April 14, 1998
Thomas R. Reardon, M.D.
Dear Dr. Reardon:
Thank you for your letter of April 8. I do plan to attend the meeting on April 27 and would expect that all other concerned physicians will be allowed to attend as well.
We always welcome the opportunity to cooperate with other physician groups in protecting the rights of patients and physicians. Neither the government, nor insurance companies, nor employers, nor managed care organizations, nor anyone else has the financial motivation or the fiduciary duty to defend the sanctity of the patient-physician relationship. Medical groups like the AMA and AAPS constitute the last line of defense for patients and physicians. Even if the AMA capitulates, then AAPS will continue to defend the interests of patients and physicians, together with the other medical groups that have already asked to join us in this effort. The hope of AAPS and these other groups is that the AMA will return to its historic principles and stand up for patients and physicians, not for third- party payers.
Defense of the interests of patients and physicians requires adherence to several well-established principles. First, meetings on the E&M Documentation Guidelines must be held in a public manner. Any physician willing to travel to Chicago to listen or provide input must be admitted. Limiting access to such meetings, as the AMA did in rejecting a physician's request last Friday, apparently protects undisclosed interests of others at the expense of practicing physicians and their patients. In the words of Justice Brandeis, "sunlight is the most powerful of all disinfectants." Moreover, the minutes and records of prior meetings must be released so that the role of third-party payers, including the government, may be fully disclosed. AAPS should not and will not agree to a process that is contrary to the Federal Advisory Committee Act and our ethical obligations to all patients and physicians.
As you implied in your letter, the AMA and AAPS are motivated by different principles. AAPS, for example, only accepts membership-based revenue and does not engage in business dependent on manufacturers or third-party payers. AAPS will not sacrifice the sanctity of the patient-physician relationship to accommodate the wishes of third parties. We are confident that, over time, the patient-physician relationship will be restored to the same level of protection as the attorney-client relationship. There is a long list of ignominious efforts to interfere with the attorney-client relationship, all of which ended in total failure. AAPS urges the AMA not to accede to any such efforts that imperil the patient- physician relationship. The development of E&M Documentation Guidelines must be premised on "Protection of the Patient-Physician Relationship," not its current "What Do Payers Want and Why?" Furthermore, the legal impact of any such "guidelines" must be clearly expressed at the outset so that applicable procedural laws are followed in their development.
We do not believe it is possible to separate the discussion of documentation guidelines from fraud and abuse. They will be used by prosecutors, who have unbridled discretion. Statements by Congress, AMA advocacy, testimony from HCFA, all are without any legal force whatsoever. (By the way, the letter from the Chairmen of the House Judiciary, Commerce, and Ways and Means Committees, was not sent with your letter.) As forty centuries of experience have demonstrated, draconian methods are ultimately needed to enforce price controls as these distort markets and abridge the rights of the people to liberty, property, the pursuit of happiness, and even life itself. The "guidelines" would constitute a draconian increase in third-party control over medicine, to the detriment of patients and physicians alike.
Third parties do not use medical records solely to process claims and determine the correct payment. Their increasing demand for detailed documentation is related to cost containment efforts. They, along with employers, want to decrease the "medical-loss ratio" by eliminating costly coverage. Once physicians are turned into scribes for third-party payers, as accomplished by the proposed guidelines, patients will no longer disclose medical problems that could provide incentives for the termination of insurance or employment. There are numerous subtle medical conditions, as I am sure you realize, which create a heightened risk of enormous medical costs in the future, and patients will not be willing to provide any information hinting at such conditions for their employer's or insurer's scribe.
Your comment downplaying the threatened and actual prosecutions of physicians really surprised me. A number of cases have received fairly extensive coverage in AAPS News over about the past five years. Named physicians include: Drs. Wanda Velez-Ruiz (and her husband and former office manager Edgardo Perez-deLeon), George Krizek, Danny Westmoreland, and Nicholas Bartz. We did not name Patsy Vargo, although I believe AM News did. (The prosecutor dropped the criminal charges, after she suffered a very frightening ordeal, possibly because her colleagues rallied to support her.) We gave a brief outline of other cases but did not name physicians who wanted to be anonymous. We do not necessarily approve of all these physicians' billing practices, but I believe we may have helped to prevent some very dangerous precedents. The rationale given for the prosecution, of course, is never "inadvertent billing error." AAPS has been in the trenches with these physicians during unjustified, horrifying ordeals, and I urge the AMA not to belittle their experiences based on meaningless opinions of politicians.
Let me reiterate that AAPS is very much in favor of working with all individuals and groups that support fundamental principles such as the sanctity of the patient-physician relationship and respect for the constitutional rights of patients and physicians. Please feel free to contact me at any time to discuss any of these issues.
Jane M. Orient, M.D.