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The Florida Internist

Summer, 2001

Did You Miss the Scientific Meeting Program?

The program should have arrived at your home or office in late June. There are 13 Category I CME credits available. The meeting begins Friday October 5th and runs through Sunday noon. The Renaissance Vinoy's phone is 747-894-1000. The Florida Chapter ACP-ASIM's room rate of $180 is reserved until September 4, 2001.

From the President

Kenneth R. Ratzan, MD, FACP
Kratzan@aol.com

Help is Coming

How many of us have been told by a Managed Care Organization (MCO) that they have no record of our submitted claim; or that our claim is incomplete; or that the patient is not covered by the MCO when in fact the patient is? How many of us have had our claims arbitrarily down-coded to a level of service which provides a lower reimbursement? Hopefully help is on the way. In Managed Care Litigation (MCL), MDL case 1334 a lawsuit has been brought by a group of providers and medical associations which alleges that the defendant HMOs have systematically breached the terms of their contracts with physicians and have engaged in illegal policies and deceptive practices. Some of these allegations are that HMOs improperly influence medical decision-making processes and have enacted policies to allow them to override the physician's decisions regarding medical necessity.

The named providers and medical associations allege that HMOs do this by relying on automatic claims processing systems, hiring personnel unfamiliar with the patient's healthcare needs, and indirectly providing reimbursements that are inadequate to cover the cost of medically appropriate care. This pattern of behavior constitutes a violation of a federal RICO statute, the Racketeering Influence and Corrupt Organization act.

The lawsuit also charges that during the last ten years the HMOs have delayed, denied, and arbitrarily down coded payments to doctors. On May 7, 2001 a hearing was held in Miami to determine whether to certify this case as a class action. As a result of arguments raised at the hearing, the court entered an order lifting the stay on discovery, meaning that the parties will now be permitted to obtain discovery from each party to the lawsuit as well as from various third parties. The decision whether or not to certify the case as a class action will be made by the court after such discovery is completed. To date the individual plaintiffs consist of a group of physicians from specialties such as pediatrics, cardiology, and family practice from Georgia, Florida, California, and Texas. In addition, the Texas Medical Association, the American Medical Association, the California Medical Association, and the Medical Association of Georgia have joined as plaintiffs. The HMOs being sued are household words. They include Humana, Aetna, Cigna, Wellpoint, Pacific Care, Prudential, United, and Healthnet (formerly Foundation). I have been in touch with the law firm of Kozyak, Tropin, and Throckmorton, PA who is serving as co-lead counsel for the provider plaintiff physicians in this class action suit. This law firm is continuing to interview doctors who have experienced egregious treatment by the above defendants. However, more help is needed. Most importantly the attorneys are seeking evidence of HMO behavior which falls in line with the violation of the Federal RICO statute. These specific examples would include the following:

  1. Having been threatened with exclusion from a health plan network if the physician did not agree with the terms of a contract.
  2. Having been a subject of intimidation or coercion of any type by the plans in any negotiation, whether over credentialing, contracting, patient relations, or any other areas of a doctor's practice.
  3. Having attended meetings with a managed care company to discuss their business practices.
  4. Having received correspondence from a health plan network, which contains contradictory, threatening, or heavy handed language which could be interpreted to be intended to coerce, intimidate, or suppress the rights of a physician.
  5. Having experienced any wrongful treatment by the managed care industry.
  6. Having spoken with an employee or former employee of a healthcare plan or claims processing firm who described wrongful business practices within their (former) company.

If you have experienced any of the above actions by one of these managed care organizations, please contact the firm of Kozyak,Tropin, and Throckmorton, PA in Miami, Florida. Their telephone number is (305)372-1800.

While this suit is still in its early stages and perhaps years away from being heard in the courts, I hope you will agree that it is a critical one. The attorneys representing the plaintiffs are some of the best in the United States and indeed were successful in litigating and winning huge judgments against the tobacco companies. I hope you will agree with me that this is serious business and requires all of our efforts to make managed care organizations accountable to our patients and to us as providers. We need to put an end to the practice of equating medical necessity with financial expediency and ignoring the clinical consequences.

From the Governor

Frederick E. Turton, MD, FACP
Fturton@gate.net

Is It Time to Say "No" to Pharmaceutical Representatives?

Two things that make us good internists are the desire to provide our patients the very best of medical care and the willingness to accept responsibility for the resources needed to deliver that care. Recently I have found myself worrying about the sometimes subtle, sometimes obvious effects the pharmaceutical industry has on both of these aspects of our practices. Representatives of the pharmaceutical industry are ubiquitous in our professional lives. They visit us at our offices, find us at the hospital, feed us lunch, bring us literature and give us gifts. They are even active at the state and national activities of the ACP-ASIM. They are everywhere we turn. Consider the following:

Physicians really do depend on pharmaceutical representatives for information which frequently is wrong. A study published in JAMA found that approximately 11 percent of the statements made by pharmaceutical representatives about drugs contradicted information readily available to them. Furthermore, physicians generally failed to recognize the inaccurate statements.

Pharmaceutical representatives really do influence our prescribing. The journal Chest reports that doctors taken on "symposia" promoting drugs had their prescribing practices significantly changed by the drug company sponsored education. Likewise it has been shown that requests by physicians that drugs be added to a hospital formulary were strongly and specifically associated with the physicians' interactions with the companies manufacturing the drugs.

The influence of the pharmaceutical industry increases the cost of medical care. Look in your sample closet. I practice general internal medicine and my closet contains eight different ACE inhibitors, seven dissimilar calcium channel blockers and six distinct angiotensin receptor blockers. There are no hydrochlorthiazide and no metoprolol samples. Neither do I have amoxicillin or trimethoprim-sulfa but I have five types of quinolones. It is reported that what your closet holds does influence what you prescribe. If your samples are like mine the well-meaning act of providing your patient with "free" samples is increasing the cost of medical care and potentially leading you to inappropriate use of antihypertensives and antibiotics. Just for fun compare the JNC-IV recommendations on the treatment of hypertension or the ACP-ASIM's new guidelines for the treatment of upper respiratory infections with the medicines you have available for free sampling.

Many of the gifts and considerations granted by pharmaceutical companies are ethically suspect. The ACP-ASIM recently updated its position on physicians' relationships to pharmaceutical companies. "The acceptance of individual gifts, hospitality, trips, and subsidies of all types from the health care industry by an individual physician is strongly discouraged. Physicians should not accept gifts, hospitality, services, and subsidies from industry if acceptance might diminish, or appear to others to diminish, the objectivity of professional judgment." The College goes on to suggest the doctor ask him/herself the following questions when considering accepting a gift from an industrial source:

  • What would my patients think about this arrangement?
  • What would the public think?
  • How would I feel if the relationship was disclosed through the media?
  • What is the purpose of the industry offer?
  • What would my colleagues think about this arrangement?
  • What would I think if my own physician accepted this offer?

If the pharmaceutical rep that visits your office offers information that is inaccurate yet effective in changing your prescribing patterns, increases the cost of medical care and ethically suspect, is time to say "no" to the free lunch?

References

Ziegler MG, Lew P, Singer BC, "The accuracy of drug information from pharmaceutical sales representatives." JAMA 1995 Apr 26;273(16):1296-8.

Orlowski JP, Wateska L, "The effects of pharmaceutical firm enticements on physician prescribing patterns. There's no such thing as a free lunch." Chest 1992 Jul;102(1):270-3.

Chren MM, Landefeld CS, "Physicians' behavior and their interactions with drug companies. A controlled study of physicians who requested additions to a hospital drug formulary." JAMA. 1994 Aug 3;272(5):355.

Chew, O'Young, Hazlet, Bradley, Maynard, Lessler, "A Physician Survey of the Effect of Drug Sample Availability on Physicians' Behavior," Journal of General Internal Medicine 15 (7), 478-483

Gonzales, Bartlett, Besser, Hickner, Hoffman, Sande "Principles of Appropriate Antibiotic Use for Treatment of Nonspecific Upper Respiratory Tract Infections in Adults: Background" Ann Intern Med. 2001;134:490-494.

Gonzales, Bartlett, Besser, Hickner, Hoffman, Sande "Principles of Appropriate Antibiotic Use for Treatment of Nonspecific Upper Respiratory Tract Infections in Adults: Background" Ann Intern Med. 2001;134:490-494.

Will You Still Love Me When I'm Old and Gray?

By P. V. Caralis, MD, JD, FACP
panagiota.caralis @med.va.gov

In the past two years, many of us have attended seminars or completed other forms for CME credits, as part of licensure requirements, on the topic of domestic violence. Most physicians come away from this appalled at the statistics of domestic abuse and the impact it has had on the health of Americans. What is seldom discussed, however, is a growing problem of domestic elder maltreatment. This has particular importance in Florida because we are the state with the fastest growth in the population of elderly and "elderly" elderly (over 85). As " doctors for adults", internists' practices are filled with elderly patients, some of which have been or are currently in abusive relationships.

The code of silence has finally been broken regarding physician's acknowledgment of the problems of domestic violence. Society as a whole has made great inroads in demanding a zero tolerance of domestic violence and developing resources to assist adult and child victims of abuse. For elder abuse we are where we were in the beginnings of child abuse 20 years ago. I can assure you that elder abuse has only now been recognized as its own unique problem and we are gathering data and just addressing these complex issues. As physicians, it is our ethical duty and professional responsibility to be part of the solution.

In the US, approximately 44 million adults 60 years of age or older reside in the US. Among that population, 450,000 noninstitutionalized persons were estimated to have experience abuse, neglect or exploitation in 1996. That constitutes an incident rate of around 10 per thousand persons over 60. Another 100,000 elders suffered self-neglect. This represents a 150% increase in elder abuse reports. Still, it is an underestimate since these are from reports to Adult Protective Service agencies, which are only the tip of the iceberg. Florida statistics are similar to national data. There were 54,203 alleged maltreatments during FY 1998-99 (Average 1.4/report); physical abuse accounted for 30% of all reports; exploitation -12%; neglect (self and by second party)-55%. This constitutes a 37% increase over 6 years ago, 2% over the year before. The average age of victims was over 70; 41% are over age 80 years; over 3,500 reports involved those over 90 years. The victims are most often female and white, while the perpetrators are most often 40-50 years of age, female and white; adult children accounted for the greatest % of perpetrators, followed by spouse. The highest percentage of reports came from relatives and neighbors, followed by social service and medical sources (mainly nurses). If you believe that intervention for adult victims of abuse is complicated, the barriers are even greater for elder abuse. Elderly victims of abuse fear reporting for a variety of reasons: shame, impact on caregivers, caregivers' reprisals and stigmatization, change of status and institutionalization. They view well-meaning interventionists who come in to their homes and family life and begin to restructure it, as taking away their rights of self-determination without consent, which is more abusive. As a result of reporting abuse, they lose their right to stay in the familiarity of their home. There are no safe-space shelters equipped for the needs of elders; there are no "foster homes" for the elderly as there are for children. Instead, they must go to nursing homes or ACLFs and many view this as worse than death or a life of abuse. Additionally, the statistics warn that nursing homes may not be safe havens, since 30% of the total investigations of alleged elder abuse during 1998-9 were from institutions housing frail elderly/disabled and half of those were in nursing homes; 23% of reports verified for abuse, neglect or exploitation required emergency corrective action of immediate removal of the patient.

Martin Luther King, Jr. once said, "it is not the violence of the few that scares me but the silence of the many. As community leaders, we need to work together in a community dialogue to solve this problem. The development of interprofessional linkages is needed once again and needed urgently. Our patients' lives depend on it.

References

Florida Abuse Hotline Telephone 1-800-ABUSE, 24 hours a day, 7 days/wk FAX 1-800-914-0004 Adult Protective Services Annual Statistical Report Fiscal Year 1998-1999 Tallahassee, Florida. Dept. of Children and Families.

2001 Legislative Recap

By N. H. Tucker, III, MD, FACP
Chair, Legislative Committee ufi1507@attglobal.net

Thanks to Governor Bush's signing of the All-Products bill (our #1 priority), the Chapter had a very successful legislative session. Kudos to those physicians that responded to our faxblast and corresponded with the governor to make it happen. We had reason to believe that without physician input he would likely have vetoed this legislation.

The All-Products law makes it illegal for an insurer to require a physician to join all of an insurer's plans as a condition of continuation or renewal of a present contract. Therefore, if a physician wishes to continue to belong to the PPO only, the insurer cannot coerce the physician into involuntarily joining its HMO. We also successfully passed a law, which requires that all managed care adverse determinations must be made only by a physician licensed in Florida. This physician would be accountable to the Board of Medicine and therefore held to the same standards as every other Florida licensed physician. The Florida Medical Licensure Exam (FMLE) is an exam that was developed several years ago by the Board of Medicine at the request of the Florida Legislature. There had been approximately 400 foreign medical graduates who were unable to pass the standard medical licensure exam and as a result had taken special training at the University of Miami and were eligible for the Florida Medical Licensure Exam. To date, only around a dozen individuals (of the more than 400 eligible) have passed this exam and received their Florida license. Every year since inception, there has been continuous controversy surrounding the FMLE and at one time the legislators had discussed just giving licenses to those who couldn't pass the exam. However, we put this controversy to rest this year by passing a law that ends the FMLE. Now, every physician in Florida will be required to take the same exam (national medical licensure exam) to qualify for licensure.

Another achievement was returning hydrocodone (Vicodin) to the Class III drug schedule. It had been made a Class II drug last year and only by the temporary emergency powers of the Board of Medicine had it not been moved to the Class II schedule. As a Class II drug, it could not have been prescribed over the phone nor refilled. If this had been allowed to stand, it would have been an unnecessary bureaucratic hassle to physicians and patients without much perceived benefit.

As in all legislative sessions, there were bills to expand the scope of practice for various allied health care .professionals. The advanced nurse practitioners (ARNPs) wished to prescribe controlled substances and the electrologists wished to perform laser procedures. These bills were defeated. At the end of the session, the FMA successfully introduced and passed a very important bill that we support. This bill will stop a dangerous trend-Boards of Nursing, Chiropractic, Podiatry, etc. from expanding scope of practice by administrative means. This bill assures that scope of practice can only be expanded legislatively, not administratively.

We continue to have a very active legislative program. I want to thank those physicians who made legislative visits to Tallahassee this year-Drs. Ruben Caride, Alan Harmon, Saeed Khan, Jim Loewenherz, Shriram Marathe, Ken Ratzan, Maghraj Thanvi, and Fred Turton. Their contribution is invaluable. We are in the early stages of setting up a legislative key contact program. If you have a special relationship with a legislator or would like to develop one and serve as a key contact, please notify the Chapter office.

Our top legislative priorities next year will likely be HMO accountability and tort reform. If you have specific issues you would like us to address, please contact Dawn Moerings or me at 1-800-542-8461-1-2. Your best protection for the preservation of quality medicine and against the intrusions of Tallahassee and Washington, remains your support of ACP-ASIM and organized medicine.

In Appreciation

Robert J. Harvey

For a decade and a half Florida's internists have entrusted their professional societies and futures to Bob Harvey, the President of Harvey Group Management. Although the Florida Chapter may be losing Bob Harvey this summer, his contributions to internal medicine will remain with the organization for years to come.

When Bob Harvey first became associated with Florida's internists, the Florida Society of Internal Medicine was small organization of a few hundred internists, with few resources and even less political clout. Through Bob Harvey's leadership, the FSIM became the most successful ASIM chapter in the country, having created insurance and legislative programs that are still unsurpassed elsewhere in the nation. The success of Bob Harvey's innovations were in Dr. Kenneth Ratzan presents evidence this past Annual Session, at which the Florida Chapter Bob Harvey with a plaque of received two Evergreen Awards for its Legislative Advocacy Program Appreciation at the June 9th and Office Management Seminar, both programs which Bob Harvey Council Meeting helped to develop.

The Chapter's transition to a full-time is a testament to the organization that he has nourished and helped to prosper. Very few state specialty societies are large and stable enough to support a full-time staff, and it is only through Bob Harvey's efforts that the Florida Chapter is able to add a second full-time employee to manage its Division of Advocacy and Member Benefits. The Florida Chapter, as well as each and every member, owes a great debt of gratitude to Bob Harvey. Both professionally and personally, his contributions will be greatly missed.

Welcome

Dawn R. Moerings

The Florida Chapter is pleased to welcome Dawn R. Moerings as the Director of its Division of Advocacy and Member Benefits. Dawn has served as the Director of Group Services of Harvey Group Management for over five years, during which time she has been instrumental in the planning and implementation of the Chapter's advocacy and member benefit programs. Prior to her tenure at HGM, Dawn served as an administrator in both hospitals and private physician offices. With her considerable experience in physician issues, her professionalism, and her longstanding commitment to Florida's internists, Dawn's full-time presence is certain to be an invaluable asset to the Chapter.

The Florida Chapter, Fighting for You

By Christopher L. Nuland, Esq., Legal Counsel

In addition to maintaining a full-time presence in the Florida Legislature, the Florida Chapter conducts a vigilant advocacy program at the Board of Medicine and in the courtroom through its Office of General Counsel.

Among the issues in which the Chapter has had ongoing interest is the Board of Medicine's increasing regulation of office-based medicine. In response to the requests of Chapter representatives, the Board of Medicine has agreed to rescind its requirement for written informed consent for Level I office procedures (i.e., those minor surgical procedures in which only local or topical anesthetic is used). On June 2, the Board also passed a Chapter recommendation not to impose anesthesia monitoring requirements on Level I procedures. The Board has not, however, responded to requests from gastroenterologists to remove colonoscopies from the definition of Level II procedures, thereby forcing those performing colonoscopies in their offices to have their offices accredited, as well as maintain extra personnel and equipment.

The Chapter also is fighting to ensure that proposed physical plant standards for offices do not negatively impact internists. The Board of Medicine first proposed Physical Plant Standards over a year ago. The Chapter has objected to many of the proposals, which it felt placed unnecessary burdens upon the physician without improving patient care. The proposals are still in draft form, although they are far less imposing in their current form than when they were first proposed. Another workshop on the draft rules likely will be held this summer, and a final rule is not expected to be promulgated until at least the autumn. On a cautionary note, it has become evident that many physicians have failed to submit logs of Level II and III office surgeries during the moratorium and/or have failed to register their Level II/III office facilities. As the Board is poised to begin prosecution of these violations, physicians are urged to ensure that they have complied with both requirements, as penalties for tardy compliance are likely to be far less severe than those for non-compliance.

The Chapter has also been represented in the courtroom. The First District Court of Appeals has affirmed a lower court ruling stating that the Florida Board of Nursing did not have the authority to allow ARNP's to prescribe scheduled drugs. Having failed to obtain relief in the 2001 Legislature, the Board of Nursing may not choose to appeal this ruling to the Supreme Court. In a separate action, a large class action suit is being waged in South Florida against many managed care companies, alleging, inter alia, an ongoing criminal conspiracy to downcode, etc. This is the most significant case to date on this issue. Although the Chapter itself is not a plaintiff, members are invited to share horror stories of managed care abuses with the Office of General Counsel, which will relay them to plaintiff counsel.

As always, members having individual legal questions are invited to contact the Chapter's legal counsel directly at nulandlaw@aol.com or by phone at (904) 355-1555.