Articles

Physician Ranking by Health Plans

Kathleen Quiroz and Jerry B. Cohen

M.D. News San Antonio (September 2009)

More commonly, health benefit plans and other organizations are seeking to measure treatment, outcomes and other indicia of quality in an effort to rank or otherwise measure physician performance for the benefit of patients, payors and other consumers. This prospect has caused some degree of concern within the physician community as questions have been raised regarding what might be the nature of these measurements and how they might be used.

As of September 1, 2009, a new Texas law will go into effect that addresses physician rankings by health benefit plan issuers. Under this law, by January 1, 2010, all programs that provide ratings or rankings of physician performance must comply with new statutory guidelines that aim to ensure the fairness, consistency, and efficiency of these programs. The new statute is fairly straightforward and easy to understand. It separates the duties owed by health plan benefit issuers, by physicians, and by the Texas Department of Insurance and specifies how the new rule applies to each of them.

HEALTH BENEFIT PLAN
A health benefit plan issuer (a “health plan”) is defined as anyone authorized to provide health insurance or health benefits in Texas. The new law prohibits health plans from rankings physicians, classifying physicians into tiers based on performance, or publishing physician-specific information that includes rankings or tiers of a physician’s performance unless the health plan follows the statutory guidelines. There are three basic requirements that any ranking program must satisfy.

First, the standards used must conform to nationally recognized standards and guidelines, such as those proscribed by the National Quality Forum and the AQA Alliance. If an acceptable standard is unavailable from such an organization, the health plan may look to other sources, such as the National Committee on Quality Assurance and other similar organizations. The Texas Department of Insurance is responsible for adopting rules to ensure that health plans comply with these standards and guidelines as set out by the national organizations.

Second, the standards and measurements that the health plan chooses to use must be disclosed to every affected physician before the evaluation period begins.

Finally, each affected physician must be given, before publication, an opportunity to dispute the ranking or classification through a proceeding that has due process protections. Specifically, the health plan must notify the physician of the proposed ranking or classification in writing at least forty-five days before the rank is made public. The health plan also must disclose to the physician the information and methods it used to reach its final decision.

If the physician properly requests a reconsideration proceeding, within thirty days of the request notice, the health plan must provide a fair reconsideration hearing either by telephone or in person. At the hearing, the physician can provide additional information to the decision-maker, have a representative present, and submit a written statement. Finally, the health plan must provide the physician with a written communication of the outcome of the reconsideration proceeding prior to publication of the rating or rank. Again, the written decision must give specific reasons outlining how the final conclusion was reached.

PHYSICIANS
Physicians also have a duty under the new statute. The duty can best be described as a duty to not interfere. Physicians are prohibited from forcing patients to agree not to rank the physician or participate in surveys regarding the physician. A violation by a physician is grounds for disciplinary action by the Texas Medical Board.

WHY DOES THIS MATTER?
The new law should be good for health plans, physicians and consumers. Previously, there was no standardization of ratings and rankings criteria, physicians did not know when or how they would be evaluated and, when rankings were published, there was no clear protections provided for physicians to dispute the rank. The new statute should provide better protection for physicians throughout this process.

The statute also should benefit health plans as it provides guidelines for any rating or ranking program they may implement and it prohibits physicians from intentionally interfering with these programs.

The new statute also should help the consumer. Without uniform standards, rankings and ratings can be meaningless. With clearer and more uniform standards, consumers should be able to better understand and use the resulting data in making healthcare decisions.

SO EVERYTHING IS FIXED . . . RIGHT?
While perhaps a dramatic improvement from before, the new statute leaves some unanswered questions. For example, the statute permits health plans to draw standards from multiple national resources and, if none provide adequate guidelines, the Insurance Commissioner is to decide the validity of a guideline or standard. Thus, the statute leaves a lot of flexibility for a health plan to choose its source for guidelines, resulting in standards that may not be as uniform as hoped. Further, the statute does not specify who or what organization is to be the decision making authority in the reconsideration hearing proceeding.

Despite these potential problems, the statute provides a useful starting point for changing the way physicians-ranking programs are conducted. For physicians and health plans alike, the most important thing is to start educating themselves on the requirements, how they apply, and what rights are afforded under the statute should a problem arise.

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Jerry B. Cohen and Kathleen Quiroz are Shareholders with Oppenheimer, Blend, Harrison and Tate, Inc. - a top ranked Health Care law firm in San Antonio and Kerrville. Collectively, they have served Corporate and Health Care clients for 38 years and have been recognized by their peers in the legal industry as leading attorneys at both the local and national level. You can reach the Health Care Practice of Oppenheimer, Blend, Harrison and Tate, Inc. at 210.224.2000.

Copyright 2009, Oppenheimer, Blend, Harrison and Tate, Inc.