to the identity of each entity owned or controlled by the individual, and of each person with an ownership or control interest in the entity.

What I call the “what” information:

1. A complete and specific description of all relevant information bearing on the arrangement and on the circumstances of the conduct.
2. All relevant background information.
3. Complete copies of all operative documents, if applicable, or narrative descriptions of those documents. For existing arrangements, that means complete copies of all operative documents. For proposed arrangements, complete copies of all operative documents, if possible, and otherwise descriptions of proposed terms, drafts or models of documents sufficient to permit the OIG to render an informed opinion.
4. Detailed statements of all collateral or oral understandings (if any).

And, then there’s the certification:

The request must include a signed certification that all of the information provided is true and correct and that it constitutes a complete description of the facts regarding which the Advisory Opinion is sought.

Timeline

Once the OIG accepts the request and assigns the file to an attorney in their office, the OIG has 60 days to issue an opinion.

However, the acceptance process and the OIG’s right to request additional information from the requestor can result in significant delay in the 60-day countdown.

In general terms, the OIG has the right to request additional information both before and after a request is accepted. The time between a request and the receipt of the response stops the clock. Additionally, the delivery of additional information to the OIG prior to the date of acceptance re-starts the entire process in terms of timing.

It’s not uncommon for the process to play out over the course of many, many months.

Ways Advisory Opinions Can Be Used Strategically

Now that you have some background information, let’s shift gears and address a few of the ways that Advisory Opinions can be used strategically, as well as some of the strategies and tactics used in the opinion process.

Warning!

In consulting in connection with Advisory Opinions, I often see a strategic mistake about to be made by requestors and their counsel: they approach the process as a mere presentation of the facts and then plan to sit waiting for the opinion.

That’s as far from the correct approach as penguins are from the North Pole.

Conducted properly, a request for an OIG Advisory Opinion is an argument designed strategically and psychologically to bring the OIG toward your conclusion. Its prosecution requires skill, strategy and diplomacy; absent any, you are creating an outsized risk.

As mentioned above, the Advisory Opinion process allows for significant follow-up and ongoing contact. Sure, you could just lay low and perhaps hide or just hope the conclusion is going to come out as you want it. But there’s a process that allows you to have continuing input, and you should use it to your advantage, taking every opportunity to trigger additional conversations with the assigned OIG attorney.

But this leads to a more basic question: why are you requesting an Advisory Opinion? What’s the reason?

Why?

My guess is that most requestors are seeking an actual opinion to which they want a “yes” response, that is, a positive Advisory Opinion. I believe that that is what Congress imagined—that people would seek a positive opinion. I call this a “may I” or a “should I have?” request.

May I?/Should I have?

For example, a requestor might seek an opinion on the propriety of the use of a “preferred hospital” network as part of Medigap policy, whereby the Requestors, which offer Medigap policies, would contract with hospitals for discounts on the otherwise-applicable Medicare inpatient deductibles for their policyholders and, in turn, would provide a premium credit of $100 to policyholders who use a network hospital for an inpatient stay. Those are the facts in Advisory Opinion 16-01.

Or we can translate this into an anesthesia example. A hospital might approach your group with the proposition that, upon renewal of its exclusive contract, the group will take on much more intense administrative duties, while at the same time suffering a cut in the administrative stipend received from the hospital.

Please tell me I shouldn’t have . . .

There’s a second category that I call “please tell me I shouldn’t have” and this is neither as obvious nor as straightforward. You use it to attempt to unwind a deal you were forced into.

For example, your group has been providing services at a surgery center for several years and has been paying the facility rent for office space within to complete the anesthesia record and for sitting between breaks in cases. The ASC administrator assures you it’s legal and says that it wouldn’t alter the relationship if it’s not. So you turn to the OIG for an opinion. You hope that it’s negative in order to bow out of the relationship gracefully or to restructure it.

Other Categories

There are other, more sophisticated categories as well, including blocking tactics, leverage tactics and triangulation tactics, each of which is beyond the scope of this article, but each of which should be considered in connection with your compliance efforts, and even more importantly, in connection with your offensive as well as defensive competitive efforts.

Bottom Line

You should now have an appreciation for how the process should be used as a part of advocacy. Requests are NOT the equivalent of an essay contest in which the judge takes a look at each submission and makes a yes or no decision.

In fact, if you want to analogize to a contest, it’s more like one of those cooking challenge shows on the Food Network where the contestants battle to tell the most politically correct story of what they’ll do with the money if they win.

That story impacts taste, just like your story may very well impact the outcome of a request for an Advisory Opinion. Tell a good story and use every opportunity to drive the point home.

The developers of the Maslach Burnout Inventory define physician burnout as “an erosion of the soul caused by a deterioration of one’s values, dignity, spirit and will.”  Some suggest its relative absence should be considered a measure of quality.  No matter how one defines it, it is not a good thing—for physicians, care teams, practice management professionals, patients or healthcare organizations.  As the data show, anesthesiologists unquestionably suffer from it right alongside their peers in other specialties.

U.S. Surgeon General Vivik Murthy, MD puts it well in explaining why physician burnout is a serious problem:  If healthcare providers aren’t well, it’s hard for them to heal the people for whom they are caring.”

While the phenomenon is far from new and has been extensively studied, recent research confirms that physician burnout is widespread and growing.  In a Mayo Clinic survey of more than 6,200 physicians, 54.4 percent reported at least one symptom of burnout in 2014, compared with 45.5 percent in 2011.  Physicians also reported significant declines in satisfaction with work-life balance (48.5 percent in 2011 versus 40.9 percent in 2014), despite the fact that comparable changes did not occur in the U.S. population as a whole. 

Followed by choice of specialty, putting patients first, thriving outside of the office and dealing with electronic health records, burnout also heads the American Medical Association’s (AMA’s) list of the medical community’s top five topics of interest for 2015.

Prevalence in Anesthesiology

The Medscape Lifestyle Report 2016 reveals that anesthesiologists are not immune. The survey of 15,800 physicians in 25 specialties suggests physician burnout has reached a critical level, ranging from 40 percent to 55 percent, depending on specialty.  Burnout rates for all specialties rose in 2016 from 2015, including among anesthesiologists, who landed in the high middle range at 50 percent, an increase from 44 percent the previous year. Male and female anesthesiologists reported equal rates of burnout.

Symptoms and Causes

Varying widely in severity, physician burnout has three hallmarks:  1) physical and emotional exhaustion; 2) depersonalization, marked by the development of a negative, callous and cynical attitude toward patients and their concerns; and 3) a reduced sense of personal accomplishment, including a tendency to see one’s work negatively, without value or meaning.

Considering the multitude of pressures facing physicians today, the condition’s pervasiveness does not come as a huge surprise.  Our March 14, 2016 eAlert highlighted the role of the growing burden of measuring quality in anesthesiology and other medical practices.

Add to these stresses the broader pressure on clinicians to produce better outcomes in less time at lower cost, and a constellation of other contributors, ranging from long work hours and insufficient income stemming from regulatory changes to the demands of moving to a digital environment, and it’s no wonder physician fatigue and disillusionment have mushroomed.

Impact on Quality

As Dr. Murthy stated, physician burnout does more than take a toll on clinicians; it also affects the quality of care.  A 2009 review in The Lancet (Physician Wellness:  A Missing Quality Indicator) of work stresses among physicians and the challenges they face in attending to their own wellness suggests that health systems should routinely measure physician well-being because a burned out medical staff leads to suboptimal health system performance.

Clinicians themselves report that feelings of burnout impede the quality of their work.  In a February 2015 study in Psychiatric Services of 120 clinicians participating in a burnout intervention trial, more than half (58 percent) described burnout as having a negative impact on the quality or amount of their work.  Burnout also reduced their patience and energy, diminished their communication and listening skills, and increased their tendency to withdraw from others.  Some participants described how burnout was affecting their personal lives, though the study was focused on the work environment.  One participant stated, “I try not to allow the way I feel impact the veterans.  I take it out on my family.”

In a Mayo Clinic longitudinal study of physicians at a large institution, burnout and satisfaction scores correlated strongly with actual reductions in professional work effort over a two-year period.  Each one-point increase in a seven-point emotional exhaustion scale was associated with a greater likelihood of reducing full-time equivalent (FTE) work over the following 24 months, and each one-point decrease in a five-point satisfaction score was also associated with a greater likelihood of reducing FTE. 

“These findings run counter to some of the usual tropes about the increasing interest in part-time work.  Some have tied the trend to the increasing number of female physicians wanting to spend more time with family, or to the influx of younger physicians into the workforce seeking more work/life balance,” comments Nicole Clarke, MSM, PhD, in Practice Notes, a blog of the Advisory Board.  “However, this relationship between burnout and FTE reduction is independent of age, sex, practice site and specialty.  For the medical group executive, this highlights the importance of looking beyond demographic factors when trying to diagnose, and address, burnout among your physicians.”

Other research in Annals of Surgery found a strong correlation between major medical errors and mental health.  More than 70 percent of surgeons who reported making a major medical error in the previous three months attributed the error to individual rather than system factors.

In an article in the November/December 2014 issue of The Annals of Family Medicine, Thomas Bodenheimer, MD, of the Center for Excellence in Primary Care at the University of California at San Francisco, contends that care team well-being can be seen as a prerequisite for health care’s Triple Aim (enhancing the patient experience, improving population health and reducing costs).  He argues for expanding the Triple Aim to the Quadruple Aim by adding a fourth goal of improving the life of clinicians and healthcare staff.

In an ironic twist, efforts to support the Triple Aim can themselves contribute to burnout, making the achievement of Triple Aim goals even more elusive.  “Higher scores on a patient-centered medical home assessment may be associated with greater clinician burnout in safety-net clinics. More EHR functionalities—email with patients, physician order entry, alerts and reminders—intended to promote the Triple Aim are associated with more burnout and intent to leave practice,” he writes.

In a June 2016 post in the Harvard Health Blog, Steven A. Adelman, MD, director of Physician Health Services, Inc., a subsidiary of the Massachusetts Medical Society, posits a connection between lack of physician well-being and another serious quality and safety issue—the opioid epidemic.  The possible connection is something anesthesiologists should keep in mind, since they are among the most frequent prescribers of opioids. 

Answering to a “growing cadre of masters,” including managed care professionals, IT consultants, administrators and patients, physicians “may not possess enough time or the requisite emotional fortitude to fully explore non-opioid alternatives when, for example, a patient with chronic lower back pain reports that 80 mg of oxycodone (Oxycontin) per day has allowed him to continue working and providing for his family,” Dr. Adelman writes.  “Until our society and the medical profession begin to address this crisis in a vigorous and meaningful way, our quest to put an end to the opioid epidemic remains daunting.” 

Warning Signs and Strategies

What can physicians do to identify burnout and address it before it takes a serious toll on their personal and professional lives?

Physicians should never ignore the following risk factors, according to Mark Linzer, MD, of Hennepin County Medical Center in Minneapolis, who has studied physician burnout for 20 years: 

• A high tolerance to stress.  Physicians who consistently operate under high stress are at least 15 times more likely to burn out, according to Dr. Linzer’s research.
• An exceptionally chaotic practice.  “Caring for patients keeps doctors motivated.  What burns them out is caring for patients in a high-stress environment,” he says.
• Conflicting values and leadership.  Physicians need to feel as if the people leading them also share their values for medicine and patient care. 
• Acting as the emotional buffer.  Physicians will often buffer the patient from their own stressful environment, and that can eventually have an impact.
• Allowing work to interfere with family events.  Dr. Linzer cites work-life imbalance as one of the most common predictors of burnout.
• Self-neglect.  Physicians who continually neglect their own mental and physical well-being may begin to neglect their patients, too.  They must take time for self-care.
• Lack of control over work schedule and free time.  If physicians must work a long standardized set of hours each week, practices should customize their schedules to flexibly accommodate changes in physicians’ daily lives.

Dr. Linzer has developed a program for the AMA called Steps Forward™ that recommends seven steps for combating physician burnout:

• Establish wellness as a quality indicator for your practice
• Start a wellness committee and/or choose a wellness champion
• Distribute an annual wellness survey, such as the 10-item Mini Z Burnout Survey
• Meet regularly with leaders and/or staff to discuss data and interventions to promote wellness
• Initiate selected interventions
• Repeat the survey within the year to re-evaluate wellness
• Seek answers within the data, refine the interventions and continue to make improvements

In a presentation on burnout, experts offered the following simple tips for physicians:

• Take a look at your schedule and take 1 or 2 items off your daily to-do list
• Take daily time-outs for exercise, yoga or meditation
• Connect with friends and family in a meaningful way
• Find something to laugh about every day
• Have a mantra that you can turn to when feeling stressed
• Try 4-4-8 breathing:  relax and inhale through your  nose for a count of 4, hold for a count of 4, and exhale through your mouth for a count of 8
• Use relaxation and mindfulness techniques to lessen stress and progression to burnout
• Make sure you get enough sleep

Addressing burnout begins by recognizing that it exists and giving it the attention it deserves as a metric for practice and organizational effectiveness, Dr. Linzer says in Medical Economics.  “I hear people say, ‘we can’t afford to deal with this.’ I say you have to listen and understand what’s hurting people.  Preventing burnout in the long run will save the system money.”

Dr. Linzer and his colleagues have implemented solutions at their institution such as a “reset room” where clinicians can go for a brief respite to listen to music, a wellness center with exercise and meditation spaces, and float pools that provide coverage for physicians for sick days and personal days so that they do not have to dump their workloads on peers.

Stanford University has developed a time bank that allows clinicians to earn credits for doing the kinds of work that are typically unrewarded, including serving on committees, mentoring or covering colleagues’ shifts.  They can use these credits to pay for time-saving services, such as home-delivered gourmet meals, housekeeping services and help writing research grants.

As Dr. Linzer said in a Stanford presentation, “Give people control of the work environment, give them support and all of a sudden they are back in balance.  It’s not easy, but it can be done.”

With best wishes,

Tony Mira
President and CEO

“I look upon ourselves as partners in all of this, and that each of us contributes and does what he can do best. We can create ourselves and our future.” – Jonas Salk, 1985

Presented with this opportunity by Dr. Salk, how will each of our anesthesia groups create its own future? How will you as a physician maintain your professional relevance? Will you continue to commit yourself to fading traditional practice patterns and reimbursement models? Or will you take advantage of the paradigm shifts in medicine that are already upon us? Payers are demanding better results, hospital administrators are in need of help, patients are in the middle without access and the specialty of anesthesia needs a tune-up. The perioperative surgical home promises to address it all.

Led by the Centers for Medicare and Medicaid Services (CMS), payers are mandating coordinated care and improved quality through pay-for-performance reimbursement models. CMS will soon pay up to a four percent bonus for high self-reported performance scores and impose similar-sized penalties on relatively less successful providers. In 2018 the difference between maximum positive and negative scores will be eight percent and by 2022 the difference will be 18 percent…every single year. Private payers will follow suit, but this 18 percent CMS incentive alone is strong enough incentive that anesthesiologists should fully embrace quality metrics and coordinated care. Those metrics and coordinated care are best embodied by anesthesiologist presence and leadership in the perioperative surgical home preoperative clinic.

Surgeons and hospital administrators need anesthesiologists more than ever. Both are facing their own demands for increased quality metrics and reducing length of stay. Both are subject to their own system of CMS penalties, caps and bundled payments.

Both are severely in need of quality anesthesia leadership and partnership. If they haven’t yet realized the value of your perioperative skill set, then it’s time for you to offer your assistance. You may not personally know it, but your management and vision are in demand outside the operating room. Your new management target is the 20 percent of sickest patients presenting for surgery. In an era where the emphasis is to reduce length-of-stay and readmissions, your anesthesia preoperative surgical involvement is your opportunity for medical, logistical and administrative leadership.

Patients don’t have reasonable access to anesthesiologists. Anesthesiologists do not have reasonable access to patients. We are both subject to a marginal default anesthesia care model that confines access to three minutes before surgery and five minutes afterward. This is the standard of care, but whom does it serve? Whose ‘standard’ is this? How does this model constitute access? Our patients are frequently old, medically complex, pediatric, pregnant or otherwise facing critical moments in life. How is it that we, as a specialty, pretend to serve these people well by spending only the most minimal amount of time with them immediately preoperatively? Are we as anesthesiologists really that good than in the three minutes before surgery we can assess these complex patients, give them optimal care, a quality experience and our best effort? Is this really our best effort? Both patients and anesthesiologists would be much better served by establishing perioperative surgical clinics. Anesthesiologists must make themselves available.

As a specialty, anesthesia has lost a lot of access in the last 25 years. Our patients used to be admitted the night before and then stayed days after surgery. We had a chance to round on them before surgery, write orders, optimize or cancel. We rounded on them after surgery and had an opportunity to learn by observing the results of our work. Now our OR practice too often amounts to mindless assembly-line work; meeting patients three minutes ahead of time, five minutes in recovery, turn over the room in 20 minutes. “Wash, rinse and repeat.” This process makes for a timely, efficient anesthesia practice but what of quality, patient experience and the perception of our specialty? What of anesthesia medical management and leadership? We have abdicated our responsibilities by delegating the preoperative and post-discharge work to others. The perioperative surgical home offers anesthesia a platform. This is the means by which we reclaim ownership of the entire process and credibility with patients, surgeons and administrators.

The best minds in the American Society of Anesthesiologists (ASA) are pointing the way to the perioperative surgical home (PSH); anesthesiologist-staffed clinics are seeing complicated patients days to weeks ahead of surgery. For the ASA, this is the moral and medical core of the future of our specialty. Medically, who better than anesthesiologists to understand the physical challenges posed to patient physiology by surgeries? Logistically, who better to coordinate the preoperative work-up, the acute intraoperative care and the post-discharge medical management? At Pacific Valley Medical Group (PVMG) in Pasadena, California, we understand that cause.

In the last year, PVMG has worked in partnership to lay the foundations for our own joint perioperative surgical anesthesia clinic. Last June we attended the ASA PSH conference. In September we presented to the Huntington Memorial Hospital C-suite. In October we shook hands on a deal with Huntington appointing one of our partners as a physician champion. We’ve held two briefing conferences for our surgeon partners and weekly meetings for the coordination of administrative staff. Huntington has additionally hired a Six-Sigma Master Black Belt PSH coordinator and elevated one of our MD, MBA physicians to Vice President of IT and Quality. I have also personally met with Dan Cole, MD, President of the ASA and Karen Siebert, MD of the California Society of Anesthesiologists seeking their guidance.

Three of our anesthesia group members are seeing patients in a well ordered clinic. Cerner software is being rewritten to accommodate and document perioperative appointments in anticipation of billing CMS. Having presented to you in previous Communiqué issues the math for reimbursement, getting paid is going to be tough, though. There are CMS billing codes, but the rates are low and private payers are holding back waiting for performance data. The PSH fee-for-service income potential for a full-time equivalent (FTE) anesthesiologist cannot yet compete with the income potential of operating rooms. Other potential income streams to support an FTE anesthesiologist in clinic include stipends from the hospital or the anesthesia group its self. At the moment, the PSH is a financial loss-leader.

Profit or loss, though, establishing an anesthesia perioperative surgical home clinic is exactly the right investment for the future. Having an FTE anesthesiologist available in a preoperative clinic to meet with patients days to weeks before surgery offers huge benefits. Anesthesia clearance decreases day-of-surgery cancellations and our presence dramatically improves the patient experience. Many sub-populations of patients (old, sick, parents giving up their children, pregnant) absolutely love the access they have to anesthesiologists. Our Huntington hospital administrators are thrilled to have our anesthesia group take more responsibility for surgical outcome, and the greater cooperation of care has improved our standing with our surgeons. There is every possible good thing about an FTE anesthesiologist and our leadership in pre-op clinic. Additionally, we will open up those clinics for post-discharge and pain management appointments.

As an anesthesiologist, the OR is a wonderful place to make a medical contribution. No one can spot trouble like we can and no one can intervene acutely like an MD anesthesiologist. There is no runner-up. Too often, though, we self-limit that skill set to the narrow paradigm of the OR. You can actually practice that same medical skill set well ahead of time in the preoperative clinic to optimize, precondition, triage and manage your patients to the greater benefit of all. As an anesthesiologist, think of how valuable your clearance of medically complicated patients would be to your anesthesia colleagues, to your patients and to your surgeons. For the 20 percent of those most in need of your attention, it is better than gold. For some, it is life itself.

Consider your anesthesia presence in the PSH clinic your best investment in your future. The distribution of bundled payments through ACOs is looming. Soon every specialty group will present their case to the ACO board to request a percentage of finite capped payments. Increasing your responsibility for the perioperative surgical continuum by your presence in a PSH is guaranteed to provide you with justification for a larger percentage of capped payments. Anesthesiologists must own more if they are to justify a larger request.

Like all great quests, the key to your future isn’t ‘out there.’ Your future lies within. The key to your future lies in how you as an anesthesiologist perceive your own value, your medical skills and the medical contributions only you can make. The key to your future is in stepping up to assume more responsibility. You must lead this effort yourself and make your own case by placing yourself in clinic. You must recognize the new paradigm that only you can lead.

This is the time and place for medical leadership. The perioperative surgical home is your future

The premise is elegant in its simplicity:  The more information you have about a surgical patient’s biology, the greater your ability to tailor anesthesia medication appropriately for that patient and lower their risk of an adverse drug reaction (ADR), longer hospital stay or hospital readmission, and the better and more cost-effective the overall quality and safety of your anesthesia care.

It’s an approach that clinicians, scientists and President Obama, through his administration’s Precision Medicine Initiative, hope can be used routinely one day to spare surgical patients from unnecessary risks and complications.  A personalized approach to anesthesia care such as this could also enable anesthesiologists to add value to their institutions and practices as perioperativists, yielding benefits for health systems, payers and, ultimately, society as a whole.

Pharmacogenomics, a cornerstone of medical science’s movement toward personalized medicine, uses genetic data to guide drug development and testing and help physicians select the proper medication or therapy at the proper dose or regimen.  Pharmacogenetic testing can help identify patients who are at greater risk of side effects, or are more likely to experience severe side effects at relatively low doses, require a higher dose to achieve a therapeutic effect or receive no benefit from the medication.  As explained in The Lancet in 2000:

Polymorphisms in the genes that code for drug-metabolising enzymes, drug transporters, drug receptors, and ion channels can affect an individual's risk of having an adverse drug reaction, or can alter the efficacy of drug treatment in that individual. Mutant alleles at a single gene locus are the best studied individual risk factors for adverse drug reactions, and include many genes coding for drug-metabolising enzymes. These genetic polymorphisms of drug metabolism produce the phenotypes of “poor metabolisers” or “ultrarapid metabolisers” of numerous drugs. Together, such phenotypes make up a substantial proportion of the population. Pharmacogenomic techniques allow efficient analysis of these risk factors, and genotyping tests have the potential to optimise drug therapy in the future.

Applications in Anesthesiology

The ability to personalize anesthesia care in this manner is more than an idea.  Pharmacogenetic testing is now available to help anesthesiologists risk-stratify patients and tailor treatment.  A growing number of laboratories are helping anesthesiologists personalize care using pharmacogenetic testing as a tool to predict a patient’s response to postoperative opioid therapy, treatment for postoperative nausea and vomiting with various anti-emetics, and perioperative risk of thrombosis.  These predictions can help anesthesiologists choose the appropriate medications for patients whose genetic profiles indicate that they are likely to react poorly to certain drugs, such as opioids, or to metabolize them too quickly.

A preoperative behavioral and medical risk assessment conducted by a nurse, followed by pharmacogenetic testing in patients identified as being at risk of developing opioid dependence or having opioid-related complications that could unnecessarily lengthen their hospital stay or increase their risk of an ADR and re-hospitalization, can alert anesthesiologists to the need to alter treatment or prescribe multi-modal therapy as an alternative to opioids.  Patients can also keep this valuable information about their genetic composition and share it with other physicians who treat them.

The use of pharmacogenomic testing is not yet widespread, but its future looks bright.  According to the National Human Genome Research Institute, “Doctors are starting to use pharmacogenetic information to prescribe drugs, but such tests are routine for only a few health problems.  However, given the field’s rapid growth, pharmacogenomics is soon expected to lead to better ways of using drugs to manage heart disease, cancer, asthma, depression and many other common diseases.”

That is already happening.  For example, pharmacogenetic research has shown that patients with a reduced-function CYP2C19 allele have significantly lower levels of the active metabolite of clopidogrel (Plavix), diminished platelet inhibition and a higher rate of major adverse cardiovascular events, including stent thrombosis.  Pharmacogenetic testing to identify patients who are poor, ultra-rapid, extensive or intermediate metabolizers of clopidogrel is now often used to guide therapy and is recommended in package inserts.  Approximately 100 Food and Drug Administration (FDA)-approved medications now carry such pharmacogenetic testing recommendations on package inserts.

Opioids and ADRs

One look at the sobering data on ADRs and it is easy to see how predictive pharmacogenomics could be used to tackle a serious public health problem as well as the instrumental role anesthesiologists could play in this regard.

According to some estimates, 6.7 percent of hospitalized patients have a serious ADR with a fatality rate of 0.32 percent.  That translates into 2.2 million serious ADRs in hospitalized patients and 106,000 deaths each year, and makes ADRs the fourth leading cause of death—ahead of pulmonary disease, diabetes, AIDS, pneumonia, accidents and automobile deaths.  ADRs account for an estimated one third of hospital adverse events and approximately 280,000 hospital admissions annually, the Health and Human Services Office of Disease Prevention and Health Promotion reports in its National Action Plan for Adverse Drug Event Prevention.¹

Of particular relevance to anesthesiologists is the fact that opioids are one of three groups of drugs targeted in the Action Plan because they are one of the most common causes of ADRs and the cause of more than 75 percent of pharmaceutical overdose deaths. From 1999-2010, the number of prescription opioid overdose deaths in the United States quadrupled.

An editorial in the March 2016 issue of Population Health cited research indicating that 1 in 15 of the more than 95 percent of patients who receive opioids following the approximately 53 million inpatient and 57 million outpatient procedures performed in the U.S. each year will become long-term opioid users.  The ability of anesthesiologists as perioperativists to identify patients at risk of opioid addiction preoperatively through risk stratification and pharmacogenetic testing could help mitigate a problem that has reached epidemic scale.

For example, according to an FDA learning module on adverse drug reactions sponsored by the Agency for Healthcare Research and Quality:

The absence of cytochrome P450 2D6 in 7% of Caucasians means that these individuals cannot metabolize codeine to the active metabolite, morphine, and therefore will get little, if any, pain relief from codeine.¹ However, they will experience codeine’s adverse effects, particularly if the dose is increased in the futile attempt to obtain pain relief.

Thirty percent of Ethiopians studied had multiple copies of the 2D6 gene (up to13) and increased eynzyme activity resulting in ultrarapid metabolism.² Ultra-rapid metabolism results in lower blood levels following a standard dose of any drug metabolized by this enzyme. Therefore these patients may have an inadequate response to standard dosages of ß-blockers, narcotic analgesics, or antidepressants and may require higher dosages for clinical effectiveness.

A 2013 review of the evidence for the clinical utility of pharmacogenetic testing notes that package inserts for approved drugs and newly approved versions of drugs containing codeine as a major component now include information about ultra-rapid metabolizers of CYP2D6. 

Evidence of pharmacogenetic testing’s utility in chronic pain management is also beginning to accumulate.  A late-breaking poster presented at the 2016 American Academy of Pain Medicine Annual Meeting reported the successful use of pharmacogenetic testing in a chronic pain patient who had been taking morphine extended-release tablets at a dose of 100 mg up to three times daily with escalating doses over four years with little pain relief.  Pharmacogenetic testing showed the patient to be an ultra-rapid metabolizer of CYP2D6.  His physician added gabapentin (Gralise, Depomed), an anticonvulsant, and low-dose methadone, which is metabolized by CYP3A4 and CYP2B6.  Within three visits, the patient’s pain score dropped from 10 to 4.

Roadblocks Ahead

Despite these signs of promise, questions need to be answered before pharmacogenetic testing becomes mainstream in medicine.  According to Stuart A. Scott, PhD, of Mt. Sinai School of Medicine writing in Genetics in Medicine (Personalizing medicine with clinical pharmacogenetics):

. . . interindividual drug response variability has only recently become available to help clinicians guide pharmacotherapy, in part due to US Food and Drug Administration-mediated product insert revisions that include pharmacogenetic information for selected drugs. However, despite pharmacogenetic associations with adverse outcomes, physician uptake of clinical pharmacogenetic testing has been slow. Compared with testing for Mendelian diseases, pharmacogenetic testing for certain indications can have a lower positive predictive value, which is one reason for underutilization. A number of other barriers remain with implementing clinical pharmacogenetics, including clinical utility, professional education, and regulatory and reimbursement issues, among others.

Reimbursement presents an ongoing challenge.  Last year, Medicare discontinued payment for some pharmacogenetic testing.  “This decision is designed to save money at the expense of patient care,” says John Logan Black, III, MD, co-director of Mayo Clinic’s Personalized Genomics Laboratory.  “It comes down to dollars and cents and not really what patients need. Medicare officials are trying to control costs by saying they haven’t seen enough benefit from these tests.  However, it has long been considered that pharmacogenomic testing is the low-hanging fruit from the Human Genome Project, because these tests give us a lot of personalized information about patients.  But now critics say it’s too hard to implement or insurers say they’re worried about the costs to implement this testing.”

Others point to a lack of scientific evidence supporting pharmacogenetic testing’s benefits in randomized controlled trials.  However, as Felix W. Frueh, PhD, of the FDA states in Pharmacogenomics: 

Personalized medicine refers to an approach of clinical practice where a particular treatment is not chosen based on the ‘average patient’, but on characteristics of an individual patient, for example, a genetic profile that may vary from one patient to another, and therefore, allows to ‘personalize’ the treatment to a patient’s individual needs. While the call for prospective randomized controlled trials to assess the effective use of such measurement may make sense in some cases, it is, when applied without distinction, hindering the implementation of personalized medicine. Important evidence for the validity and clinical effectiveness of using biomarkers, for example, a patient’s genetic profile, can be gained from alternative approaches, including case–control and cohort studies, and retrospective analyses of data. Hence, we need to re-focus on approaches that are neither new nor unproven, but have been ignored over the last few decades.

Despite these obstacles, pharmacogenomics is unlikely to disappear and anesthesiologists would be wise to keep it on their radars.  In the not too distant future, we would expect that clinical application software including anesthesia information systems will incorporate more pharmacogenomic data and decision support.  As healthcare marketing specialist Daphne Swancutt stated it in KevinMD, “The future is in personalized medicine. Pharmacogenetics is on a wave that is only going to become stronger. Genetic testing and targeted therapies will change the way patients are treated, customizing their care and reducing the likelihood of ineffective—and possibly toxic—treatments. We have to get the ball rolling faster and support the kind of research that can make this happen. It’s good medicine.”

ABC clients:  Reimbursement for pharmacogenetic testing varies.  Please contact your ABC Client Service Executive if you have any questions.

With best wishes,

Tony Mira
President and CEO

Stress is a part of life for all of us, and anesthesiologists have more than their share in a practice environment where rules seem to shift from day-to-day as the burden of paperwork and performance measurement increases and financial rewards are diminishing or put at risk. Add this to the already daunting pressures associated with long hours in the surgical suites and on-call responsibilities, and it is no wonder that patience wears thin from time-to-time.

I have been impressed throughout my career with the manner in which the vast majority of anesthesiologists handle this pressure, but have also seen a few situations where the pressures resulted in behavior that was detrimental to patient satisfaction and/or the reputation of the group. All of us have had times where stress in our personal or professional life has caused us to act or react in a way that we later find regrettable, but for those on the front lines of the medical profession, a continuous pattern of negative reaction that is disrespectful, unprofessional and toxic to the workplace (often called “disruptive”) can have an impact on the group’s business relationships, and in some cases directly affect patient care.

Although this may occur infrequently, every practice should have policies in place to identify and deal with situations involving disruptive physicians. In addition to having direct responsibility for patient safety and satisfaction, the group is a business entity with business relationships and a reputation to protect. Any behavior that has the potential to negatively affect the group’s reputation and relationships with hospital administration and staff also has the potential to undermine practice stability and value. The ability of the group to retain hospital contracts and attract new business is directly related not only to their ability to deliver clinical quality, but also the ability of all group members to work harmoniously with the entire care team to achieve the highest level of patient care and satisfaction.

A 2011 study conducted by QuantiaMD surveyed 523 physician leaders and 321 staff physicians in a variety of healthcare settings regarding disruptive behaviors. Seventy-one percent of responding physicians reported that they had witnessed disruptive behavior within the previous month, and 26 percent of those surveyed reportedly had been disruptive at one time in their career. Disruptive incidents were of higher frequency in surgery, anesthesia and obstetrics and gynecology. To the point of contract retention and business relationships, in this same study, 60 percent of physicians said their organizations have received written complaints from patients or their families relating to disruptive behavior, and 50 percent have seen patients change physicians or leave a practice due to such behavior.

Professional Association Guidance

The American Society of Anesthesiologists (ASA) Guidelines for the Ethical Practice of Anesthesiology declare that “Anesthesiologists should promote a cooperative and respectful relationship with their colleagues…[as well as] other care providers including physicians, medical students, nurses, technicians and assistants.”

Joint Commission standards require the establishment of a code of conduct that defines abusive and disruptive behaviors as well as the creation and implementation of a process for their management.

According to the American Medical Association (AMA) Council on Ethical and Judicial Affairs, disruptive behavior “generally refers to a style of interaction by physicians with others, including hospital personnel, patients and family members, that interferes with patient care or adversely affects the healthcare team’s ability to work effectively. It encompasses behavior that adversely affects morale, focus and concentration, collaboration, and communication and information transfer, all of which can lead to substandard patient care.” The AMA’s Code of Medical Ethics specifically recognizes the importance of civility and respect as a non-negotiable professional mandate.

Establishing Policies and Procedures

A group’s policy relating to disruptive physicians should start with a written Code of Conduct that establishes the general framework for all group members relating to professional conduct and procedural compliance. This Code will typically have one section that covers matters relating directly to patient care, and another covering physician professionalism.

Patient care responsibilities may require group members to:

1. Be familiar with and follow protocols relating to patient care established by the group and all contracted facilities.
2. Provide services to patients in accordance with the patient’s medical needs and physical condition, not on the basis of ethnic or racial background, gender or age.
3. Maintain the confidentiality of all patients’ healthcare information in accordance with federal and state laws, and group’s policies and procedures;
4. To respond promptly and courteously to patient inquiries or requests; and,
5. To disclose adverse events according to the appropriate process.

The physician professionalism section may include requirements to:

1. Respect all group contractual obligations;
2. Not pay for referrals or offer or accept kickbacks and avoid conflicts of interest in accordance with group policies and procedures;
3. Maintain all professional licenses, certifications or other accreditations required by law, the group bylaws, the group physician’s respective employment agreement and group contracted facilities;
4. Fulfill their obligations to carry out duties in compliance with state and federal laws and regulations, group’s policies and procedures and any facility rules and regulations;
5. Participate in mandatory compliance and other educational training provided by group;
6. Contribute to a workplace environment that is free from violence, harassment, intimidation, and is conducive to maintaining the highest professional and ethical standards;
7. Consult with or seek advice from a group board member or a management/billing company representative, when the proper course of action is unknown;
8. Commit to be alert and ready to perform job responsibilities while on duty, including not being under the influence of alcohol or any illegal or controlled substance;
9. Not engage in criminal conduct including, but not limited to, the inappropriate use, sale, possession, transfer, manufacture, distribution, dispensation or purchase of non-medically prescribed controlled substances;
10. Refrain from any behavior that is deemed to be intimidating or harassing, including but not limited to, unwanted touching, sexually-oriented or degrading jokes or comments, obscene gestures, or making inappropriate comments about other physicians, allied health professionals, facility staff or patients;
11. Treat patients, family members, visitors, members of the healthcare team and facility employees in a respectful and dignified manner at all times.
12. Work with other members of the healthcare team to resolve conflicts or address lapses of decorum when they arise;
13.  Avoid the use of language that is profane, vulgar, sexually suggestive or explicit, intimidating, degrading or racially/ethnically/religiously slurring in any professional setting; and
14. Report concerns about another group physician’s conduct to those authorized to receive such information and address the issue.

The Disruptive Physician Policy should clearly state the objectives and expectations with direct reference to the group’s Code of Conduct, and in terms that ensure high standards of patient care and promote a professional practice environment. The recitals section should also define and describe the behavior or types of behavior that will prompt intervention.

The policy should then cover the process to be followed if disruptive behavior is encountered. This process should:

• Provide a channel through which disruptive behavior can be reported and appropriately recorded.
• Establish a process to review or verify reports of disruptive behavior.
• Establish a process to notify a physician whose behavior is disruptive that a report has been made, and providing the physician with an opportunity to respond to the report.
• Describe remedial action to be taken, being specific regarding responsibilities, timing and progressive disciplinary action.
• Include means of monitoring whether a physician’s disruptive conduct improves after intervention.
• Provide for evaluative and corrective actions that are commensurate with the behavior, such as self-correction and structured rehabilitation.
• Identify which individuals will be involved in the various stages of the process, from reviewing reports to notifying physicians and monitoring conduct after intervention.
• Describe the appeal process and provide clear guidelines for confidentiality.

Situations perceived as a threat to patient safety should be specifically and separately addressed in the policy.

Recognizing that not all physicians will have the skills necessary to address these situations effectively on behalf of the group, some groups have appointed an administrative liaison that acts as in-house counselor with respect to physician members’ ethics and behavioral practices. This position reports directly to the board, serving as a consultant to the board and committee chairs on matters requiring historical perspective. Qualifications include exceptional interpersonal communication skills and knowledge of group history, philosophy and policies. This position is typically held by a senior member of the group and former board member. He or she is available to physician members to discuss issues and problems related to their practice within the group including, but not limited to career advice, clinical practice issues not directly affecting patient care, conflict resolution, interpersonal relationships and patient complaints.

Many practices take the time and effort to develop behavior standards, but do not take the extra step to make the policies an integral part of the recruiting process, new physician orientation programs and employment agreements.

The recruiting process is the first line of defense, as it is obvious that recruiting to the established Code of Conduct and policies will go a long way towards avoiding future problems. Many groups handle this function through a recruiting or “manpower” committee where the interview process standards can be discussed to ensure they are designed to highlight the potential for disruptive behavior and are applied consistently. Multiple group members should be involved in the interview process, and references should be checked using a set of questions designed by group leadership.

Group employment agreements should include a section where the employee acknowledges review of all group policies and the Code of Conduct, and agrees to abide by them. To the extent permitted by state laws relating to employment and shareholder status, this section should also give the board the power to enforce the policies if a physician is acting contrary to them in a way that is detrimental to the group’s best interest (in the sole discretion of the board). The following is a sample of such a provision that could be included in an employment agreement:

Professionalism in the performance of his/her duties under this agreement, employee will conduct himself/herself at all times in a professional and collegial manner, and in a manner that reflects favorably upon the professionalism and reputation of employer. Without limiting the foregoing, employee will use all reasonable efforts to maintain harmonious and professional working relationships with other employees or representatives of employer, patients, physicians, nursing staff and representatives of facilities at which employer provides services. Employee also agrees to act consistently with federal, state and local laws governing discrimination in employment and to refrain from any action that could reasonably be construed to violate those laws. Employee hereby confirms that he/she has reviewed the group’s Code of Conduct (attached as Exhibit ___) and understands that full compliance is essential to protect the business interests of the group. Employee also hereby acknowledges the authority of the group’s Board of Directors (or Executive Committee as applicable) to enforce this Code, and all other group policies, and obligation to enforce them by all means necessary to protect the group’s reputation, business interests and patient safety.

As with all other significant components of employment agreements, this paragraph should be reviewed by legal counsel for consistency with state and federal employment and contract law.

Responding to Reported Incidents

So now that you have policies in place, what exactly should be done when a complaint is received? Your first step should be to assure the individual filing the complaint that you take it seriously, that you will investigate the concerns and, if appropriate, will see that remedial measures are taken to prevent recurrence of the conduct. All complaints should be requested in writing, and initial discussions with the party making the complaint (taking place either by phone or in person) should be well documented with comprehensive factual notes regarding the complaints. Offer to keep the complaint as confidential as possible, provide assurance that there will be no retaliation for reporting the incidents, and request that the employee advise you immediately if he or she believes there have been retaliatory actions by the physician involved or anyone else.

Your second step is to determine the most effective way to confront the physician about his or her behavior. If the board has appointed a physician liaison as described above, he or she will become involved immediately and will arrange to meet with both the individual filing the complaint and with the physician who is the subject of the complaint, separately. If you have established policies, all of the next steps are outlined in that policy as describe above. If you do not have a liaison or established policies, you will need to partner with at least one other influential physician in the group who shares your concerns and is willing to support your efforts to confront the issue and act as a liaison between the accused physician and the group. In order to maintain objectivity, both in appearance and in fact, the individual chosen to take the lead in the investigation should not be a personal friend of the physician involved, and should also not be an individual perceived by as an adversary by the physician being investigated.

Especially disruptive behavior involves threats, violence or sexual harassment, the practice must act promptly to remedy the problem. In all other types of situations, where a process will be carried out starting with a meeting with the physician under investigation, following are suggestions for conducting those meetings:

• Empower your board liaison or other designated individual to speak on behalf of the practice. When the meeting is scheduled, it should be clear that the liaison has the authority to speak on behalf of the practice.
• Prepare an outline of points you want to cover. Stick to a script so you avoid getting pulled into an argument. To the extent they exist, have copies of your code of conduct and any written policies and rules that apply to the situation.
• Conduct the meeting in a private, comfortable, professional setting. Reduce the tension as much as possible to encourage a positive dialogue. Do everything possible to make this a constructive problem-solving experience.
• Explain the problem behavior in factual terms. Describe the sequence of events and discuss the effect the physicians’ behavior had on staff, and the potential adverse effects his actions had on his professional reputation and the reputation of the group.
• Refrain from using emotional terms such as bad behavior, tirade or childish tantrum to describe the conduct. These terms might describe the conduct but can polarize the situation and create defensiveness.
• Give the accused physician the opportunity to explain the situation in his own words. Chances are he will not take responsibility for his behavior or might blame staff incompetence for an outburst. He may attempt to change the subject and begin listing the ways the group is at fault for mistreating him. Don’t take the bait. Insist those grievances be taken up at a different time and remind the physician that the purpose of the meeting is to address his conduct on specific dates.
• Ask for the physicians input on how past situations could have been handled differently to avoid the incidents that gave rise to complaints. Make it clear that there is never a valid reason for treating staff members disrespectfully.
• When discussing conduct, consider whether the outbursts may be a result of a drug or alcohol problem or whether his conduct could be the result of mental illness, such as depression. If there is some indication that the conduct is a result of one of these issues, it might be appropriate to refrain from taking any action until you consult with the executive committee and act in accordance with your substance abuse policy.
• Advise the physician that you will be drafting a performance improvement plan that will require him to make immediate, permanent changes in his behavior. Make it clear that failure to comply with the terms may result in discipline, up to and including termination. The plan should include objective, measurable and achievable goals designed to prevent disruptive behavior in the future.
• Make it very clear to the physician that no retaliation of any kind will be tolerated. If you have a written retaliation policy, be prepared to provide a copy at the end of the meeting.
• Carefully document what occurred and what was discussed during the meeting.
• Follow through. If you put the physician on an improvement plan, monitor his behavior and respond quickly and appropriately if requirements are not met.

Summary

Medical group and healthcare facility leadership share responsibility for creating a work environment that contributes to achieving the highest level of patient care and satisfaction by minimizing stress and maximizing professional fulfillment in that environment for the entire healthcare delivery team.

In the workplace, recurring behavioral issues interfere with the normal process of collegiality, cooperation and communication within a healthcare service team, and, in extreme cases, can undermine the institutional culture of safety and quality of care. Healthcare facility governing bodies and leadership should ensure that policies and systems are in place that foster collegiality, mentoring, respectful dialogue, promoting the belief that all physicians within the institution are important.

At the group level, addressing this issue is a matter of protecting reputation and other business interests, as well as ensuring a healthy and fulfilling work environment for all group members. A priority of group leadership must therefore be to recognize the detrimental effects on culture, reputation and stability that can result from recurring behavior problems, and have policies in place to address behavioral situations before they occur.

Join the Conversation on Cost

Do you have an idea for using improvements in quality to drive reductions in the cost of care?  Has your practice tried something that worked?  Share it.

Clinicians and financial managers have plenty of innovative ideas for reducing costs, but these ideas rarely percolate into the public sphere. To change that, Neel Shah, MD, MPP of Harvard Medical School has founded a non-profit organization called Costs of Care to facilitate idea-sharing and learning among healthcare professionals.  Costs of Care sponsors a learning network and a Creating Value Challenge for clinicians, and offers a COST (Culture, Oversight, System support, Training) framework to help clinicians understand and implement high value care interventions in their practices and institutions.  

According to Dr. Shah, who spoke at a recent Hospitals and Health Networks webinar, “The New Conversation on Cost,” healthcare organizations need a strategy for reducing costs that combines the insights of financial managers with the insights of the physicians and nurses who work on the front lines of care delivery and who understand the care and processes that provide value.

It’s a stereotype that clinicians don’t care about cost, Dr. Shah says.  They do care, but their perspective has rarely been a part of the conversation and they rarely receive cost information on a consistent basis.  That needs to change.

A Health Affairs study in which orthopedic surgeons at six major healthcare systems were asked to estimate the cost of 13 commonly used orthopedic devices found that only 20 percent of the surgeons could correctly estimate the cost of the devices.  (Estimates within 20 percent of actual costs were considered correct.)  However, when asked whether they consider cost a key criterion in device selection, 80 percent said yes.  Other research has shown that when cost data is embedded in electronic medical records, costs decline.   

Considering that the decisions clinicians make control about 80 percent of the costs that flow through healthcare and hospitals, this gap between awareness of costs and the desire to be a part of the solution offers a tremendous opportunity for healthcare organizations, Dr. Shah says.

Turn the Tide on Opioid Abuse

United States Surgeon General Vivik H. Murthy, MD, has launched a website, Turn the TideRx.org, to involve healthcare professionals in leading a nationwide movement to solve the U.S. opioid crisis and to educate patients and the public about the dangers of opioid abuse and addiction.

In an historic letter to 2.3 million clinicians sent in late August, Dr. Murthy asks healthcare professionals to pledge their commitment to fighting opioid abuse.  The letter includes a pocket card outlining the Centers for Disease Control and Prevention’s recently adopted opioid prescribing guidelines.

Dr. Murthy’s Turn the TideRx campaign builds on the Department of Health and Human Services Opioid Initiative and the National Pain Strategy, the federal government’s comprehensive plan to reduce the chronic pain burden in the U.S.

In addition to providing a place where clinicians can pledge to combat opioid abuse, the Turn the TideRx website offers space for clinicians to share insights, experiences and strategies that have enabled them to improve their practices, recognize opioid addiction and connect addicted patients with treatment.

The site includes a Pain Treatment Toolbox for clinicians along with current information on opioid dosing and assessing opioid use disorder and overdose risk, and educates patients about how opioids work, alternative pain management strategies, and protecting themselves from opioid overdosing, side effects and addiction.

Dr. Murthy has been touring some of the communities hardest hit by the opioid abuse epidemic, listening to individual stories and speaking with community leaders about the practices that have worked for them and the challenges that remain.

“As cynical as times may seem, the public still looks to our profession for hope during difficult moments.  This is one of those times,” writes Dr. Murthy in the letter to clinicians.  “I know solving this problem will not be easy.  We often struggle to balance reducing our patients’ pain with increasing their risk of addiction.  But, as clinicians, we have the unique power to help end this epidemic.”

‘Green’ the OR

With the unending struggle to stay on top of regulatory changes and cope with healthcare’s frenetic pace of change, it’s easy for thoughts about healthcare’s environmental impact to fall by the wayside.

It might be time to reconsider. According to Practice Greenhealth, a nonprofit organization that promotes environmental sustainability in healthcare, “hospitals have the second largest energy footprint of all sectors, are huge water users and generate 5.9 million tons of waste annually.”

In response, the organization has developed the Greenhealth Cost of Ownership (GCO) Calculator to help healthcare organizations make more environmentally responsible product and device choices.  The tool enables hospitals to determine the hidden costs of products and devices related to maintenance, energy and disposal, and water consumption.  Healthcare suppliers and manufacturers also can use the calculator to identify their products’ strengths and weaknesses from an environmental standpoint. 

The higher initial cost of green products can sometimes act as a barrier to more environmentally sustainable purchasing, notes Beth Eckl, Practice Greenhealth’s director of environmental purchasing.  With the GCO calculator, “Hospitals now have a way to analyze the additional costs of a product and make strategic purchasing decisions that are good for the environment, good for patients and staff, and good for the bottom line,” she says. 

The GCO calculator is available to download and stores all data generated by the user.  Practice Greenhealth will hold free webinars on the GCO Calculator on September 13, 27 and 29, 2016.  To download the tool and register for the webinars, click here. 

Noting that an estimated 20-30 percent of hospital waste is generated by the OR, Practice Greenhealth also sponsors a Greening the OR™ initiative, a long-term collaboration to help hospitals better manage resources in one of the highest supply-consuming and waste-producing areas in the healthcare sector.  The program offers a Greening the OR™ Checklist, webinars and webinar archives, guidance documents, articles and case studies.

To help anesthesiologists become better environmental stewards, the American Society of Anesthesiologists has developed a comprehensive manual, Greening the Operating Room and Perioperative Arena:  Environmental Sustainability for Anesthesia Practice.  Produced by the ASA Task Force on Environmental Sustainability Committee on Equipment and Facilities, the manual was updated in July.  Topics include environmentally responsible anesthetic equipment choices, fresh gas flow management to reduce environmental contamination, and waste stream management and recycling.

Tips for Time Outs

According to the Agency for Healthcare Research and Quality, quoted in our May 16, 2016 eAlert on the importance of surgical checklists, “Checklists are a remarkably useful tool in improving safety, but they are not a panacea.  As checklists have been more widely implemented, it has become clear that their success depends on appropriately targeting the intervention and utilizing a careful implementation strategy.”

In other words, while surgical checklists play a critical role in reducing medical errors, they only work if the entire surgical team conscientiously follows the checklist every time.  Achieving that level of compliance can be a challenge.

Outpatient Surgery offers the following tips to help surgical teams verify, site-mark and hold time outs without fail.

• Label regional block syringes.  Tape yellow “time out” stickers over the thumb inserts of syringes every time you prepare drugs for regional blocks.  This simple step will keep you from operating the syringe or delivering the block until you remove the label.  Removing the label will remind you to verify that you are administering the medication to the correct site.
• Hang reminders on IV bags.  Patients should not receive preoperative sedation or leave the preoperative holding area until their surgical site has been marked.  Hang hard-to-miss signs on the IV poles by patient beds to indicate patients whose surgical site is waiting to be marked.  When the surgeon has marked the site, place a brightly colored sticker identifying the surgical site directly on the IV bag so the entire team can see it.
• Sound off for time outs.  Blow a kazoo or a ring a hotel desk bell to cut through the noise and distractions and get the entire team’s attention before a time out. 
• Involve patients.  Give every patient a single-use marking pen following preoperative preparations.  Explain the importance of site marking and instruct them to ask their surgeon to sign their surgical site.  This step ensures that it is the surgeon who marks the surgical site and involves patients in their care and safety.

ABC Clients:  As always, if you have any questions, please contact your client service executive.

With best wishes,

Tony Mira
President and CEO

Effective anesthesiology group governance is no longer a luxury but instead an important survival skill. Why?

• The external environment is threatening— changes in reimbursement, threats from competitors, hospital consolidation—all add up to the need to make decisions, change and adapt.
• The internal dynamics of many groups are challenging—getting “the entire herd roughly moving west,” dealing with disruptive physicians, developing an agreed upon group strategy—all require a well organized governance system.

Whether your group’s Board includes all the shareholder physicians, or you have chosen a subset of the shareholders to serve as the Board, there are a number of steps that you can take to strengthen your Board’s performance. Here are several of the most important steps that an anesthesiology group Board can take.

Improve Board Meetings

We begin with Board meetings. Why Board meetings?

1. No matter your group’s size, meetings are a tool that all groups use in their governance processes.
2. Much of the work of governance is done in group meetings. Yes, there is often a lot of background work done outside of meetings, but the real discussions, debate and decision making is typically done at group meetings.
3. We have observed that many medical group meetings are chaotic and unproductive. Many physicians do not understand or appreciate the importance of effective meeting management. If meetings don’t work well, practice governance doesn’t work well. The wrong issues are discussed, reasonable conclusions are not reached, decisions are not made.

Now some of you won’t pay attention to these ideas because either “we don’t need to do that” or “we don’t want to do that.” However, keep in mind that “Insanity is doing the same thing and expecting a different result.” The bottom line is that successful governance requires successful meeting processes.

Luckily there are a number of steps that you can take to dramatically improve the effectiveness of your group meetings. Here are two key steps:

1. Develop and Utilize Ground Rules

Think about your most recent group meeting. Did the attendees exhibit any of the following behaviors?

• Multiple people talk at the same time.
• The conversation drifts way off topic.
• Interrupting telephone calls are taken in the meeting room.
• Participants arrive late.
• Low physician attendance.
• Some participate in the discussions, while others don’t (until the “after the meeting meeting”).
• Individuals raise many problems but do not pose solutions.
• There are many sidebar discussions— either by talking to the person seated next to them, or through texting.

To help eliminate these behaviors, the Board should develop “Ground Rules” for Board meetings. Ground Rules are the observable behaviors that the group members agree are expected from every attendee. The focus is on observable behaviors.

Let me provide an example of an unobservable behavior. A Ground Rule that states that everyone is expected to “be open-minded” is subject to dispute, depending on an individual’s viewpoint. Why? Because being “open-minded” occurs inside the brain and is not a undisputable observable behavior.

It’s best to set Ground Rules as a group process. In other words, you should have the attendees develop the Ground Rules together rather than copy the list below and say “here are our new Ground Rules.” Individuals are more likely to adhere to the Ground Rules if they have a hand in developing them.

You should ask the attendees, “what observable behaviors should be expected of each attendee?” Their responses should cover the following key Ground Rules:

1. One person speaks at a time and everyone else listens. 
2. Arrive on time.
3. Stay on topic.
4. All are expected to participate in the discussion.
5. Work towards solutions.
6. No sidebar discussions—oral or texting.
7. If you have to take a telephone call, leave the room so work can continue.
8. Everything we discuss is confidential unless we specifically agree otherwise.

The best performing groups quickly review the Ground Rules at the beginning of every meeting. This doesn’t take long and the pay-off is huge. Some groups type the Ground Rules at the top of their meeting agenda, while others post the Ground Rules on a cardboard sign that they bring to each meeting. But that is not enough—you must review it at each meeting. It only takes a few seconds to do, but it strongly influences behavior.

Most groups find that group meeting performance will improve simply by verbalizing the Ground Rules. You will likely also find increased meeting attendance as individuals begin to expect more organized and effective meetings.

But the Ground Rules will become even more effective when they are utilized by the group’s “Meeting Manager.”

2. Establish a “Meeting Manager”

The “Meeting Manager” is the most critical person in regards to how well meetings operate. The Meeting Manager is the person in charge of running the meeting and he or she has the authority to regulate the meeting and is responsible for:

• Enforcing the ground rules.
• Keeping order.
• Ensuring that any discussion is relevant to the points on a meeting’s agenda and preventing irrelevant debate.
• Repeating any motion proposed by those attending to ensure that everyone has heard and understood it.
• The successful completion of business.
• Summing up the discussion at the end of the meeting.

In addition, it often falls to the Meeting Manager to remind the Board members to make their decisions based on what is best for the entire organization as defined in the group’s mission statement, vision, values and strategic plan.

The ideal Meeting Manager should have a wide range of personal skills, such as:

• Firmness in running the meetings on time and dealing with problems.
• Ability to summarize points succinctly. 
• Flexibility when dealing with the different tones and styles of attendees. 
• Openness and receptiveness when listening to opinions that they do not share. 
• Fair-mindedness in ensuring that all views are aired and given equal initial consideration.

The Meeting Manager is often the chairman or president of a group, but does not have to be. For example, several years ago we worked with an anesthesiology group that had a great president. He was excellent in regard to most of the functions required of him. However, he couldn’t manage his group’s meetings. He was unable to keep the discussion on track and moving forward. This group kept him as president and elected another physician to be the Meeting Manager.

3. Use Secret Ballots

Over the years we have come to realize that most physicians (when it comes to interactions with other physicians in their group) are conflict avoiders. They fear being attacked by other members of the group during discussions (the Meeting Manager should prevent this), and they often fear later retribution when they support or don’t support a particular issue.

Once a decision has been discussed, many groups ask for a vote on which way to proceed (we recommend that groups formally vote on all issues). However, if there is significant disagreement on an issue, some physicians are hesitant to “vote their conscience” by publicly raising their hand. In fact, many group meetings last much longer than they should as people want to put off voting (and thus showing their decision) as long as possible.

Most groups use secret ballots for electing their Board and officers, but some groups use them when they need to vote on controversial issues, or in some cases, all issues.

Why are secret ballots useful?

• They allow the individuals to “vote their conscience” with less fear of retribution.
• They avoid one physician bullying another physician into changing their vote.
• They often speed up a meeting because people don’t delay voting to put off conflict.

There are several ways to implement secret ballots—here are two:

1. Use 3 x 5 cards as the secret ballots.
2. We have observed some groups starting to use audience response systems. One medical group president recently told us that his group has begun using such a voting system for all issues. He said they had cut about 25 percent off the time of every meeting by using the system.

Groups that use secret ballot for all their issues have told us that there is only one potentially negative outcome—that people will push too quickly for a vote. Therefore, it is up to the Meeting Manager to make sure that the group has had a full discussion of the issue prior to voting.

4. Create a “Speed Bump” To Avoid “Re-Visit Torture”

Many medical groups make a decision and then re-visit it over and over again.

This situation comes about when a few members of the group do not get their way in the first vote. They then use this strategy to either torture the group into changing the decision, or to paralyze the group.

When other group members state their frustration about the problems revisiting an issue will cause, the physicians who want to revisit the issue typically respond that additional information has come to light which they believe should be considered in making the decision. This can go on ad infinitum and the ability to pursue key opportunities (or the ability to avoid key threats) can be lost.

Many organizations suffer from this problem, but the situation is more challenging for medical groups where the shareholder physicians are usually equal owners of the practice. Some physician shareholders believe that equal ownership gives them the right to have a say about every issue at any time they want (and often waste precious group meeting time). While it is true that the shareholder physicians are usually equal owners, medical groups have the ability to prevent this perceived right from being used as a torture technique.

One way to reduce the use of this torture technique (revisiting issues over and over again) is to put in a “speed bump” for items to return to the agenda for discussion.

For example, the group could implement a policy that requires 30 percent of the shareholders to sign a document asking to bring an item back to the floor for re-discussion once a decision has been made (it is important that they sign a document, rather than someone say “I had 30 percent of the people say they’d like to re-discuss this issue”).

This policy doesn’t close the door to re-discussing an issue (if more than 30 percent want to re-discuss an issue, the group probably should). However, it will typically reduce the number of times this torture technique is used.

Medical groups that have a Board of Directors (composed of a subset of the shareholders) face the problem that individual shareholders will want to discuss decisions made by the Board that are clearly within the authority of the Board (I will have a lot to say about authority in later articles).

You can use the speed bump discussed above for Board decisions, but another strategy is to create a policy to overturn a decision of the Board that is within their scope of authority, a super-majority vote of the shareholder will be required. This strengthens your Board and makes the Board members more confident in making decisions that are best for the group.

Use Committees Effectively

Many anesthesiology groups establish committees to carry some of the load of governance. Unfortunately, they often do not define the role and responsibilities of the committees, and therefore committee performance is sub-optimal.

As a first step, the Board should create a committee charter for each committee. An example of such a charter is found in Exhibit 1.

Once the committee charters are created, the Board should assign the committees important work. We have found that the best anesthesiology group Boards use their committees to process information prior to the Board addressing an item. When an item is raised at the Board level, the first step is often to send it to a committee to:

• Define the scope of the issue. 
• Gather needed data. 
• Analyze the data.
• Recommend a solution.

Once the committee has developed a solution or recommendation, this information should be presented to the Board. However, the Board must be extremely careful to not redo the work of the committee. If the Board feels the committee has not completed the assignment it should be sent back to the committee for further work.

In addition, the Board should make every effort to accept the committee’s recommendation. Why? If the Board always rejects the committees’ recommendations or redoes the work, the committees will reach the conclusion that their thoughts are not being considered and stop doing the work.

Survey Group Members

Effective communication between the Board and shareholders is critical. There are times the shareholders feel out of the loop or that they have no input into the governance of the group. To keep shareholders in the loop the Board should provide shareholders with Board meeting agendas and minutes and conduct other communication activities.

Over the past couple of years we have noted another communication tool that is being used effectively—on-line surveys. These better performing groups are using online surveys to obtain input from the shareholders prior to deliberating on issues. They are clear that they are not asking the shareholders to vote on the issue, but instead to provide their thoughts on what should be considered as the Board addresses the issue.

Demand Support of Board Decisions

There will be times when all Board members do not agree with a Board decision. This is to be expected. The question is: what is expected of a Board member when a decision is not the one they wanted?

In our experience, effective Board members speak in support of Board decisions, even if it is difficult.

Mature Board members understand the difference between supporting a decision and agreeing with it. Board members should be able to support a Board decision if the decision:

• Was voted on after a range of views were explored;
• Is based on the best available knowledge; and
• Is consistent with the group’s stated mission and vision.

The Board should set aside time to discuss how it will handle disagreements. We recommend that all Board members agree to communicate Board decisions as follows: 

1. “We thoroughly discussed the issue…”
2. “We considered a number of alternatives…”
3. “The Board agreed that this was the right thing to do…”
4. “I plan to support the decision…”
5. “And you should too.”