In a bold move to disarm critics of so-called "gag clauses," U.S. Healthcare has revised its contracts to include provisions encouraging physician-patient communications.
But the dispute over what doctors view as HMO attempts to quash their medical opinions is far from settled.
The American Medical Association contends the gag clauses keep doctors from informing patients about treatments that are not covered in their health plan and from referring patients outside their plans to physicians with greater expertise (See related story, p. 112).
Late last month, the AMA called on HMOs to cancel the gag clauses, declaring them "an unethical interference in the physician-patient relationship" (Jan. 29, p. 8).
In response, Blue Bell, Pa.-based U.S. Healthcare first issued a clarification, saying nothing in its contracts is intended to keep necessary information from a patient.
The Group Health Association of America, a trade group representing HMOs, and individual HMOs said the clauses are generally confidentiality provisions covering business arrangements.
Now U.S. Healthcare has dropped a controversial clause and added contract provisions encouraging physicians to discuss fully with patients "any recommended treatment and any reasonable alternatives." Its contracts also say that physicians' obligations not to disclose proprietary information do not apply when a doctor believes a patient's diagnosis and care require that disclosure.
The contracts also encourage doctors to discuss U.S. Healthcare's provider reimbursement system with patients, except for revealing specific compensation rates.
U.S. Healthcare's revisions are "a great first step" because the industry's previous response to physician complaints about the clauses has been "derision" and "stonewalling," said Carol O'Brien, the AMA's counsel.
But she said the language is still "ambiguous."
"I don't want to disparage their efforts," but the revisions are not specific or strong enough, she said, adding that the contract "says nothing about a physician's ability to refer a patient outside the plan, to discuss treatment options not covered by the plan."
"For 95% of patients, the HMO may provide an excellent standard of care. But when it does not have the requisite services, physicians should not be constrained from referring patients to a qualified specialist" outside the plan, O'Brien said.
As long as financial incentives to deny care are putting pressure on physicians, contracts must affirm their "responsibility to provide patients with full and informed consent," she said.
O'Brien also is concerned that an HMO's gag policies may now "be driven underground." Some plans have taken a public position against gag clauses while effectively carrying out gag policies, she said.
The GHAA argues that the AMA has created a tempest in a teapot. "There has been a great deal of mythology and confusion surrounding this issue," said Susan Pisano, the GHAA's director of communications. The clauses are not intended to keep clinical information from patients, she said.
U.S. Healthcare's new contract "is very clear and says very pointedly what we really stand for. Communication is a building block of our philosophy of care," she said.
U.S. Healthcare "made that point pretty emphatically all along," she said.
Some plans are thinking of adding provisions such as U.S. Healthcare's to their contracts because "there's still some sense that physicians are being discouraged from open communication with patients," Pisano said.
U.S. Healthcare found itself at the center of the battle over the controversial clauses after it terminated David Himmelstein, M.D., a physician who criticized the company on television and at a conference (Jan. 29, p. 8). Himmelstein, an advocate of a single-payer health system such as Canada's, also blasted U.S. Healthcare in the New England Journal of Medicine for allegedly trying to keep doctors from informing patients about their financial incentives.
"Secrecy increases the ethical taint" of capitated systems, he wrote.
John Golenski, a Berkeley, Calif.-based ethicist and consultant for Kaiser Permanente and Group Health Cooperative of Puget Sound, said not all gag clauses are the same. Those that prevent a patient's informed consent are "ethically indefensible."
"They don't work anyway," he said. "The more sophisticated, successful organizations have found over the decades that the only way you can manage utilization appropriately is when the physician believes that what he is saying is backed by good science, clinical experiences and patient preferences."
Some provisions that critics say are silencing physicians are "just foolishness," Golenski said. For example, some clauses prohibit physicians from making disparaging remarks to patients about the plan. "Frankly, anybody who wrote a clause like that knows nothing about how a physician works in the real world. It had to be an attorney," Golenski said.
No physician he knows would feel gagged by such a clause, Golenski said, adding, "I think it would be counterproductive."
Golenski said he expected other HMOs to follow U.S. Healthcare's lead and revise their contracts.
But to make the gag clauses unnecessary, "what we really need is the managed-care industry to participate in a process of devising scientifically based national criteria and standards for what is good care," he said. That way patients would have standards to evaluate a doctor's advice.
Meanwhile, gag clauses are under attack in several states. Besides California and Oregon, which have laws protecting physicians that advocate for patient care, Massachusetts passed a law last month banning the clauses, and Arizona passed a similar disclosure law last December.
Meanwhile, bills banning gag clauses have been introduced in Idaho and New York (Feb. 5, p. 13), and a ballot initiative that would expand current law is under way in California.
In addition, the New Jersey Department of Medical examiners is holding hearings on gag rules.