MIPS: Lawyers, Litigation, and Malpractice

by | Sep 5, 2017 | MIPS

In my post last week (MIPS: Loan Acquisition and Maintenance) I documented yet another reason that the achievement of a high MIPS score should be Priority One for Eligible Clinicians (EC). 2017 has been defined as the “Transition Year” for MACRA/MIPS and minimum standards have been put in place to allow ECs to squeak by with minimal effort to avoid 2019 Part B adjustments. Literally five minutes of work in 2017 will lead to the avoidance of 2019 penalties.

One option offered by CMS for ECs is described as: “TEST: if you submit a minimum amount of 2017 data to Medicare (for example, one quality measure or one improvement activity for any point in 2017), you can avoid a downward payment adjustment.” Even the AMA suggests this as a viable option. This advice should be viewed with jaundiced eyes as this will lead to a publicly reported MIPS score of 3 out of a possible 100. There are quite a few consultants who will charge $200 – $500 per provider to help with this minimal effort. All I can say is, “Give me a break”. Any promotion of this “no penalty” option is misleading at best. Unless the downside of this path is clearly explained by organizations and consultants then they are guilty of “consulting malpractice”. 2017 is a MIPS transition year but it is also a fork in the road that offers opportunity.

So, as promised last week, here is another collateral effect of the MIPS score. This one is for our friends in the legal community and and I was made aware of it by our friend, Chuck Pope. Let’s say you are defending a provider who is being sued for malpractice. What if your provider client has a low MIPS score, say 23, and this is allowed to be entered into the proceedings. All the other side would have to do is point to the defendant’s MIPS score and the definition of the score as described by CMS:

The Composite Performance Score is based on four performance categories:

  • Quality
  • Resource use
  • Clinical practice improvement activities
  • Meaningful use of certified electronic health records (EHR) technology

Not looking so good for your client. On the other side, if a medical expert witness is on the stand and happens to have a high MIPS score it would point to credibility. See where I am going here? It is not just about avoiding penalties, it is about embracing the entire MIPS domain.

The regret for having a low MIPS score based on 2017 actions will come home to roost when the scores become public in the 4th quarter of 2018. As a prophet once spoke, “He who has ears, let him hear”.