Political/Legal Issues


This section and corresponding literature is separated into:



A central concern within P4P is its potential to shift the locus of clinical decision making from clinicians to bureaucrats (111). This concern, among others, has necessitated political advocacy on the part of physician organizations nationwide to protect physician and patient interests. Most public political advocacy is directed towards the CMS national P4P program. The CMS program influences many other P4P programs, and thus many Quality Improvement Organizations (QIOs) and physician advocacy groups such as the AMA and the AAFP address CMS policy makers. For instance, the AMA regularly works with CMS and advocates for fairness within P4P policies (1). Moreover, the AMA publicly opposes private insurers whose programs do not meet the AMA’s criteria for appropriate P4P programs (58103). The AAFP has a similar but more detailed set of criteria, and their public statements have tended to be more specific such as recommending that CMS focus P4P on seven particular areas of practice (49).

P4P’s role in Medicare is rapidly expanding, in part due to increased demands to demonstrate cost-effectiveness and efficiency. (55111). It will be important for physicians as a group to match this expansion with greater vigilance and strong advocacy as CMS and private insurers build on P4P to improve quality and lower costs.

Office presentation icon disparities.ppt Dr. Satin's PowerPoint slides address to the 2009 Congressional Black Caucus Healthcare Braintrust / National Minority Quality Forum


AMA: http://www.ama-assn.org/ama/pub/category/14416.html

NMA: http://www.hret.org/hret/programs/content/p4pdisparities.pdf

AAFP: http://www.aafp.org/online/en/home/policy/policies/p/payforperformance.html

IOM 2006 P4P Reporthttp://www.iom.edu/CMS/3809/19805/37232.aspx


Legal Issues  

To date, very few circumstances have brought P4P programs to court. A noteworthy group of cases revolve around the legality of physician tiering by insurance corporations based on cost alone. These cases resulted in rulings that either disallowed insurers from tiering clinicians on the basis of cost alone, or, in other instances, required clear disclosure to patients that this is the case (6971747576160161). See this website's section devoted to Physician Tiering for more information.

There are, however, legal implications of P4P that are being considered preemptively. For example, Kesselhaim (32) argues that it is unlikely that physician performance scores will be used in medical malpractice litigation. Other legal literature involves debate over the appropriateness of legislating clinical practice guidelines (CPGs). Jacobson (151) believes CPGs should not be legally mandated. Anderson (46) writes that physicians must take an active role in establishing quality data so CPGs are evidence-based.


Authors' Opinion

P4P and value-based purchasing is rapidly gaining a foothold in United States health care policies. To many, this sounds like the right thing to do. However, many others are waiting for research to show that paying for quality does indeed work. The biggest fear is that policy makers gain control of health care when they adjust compensation schemes to meet the bottom line. This is a legitimate fear, and clinicians must advocate to ensure this does not happen. Legally, there will likely be many more court cases involving compensation schemes that had little to no validity, or worse yet, caused harm to many patients. Whose fault will the health of the patients be at that point? 


Politics and Law Literature

Key Articles: 262

Politics Literature


(1) Glendinning D. AMA: Medicare pay-for performance must be voluntary and not punitive. American Medical News. March 21, 2005.

Link: http://www.ama-assn.org/amednews/2005/03/21/gv110321.htm


  • Many physicians oppose Medicare P4P withholds.
  • P4P programs must be committed to AMA principles of fairness.
  • Article lists 5 AMA P4P principles of evaluation:
    • Ensures quality of care
    • Fosters the patient physician relationship
    • Offer voluntary participation
    • Use accurate data and fair reporting
    • Provides fair and equitable incentives.

Significance to Literature:

Summarizes AMA’s political advocacy for evaluating fairness in P4P programs.


(49) Champlin L. Scrutinize P4P Programs, Delegates Tell Academy. AAFP News Now. November, 2006.

Link: http://www.aafp.org/online/en/home/publications/news/news-now/inside-aaf...


  • AAFP to monitor seven areas of P4P.
  • Some AAFP delegates believe that process based measurements will eventually fail as health plans demand better outcomes
  • P4P may change the patient-physician relationship for the better.

Significance to Literature:

Highlights the need to identify appropriate goals and standard measurements within seven particular areas.


(55) Trapp D. Bush eyes EMR, P4P to slow Medicare spending. American Medical News. 2008: 51(9) 1,4.

Link: http://www.ama-assn.org/amednews/2008/03/03/gvl20303.htm


  • President Bush called for P4P to help lower Medicare costs.
  • Clinicians need an EMR to make this work
  • Many practices worry about who will pay for EMR.

Significance to Literature:

Infrastructure is not ready for full onset P4P yet.


(58) Glendinning D. AMA toughens P4P policy, vows to oppose problematic programs. American Medical News. July 16, 2007.

Link: http://www.ama-assn.org/amednews/2007/07/16/prsd0716.htm


  • AMA vowed to oppose problematic P4P programs.
  • AMA must try to modify, and not abandon P4P, although opposition to P4P exists within the AMA.

Significance to Literature:

Describes AMA’s position in controlling/regulating P4P.


(103) Right Response to Wrong Incentives. American Medical News, Opinion. August 6, 2007.

Link: http://www.ama-assn.org/amednews/2007/08/06/edsa0806.htm


  • A response to the AMA’s decision to actively oppose any insurer’s incentive program that fails to meet the AMA’s P4P principles.
  • The author believes an aggressive approach will benefit physicians.

Significance to Literature:

AMA advocacy for physicians around P4P is moving forward.


(111) Pear R. Medicare Links Doctors’ Pay to Practices. The New York Times. December 12, 2006.

Link: http://www.nytimes.com/2006/12/12/washington/12health.html


  • Medicare has implemented P4P.
  • Many are skeptical that politicians will try to control care this way.

Significance to Literature:

Physicians express concerns that P4P will shift the locus of clinical decision making from clinicians to bureaucrats.


(261) Epstein AM. Paying for Performance in the United States and Abroad. NEJM. Editorials. 2006: 355(4) 406-408.

PMID: 16870921


  • Compares British and US financial incentives in the context of quality or care.
  • Author predicts that, whereas Britain used a substantial increase in funds to pay for their bonuses, CMS will “carve out quality bonuses from funds available for annual increases in payments or even from funds for existing payment levels.”
  • The wide regional variations in cost of care have led many to believe money can be spent in a different way to get more value.

Significance to Literature:

In 2006, the British P4P program was ahead of the US in adoption of P4P as a way to improve quality of care. Author predicts CMS will take steps to keep their P4P budget neutral. (no new money)


Key Article

(262) Pay-For-Performance. AAFP position paper. August 29, 2005.

Link: http://www.aafp.org/online/en/home/policy/policies/p/payforperformance.html


  • Summarizes the American Academy of Family Physicians (AAFP) stance on experimentation of physician payment methodologies, specifically in designing P4P programs.
  • The central purpose of all P4P programs must be to improve the quality of patient care and clinical outcomes.
  • Lists 14 guidelines for the development and implementation of P4P programs that the AAFP will support.

Significance to Literature:

AAFP position paper provides detailed criteria for P4P programs they would support.


(263) Rosenthal MB. Testimony of Meredith B. Rosenthal to the House subcommittee on Employer-Employee Relations Hearing on Examining Pay-for-Performance Measures and Other Trends in Employer-Sponsored Health Care. May 17, 2005.

Link: http://www.commonwealthfund.org/Content/Publications/Testimonies/2005/Ma...


  • Testimony to US congress.
  • “An analysis of the features of the first generation of programs indicates that there are opportunities to improve the cost effectiveness of P4P and increase the likely gains of quality and value.”
  • “The leadership role of CMS in this area may go a long way towards this goal as private payers have historically emulated many of Medicare’s payment reforms…”
  • In 2005, P4P programs were not designed to reap cost savings.

Significance to Literature:

Testimony to congress that P4P has the potential to improve quality and value in health care if used effectively.


Legal Issues


(32) Kesselhaim A, Ferris TG, Studdert DM. Will Physician-Level Measures of Clinical Performance Be Used in Medical Malpractice Litigation. JAMA. Commentary. 2006: 295(15) 1831-1834.

PMID: 16622145


  • Physician clinical performance is rarely used as evidence in medical malpractice.
  • Therefore, it is highly unlikely that report cards would be used against a physician.
  • However, if evaluations become very specific in the future, this might change.

Significance to Literature:

Physician level measures of clinical performance are not likely to be used in medical malpractice litigation.


(45) Callens S, Volbragt I, Nys H. Legal thoughts on the implications of cost-reducing guidelines for the quality of health care. Health Policy. 2007: 80 422-431.

PMID: 16740337


  • Reviews the European legal history of cost controlling policies and clinical practice guidelines.
  • Article questions impact of cost controlling guidelines on quality of care.
  • Explores physicians’ conflict of interest between quality of care guidelines and cost controlling guidelines.

Significance to Literature:

European legal perspective on cost controlling guidelines now that physician non-compliance with these guidelines is sanctioned.


(46) Anderson J. Doctors Sue Over Network Exclusion. Family Practice News. November 1, 2006.

Link: http://www.familypracticenews.com/article/S0300-7073(06)74065-8/fulltext


  • Physicians in Seattle sue Regence BlueShield after the insurer used internal quality data to exclude nearly 500 physicians from a new select network.
  • Insurer’s data cited as being inaccurate.

Significance to Literature:

Accurate quality data is difficult to obtain. Physicians must take an active role in establishing their quality data.


(151) Jacobson PD. Transforming Clinical Practice Guidelines Into Legislative Mandates. JAMA. Commentary. 2008: 299(2) 208-210.

PMID: 18182603


  • Commentary addresses the appropriateness/inappropriateness of clinical practice guidelines.
  • Written in response to Texas mandate of cardiology guidelines. (SHAPE)
  • Guidelines/mandates should answer these four questions:
  • Is it sound science?
  • What are the clinical implications?
  • Who is advocating the mandates?
  • What are the potential coasts and risks?
  • Author believes professional debate is preferable to legislative mandates that potentially disrupt the scientific process and foreclose alternative options.

Significance to Literature:

Clinical Practice Guidelines should not be legislatively mandated.