It is a tough time to be a health-care professional, and even tougher to be a patient. Managed care has taken all of our assumptions and ethical values about health care and turned them upside down. Now the primary problem in health-care delivery, according to the managed care companies and Medicare authorities, is health-care professionals.
We have been assaulted simultaneously from three directions—managed care and insurance companies, intrusion and regulation by federal and state agencies, and the phenomenal targeting of physicians in malpractice cases. These three factors constitute what AMA former board chair, Timothy Flaherty, has called “the perfect storm.”
Managed care has taken all of our assumptions and ethical values about health care and turned them upside down.
Managed care is at the heart of the problem. The only way these companies can create greater profits is to pay for less care. HMO's and managed care companies have become increasingly creative in the ways in which they discourage clinicians from delivering care, from denying claims because of “medical necessity,” to finding ways to declare records of treatment inadequate and therefore non-reimbursable.
We have seen HMO's increasingly demanding refunds through the use of extrapolation methodologies. This is done by obtaining a few clinical records, without patient consent, finding the records inadequate, and then extrapolating from a few claims to the totality of claims filed by that practitioner, and ultimately demanding the practitioner return often huge sums of money.
In this situation we cannot afford to be hopeless, depressed, and passive. APsaA has been remarkably successful in a series of cases addressing some of these problems.
Antidote—Oxford Challenge. In response to the situation that arose in the New York and New England area where extrapolation was used by the Oxford Health Plan, APsaA, working with other groups, was able to reverse the demand for refunds. We engaged in a series of negotiations with Oxford regarding an acceptable amount of information to be included in the patient record. If this agreement is adopted by Oxford, patient consent will also be preserved. Oxford and its medical director, Alan Muni, deserve credit for working with us on this issue. APsaA was the most focused and uncompromising of the professional groups involved.
Antidote—RICO. APsaA has worked closely with the attorneys involved in the RICO (Racketeer Influenced and Corrupt Organizations Act) suit. This suit, described previously in TAP, is a highly successful physician class action suit, which has resulted thus far in two settlements. Aetna and CIGNA have settled and APsaA is a signatory on these settlements. These companies have agreed to cash relief, and, more importantly, to end many of their intrusive and egregious business practices.
Another problem has been maverick state licensing boards operating without providing due process to health-care professionals and without accountability to any oversight body.
Antidote—Eist Suit. APsaA has participated in several amici briefs supporting Harold Eist in his efforts to resist the Maryland State Board of Medicine's attempts to access patient records without patient consent. At every point, the court found in favor of Eist. Although the State Board was forced to acknowledge that Dr. Eist acted with sound clinical judgment in the care of his patients, they continue to pursue him with repetitive litigation based on his adherence to the ethical code requiring patient consent prior to the release of records.
Antidote—District of Columbia Law. APsaA has worked closely with the DC insurance commissioner to try to preserve the landmark DC law, which, nonetheless has been challenged by local insurance companies. This law continues to be a model law, which we have cited in many of our actions in other states and on Capitol Hill.
Antidote—Resisting the Intrusiveness of the Federal Government. With this administration, the issue of government intrusiveness has taken a particularly nasty turn. In the first Bush term, Attorney General John Ashcroft issued subpoenas to six hospitals across the nation seeking to access medical records without consent for late-term abortions. This action specifically targeted doctors who had brought suit against the federal government for attempting to prevent late-term abortions. This seems likely to be an attempt to discourage patients from receiving such abortions and doctors from performing them. This is a particularly frightening example of the use of the power of the federal government to punish individuals who stand up for patient rights. APsaA has worked with the attorneys involved in all six
Robert Pyles, M.D., is chair of the Committee on Government Relations and Insurance, and a former president of APsaA.
of these cases. So far the hospitals have been generally successful in resisting the surrendering of the records.
Antidote—Shrager Suit. APsaA participated financially and by lending expertise to the suit by Dan Shrager, one of our psychotherapy associates, against insurer Magellan. Magellan had attempted to access patient records without consent and Shrager successfully resisted.
Antidote—HIPAA Suit. Pandering to pressure by corporate entities such as insurance companies and HMO's, the Department of Health and Human Services (HHS) issued the amended HIPAA (Health Insurance Portability and Accountability Act) regulations, which did away with patient consent, substituting government “regulatory permission” for the routine release of records. APsaA has been one of a number of plaintiffs who have sued HHS to restore consent. The initial case was decided against us and we are currently in appeal. Our appeal has been joined by six amici groups, including the National Association of Social Workers (NASW), the Texas Civil Rights Project, and the Harvard Medical School Center for Psychiatry and the Law.
One might wonder why we are involved in so many lawsuits. Litigation is one of our three weapons to fight back against the three elements of the perfect storm. The other two elements of our strategy are working through the media and Congress. At the moment, the legal strategy is paramount, as this Congress is not favorable to patient rights.
For example, consider the words of Judge Tjoflat in a recent ruling against the insurance companies in the RICO case. “It would be unjust to allow corporations to engage in rampant and systematic wrongdoing, and then allow them to avoid a class action suit because the consequences of being held accountable for their misdeeds would be financially ruinous. We are courts of justice, and can give the defendants only that which they deserve; if they wish special favors such as protection from high—and deserved—verdicts, they must turn to Congress.”
The American Psychoanalytic Association is quite literally the mouse that roars. We are having an effect far out of proportion for our size and for our budget. We are one of the very few professional organizations that still function effectively in working for the protection of our patients and our profession. APsaA members are getting a tremendous bang for the buck. We should be proud of our efforts and continue to fight the good fight.