March 25, 1998
The Honorable Nancy-Ann Min DeParle
Dear Ms. DeParle:
We have represented physicians in the private practice of medicine for over 50 years. Like other physician groups, we are greatly alarmed by the proposed Documentation Guidelines for Evaluation and Management Services ("E&M Guidelines") recently promulgated by HCFA, due to be effective as of July 1, 1998.
We have learned that HCFA jointly developed these E&M Guidelines with the AMA, as admitted by the AMA on its Web site. We have also learned that HCFA and the AMA plan to hold a meeting on April 27th to discuss possible modifications to these Guidelines. Apparently a final version of the E&M Guidelines will be promulgated based on the input obtained at this meeting.
AAPS hereby requests that HCFA open this meeting and related records to the public so that AAPS members (and patients) may express comments. Fundamental issues concerning the private practice of medicine and the privacy rights of patients are at stake in this planned rulemaking. It would constitute a serious violation of the Administrative Procedure Act (APA) and the Federal Advisory Committee Act (FACA) for HCFA to refrain from opening this important meeting to the public for comment.
Indeed, the development of these Guidelines has already apparently violated several federal statutes, including FACA and the Paperwork Reduction Act. It is mystifying to us how these important Guidelines could have been developed without public comment or compliance with the procedural statutes.
Until now, the development of these Guidelines has apparently been controlled by HCFA, third-party payers, and medical groups effectively and financially controlled by third-party payers, as reflected by the Guidelines section entitled "What Do Payers Want and Why?" It is necessary to open the process beyond the third- party payers to actual practicing physicians and their patients. At stake is the future of medical care in this country, and the protection of the sanctity of the physician-patient relationship against unwarranted bureaucratic intrusion.
Secrecy in the development of regulations is unlawful where, as here, fundamental rights and values are at stake. We respectfully insist that, at a minimum, the upcoming meeting on April 27th and HFCAs related meetings and records be opened to the public. Please respond as soon as possible so that arrangements may be promptly made.
Jane M. Orient, MD