PROs must tell patients of inquiry results

Some worry the federal court decision endangers the peer review process, but the ruling's full effect isn't clear yet.

By Tanya Albert, amednews staff. Aug. 6, 2001.

When a Medicare patient or the patient's family complains about a physician's care, Medicare peer review organizations must tell them what the resulting investigation found, a federal court ruled in July.

Centers for Medicare & Medicaid Services regulations prohibit PROs from disclosing their findings to patients unless the physicians in question consent to it. But the court said those regulations are invalid because they conflict with a federal law that says PROs need to let the person who made the complaint know the investigation's outcome.

Case at a glance
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U.S. District Court for the District of Columbia Judge Ellen Segal Huvelle gave the Dept. of Health and Human Services 20 days to send a letter to PROs telling them that they must disclose investigation results to the person who initiated the complaint.

That's a concern for those who believe peer review needs to be kept confidential.

"It is one additional chink being placed in the protective wall that has always surrounded quality and peer review," said health lawyer Sheryl T. Dacso with Jenkens & Gilchrist's Houston office.

But it's still too soon to know how big the chink will be.

At press time, HHS had not decided whether it would appeal the decision and had not offered its interpretation of the ruling.

"A lot depends on what HHS says," said David Schulke, executive vice president of the American Health Quality Assn., which represents PROs. "Physicians are understandably very nervous about whether this will generate lawsuits."

Challenging the system

The court ruling is the result of a lawsuit filed by the consumer watchdog group Public Citizen Inc. The Washington, D.C.-based organization believes patients and their families need more explanation than they've received in the past and views its suit as a way to change PROs' handling of investigation results.

The group sued on behalf of its members, specifically for Kentucky resident David Shipp.

Shipp initiated a complaint on the quality of care his wife, a Medicare beneficiary, received before she died of cancer in June 1999. When the investigation was complete, the PRO sent him three letters. Two of the three letters said that the physicians involved didn't consent to sharing the information, so the PRO was "unable to provide any specific information about the results of [its] review."

The letters went on to say that did not mean that the panel had found any problems with the care his wife received. They also said that if there were a problem, the PRO would take all the necessary actions to address it.

But Shipp said he wanted -- and deserved -- a better explanation. Public Citizen attorney Amanda Frost said the July federal court decision allows that to happen.

"This decision means that the government can no longer hide doctors' errors from Medicare patients," Frost said.

"It doesn't make sense to withhold the information because the information is being released elsewhere," she added. "Doctors already know it could be reported to the state licensing board or elsewhere."

Dacso said the ruling was part of an overall trend toward laws emphasizing the consumer's right to know.

"The government is saying there is a right for the consumer to be informed," she said. "Given the way the court has been moving, I am seeing a significant erosion in the peer review protection."

Changes ahead

That erosion concerns physicians and others who believe the peer review process needs protection.

"Health care experts and policy-makers agree that an important key to improving quality of care is to create an environment in which physicians feel comfortable discussing incidents of substandard care and the reasons behind them," said AMA Chair Timothy T. Flaherty, MD. "The American Medical Association is concerned that full disclosure of information obtained during peer review organization investigations jeopardizes current efforts aimed at improving the quality of care."

But Schulke said the decision wouldn't affect 90% of PROs' activities -- working with hospitals and other institutions to improve quality before complaints are registered.

Still, the changes that could stem from this court decision could have an impact on health care, and Schulke said he hoped that CMS wouldn't make hasty decisions on how to handle the ruling.

The PRO association wants CMS to obtain an extension of the 20-day deadline for informing PROs of the court decision. He hopes that CMS officials will then sit down with other members of the medical community to discuss options to improve the system.

Some ideas were being discussed before the legal developments. For example, Schulke said, using a case management approach in which a case worker explains the process and offers mediation could be one way to clear up misunderstandings. Another option is to have more physicians review each case because studies have shown that a larger number of reviewers usually results in a more accurate outcome.

"This should not be rushed," Schulke said. "This is going to be a big change."

ADDITIONAL INFORMATION:

Case at a glance

Public Citizen Inc. v. Dept. of Health and Human Services, et al.

Venue: U.S. District Court for the District of Columbia.
At issue: The court said Medicare peer review organizations are required to release investigation results to the patient or patient's family member who filed the complaint.
Potential impact: It depends on how the ruling is interpreted, but some worry it could hurt the peer review process and ultimately hurt quality of care.

Weblink

Opinion of the U.S. District Court for the District of Columbia, Public Citizen Inc. v. Dept. of Health and Human Services, et al. (http://www.citizen.org/litigation/health_safety.html)