Some of the largest recoveries by the Justice Department in the last year were Stark law violations, and some leaders worry the policy is hurting physicians rather than preventing corruption.
Harry Severance, MD, an adjunct assistant professor at Durham, N.C.-based Duke University School of Medicine, joined Becker's to discuss how Stark law and anti-kickback statutes are affecting physicians.
Editor's note: This response was edited lightly for clarity and length.
Question: How are Stark law and anti-kickback statutes affecting physicians?
Dr. Harry Severance: These laws were written in an era when physicians owned many of their own practices. In this era when the Stark law was written, there was an attitude shared by many business, financial and political leaders, that "rich doctors" were just trying to further line their pockets and "game" the system. So a prevailing attitude in Congress when these laws were written was, "We've got to control these out-of-control docs."
A huge evolving problem we've seen (possibly in part driven by attempts to avoid these federal "intrusions" into "business practice") is the evolution of healthcare increasingly into larger and larger vertically and horizontally corporate/private equity healthcare "systems" with management boards recruited from "captains of industry," with no clinically practicing doctors on any of these big decision-making boards. One reason behind this is that these corporate boards don't want the federal government to intrude and say they're violating kickback policy. After all, these types of in-corporation exchanges are legal and common business practice in nonmedical businesses.
So while these laws specifically name and target physicians in their wording — if there are no practicing physicians on board, my legal sources tell me that it's much easier to avoid federal oversight and federal inquiry, especially if presented as "common business practice," most specifically in vertically and horizontally integrated systems where, again, such practices are a continuous part of "doing business," and no clinically practicing physicians are participating in these so called "business" decisions.
These boards increasingly manage patient care systems the way one constructs a car on an assembly line. Thus, the practice of medicine becomes more and more a corporate, private equity-run decision-making system, where the people at the top are hired to think almost totally about profit. And, increasingly there are no practicing physicians that have any access to give them input on patient-related issues, where such input might potentially make constraint by these laws more likely.
This is an example of how poorly written laws can end up hurting the persons they are designed to protect — in this case the patient, and further, cause damage to our healthcare workers and workplaces. It's a potential "road to ruin" for the practicing healthcare system.
Q: How does this end up affecting the physicians who are practicing?
HS: It's just one of the many impediments to practicing clinically. I hear from physicians all the time about how they no longer have little if any input in their patients' care. Instead, a business manager comes in and tells them, we need to increase profits, so you need to see more patients per hour, increase your billings, make more in-house referrals, keep your patient satisfaction scores up, don't report violent patients, etc. A recent study noted that primary care doctors need almost 27 hours to adequately complete all minimum standards for each workday. But they can't possibly do all that, so increasingly they leave healthcare.