Life Science Compliance Update

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November 20, 2017

Could MIPS Data Be Used Against Physicians?

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One of the major changes thanks to MACRA and its associated Quality Payment Program (QPP) is the creation of MIPS, of the Merit-based Incentive Payment System. Much has been made about this new way physicians will be evaluated under Medicare. However, we have not seen the take of MIPS scores being used in other domains, such as medical malpractice lawsuits, until we came across this consulting firm’s hypothetical. Could MIPS data be used against physicians?

Hypothetical Malpractice Case

As described on MyMipsScores’ blog:

“[H]ere 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.”

Analysis

 

With this being the first reporting year of the QPP for MIPS, there are no documented cases of what was described having actually occurred in a courtroom. Could it happen? Possibly. Will it happen? Only time will tell. But it is an important reminder for physicians participating in Medicare that their MIPS data will be made public and can be searched by anyone with access to the Internet. We have some doubts as to whether this will be a tactic used in medical malpractice cases, but physicians worried about their MIPS score should start reporting this year to avoid even the potential of a problem down the line.

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