Medical Ethics Corner: Conditions of Participation for Transplants

By: Dr. Brent Schillinger, Guest Contributor

Quality control measures developed by the Centers for Medicare and Medicaid Services (CMS) seem to be creating an ethical dilemma for some of the sickest patients and their physicians.  This dilemma appears to be the case amongst liver transplant candidates based on an observation that has been quantitatively measured in a new nationwide study commissioned by the American College of Surgeons (ACS).

In 2007, CMS started a new regulatory policy on liver transplants called Conditions of Participation.  The policy was intended to encourage safe, high quality transplant services in Medicare-participating facilities.   New benchmarks for “quality” were arbitrarily constructed.  If the transplant centers were unable to meet the stipulated conditions there were consequences that followed.  The patient outcomes were specifically used to categorize a facility as a “good” or “bad” performer.   This label of  quality could greatly affect the patient and the referring physician confidence, and thus the quantity of referrals, as well as the size of the Medicare payment for services.  In fact if the rating was below a certain level, a hospital could actually lose Medicare funding altogether.

So what did the ACS survey reveal?  The data revealed that many centers are now removing the sickest patients from their liver transplant waiting lists.  Although these are the patients who could potentially benefit the most from a transplant procedure, they are also the patients most likely to have complications, including death, post transplant.  Removing the sickest, highest risk patients of course would have the result of giving the transplant center a better rating as per the CMS criteria. When looking at the research data it seems that CMS only considers death rates in transplant recipients.  They do not look at death rates of those sickest patients who were removed from the list and did not receive the liver transplants needed to stay alive.  So at the end of the day reports are showing more centers with a “good” performance rating and retention of Medicare funding.  Great stats for the facilities, not so good for some of the patients.

There are some disturbing ethical questions raised here.  It certainly looks like someone has figured out how to game the system to achieve higher ratings .  Don’t you think?   Where are the dedicated physicians who took an oath to do the best they could do as their patient’s advocate?  Have they just not realized what is going on or are these docs being pressured by the hospital bean counters and public relations officers?  There are widely accepted reasons for refusing to designate a patient for a transplant, such as a history of liver cancer.  But there are many patients with other high-risk factors that are generally considered suitable candidates for transplants.  This whole group is now off the waiting lists according to this latest report.   The lead author for the ACS study speculates that the CMS policy “unintentionally influenced transplant centers” policies on waiting lists.  It seems to me that some of the inside players had a very clear idea of the consequences of a negative rating and “intentionally” figured out how to avoid the bad image and the accompanying financial hits.

This ACS study only looks at the relatively small group of patients who are designated candidates for liver transplant.  Let’s consider the entire spectrum of Medicare patients.  This year alone CMS has already announced many new directives with the “intentional” motive to generate increased quality of medical care.   The system will expand its use of quantitative measurements of quality that will subsequently reward or punish the players based on their rating.  A large cottage industry is springing up that advises health care facilities and practitioners how to appear “high quality.”  Since there are so many smart people who know how to manipulate whatever system is implemented, I’m afraid we are on the verge of generating a zillion more tons of junk data.  The clever players will have pretty ratings.   They will have more money in their pockets at the end of the day.   Will quality of care improve?   That will be a tough one to measure.  Maybe we will just have to ask our patients one by one.  If the sickest ones are still alive to talk.

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