# Faulty Math Behind Over-Treatment

The American Cancer Society (ACS) recently decided that, because the rate of colon cancer has increased by an “alarming” 22% in the 45-to-49-year old cohort this century, colon screenings should start at age 45.

This is a very instructive decision, though not because it is a good idea. Rather, it’s instructive because it’s a “teachable moment” about why Americans suffer from over-diagnosis and over-treatment so much more than people in other modern economies, with worse outcomes to show for it.

One reason is the failure of our medical and public health community to understand the difference between relative risk and absolute risk.

On one hand, a smoker might have a relative risk of heart attacks that is only a few times greater than the risk for nonsmokers. However, with Americans suffering 400,000 heart attacks a year, many of us do whatever we can to avoid small increases in relative risk of a heart attack because the absolute risk is so great.

On the other hand, suppose the relative risk of an unsafe airline is 10 times the risk of a safe airline. But with about three crashes a year (in a very bad year) over the course of 30 million flights, even a whopping tenfold increase in relative risk would bring your absolute risk of crashing up to a trivial 1-in-a-million. Here at Quizzify, we’d still opt for the unsafe airline if it has more legroom and a better mileage program.

And that brings us to exactly what the American Cancer Society miscommunicated…with a disturbing twist, as you’ll see below.

This “alarming” 22% increase in relative risk over the course of this century translates into an increase in the absolute rate of colon cancer in the <50 cohort from 0.006% to 0.007%. Yes, 0.001 percentage point more of the <50 population in this country will get colon cancer now than 18 years ago.

Further, suppose half of that 0.007% had a family history (or some other major risk factor) and would be advised by their doctor to get screened regardless of guidelines for the average person. That leaves roughly 0.0035% of the 45- to 49-year-old population who could possibly benefit from a random screen. That’s not much different from your lifetime odds of getting struck by lightning.

And a screen is far from a lifesaver, in general. Quite the contrary, statistically speaking it is likely to find the slow-growing tumors while missing the more aggressive, faster-growing tumors that begin between screens. Screening is not a surefire way to detect cancer, by any means.

The Disturbing Twist: The Hazards of Screening

That trivial benefit must be weighed against the nontrivial harms. The risk of a complication, such as a perforation, is estimated at between 1.6% and 1.8%. In all fairness to the ACS, it isn’t insisting that the screen be done via a colonoscopy, though the non-invasive screens have such high positive/inconclusive test rates that they often lead to colonoscopies. That makes the rate of complications about 3,000 times the odds of having your life saved by early diagnosis of colon cancer.

Of course, the worst complication is death, and the mortality rate from colonoscopies (0.02%) appears to be, on its face, much higher than the rate of lives that would be saved. However, in all fairness, the mortality rate, like the complication rate, in general, increases with advancing age. Hence maybe the mortality rate in the 45- to 50-year-old cohort isn’t any higher than — and might even be slightly lower than — the rate at which early detection will save lives.

So what’s an employer to do? We’d say, stay on the sidelines. Let employees work this one out for themselves, with their doctors. Or show them this post. But don’t encourage them to run out and get screened on the basis of a recommendation that is at best controversial and at worst harmful.

# Court Takes Practical Approach to SB 863

The 4th District Court of Appeal has ruled on the “retroactive” application of the independent bill review (IBR) provisions of California’s SB 863 and whether the legislature intended to remove from the Workers’ Compensation Appeals Board (W.C.A.B.) the jurisdiction to address bill disputes that existed before the law took effect. (Jan. 1, 2013).  In California Insurance Guarantee Association (C.I.G.A.) v W.C.A.B. (Elite Surgical Centers), the court ruled that the legislature did not wrap up pre-existing medical billing disputes into the new IBR process and that the W.C.A.B. continues to have jurisdiction to resolve those disputes. The court also found that the process used by workers’ compensation judges (WCJ) and adopted by the W.C.A.B. to determine the appropriate fee in these disputed cases constituted the necessary substantial evidence.

The issue in the case involved fees for outpatient surgical center fees for more than 300 cases for treatment provided before Jan. 1, 2004. (The cutoff date is significant as ambulatory surgery centers (ASC) became subject to the official medical fee schedule (OFMS) after that date. Before that date, only hospital-based surgery centers were subject to the OFMS.) Evidence was presented that Elite had increased its rates in November 2000. C.I.G.A. (along with seven other defendants) contested the amount billed and paid the undisputed portion of the bill. The remainder was left for resolution at the W.C.A.B.  At the time this matter came to trial, the W.C.A.B. had consolidated 333 liens, involving different procedures, into a single litigated case.

The case was litigated for 17 days. Elite provided its evidence showing the services provided and its customary fees accepted for similar procedures. Defendants presented contrary evidence, to portray the Elite charges as grossly disproportionate to those of other local providers. Defendants also argued that the ASC OFMS that went into effect on Jan. 1, 2004, was the most reasonable and objective method for determining a fee for Elite’s services.

Before a decision was issued, the legislature passed SB 863, which became effective on Jan. 1, 2013. On Feb 1, 2013, the WCJ issued his decision awarding specific amounts for each of the different types of services at issue. The amount awarded was not based strictly on the evidence presented by one side or the other but represented a figure midway between the ASC OFMS that became effective on Jan. 1, 2004, and the OFMS for hospital-based surgery centers that was in effect beforehand. The awarded fees were between 22% and 45% (depending on the procedure) of what Elite had presented as its reasonable charges.

Defendants appealed from the WCJ’s order, arguing that SB 863 removed the W.C.A.B. jurisdiction to resolve billing disputes and instead required the use of the newly enacted IBR process to resolve the disputed bills. Defendants also argued that the WCJ’s decision was not based on substantial evidence. After initially granting reconsideration, the W.C.A.B. affirmed the WCJ’s decision.

Defendants’ petition for writ of review was granted, and the appellate court upheld the W.C.A.B.’s jurisdiction to decide the disputed issues. The court also found that the WCJ’s analysis was based on substantial evidence.

In considering the potential application of IBR to the disputes existing as of the time SB 863 became effective, the court took note of section 84 of the statute, which required: “This act shall apply to all pending matters, regardless of date of injury, unless otherwise specified in this act, but shall not be a basis to rescind, alter, amend or reopen any final award of workers’ compensation benefits.”

Defendants’ argued, unsuccessfully, that because there was not another provision dictating when the IBR provisions were to become effective, the provisions applied to all pending matters. The court agreed that at first blush the section appeared to mandate application of IBR to pending matters. The court, however, did not stop at that analysis, noting that a review of the entire framework of the IBR procedure indicated the matter was more complex. The court pointed out the impracticality of applying the new provisions to existing cases because of how the statutory process was set up:

“After considering SB 863 as a whole, we conclude that this legislation is ambiguous with respect to whether the IBR process was intended to apply to pending billing disputes, or, rather, was intended to apply only prospectively, to new billing disputes that arise with respect to injuries that occur after the effective date of the legislation. Attempting to apply section 84 of SB 863 in this case would leave these parties without a process by which to have their dispute resolved by a third party, since the new IBR process may be utilized only if certain conditions precedent have been met, and the deadlines for meeting those conditions have passed. Leaving these parties without a viable process to decide their dispute cannot be what the legislature intended. We conclude that in creating the IBR process, the legislature intended to establish a new dispute resolution procedure that would apply to disputes arising on or after the effective date of the legislation, and not to disputes like this one that were pending at the time the legislation went into effect….

“Although this provision does not expressly state that the legislature intended that the IBR and IMR processes go into effect only prospectively, it provides an indication that the legislature viewed both the IMR and IBR processes as applying to future employment-related injuries and to future disputes as to medical care and billing for such care.”

Defendants argued that the lack of process for disputes on billing before Jan. 1, 2013, could be addressed by administrative regulation. The court pointed out the administrative director (AD) had already created regulations and that no such process existed. Acknowledging the ambiguity of the statutory language and the practical problems in applying the statutory process where the events precedent to IBR have already passed, the court ruled:

“In the face of such ambiguity, we are led to interpret the statute as operating prospectively.  … [statutes ordinarily are interpreted as operating prospectively in the absence of a clear indication of a contrary legislative intent]; see also Myers v. Philip Morris (2002) 28 Cal.4th 828, 841 [when a statute is ambiguous regarding retroactivity, it is construed to be prospective in application]. In construing statutes, there is a presumption against retroactive application unless the legislature plainly has directed otherwise by means of ” ‘express language of retroactivity or . . . other sources [that] provide a clear and unavoidable implication that the legislature intended retroactive application.’ ” (McClung v. Employment Development Dept. (2004) 34 Cal.4th 467, 475 (McClung).) Although, at first blush, SB 863 section 84 might appear to constitute ” ‘express language of retroactivity’ ” …, it specifically allows for other portions of the statute to provide a different rule regarding retroactive/prospective application, and at least one other provision of the statute, Labor Code section 139.5, suggests that the IBR process was intended to apply only to disputes over medical treatment provided for injuries that occur on or after Jan. 1, 2013….

“Considering these obstacles to applying the new billing review process to pending claims, it is clear that the legislature could not have intended to leave parties who had pending billing disputes on the effective date of the new statutory scheme with no meaningful procedure for resolving their disputes. ”

The court also provided an extensive discussion of the WCJ’s analysis in determining the appropriate fee for the services in dispute. The court determined the WCJ properly applied the guidelines required in the Tapia v Skill Master Staffing case including its reliance on Kunz v Patterson Floor Coverings, both W.C.A.B. en banc decisions.

“As the WCJ noted, the formula that he used to calculate the “reasonable” facility fees for the relevant time period for the procedures at issue took into consideration what Medicare allowed, what Elite charged, what Elite accepted as payment, what the OMFS for ASCs as of Jan. 1, 2004 allowed, what the OMFS for hospitals during much of the relevant period allowed and the fees that other ASCs billed and accepted for the same or similar services. The WCJ considered evidence as to all of these factors, and arrived at results that fell somewhere in the middle of all of these figures. These conclusions are supported by the evidence and are clearly permissible.”