In an escalating power struggle between physicians and managed-care plans, the American Medical Association last week called on HMOs to cancel contract provisions doctors believe prevent them from communicating openly with patients.
The AMA's Council on Ethical and Judicial affairs declared that the so-called "gag clauses" are "an unethical interference in the physician-patient relationship."
Gag clauses prevent physicians "explicitly or implicitly from giving patients information about treatment options that may not be covered by their health plans...and also may prevent physicians from referring very sick patients outside their health plans" to doctors with greater expertise, the AMA said.
The Group Health Association of America in turn blamed the AMA for adding to the public's confusion about the "gag rules." Those provisions often cover business arrangements and are not intended to keep clinical information from patients, the GHAA said.
Meanwhile, organizations in several states are moving ahead with ballot initiatives or legislation. These range from requiring HMO doctors to disclose financial incentives to proposals opponents say would gut managed care.
The most sweeping initiative was filed by the California Nurses Association and activist Harvey Rosenfield. The proposal was prepared under the guidance of Ralph Nader, said Rose Ann DeMoro, executive director of the CNA.
Among other provisions, the "Patient Protection Act" would establish a Health Care Consumer Association to be an advocate for patients.
The initiative would establish a fund to finance the act and assist in maintaining the healthcare safety net. The fund would be financed by fees on elimination of hospital beds, conversion of healthcare facilities to for-profit status, mergers and acquisitions, and excessive stock holdings by industry executives.
Premium increases would be prohibited unless plans certify need and disclose financial results of the increase.
The inititive also would require the state to establish uniform staffing standards, prohibit bonuses that create incentives to deny care and ban gag provisions.
"We wanted an initiative as far-reaching as possible because the industry is changing so quickly," DeMoro said.
Opponents, including the California Healthcare Association-the state's hospital association-and the state Chamber of Commerce, have retained Goddard Claussen First Tuesday, the Sacramento public relations firm that led a $7.5 million campaign to defeat a state single-payer initiative in 1994. It also devised the "Harry and Louise" commercials for the Health Insurance Association of America during the national healthcare reform debate.
Even providers in Idaho, where HMOs have a meager 1.4% market share, are anticipating the oncoming tide by introducing legislation that includes disclosure requirements. A similar disclosure law was passed in Arizona last December.
In Oregon, proponents are gathering signatures for initiatives banning capitation and forbidding plans from excluding willing providers.
Massachusetts last week passed legislation specifically stating an insurer can't refuse to contract with a provider solely because of a provider's "good faith" communication with a patient about treatment. The Massachusetts law also contains financial disclosure requirements.
Oregon and California already have laws protecting doctors from retaliation by plans when doctors advocate for patient care.
But the furor over gag provisions came to a head with the AMA's statement last week.
At the storm's center has been Blue Bell, Pa.-based U.S. Healthcare, which terminated the contract of David Himmelstein, M.D., after he criticized the plan's policies at a public conference and on television. Although the HMO would not comment on the Himmelstein termination, U.S. Healthcare issued the following statement: "Nothing in any U.S. Healthcare provider contract shall be construed*.*.*.*to limit any doctor-patient communication which a physician deems necessary or appropriate for the care of the patient."
But physicians have told the AMA they were threatened with termination if they referred patients to specialists outside their plan, said Carol O'Brien, AMA counsel. "Some were simply fearful" they would be fired if they violated the gag provisions, she said.
Some physicians "felt they were de-selected for patient advocacy but couldn't really prove it because almost all plans have termination-without-cause provisions," she said.