Doctors told to stop lying for their patients

The Journal of the American Medical Association (April 12,2000), published the results of a survey conducted by Matthew K. Wynia and colleagues of the AMA's Institute for Ethics.  In that survey, 39% of 720 responding physicians said that they (sometimes, often or very often)  manipulated reports to their patients' health plans in order to help their patients gain coverage for needed medical care.  These "manipulations" consisted of a) exaggerating the severity of their patients' conditions, b) changing the patients' billing diagnoses, or c) reporting signs or symptoms that the patients did not have. 

A full 72% admitted to using at least one of these three tactics in the past year. Furthermore, 28.5% of the physicians agreed with the statement, "Today it is necessary to game the system to provide high quality care."  15.3% agreed that it is also ethical to do so.  

In an accompanying editorial, M. Gregg Bloche of the Georgetown/Johns Hopkins University Program in Law and Public Health analyzes the ethical implications of Wynia's paper, and finds those implications "deeply troublesome."  Doctors, he states, must stop applying the insular ethical norms typical of "close-knit groups" and accept the ethical norms that society has made plain.

Likewise, the AMA and the American College of Physicians have published strongly worded statements opposing the manipulation of reimbursement rules, and ethicists have long developed strong arguments against "gaming" reimbursement systems.  

Finally, the federal government, under HIPAA, has made such "misstatements" to health plans a federal crime, punishable by huge fines, jail terms, and loss of licensure.

Yet, despite these societal sanctions against manipulating reimbursement rules, a substantial proportion of physicians continue to see it as necessary in order to provide high-quality care to their patients.

DrRich comments:

It is nothing less than astounding to me that 72% of surveyed doctors admitted to deceiving health plans, over the past year, in their attempts to secure needed medical services for their patients. Haven't these docs been reading the papers?  Haven't  they read about armed, wind-breakered federal agents storming medical offices, holding women and children at gunpoint (Elian Gonzales style) in order to carry out subpoenas for suspected fraudulent medical records?  (See, for instance, the May 8, 2000 commentary by Reiland in the Pittsburgh Tribune Review.)

Medical fraud is Priority One for the feds. (See our complete treatment of the federal anti-fraud imperative.)  They're serious about it. And they're perfectly happy to destroy careers, reputations and lives over what many would consider mere trifles, and they think nothing of employing the Renotactics we all saw on TV a few Saturdays ago in doing so. 

What these doctors admitted to in Wynia's study constitutes fraud under present law.  If I had deceived health plans on behalf of my patients and Wynia et al asked me about it, I certainly wouldn't have admitted anything to them. (Note to Donna Shalala and Janet Reno: I, of course, have never, never, ever deceived a single health plan for any reason whatsoever, and thus in reality would not have had anything to admit.)  Sure, Wynia's article contains the usual yadayada about the information supplied by the physician respondents remaining strictly confidential, and how all potentially identifying information was removed from surveys so the respondents could not be traced.  And while I don't know Wynia or his colleages, they do, after all, represent the Institute for Ethics, so they can almost certainly be taken for their word. (Even though other AMA ethicists - and for all I know, even they - have deemed it unethical to deceive health plans.)  But at the same time, one strongly suspects the feds are salivating at the prospect of forcing the release of the identities of the doctors surveyed in this study - these self-admitted perpetrators of the federal crime of health-care fraud.

So I am absolutely astounded they admitted to it.  

I am less astounded that they did it.

The ethical question here is: where does the doctor's obligation to his patient end?  Virtually all ethicists who have gone on record assert that the physician's obligation to his patient stops when that obligation would require him to violate the rules as agreed to by society at large. And in this case society has given managed care organizations the tacit mandate to control health care costs the best way they can, and thus to set the rules for what health care services is needed and not needed.  Therefore, all seem to agree, the physician's obligation to his individual patient stops where the interests the patient would violate the reimbursement rules set up by the health plan.  

I myself would agree that, if there were a clear set of rules and guidelines under which everyone has agreed to participate (tacitly or not), then doctors should advocate for their patients only to the limits of those rules and guidelines.  The problem is, the rules that patients have agreed to are themselves intentionally and openly deceptive. When rules are intentionally deceptive (or when they have been laid down by coercive forces), then the ethical obligation to follow those rules is proportionally weakened.  (For instance, if you lived in Amsterdam during WW II, and a Nazi S.S. officer knocked at your door and said, "Pardon me, but do you have any Jews hidden in your attic?" and in fact you did happen to have a Jewish family up in your attic, I would maintain that it would not be unethical to lie - even though doing so would certainly violate the rules of that society at that particular time.)

Health plans make their money by keeping their real rules a secret. All health plans publish long lists of "covered services," and that's what patients see on the glossy brochures when they choose their plans. What the health plan brochures do not make plain is that if you have a condition that requires one of those covered services, you may or may not get that service depending on whether it is deemed "medically necessary." 

The determination of whether a covered service is medically necessary is entirely up to the health plan, and not the doctor, and furthermore, the criteria used to determine medical necessity are - intentionally and defiantly - kept secret. (In testimony to Congress in 1996, Karen Ingani, CEO of the American Association of Health Plans, maintained that the rules by which health plans determine coverage are "trade secrets," proprietary information that is not to be revealed either to patients or their doctors.)

So in the practice of medicine, it does not take physicians long to understand that merely documenting the patient's medical condition, and giving the medical reasons that a particular "covered service" is needed, does not guarantee that such service will in fact be provided.  As you can imagine, that can get to be a little frustrating after a while.  

Doctors are not stupid. (Well, as a class they are not stupid. There may be a few dim bulbs here and there.)  After a while they begin to "decode" the actual rules being used by health plans, and they (in the act of trying their best to deliver their patients the care they need) begin using the "buzz words" they discover - the words that  trigger the magic approval button on the health plan's secret machine.  They use those buzz words even though, in strict medical parlance, they are not really the correct words. In so doing, doctors slip into the legal state of medical fraud, and they become criminals in the eyes of the feds.  

Doctors are so good at decoding the secret rules of health plans that the health plans must periodically (and secretly) change those rules, so now doctors have to figure out the new buzz words all over again. Despite legal and professional sanctions against gaming the system, the system is, in fact, a classic game. Apparently the health plans are allowed to play, but the doctors are not.  When the doctors play, they are guilty of a federal crime and of grievous ethical violations, and deserve the scorn of the entire populace (including the scorn of their own patients, other than the particular ones for whom they they are found guilty of deception.)

None of this is, of course, surprising. Our Grand Unification Theory of Health Care shows exactly how the system has evolved to separate the interests of the doctors (in this case, the doctor's interest in not doing hard time) from the interests of their patients.  And while the ethicists are quite correct that doctors, in performing as their patient's advocates, are obligated to act within the norms established by society, until we actually establish equitable norms doctors will be stuck in the middle.  And, according to a substantial proportion of physicians in the Wynia study, their patients will have to rely on their doctors' willingness to "bend the rules," despite the risk of heavy punishment for doing so.

05/14/2000

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