After gaining widespread acceptance of anti "gag clause" legislation, medical lobbies now are seeking to broaden the authority of physicians working in managed care.
The American Medical Association (AMA) House of Delegates recently passed a resolution identifying 16 decisions over which physicians, alone, or in consultation with a managed care plan, should have the final say (see list p. 4).
Some view this as a shift in the body’s debate over managed care, from a focus on the issue of physician choice, which has long dominated physician concerns about managed care, to the issues of the patient-physician relationship and clinical decision-making .
Gag rule laws became a top media and legislative issue after the AMA’s House of Delegates passed a measure opposing such rules in December 1995. The list of clinical decisions addressed at this year’s session could influence state or federal legislation, though that wasn’t its intent, says AMA spokesman Rob Otten.
The list is meant primarily to provide guidance to physicians in assessing managed care contracts, he says. The AMA also hopes to encourage use of the list in accreditation of managed care plans by private agencies.
"We're trying to be helpful to physicians to assert what they think is necessary for proper patient care as they negotiate with health care plans," says Susan Adelman, MD, a Detroit pediatric surgeon and member of the Council on Medical Service (CMS), which drafted the list. "Unless you really identify what are that are core decisions, you can't tell whether the contract is going to make it possible to make those decisions."
She says she's personally uncomfortable with legislative "micromanagement" of managed care and would prefer the list be used strictly as guidelines in physicians' private dealings with insurers.
The AMA intends to widely disseminate the list of clinical areas where it believes physicians should have more autonomy. The group wants to closely monitor how these clinical decisions are being handled in managed care plans.
The AMA always has believed that physicians should have the final say on clinical decisions, Mr. Otten says, but the CMS, in drafting the list, took the philosophy a step further by specifying the most critical aspects of the physician-patient relationship.
The 16 items were pared from an original list of 53. What remains is a consensus on what clinical decisions should be left with doctors.
Before agreeing to participate in a health plan, physicians should understand the extent to which any of their decisions that impact patient care will be subject to influence or control by plan administrators, according to the AMA.
Due process a factor
"Legislation on the kind of things that the AMA adopted is just emerging in California" says Jack Lewin, M.D., CEO of the California Medical Association. This year’s big managed care issues in California include due process for physicians "de-selected" by managed care plans and the effect of terminations on continuity of patient care, Dr. Lewin says. While due process may not directly address physician autonomy, eliminating fear of termination without cause would give physicians a greater measure of security in making clinical decisions, he says.
Last year’s Health Care Bill of Rights in New York addressed such medical management issues as gag rules and protections against arbitrary terminations, says Gerard L. Conway, director of the Medical Society of the State of New York. But, he adds, "there are still large areas where the external influence on clinical decisions is strong, and we have not addressed them fully as public policy."
In the 1997 legislative session, the Medical Society will be supporting requirements that all managed care decisions affecting medical treatment be made by licensed physicians. The society will back the right of patients to continue treatment with a physician after the physician no longer participates in the patient’s plan.
Other measures include extending due-process protections to non-renewal of provider contracts as well as to contract terminations. Experimental treatments, another issue on the AMA list, also is addressed in pending legislation, Mr. Conway says, and appears to have a strong chance of passage this yea
The Ohio Medical Association is backing managed care legislation, expected to be introduced in March, that would assure physicians collective input on medical management, by, for example, setting up a quality review committee made up of plan physicians. The bill also would include an anti-gag-rule provision and permit physicians to take corrective action before being terminated by a managed care plan.
The managed care industry, as with gag-clauses, maintains that physician input over clinical decisions is a non-issue. Gag clauses that prevented physicians from discussing treatment options with patients didn’t exist in managed care contracts anyway, says Don White, spokesman for the American Association of Health Plans. Likewise, he says, managed care contracts generally preserve physicians’ ability to have input on the kinds of clinical decisions outlined by the AMA.
Meanwhile, HMOs may be backing away from "micromanagement" of clinical decisions regardless of legislative pressure, says Peter Kongstevdt, MD, partner in the Washington office of Ernst & Young and former medical director of Blue Cross and Blue Shield of the District of Columbia.
"It's sort of a low-grade trend now, but I believe it's going to pick up steam, of HMOs wanting to get away from the business of micromanagement," Dr. Kongstevdt says. "It's costly. And it's problematic for a number of reasons (including potential legal liability). They've gotten into it because it works, but they don’t necessarily want to do it, especially long-term. A lot of health plans are looking for ways to delegate that responsibility back to organized medical groups, but they don't want to do it until they have faith the groups are going to do it right, as opposed to just going back to the ways that (physicians) used to do it."
The degree of plan control over clinical decision-making varies considerably, Dr. Kongstevdt says. For instance, some plans require review by an internal panel of every referral, while others simply evaluate participating physicians based on their referral patterns. Likewise, some plans have much more liberal rules about out-of-formulary prescriptions than others.
But, he says the industry will strongly resist giving physicians sole discretion over medical treatment decisions. "One interpretation of (the AMA list) is that no one should question what doctors say or do," Dr. Kongstevdt says. "It is not realistic for physicians to believe, in these days, that they should have absolute freedom over how to spend other people's money."
Contact Mr. Otten at 312-464-5000; Dr. Lewin at 415-882-5131; Mr. Conway at 518-465-8085; Mr. Maglione at 614-486-2401; Mr. White at 202-778-3200; Mr. Kongstevdt at 202-327-8310; and Dr. Adelman at 313-562-3062.
AMA House of Delegates’ list of clinical decision areas
1) What diagnostic tests are appropriate;
2) When and to whom in-plan physician referral is indicated;
3) When and to whom out-of-plan physician referral is indicated;
4) When and with whom consultation is indicated;
5) When non-emergency hospitalization is indicated;
6) When hospitalization from the emergency department is indicated;
7) Choice of in-plan service sites for specific services;
8) Hospital length of stay;
9) The frequency and length of office/outpatient visits or care;
10) Use of out-of-formulary medications;
11) When and what surgery is indicated;
12) When termination of extraordinary/heroic care is indicated;
13) Recommendations to patients for other treatment options, including non-covered care;
14) Scheduling on-call coverage;
15) Terminating a patient-physician relationship;
16) Whether to work with, and what responsibilities should be delegated to, a mid-level practitioner.