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Supreme Court Defines Role of HMO’s and Risks to Patients On June 18, 2000, many newspapers reported that the Supreme court handed a "stunning victory" to the for-profit HMO Industry. I contend that this victory was not stunning at all, but a stark confirmation that our society has accepted the consequences of profits over patients within the HMO industry. The Supreme Court case in question regards Cynthia Herdich. Cynthia was seen by Dr. Lori Pegram for evaluation of abdominal pain. Six days later, an abdominal mass was felt and sonography required. Cynthia's coverage was through Carle, a physician owned for-profit HMO. Cynthia had to wait eight days and travel fifty miles for the sonogram, resulting in a ruptured appendix, peritonitis and surgery. After Cynthia sued her physician and won a $35,000 jury verdict in Illinois, she decided to sue Carle, her HMO. Cynthia Herdich's attorneys felt justified that the HMO's decision to delay care due to a profit motive was in violation of the HMO's fiduciary responsibility. The role of a fiduciary is never to act in its own self-interest to the detriment of rights to whom it is owed, namely, the patient. The Supreme Court strongly disagreed with the merits of the fiduciary status. The Court stated that the goal of any HMO is cost control, limits on service, and financial incentives to physicians. Penalizing physicians offering "excessive treatment" is routine. As stated by the court, "in the HMO system, the physician's financial interest lies in providing less care, not more." The court continued "inducement to ration goes to the very point of the HMO system; rationing necessarily raises risks." The Supreme Court in a lengthy discussion also concluded that the original intent of ERISA upon organizing the HMO system was not to imply a fiduciary responsibility to patient care. The Supreme Court acknowledged that the consequences of the remedy that Cynthia Herdich was seeking, namely to force the HMO to exhibit an allegiance to the health of its insured over its own profit "would be nothing less than the elimination of the for-profit HMO." The Supreme Court has now validated what physicians have alleged repeatedly -- in the HMO industry, it is profit and not patients that come first. Where does this leave the physicians? The HMO will not be held liable for the negative health care consequences of their decisions. When the HMO denies payment for a service, the physician cannot acquiesce to their financial decision, however. If on appeal, the request for approval is denied by the HMO, the patient should still be advised by you to proceed with the medical plan as outlined -- with or without the HMO coverage. Otherwise, the Supreme Court decision is clear. You as the physician alone will be held liable for a poor outcome. The Court's decision was not a "stunning victory" for the HMO industry. It was, rather, the unveiling of a stunning vulnerability of those participants reliant upon the HMO coverage when illness strikes. David Eskreis, MD
Until recently, the Medical Liability Mutual Insurance company (MLMIC) had recommended that physicians keep medical records of adult patients for six years after the last date of treatment. The six-year time frame satisfied both the two and one-half year statute of limitations for commencement of a medical malpractice action (CPLR Section 214-a) and New York State Education Law Section 6530, which requires that medical records be kept at least six years after the last date of treatment. However, the federal government has increased its efforts to reduce the number of fraudulent Medicaid/Medicare claims, the Federal Small Claims Act limits allegations of fraudulent claims to six years after the date of the alleged violation, or three years after the date when facts relative to a fraudulent claim are known or should reasonable have been known. The maximum time to initiate a proceeding pursuant to the Small Claims Act is ten years (31 U.S.C.A.3731). Therefore, it may be well advised to retain medical records of adult patients for at least ten years after the last date of treatment, in view of the federal statute and enforcement effort.
The New York State Department of Health has modified the list of diseases that physicians are required to report to the local Department of Health. This is in response to new emerging infections and changing priorities for disease surveillance. Effective August 30, 2000, physicians are required to report individuals with the following new additions of suspect and/or confirmed communicable diseases:
Some suspect or confirmed communicable diseases that require rapid public health response to prevent the spread of disease to the public require immediate telephone notification to the Department of Health. To report these diseases, physicians should call 516-517-3471 during weekdays. On weekends and evenings, telephone reporting and physician consultation is available at 516-742-6154. The diseases requiring immediate notification are:
Although many of the diseases listed above are very rare and may never be diagnosed in Nassau County, others such as tuberculosis, syphilis, meningococcal disease and hepatitis A in a food handler do occur in Nassau County and are being treated by physicians here. Other diseases have been deleted from the list of reporting requirements. They are:
On February 12, when federal agents raided the office of four heart surgeons in Syracuse, they took away 74 boxes of medical records and hundreds of patient files became potential evidence in a Medicare fraud case. A lawyer for the doctors demanded that the files be returned to protect the patients. What if one of them suffered a coronary emergency, he asked, and his/her records weren't at hand? The US attorney in Syracuse offered instead to allow photocopies to be made and pledged to deliver any patient's file instantly in case of an emergency. Those precautions weren't enough to satisfy those who claim that a national crackdown on Medicare fraud has placed a growing number of innocent patients at risk. That concern led Rep. James Walsh, (R-Onondaga), to introduce a bill in the House that would require the federal government to make copies of medical records that it seizes and provide those copies to fraud suspects within 48 hours. A spokesman said the Justice Department has not taken a position on the legislation proposed by Walsh. If enacted, the bill would place the burden and cost of making photocopies on prosecutors. Failure to return copies of seized medical records within 48 hours could result in civil damages of $1,000 for each 24 hours of delay. In case of emergency, prosecutors provided the Syracuse physicians with the pager numbers of several FBI agents for 24-hour response, making any needed file available within 20 minutes. Walsh said it would be a mistake to assume that all prosecutors are taking the same precautions in every case. "There are a lot of federal prosecutors around who are pretty ambitious, and I want to make sure they do this with absolute care," he said. "We want to put it into law so that they do this with absolute care." Regarding the Syracuse physicians, a judge ruled that the defendants would have to pay the cost of duplicating their records, a job that took several days at a copy center at a cost of more that $50,000. If no criminal charges follow, said US district Judge Norman Mordue, the doctors could seek repayment from the government.
"Cardiology and Stroke Update 2000"
Beta-Blockers in Cardiovascular Disease William Frishman, MD, Professor and Chairman - Dept. of Medicine, New York Medical College. The Role of Carotid Stenting in the Prevention of Stroke Gary S. Roubin, MD, Ph.D, Director of Endovascular Therapy, Lenox Hill Heart and Vascular Institute of New York. Clinical Professor of Medicine, New York University School of Medicine. Crest Hollow Country Club Woodbury, NY Wednesday, November 1, 2000 6:15 PM - 9:00 PM
To register call the AHA at 516-777-8447 Maximum 1.5 hours of Category 1 CME towards the AMA Physicians' Recognition Award
While seven out of 10 Americans say they want to die at home, 75% die in medical institutions, according to a new Time/CNN poll featured in a recent issue of Time. According to experts, even though 95% of the pain experienced by terminally ill patients could be mollified, nearly half of Americans die in pain - while surrounded and treated by strangers. "Reform-minded" physicians, caregivers and academics hope to alter the way doctors approach dying, and suggest hospice care as a more comforting option for dying patients. Time reports that, on average, hospice patients receive at least three hours a day more attention than nursing home patients, and that such care is less expensive than traditional care. But hospice care is unlikely to become a "mainstream phenomenon" because Medicare reimburses for hospice only after two physicians have certified the patient has less than six months to live - something many physicians are reluctant to do, especially for unpredictable diseases such as heart failure. Some physicians also fear regulatory scrutiny, since HCFA has actually started investigating cases of hospice patients who live longer than six months.
On the tails of the MSSNY-sponsored initiative that calls for Medicaid to now pay physicians $30 per visit for Medicaid patient care, New York State is adopting a widely "criticized but politically popular" antifraud plan for its Medicaid program - electronic fingerprinting designed to prevent recipients from collecting benefits under multiple identities. Among the first states to try the new technology against welfare fraud five years ago, New York is now seeking a nearly $10 million expansion of its $40 million contract with a subsidiary of a French defense contracting firm to require fingerprinting of nearly 450,000 Medicaid-eligible adults, the New York Times reports. State officials have proclaimed that the technology successfully protects against welfare fraud. Robert Doar, Executive Deputy Commissioner for the Office of Temporary and Disability Assistance, credited the technology with the "dropping of more than 38,223 people from public aid since it began in 1995, at a savings of $297 million, most of it in the first two years." Despite claims that the fingerprinting system has saved the state millions, a 1997 state-commissioned study found little evidence that the system has had any impact on preventing fraud, as "welfare changes had made finger imaging largely superfluous from the outset." However, the state has refused to make the $658,000 study public, and calls it "outdated and flawed". But Paul Sticha, who reviews programs such as the fingerprinting system for the federal government, said that the study was "highly relevant," and if the study results had been released, other states that adopted similar programs after New York proclaimed its success might have reconsidered. According to Sticha, the study showed that finger-imaging "made no difference in the dropout or approval rates of welfare recipients, regardless of whether they were told in advance that their fingerprints would be checked." Seven other states that have implemented finger-imaging for welfare recipients -- California, Connecticut, New Jersey, Texas, Arizona, Massachusetts and Illinois -- have ruled out the system for Medicaid, as their health officials have questioned its effectiveness against medicaid fraud and warn that it could discourage enrollment by the uninsured. HCFA officials are now investigating whether a finger-imaging requirement for Medicaid is legal.
After decades of legislative effort, organized medicine finally convinced the state legislature that it is time for a badly needed increase in Medicaid reimbursements for private practice. Starting October 1, selected primary care codes will be reimbursed at $30 apiece as compared to the $7 level that has been in existence for almost 35 years. The codes will be available to all New York physicians other than specialists in anesthesia, ER, ophthalmology and psychiatry. The state is currently reviewing these specialties for possible increase. In May, we persuaded the New York State Legislature to enact an historic increase. For almost its entire 35-year existence, New York's Medicaid program has seemed like a headache that won't go away for thousands of physicians and their patients. Rather than face mountains of paperwork and repeated denials for only nominal reimbursements, many office-based physicians simply chose to treat Medicaid patients pro-bono. Others limited the number of Medicaid patients they would accept, and some simply stopped treating Medicaid patients altogether. Physicians interested in participating in the Medicaid program must obtain a provider enrollment number. Contact: NYS Department of Social Services Agency Building 1 40 Pearl Street, Albany, NY 12204 518-473-4260
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