After two years of heavily publicized reports that HMOs limit free discussion between patients and their physicians through contract "gag clauses," the General Accounting Office, Congress' investigative arm, now says they don't exist.
A GAO report released late last week said the agency couldn't find any gag clauses in the contracts it reviewed from 529 HMOs. The GAO defined gag clauses as those that "specifically restricted physicians from discussing all appropriate medical decisions with their patients."
Although HMOs protested that they didn't have such clauses in their contracts, influential critics like Harvard Medical School Professor David Himmelstein, M.D., complained on several national television programs that HMOs routinely use gag clauses to silence physicians.
The American Medical Association quickly glommed onto the issue, making it a pet cause. In January 1996, the AMA called on all managed-care plans to cancel the gag clauses, which they called "unethical and harmful to patients."
The existence of gag clauses has been widely accepted, making patients fearful and tainting the image of managed care.
A number of states quickly passed legislation banning gag clauses from managed-care contracts in their states. And Congress banned gag clauses by managed-care plans that serve Medicare and Medicaid patients.
The GAO said 60% of the contracts submitted for their study "had a nondisparagement, nonsolicitation, or confidentiality clause that some physicians might interpret as limiting communication about treatment options." But the report said contracts with such business clauses often contained language stating they should not be misconstrued as restricting medical advice to patients.
In physician interviews, the GAO found that even if the clauses are misconstrued, they "aren't likely to have a significant impact on physician practice." That's because of "professional ethics . . . fear of medical liability" and because doctors don't read their contracts carefully, it said.