MANAGED CARE: CONGRESS LOOKS AT PHYSICIAN “GAG” CLAUSES
In the "first major congressional review devoted to managedThis is part of the California Healthline Daily Edition, a summary of health policy coverage from major news organizations. Sign up for an email subscription.
care problems," the House Commerce health and the environment
subcommittee held a hearing yesterday on the Patient Right to
Know Act, a bill sponsored by Reps. Greg Ganske (R-IA) and Edward
Markey (D-MA) that would ban HMOs from using "gag" clauses. The
bill (HR 2976) would prohibit HMOs from maintaining physician
contracts that limit doctors' freedom to discuss all treatment
options, as well as financial incentives to limit treatment or
referrals, with their patients. HMO officials "clashed bitterly"
with physicians and patients at the hearing, LOS ANGELES TIMES
reports. Managed care critics claimed that gag rules harm the
patient-physician relationship, while industry representatives
said that Congress should not attempt to regulate HMO practices
DOCTORS: American Medical Association (AMA) past President
Dr. Robert McAfee testified that "onerous" gag clauses "violate
sound public policy and should be made unenforceable and legally
null and void." He said that while the AMA understands the
managed care industry's need to contain costs, gag clauses are
"bad medicine" because they present "an inherent ethical conflict
of interest ... [that] effectively place[s] a wedge between a
physician and his or her patients." Although some states have
already enacted legislation to prohibit gag clauses from HMO
contracts, McAfee said that federal legislation is necessary
because some health plans will not be affected by state laws. In
addition, he said that with growing Medicare HMO enrollment, gag
clauses could "pose especially acute problems for unsuspecting"
senior citizens (AMA release, 5/30).
DENTISTS: The American Dental Association (ADA) supports
the Ganske-Markey bill, according to the group's president, Dr.
William Ten Pas. In his testimony, Ten Pas said, "[N]o health
plan contract should compromise providers' legal and ethical
responsibilities to discuss [treatment] options with their
patients." Along with supporting the right for patients to have
a POS option, he said health plans should inform their members
about what the plan covers, the plan's financial stability and
about past patients' satisfaction. He also expressed the group's
support for the Family Health Care Fairness Act, a separate bill
introduced by Reps. Charlie Norwood (R-GA) and Bill Brewster (D-
OK) (ADA release, 5/30).
HMO DEFENSE: American Association of Health Plans (AAHP)
President Karen Ignagni defended the managed care industry's
practices. She stated that AAHP "firmly" believes in open
communication between physicians and patients about "health
status, medical conditions and treatment options." She said that
federal regulation of HMO contracts is "unnecessary and unwise"
because health plans "rarely -- if ever -- use provider contracts
to restrict communications on patient care." She said federal
regulation of managed care practices "would launch the Federal
government down the long and unprecedented road of deciding what
private contracts may and may not contain ... [and] will almost
certainly produce unintended consequences," such as nullifying
anti-disparagement clauses and confidentiality clauses (AAHP
release, 5/30). She also said that physicians who complain about
gag rules "are actually referring" to the non-disparagement
provisions, which are "legitimately used to prevent doctors from
unfairly denigrating the health care networks" (Rosenblatt,
5/31). In addition, she said that nullifying confidentiality
clauses would give HMO competitors "unfair advantage[s]" because
it would prevent managed care plans from enforcing the
requirement that physicians not disclose "proprietary
information, such as specific coverage decision procedures and
specific compensation amounts" (AAHP release, 5/30).
DEFENDING THEIR HONOR: PacifiCare of California Medical
Director Dr. William Osheroff, representing a coalition of six
for-profit HMOs at the hearing, testified that "reputable" HMOs
do not have gag clauses in their contracts. "A physician serves
the best interest of his or her patient when the most complete
information is provided," he said. The Coordinated Care
Coalition was formed by six of the largest HMOs in the country --
FHP Health Care, Health Net, Humana Inc., PacifiCare Health
Systems, United HealthCare Corp. and U.S. Healthcare, Inc. (see
AHL 4/10). The health plans have joined together to inform the
public about the benefits of managed care (Coalition release,
AMBIVALENCE: LOS ANGELES TIMES reports that the
"ambivalence of the public debate over managed care was ...
reflected in the testimony of witnesses who described their
personal experiences with HMOs." Five witnesses offered
"emotional" testimony to the committee; three "gave high marks"
to HMOs while "two denounced HMOs for failing to help their
fatally ill spouses." One of the critics, David Ching of
Fremont, CA, was the focus of a TIMES series last year over his
HMO's failure to refer his late wife to a specialist; she later
died of colon cancer. Another witness, however, defended the
industry, saying that her HMO, Aetna Health Plans, had provided
her daughter with "two lifesaving liver transplants."
POLITICS: While Republicans "are eager to appear responsive
to complaints raised by both patients and doctors," TIMES reports
that the GOP is "hesitant to impose new laws in an area
distinctively free of federal action," especially since the HMO
industry "is working hard against the legislation." A committee
vote on the bill is expected in July (Rosenblatt, 5/31).