Industry action needed in gag clause debate

Patient concerns stem from HMO image problems

Recent congressional actions and HMO industry statements regarding so-called gag clauses, which limit physician/patient communication about treatment options, offer a glaring indication that the managed care industry must address public concerns and misunderstandings about its policies.

The reality, physicians interviewed by Physician’s Managed Care Report say, is that physicians are caught in the middle between payers and patients and will continue to be there until the HMO industry educates its contracting physicians and members about the reasons behind many of its policies.

"The rising concern about the way managed care companies operate grows out of an underlying understanding that the market has brought to health care," says William Winkenwerder, MD, vice president of Emory Healthcare, an integrated health care delivery system in Atlanta.

Now that patients are realizing health care is a business and that there is no inherent right to unlimited health care, many are beginning to question whether the managed care industry needs some check and balances, he says. Undoubtedly, many health care providers view money as a secondary rather than primary factor in care delivery.

"If the industry refuses to reform itself, health care professionals committed to patients will use every arena we can to fight managed care abuses," says Charles Idelson, spokesman for the California Nurses Association. The San Francisco-based group last fall launched Proposition 216, called the Patient Protection Act. The sweeping measure would prohibit gag clauses and ban bonuses and financial incentives for health care providers to deny patient care in California. Despite a $15 million effort by California’s giant HMO industry to fight the legislation, it lost by only a slim margin and garnered 3.4 million votes.

Winkenwerder agrees that public concern will not be easily assuaged. He contends managed care organizations must "help America come to terms with our limits on economic resources" and be honest in saying that one cost of slowing down health care spending may be the "potential for individual [patient] harm."

Public pressure over gag clauses has risen so much that the managed care industry’s main trade association, the Washington, DC-based American Association of Health Plans (AAHP), reconsidered its position on the issue. AAHP announced in December that it will relent on past opposition to removing gag clauses in contracts between physicians and HMOs and support a federal law that requires the "free exchange of information between Medicare beneficiaries and physicians." (See synopsis of federal and state proposed legislation, p. 31.)

In addition, AAHP president Karen Ignani says the association will encourage physicians to provide patients with comprehensive information about treatment options, including those not offered by their plan.

Physicians interviewed by PMCR say AAHP’s move at least offers a start, although it needs to be taken one step further. "The physician certainly must tell the patient all of their treatment options," says Donald Lurie, MD, associate medical director for managed care at Meridian Medical Group in Atlanta. "The next step is addressing how the patient can obtain that option. Society as a whole is avoiding this discussion, and the responsibility to tell patients about allocation of scarce resources can’t be dumped in the laps of the primary care physician," he argues.

Many physicians contacted by PMCR were reluctant to talk about gag clauses and how they may or may not affect their own practices. Off the record, physicians contend that patients have not expressed concern to them or asked about gag clauses. One physician, however, says a small number of managed care providers did indeed penalize providers for disclosing information to patients, and that their misjudgment is causing the widespread alarm seen now.

Clarify doctor’s concerns

"These clauses were never intended to hinder communications [between a doctor and a patient] and to our knowledge did not do so," says Gregory H. Wolf, president and chief executive officer of Humana in Louisville, KY. The large managed care group announced late last year that it would eliminate "so-called gag rules" and inform all of its providers of its intent not to enforce anti-disparagement clauses in existing contracts.

"Frankly, we feel it is the responsibility of our providers to let patients know that this was never our intention," says Greg Donaldson, director of public affairs for Humana. "It is clearly a misunderstanding among physicians that they could not tell patients about treatment options," he insists.

Donaldson and others urge managed care organizations to educate their physicians about the intent of "anti-disparagement clauses." These provisions are intended to prevent disclosure of proprietary information or to prevent "dissing the HMO," says Lurie. "If physicians have a problem with the HMO, they should discuss it within the organization, not with the patient," says Lurie.

More information made public

AAHP’s Ignani says the industry group will make a concerted effort throughout this year to educate the public and physicians about how managed care works. Specifically, the organization’s "Patients First" campaign calls for managed care organizations to disclose information on physician incentives, payment structures, coverage for prescription drugs, and management decisions that determine approval or denial of treatments and services.

Will giving patients more information about incentives and cost structures confuse or help patients? "It is wise for the industry to be up front with patients and the public about how managed care is structured and how decisions are made," says Winkenwerder. "The patient, the physician, and the plan all share a responsibility to make sure they are informed about managed care. If patients understand their options, that a certain treatment or service may cost more or less with a certain plan, then they can choose accordingly," he says.

Lay out the information to members in broad terms, says Winkenwerder, a former medical director for Prudential HealthCare and Kaiser Permanente. Never invade a physician’s privacy by giving out details of an individual agreement, he argues.

The model for managed care organizations should be to tie the entire physician practice to cost containment, rather than an individual physician incentive, agrees Lurie. "It is a lot harder for people to accept an individual physician getting paid to cut costs," he says. "But there is nothing wrong with our industry rewarding responsible cost-consciousness as a whole, and the public understands this," he asserts. Above all, make sure your incentives are not tied to giving or not giving care.