When the American College of Emergency Physicians (ACEP) decided not to join the Choosing Wisely campaign, I was among those who expressed disappointment with this decision, in part because I have long been a proponent of efforts to encourage more cost-effective care in the ED.   In fact I had already independently done a significant amount of work in the development of such strategies.

I recognized that there were legitimate concerns about participation in this campaign, but felt that overall ACEP had an obligation to become ‘part of the solution’ to the unsustainable growth in health care expenditures in our Country.  When ACEP’s Board reversed itself on Choosing Wisely, I thought this was a thoughtful and appropriate decision, and still do.  That being said, I do have concerns about the language that most of the medical specialty societies participating in Choosing Wisely are using in their cost-effective care recommendations.  Using a “do this” or “don’t do that” format is too prescriptive, and more importantly, this format lends itself to misuse by third party payers as justification for denial of coverage.

The CW campaign states that the effort is “focused on encouraging physicians, patients and other health care stakeholders to think and talk about medical tests and procedures that may be unnecessary”.  This is a valid patient-centric approach that relies on shared medical decision-making “to help make wise decisions about the most appropriate care based on a patients’ individual situation”.  It also implies that these recommendations are just that: recommendations, not absolute dogma.  Mr. John Held, from the ABIM Foundation, has indicated that these lists “do not all need to be in the do this or don’t do that format, however most of them are.  It should also be noted they are not ‘never do’ events, and are backed by evidence and guidelines when such tests or procedures should be used.”

Clearly, ABIM recognizes the possibility that third party payers could use these lists and the evidence behind them to deny coverage and payment.  By claiming that CW does not intend for these recommendations be considered ‘never-do events’, and that they are based on guidelines; it appears that ABIM hopes to deter the linkage of these lists to payment denials. Unfortunately, the inflexible language used in most of these CW recommendations makes it that much easier for payers to do just that.

I still strongly support the effort, but I am very concerned that the dogmatic “do this, don’t do that” language used in these recommendations will effectively hand over the keys to medical decision making to government and third party payers.  The typical approach used in these Choosing Wisely recommendations looks like this one, from the American College of Physicians:  “Don’t obtain imaging studies in patients with non-specific low back pain.”

I would have preferred language like, “Imaging studies are not generally indicated in patients with non-specific low back pain.”   The latter leaves more room for clinical decision-making, the former invites payers to deny coverage first, and dispute the decision later, especially when the test is negative.  Even though ACP does go on to define non-specific low back pain as, “pain that cannot be attributed to a specific disease or spinal abnormality following a history and physical examination”, it is sometimes difficult to attribute low back pain to a specific disease or spinal abnormality without imaging, especially in patients who are elderly, or are demented, or have other seemingly unrelated conditions, like diabetes.

Some physicians may feel that using this alternative, more elastic language is hedging, and that using the more directive language might give physicians liability cover when they decide not to order a test, or might provide physicians with stronger moral suasion in promoting a cost-effective care approach with patients or family.   There may be some validity to these arguments, but I am not persuaded.  I don’t believe that dogmatic mandates for care provide any significant protection from malpractice liability.  Getting sued for malpractice is a function of poor outcomes, bad luck, and negligence, and a good plaintiff’s attorney can spin these situations their way no matter how the recommendation, guideline, or mandate is worded.  I do believe that shared decision-making is a good thing, but that physicians generally do not need to rely on inflexible mandates to help patients arrive at the best decision:  guidelines will suffice.  What I do not want to see is physicians having to say, “since CW says ‘don’t do that test’ your insurance plan is not likely to pay for it”.   In my mind, that is not persuasion, it is coercion.

I also believe that physicians would be more willing to adopt a recommendation that advises them of best evidence rather than one that delivers a medical edict.  For the CW campaign to succeed, it is not necessary to completely eliminate any use of these tests and treatments when indications for them are questionable.  A significant reduction in their use would go a long way towards solving the current health care financing crisis.  Furthermore, the development of these lists is predicated on best evidence, not on scientific certainty.  How many Level A guidelines that have been adopted in one decade are abandoned the next?  Using  “do this, don’t do that” language turns a recommendation into a directive; and leaves less room for the uncertainties in the art of medicine, or the nuances in the application of exceptions to the rule or the clinical decision tools that are built into many of the strategies in the CW lists.  These clinical decision tools are never absolute:  they inevitably rely on clinical judgment.

Using less dogmatic language in the Choosing Wisely recommendations may not dissuade payers from attempting to use these lists to deny coverage or exert undue influence on these decisions; but it will allow physicians and specialty societies more leeway to object to these denials, and keep these payers from beating us, and our patients, over the head with our own best evidence.   The CW campaign may wish to reconsider its use of overly prescriptive language, especially as payers and employers begin to use these lists to justify denial of coverage when the decisions made by physicians and their patients appear to run contrary to CW recommendations.

I believe CW will soon be incorporated not just into pre-authorization criteria for elective tests and procedures, but also into benefit design, and eventually into retrospective medical necessity determinations.    Don’t be surprised to see code-modifiers developed to indicate when a test is performed at the insistence of the patient, leading to higher co-insurance payments or retrospective denials applied by payers or employers.  Perhaps my concerns are overblown, but there are already pretty clear indications that this is exactly what employer funded, commercial, and government insurance plans intend to do.

Myles Riner is an emergency physician who blogs at The Fickle Finger.