OIG report hits PROs for putting doctors above beneficiaries

The Office of Inspector General calls for an overhaul of Medicare's system for dealing with patient complaints.

By Markian Hawryluk, amednews staff. Sept. 3, 2001.

Washington -- A new report on the Medicare beneficiary complaint process has renewed debate over whether peer review organizations should be coaches or cops, pitting the rights of physicians against the rights of consumers.

The report by the Dept. of Health and Human Services' Office of Inspector General found that PROs were not an effective beneficiary complaint system -- they rarely reported their findings to complainants or initiated any intervention beyond a letter to the involved doctor for substantiated complaints. The OIG attributed some of the shortcomings to PROs' desire to maintain a good working relationship with physicians and other health professionals to maximize their quality improvement initiatives.

Key findings
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"PROs traditionally have exhibited a reluctance to take on a more enforcement-oriented role that might undermine their relationships with the medical community," the OIG said. In the past five years, PROs have referred only six physicians or facilities for sanction, and none in the past two years.

The AMA said the complaint process could be improved to be more responsive to patients. But the success of the process and of PRO quality improvement efforts hinges on physicians' ability to disclose quality-of-care information in a nonpunitive environment, the Association said.

The American Health Quality Assn., which represents PROs, also said the complaint system needs reform but has concerns that PROs will be charged with assigning blame.

"PROs are focused on preventing quality problems from recurring, rather than figuring out who is responsible for what failings and punishing people," said AHQA Executive Vice President David Schulke. "PROs should ensure that complainants know their choices, so they may choose instead to rely on a licensing board or courts for punitive action."

Doctors agree to reveal their identity in 21% of PRO cases involving quality of care.

While most parties with a stake in the issue agree that the complaint system needs strengthening, they fundamentally disagree on the issue of physician confidentiality. Under federal rules, currently the subject of a legal dispute, a PRO must protect the identity of any physician investigated unless that physician consents to have his or her name revealed.

According to the report, physicians grant consent in only 21% of cases in which a quality-of-care concern is identified. That leaves beneficiaries feeling somewhat in the dark.

"Beneficiaries are often unsatisfied after the PRO completes its review and want closure after months of waiting," the OIG said. "They want to know what specific actions the PRO took in response to their particular complaint."

Consumer groups chafe at the notion of physician confidentiality.

"To give physicians veto power over release of information by an oversight body, all in the name of due process, is a policy that is hard for consumers, their representatives or the media to understand," said David Swankin, president of the Citizen Advocacy Center, which has a network of beneficiary and consumer representatives on PRO boards.

Not PROs' purpose?

But physicians worry that without confidentiality, they could open themselves up to lawsuits.

"Why should the PRO be the research arm for the trial lawyers? That's not what it's all about. It's about improving quality of care and ensuring that patients' complaints are properly dealt with," said Tom B. Hancher, MD, president of the Texas Medical Assn.

The report recommended an overhaul of the Medicare complaint process either within the scope of the PROs or through an outside entity. Shifting responsibility for complaints to another group, however, would require legislative action, and neither doctors nor PROs themselves are outright proponents of such a change.

Lari Johnson, spokeswoman for Florida Medical Quality Assurance, said the Tampa-based PRO thought it could handle the complaint process better than a new government bureaucracy. Even before the report was issued, FMQA had streamlined its complaint filing process by revising the options on the Medicare help line, hiring full-time bilingual help-line staff and giving more visibility to complaint filing on its Web site. Johnson said the PRO was still awaiting guidance from the Centers for Medicare & Medicaid Services on how to report findings to beneficiaries.

AHQA is not outright opposed to relieving PROs of the complaint process. "We're certainly paying attention to that option," Schulke said. "But it's hard to figure out who else is qualified to make those judgments."

Sidney Wolfe, MD, director of Public Citizen's Health Research Group, said that perhaps state health departments could assume that role. "I think the PROs have already staked their opposition to too many of these things for it to reside safely there," he said.

Public Citizen has been a major force on the PRO complaint issue. The OIG report was issued in the midst of a legal battle between the group and HHS. A U.S. district court recently rejected the government's request for a stay of a court ruling that ordered the agency to tell PROs to release their investigation findings to beneficiary complainants even in the absence of physician consent.

U.S. District Court for the District of Columbia gave HHS until Sept. 10 to either comply with the ruling or ask the federal appeals court for a stay, Public Citizen said. The agency has until Sept. 12 to file an appeal.

More clarity sought

The American College of Physicians--American Society of Internal Medicine said greater clarity on the confidentiality issue could help resolve the PRO dispute.

"I think from our perspective, that's how you fix the problem," said Mark Gorden, senior associate for managed care and regulatory affairs for ACP-ASIM. "Be a lot more precise and clear about what information can and cannot be released."

Gorden said notwithstanding the challenge of the court ruling, CMS already had made the decision that PROs could release more information than they have been. For example, CMS has told PROs that they must protect a physician's identity, unless consent is given, but that investigation findings can still be reported.

"What makes that difficult is how do you present information from an investigation without unintentionally identifying the physician?" Gorden asked.

CMS Administrator Thomas Scully has indicated in meetings with ACP-ASIM that the agency would heavily revise the PRO scope of work in the next contracting cycle, beginning in August 2002, Gorden said.

"The OIG report does point out the kinds of challenges and problems we're looking to address under the CMS structure," an agency spokesperson said.

Another problem the OIG report pointed out is that most beneficiaries do not understand that the complaint process would not result in the type of determination of fault they were expecting. In fact, beneficiaries were often unaware of their opportunities to complain to PROs, the OIG said.

The AARP agreed, saying that while the confidentiality issue may discourage some complainants, failure to use the process may be caused as much by ignorance as by frustration. "After more than 10 years, most beneficiaries still do not know that the PRO review process exists or understand how it works," said Martin Corry, AARP's director of federal affairs. "There clearly needs to be more outreach and education."

ADDITIONAL INFORMATION:

Key findings

The Office of Inspector General report on the Medicare beneficiary complaint process concluded that:

PROs rely on medical record review, which is their strength, but usually on a case-by-case basis, so they are unlikely to identify patterns of quality concerns.
Current procedures continue to preclude PROs from responding substantively to beneficiaries with complaints because doctors often fail to consent to disclose.
Few complaints actually lead to quality improvement.
Most complaints exceed the established time frame for review, shortened from 250 days to 165 days.
Accessibility to PROs is questionable, with investigators receiving busy signals or recordings.
Referrals to licensing boards stemming from complaint probes are rare.