MMS Files Legal Action Against the Group Insurance Commission, Its Executive Director, and Two Health Plans

Contact: Frank Fortin, MMS
ffortin@mms.org 
(781) 434-7099

Complaint Seeks to “Correct the Wrongs” of the GIC’s Physician Tiering Program

Waltham, Mass. -- May 21, 2008 -- The Massachusetts Medical Society announced today that it has filed legal action seeking to “correct the wrongs” of the physician ranking program implemented by the Massachusetts Group Insurance Commission (GIC), the purchaser of health insurance for most Massachusetts state employees and retirees.

The complaint, filed in Suffolk Superior Court, alleges that patients have been defrauded and harmed and physicians have been defamed by the GIC’s Clinical Performance Improvement initiative (CPI), a program that ranks (or “tiers”) individual physicians in one of three tiers, using various cost and quality measures. Patients are charged higher co-payment fees to be treated by physicians assigned to the lower two tiers, or must try to change physicians to avoid higher co-payments.

The filing asks the court to either stop the tiering program, or to require that the CPI adhere to specific standards, including transparency, fair notice, formal feedback and correction processes, meaningful physician involvement in the development of the CPI, demonstrate the program’s accuracy, validity and reliability, and submit their programs to an independent oversight authority. These are both requests that the MMS has asked GIC to do voluntarily on several occasions.

“Physicians are very sensitive to the fact that health care costs must be controlled. We are also committed to continually working and seeking innovative initiatives to improve the quality of the care we provide. Good information can be instrumental in reaching these goals, so we have always supported meaningful efforts that seek to improve efficiency and quality. They must, however, be associated with the collection and reporting of valid, useful information to patients and physicians,” said Bruce S. Auerbach, M.D., president of the Massachusetts Medical Society.

“There is a right way to do this, and a wrong way -- and the CPI is definitely not the right way,” said Dr. Auerbach. “We have worked with the GIC for four years to improve its program, and the agency has made changes in some limited areas. However, the GIC has refused to correct the CPI’s most glaring problem, which is its ranking of individual physicians using inaccurate, unreliable and invalid tools and data. This problem is so serious that it overshadows all other improvements that may have been made in the last two years.”

Dr. Auerbach said, “This year, the CPI has been extended to more physicians and specialties, affecting more patients than ever. More physicians are in lower tiers because they were assigned costs from patients they did not treat, and for procedures they did not perform. This is misleading and simply not fair. It forces patients to pay more for their health care. It damages the hard-won reputation of physicians in the community.”

The MMS filing is the latest of several actions nationwide that have sought to rectify the problems with physician tiering programs, including:

• Last November, New York Attorney General Andrew Cuomo settled a complaint against CIGNA and other national health insurers, under which they will take several steps to improve their ranking programs, including ensuring transparency, fairness, due process and independent oversight. Cuomo said, “The goal of transparency is defeated if the information provided is itself inaccurate or misleading or based on flawed data.”
  
  
• On April 1, the Consumer Purchaser Disclosure Project issued the “Patient Charter for Physician Performance Measurement, Reporting and Tiering Programs” which creates a national set of principles, similar to New York’s, to guide measuring and reporting to consumers about doctors' performance. The project is endorsed by insurers, business groups, consumers, physician groups, and other health care providers.
  
  
• The Washington State Medical Association filed suit in 2006 against the Regence Blue Shield over its physician ranking program. Regence settled the complaint by agreeing to involve physicians in developing quality measures.
  
  
• The Fairfield (Conn.) County Medical Association has filed suit last year against United Healthcare and CIGNA to halt their flawed ranking programs. That action is still pending.

Some details of the MMS complaint

The complaint cites numerous instances where physicians have been assigned to lower tiers because they were assigned to patients they did not treat, and procedures or care that they did not provide. For example:

• Dr. Joseph Adolph, of Marlborough, one of the plaintiffs, learned that a single high-cost radiotherapy session for a prostate cancer patient impacted his score because of faulty computer logic. The computer didn’t know how to properly categorize the procedure, so it was defaulted to the office visit, making his office visit scores seem grossly high compared to his peers.
  
  
• Dr. Linda Buchwald, chief of neurology at Mount Auburn Hospital in Cambridge, treats multiple sclerosis patients. Her ranking did not take into account that many such patients have advanced conditions, whose are is often expensive. She manages their care through interdisciplinary teams of nurses, rehabilitation specialists, psychiatrists, physical therapists, occupational therapists and social workers. Because of the way the rankings are calculated, all of this care is assigned to her name. In essence, Dr. Buchwald's ranking is negatively affected by her willingness to treat seriously ill patients.
  
• Another physician went to the extraordinary time and trouble to get all his data from each plan and match it to all of his patient records. He found that 68 percent of the patients attributed to him were not his. He had merely interpreted the EKGs or exercise tolerance tests of patients referred by other physicians and had no influence on the cost of their care.

The plaintiffs are the Massachusetts Medical Society and five physicians: Joseph F. Adolph, M.D., a urologist who practices in Marlborough, Mass.; Linda Y. Buchwald, M.D., chief of neurology at Mount Auburn Hospital in Cambridge; Robert P. Nelken, M.D., a pediatrician in Andover; Susan L. Troyan, M.D., a surgeon who practices in Boston; and Peter T. Zacharia, M.D., a ophthalmologist who practices in Worcester.

The defendants named in the complaint are the Group Insurance Commission, its executive director Dolores L. Mitchell, Tufts Health Plan and the UniCare Life and Insurance Co.

• Download the full complaint (.pdf, 35 pages, 2 MB)

For more information on the GIC, the CPI, and the Massachusetts Medical Society’s research reports and studies on tiering, visit www.massmed.org/tiering.

The Massachusetts Medical Society, with more than 20,000 physicians and student members, is dedicated to educating and advocating for the patients and physicians of Massachusetts. The Society publishes The New England Journal of Medicine, one of the world’s leading medical journals; the Journal Watch family of professional newsletters covering 11 specialties; and AIDS Clinical Care. The Society is also a leader in continuing medical education for health care professionals throughout Massachusetts, conducting a variety of medical education programs for physicians and health care professionals. Founded in 1781, MMS is the oldest continuously operating medical society in the country.