The ACP Advocate Blog

by Bob Doherty

Thursday, October 18, 2012

Worried about a government take-over of health care?

You should be, but it isn’t the bureaucrats and politicians in Washington that you should be most concerned about.  Instead, it is the growing propensity of state legislators to dictate to physicians what they can and can’t say to their patients, what tests they must provide, and what advice they must give to them—the patient’s wishes, the medical evidence, and the physician’s clinical judgment be damned. 

Today, the nation’s largest and most influential national medical specialty societies came together to say that enough is enough when it comes to government interference in the patient-doctor relationship.

Joining with his counterparts in the American College of Surgeons, American Academy of Family Physicians, American College of Obstetrics and Gynecology, and American Academy of Pediatrics, ACP’s EVP/CEO Steven Weinberger co-authored an editorial in the New England Journal of Medicine warning  against  “legislation [that] inappropriately infringe on clinical practice and patient–physician relationships, crossing traditional boundaries and intruding into the realm of medical professionalism.”  (Disclosure: I contributed to the piece by providing content review and background information at several stages of the manuscript preparation.)

The article cites four categories laws that do not have the proper “respect for the importance of scientific evidence, patient autonomy, and the patient–physician relationship”:

1.    Legislation that “prohibits physicians from discussing with or asking their patients about risk factors that may affect their health or the health of their families, as recommended by evidence-based guidelines of care. In 2011, for example, Florida enacted the Firearm Owners' Privacy Act, which substantially impaired physicians' ability to deliver gun-safety messages to patients.”

2.    Laws that “require physicians to discuss specific practices that may not be necessary or appropriate at the time of a specific encounter with a patient, according to the physician's best clinical judgment.”  For example, “New York legislation that was enacted in 2010 and became effective in early 2011 requires physicians and other health care practitioners to offer terminally ill patients “information and counseling regarding palliative care and end-of-life options appropriate to the patient, including . . . prognosis, risks and benefits of the various options; and the patient's legal rights to comprehensive pain and symptom management.”  The authors note that “This is an area in which one size does not fit all and in which physicians are best able to determine what discussions with patients and families are necessary or appropriate at a given time. Yet failure to comply with the law can result in fines of up to $5,000 for repeat offenses and a jail term of up to 1 year for willful violations.”

3.    Laws that “would require physicians to provide — and patients to receive — diagnostic tests or medical interventions whose use is not supported by evidence, including tests or interventions that are invasive and required to be performed even without the patient's consent” citing a Virginia law” requiring women to undergo ultrasonography before having an abortion would have mandated the use of transvaginal ultrasonography for a woman in the very early stages of pregnancy.”    “As the Virginia chapter of the American College of Physicians stressed in a letter urging Governor Bob McDonnell to veto the bill, ‘opposition to the legislation does not reflect our opinions individually or collectively on the practice of abortion itself,’” they wrote,“but rather the conviction that ‘this legislation represents a dangerous and unprecedented intrusion by the Commonwealth of Virginia into patient privacy and that it encroaches on the doctor–patient relationship.’”

4.    Laws limiting the information that physicians can disclose to patients, to consultants in patient care, or both. Four states (Pennsylvania, Ohio, Colorado, and Texas) have passed legislation relating to disclosure of information about exposure to chemicals used in the process of hydraulic fracturing (“fracking”).

The authors conclude by noting that “Our objection to legislatively mandated health care decisions does not translate into an argument that physicians can do whatever they want. Physicians are still bound by broadly accepted ethical and professional values. The fundamental principles of respect for autonomy, beneficence, nonmaleficence, and justice dictate physicians' actions and behavior and shape the interactions between patients and their physicians. When physicians adhere to these principles, when patients are empowered to make informed decisions about their care, and when legislators avoid inappropriate interference with the patient–physician relationship, we can best balance and serve the health care needs of individual patients and the broader society.”

ACP, in a related statement of principles that pre-dates and helped inform the joint NEJM statement, suggested a series of questions that should be asked of any proposed law to regulate the patient-physician relationship:

“Is the content and information or care consistent with the best available medical evidence on clinical effectiveness and appropriateness and professional standards of care?

Is the proposed law or regulation necessary to achieve public health objectives that directly affect the health of the individual patient, as well as population health, as supported by scientific evidence, and if so, is there any other reasonable way to achieve the same objectives?

Could the presumed basis for a governmental role be better addressed through advisory clinical guidelines developed by professional societies?

Does the content and information or care allow for flexibility based on individual patient circumstances and on the most appropriate time, setting, and means of delivering such information or care?

Is the proposed law or regulation required to achieve a public policy goal –such as protecting public health or encouraging access to needed medical care – without preventing physicians from addressing the healthcare needs of individual patients during specific clinical encounters based on the patients’ own circumstances, and with minimal interference to patient physician relationships?

Does the content and information to be provided facilitate shared decision-making between patients and their physicians, based on the best medical evidence, the physician's knowledge and clinical judgment, and patient values (beliefs and preferences), or would it undermine shared decision-making by specifying content that is forced upon patients and physicians without regard to the best medical evidence, the physician’s clinical judgment and the patient’s wishes?

Is there a process for appeal to accommodate for specific circumstances or changes in medical standards of care?”

It is good that ACP and the other leading national specialty societies have taken a firm stance for patients by objecting to laws that inappropriately inserts government into the relationship between patients and their doctors, but rank-and-file physicians must do their part and hold their state legislators accountable for such laws.   Unless and until physicians rise up in broad opposition, legislators will continue to tell you what you can and can’t say or do for your patients, causing grave damage to patient care. 

Today’s questions:  What do you think of the joint NEJM editorial?  What will you do to hold your state legislators accountable?

6 Comments :

Blogger Jay Larson MD said...

Reflecting back to the previous post, physicians are already experiencing compromise of the physician patient relationship through regulatory means. State Governments are just one more to jump on the band wagon…build more of those barriers.

Just look at Medicare. If you unintentionally miscode an E and M visit, an auditor can come in and take money back for the Federal Government…in essence a fine. Look at all the prior authorizations that have to be filled out just to get the patient the medication that they need. Look at all the DME forms to fill out to get the patient their needed medical device. Why haven’t the medical societies stood up to the Federal Government and private insurances and said “enough is enough”? Where is that editorial?

October 18, 2012 at 2:48 PM  
Blogger Arvind said...

Same old, same old. Where were all these organizations when IPAB was being legalized? No govt should come in between patient and physician.

Just to point out, having never used a firearm, how would it qualify me to give safety advice about one? And, how many physicians actually have 1st hand knowledge about chemical effects of fracking? Aren't we creating any argument for the sake of one?

October 18, 2012 at 9:52 PM  
Blogger Harrison said...

I think that it is important for organized medicine to recognize just how much of what we do with patients on a day to day basis falls into the realm of politics.

Abortion is a great example. Why is this not a private medical issue between a doctor and a patient.
Why are there arguments about whether a legitimate medical procedure is a crime that should land a doctor in jail?
Why do we allow politicians to refer to doctors who provide abortion services with perjorative terms that would equate them to neighborhood loan sharks?
We do not issue organized medicine policy statements condemning the terrorism of neighborhood clinics and the targeting of these doctors and their dedicated staff members by crazed zealots who feel they are on a mission from God.
We should.
We should seek to put such services in the mainstream.
We should seek to get those services out of the realm of politics, especially hateful politics that encourages violent actions.

On other topics we are asked by out patients every day whether work place issues hurt their health or whether environmental exposures cause them harm.
And they might be.
There is political advantage to be had by large corporations to keep information out of the public realm.
The less that physicians look into this the less likely it is that epidemiologic trends might become apparent.
This is political, and the side with money is winning.
The side with money and knowledge and the side that has a reason to perpetuate lower information is winning.

Since the theater shooting in Colorado there have been almost 50 mass shootings in the U.S.
How many make it out of the local news?
There was one in LA just yesterday.
Guns kill 30,000 to 40,000 people in the US every year.
It is important for us to talk with patients about gun safety -- even if it is just to encourage it.
I've never had to quit smoking in my life, but I advise people on it every day.
It is also important for us to talk to teens about gangs and drug use and it is important to talk with women about domestic abuse, or perhaps men (although statistically it is less likely).

Medicine is inextricably linked to politics.
It always has been.
In wars doctors are considered targets. Medical supplies are banned almost as much as guns in war zones.

We work in a very socially important field.

We need the help of organized medicine to defend the privacy of the conversations between patients and doctors, and we need organized medicine to help keep what we do as politically neutral as possible and to keep it held up in the esteem of the public as an honorable thing that helps the public good.

Harrison

October 21, 2012 at 10:57 AM  
Blogger Robert J. Sobel, M.D. said...

I don't believe the states would feel so empowered if the sweeping authority given the HHS secretary in the ACA (like end of life mandates)had not become law. This clearly intrudes upon patient-physician decision making. Your New York example is alarming. I don't believe Illinois is going there, but there are always fights.

Jay is right. The principles are fine. It is well articulated. It is well researched. Thank you. What it does not get at are the current bureaucratic realities and real solutions to eliminate those.

I have proposed mine. Sell us on ones that respect the principle of avoiding new bureaucratic tangles. How about creating decision making algorithms where third party costs are not so asymmetrical(not over-paying for the new and not leaving a generic free-for-all for the old)? It is an oppressive and perverse situation when physicians must do so much to justify the payment for others.

How can we police this other part of the health care market? If the feds and states could get a coherent strategy that realized for-profit behomeths need elimination, that would be great. Solving Medicare is extremely hard, and we should not waste time on extra layers that promote consolidation over independence. For the rest, having only state based not-for-profit insurance companies would seem a lot more sane than our current set of conglomerates.

There are billions to be saved, but it means eliminating the secondary layers (for-profit insurances and hospitals, pharmacy benefit bureaucracies) and restructuring pharmaceuticals and medical devices to a brand only but price regulated scenario. Whether it is negotiated or assigned, a flexible fee schedule for commodities in Medicare is necessary. It would stabilize the playing field and allow more balanced growth between services and commodities. Otherwise, the SGR exerts its suppressive influence upon primary care dynamics and will be our death knell.

In addition to Regulatated Royalties, Medicare could also benefit from graded premiums (letting the wealthy subsidize their own generation), allowing balance billing to certain service sectors, and even considering allowing state-based insurance to compete in the future. Right now, it is clear that the squeeze on primary care is counterproductive. Little penalties and bonuses are insufficient and go beyond the principles elicited in your letter. Could a few strategic fixes save the day? I guess we'll have to wait for the lame duck.

October 21, 2012 at 6:28 PM  
Blogger Steve Lucas said...

An additional area of concern should be medical requirements being placed on the population by government agencies and organizations, not necessarily those being legislated. These are often in direct conflict with the Choosing Wisely concept.

Currently AOPA, along with a number of other pilot organizations, are attempting to get a rule change to allow for the expansion of an existing program to allow private pilots to fly small aircraft with a valid driver’s licensee. There is no evidence based reason not to support this change.

As noted, there is reality and then there is political reality. A more expansive change was supported by pilots and the FAA during the Clinton Administration only to be stopped by a claim of financial hardship on the part of doctors. I know of no doctor then or now standing around just waiting for someone to stop by the office.

Organizations are also not shy of requiring physicals to participate. In a switch I participated in a week long canoe trip a few years ago with friends, my then doctor wanted to know how I could participate without his permission.

In my community medicine is a for profit activity with medical practices being owned by someone other than the doctors in the practice. The result has been “rules” as one doctor told me “to maximize my insurance.”

Legislative action is only the tip of the iceberg in raising cost and putting patient‘s at risk. One doctor was quite blunt when he wrote in support of the current FAA physical that it “cost money to fly.” No medical reason was given; it was just that if we want to fly we must pay him. Every pilot I know has a story of how his physical was used in an attempt to lever additional test.

Organizations claim liability issues force them to require certain medical standards be met, and then tout their close ties to the local medical community, a convenient business builder.

A friend has a single poorly done EKG showing a supposed past heart attack and “rules” now require a complete cardiac work up, including a stress test, before a knee replacement. It just so happens she has insurance that will cover all of the testing. No past heart attack has been detected in follow on testing, including a new EKG.

This creep of rules and standards are as big a threat to the doctor/patient relationship as legislative action. EMR’s are not the answer since P4P places incentives on repeating test and office visits.

What we have is a system that does not work for patients or doctors, and the rules, standards, and legislative action being taken by those outside the medical practice has created an incentive that is in direct conflict with good medicine.

Steve Lucas

October 22, 2012 at 8:06 AM  
Blogger Thomas Woodall said...

Why should government interfere with a doctor-patient relationship? Why would the government require that everything about the medical intervention be discussed? Is this an effort to control the medical field? For instance, I checked in at a 24 hour urgent care in phoenix because I need to. The long discussion of what should be done in order to prolong my life will take up the time that I should be saved. There are related legislation already present pertaining to the practice of medicine, why would government add up to it (knowing we already learned it at medical school?).

November 25, 2012 at 9:28 PM  

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About the Author

Bob Doherty is Senior Vice President, American College of Physicians Government Affairs and Public Policy; Author of the ACP Advocate Blog

Email Bob Doherty: TheACPAdvocateblog@acponline.org.

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