Anxiety over ethics, contract disputes forces physicians to take a stand

In some cases, physicians are fighting back

"The hallmark of courage in our age of conformity is the capacity to stand on one’s own convictions — not obstinately or defiantly . . . nor as a gesture of retaliation — but simply because these are what one believes." — American philosopher Rollo May (1953).

One day, David Harvey, MD, a dermatologist in Ponte Vedra, FL, decided he couldn’t stand by and ignore an important issue in his professional life. This one was just too close to his convictions.

As a result, he led a group of 40 physicians and senior citizens to demonstrate on the front steps of the Blue Cross/Blue Shield building in Jacksonville, home of Florida’s Medicare provider, to protest the payer’s decision about conditions for covering certain pre-cancerous conditions. Harvey says not covering any pre-cancerous treatment thoroughly may have been a good business decision for the payer, but it was bad medicine.

"You can say that in some instances, [doctors] have to give medical care more efficiently, be careful about the drugs and the tests we order. But if it becomes too much of a control issue with no medical expertise controlling the decision, you have to take a stand," he says.

At issue is a recent decision by Blue Cross plans to deny coverage for many pre-malignant skin lesions. This means senior citizens in Florida will have to pay for treatments for some sun-related actinic keratoses. The plan has specified which circumstances warrant coverage. For example, lesions on the nose will be covered, while lesions on the cheek or forehead will not be covered.

"As physicians, we are standing up with our patients and for our patients," Harvey says. "This decision was made in an area where the payer doesn’t have expertise. It crosses a line which dictates medical care for beneficiaries and breaches the physician-patient relationship."

Taking a flamboyant stand against a payer is not something doctors opt to do lightly, nor is it safe territory to oppose an organization that can have so much influence over your economic well-being. In recent years, debate has raged over pros and cons of managed care in general, and specific activities of payers in particular. But only recently have physician groups surfaced so often and so visibly. Here are other examples:

Playing fair.

Almost 50 physicians in Wilmington, NC, recently took out a full-page advertisement in their local paper questioning if Healthsource, a Charlotte-based payer, was acting ethically when it failed to pay the doctors withholds that were promised to them if they met certain cost and quality outcome targets. In this case, it was a matter of fine print vs. principle, says Sandy Vandervarrt, JD, director of managed care for the North Carolina Medical Society in Raleigh.

"For a lot of docs, their loss was $5,000 to $6,000," she says. "It was in the participation agreement that the payer has discretion as to whether the withhold would be returned, and if it would be based on individual or group performance or performance of the company.

"The real complaint that I heard is the decision was made statewide across the board basically because Healthsource didn’t have a great year. Physicians felt this was supposed to be a partnership. All the incentives for physicians to do well seemed discounted. The message doctors got was, ‘No matter how you perform, we’re not giving any of your withhold back.’ It was not the money, but the signal about their relationships." Shortly afterward, Healthsource was acquired by CIGNA, she says, and physicians felt their financial well-being was sacrificed for a business deal.

Reacting to a 40% pay cut.

More than 250 Dallas-Fort Worth doctors are quitting Aetna US Healthcare managed care networks after the insurer cut physician fees by as much as 40%. Aetna officials said that 3% of the network’s 1,300 patient care plans and 6.5% of its 3,400 specialists have given notice that they are leaving. Aetna officials described their actions as an effort to streamline Aetna’s nationwide network following its recent acquisition of US Healthcare.

Forcing improvements in late claims payments.

A contingency of 17,000 physicians in New York settled after an insurer, Oxford Health Plans, agreed to pay 9% interest on all claims that aren’t paid after 30 days, starting with claims filed after July 2. The settlement also is retroactive, covering unpaid claims as far back as April 1.

At least $1 million in interest will be paid to the plaintiffs, based on a projected $238 million in late payments involved. As of May 6, Oxford owed $183 million to hospitals and $55 million to physicians, according to New York’s State Attorney’s Office.

Some states have laws requiring health plans to pay interest on late claims payments, but New York does not. That’s what sparked the lawsuit, says Charles N. Aswad, MD, executive vice president of the Medical Society of New York. The medical society contacted Oxford officials numerous times attempting to improve payment turnaround time, and Oxford officials responded that computer problems delaying the payments would be resolved. After about a year of trying, however, the society resorted to legal action, Aswad says.

While Oxford came at the top of the list of many insurers who are late paying claims, many others fall closely behind, says Aswad, making practice management a difficult task.

Fighting the real gag clause.

Despite all the publicity and even legislative action barring gag clauses in managed care contracts, many gag clauses continue to exist in the guise of not gagging physicians about medical issues, but disallowing them to make any negative remarks about the business practices of a managed care provider. "Many gag clauses exist, and they remain in effect past the termination of a contract," says Matthews Ward, a consultant for MedCap Resources in Richmond, VA. Based on these clauses, you can’t cast aspersions on the company itself, such as, "They cut me out without cause."

‘You may not mess with my client base’

This is all set up to guard against the coming of physician-sponsored organizations (PSOs), Ward says. "It’s basically saying, ‘You may not mess around with my client base. We know PSOs are coming. We might be competing with you directly.’"

Where do you draw the line? That’s an individual physician’s decision, Vandervarrt points out.

"I believe it is possible to stand up to an insurer, and that physicians have to decide individually. They need to understand what the contract terms are," she says. Perhaps two steps describe it best. First, says Vandervarrt, be sure you know the details of what you’re signing. Second, recommends Ward, go with your gut. "If you actually signed a contract banning you from discussing the business quality of the payer, would they sue you if you did? You’re going to do a lot better as David vs. Goliath, and your response can be, ‘Yeah? So sue me.’"