NYT, AP Jump Gun on Medicare Disclosure Rule Reversal

While the New York Times and the Associated Press reported Jan. 2 that HCFA officials would soon reverse a policy preventing Medicare recipients from obtaining information about doctors under investigation for medical errors, the Charleston Gazette reports that the agency will not revise the rules "anytime soon" (Leonard, Charleston Gazette, 1/4). The Times reported that doctors would no longer have the power to veto disclosure of findings in Medicare complaint investigations and that investigators would have to tell patients whether they received "professionally recognized standards of health care" and inform them about actions against specific doctors or hospitals (Kaiser Daily Health Policy Report, 1/2). According to AHA News Now, an HHS spokesperson "stressed emphatically" that the department is not planning to allow Medicare patients access to the names of particular physicians involved in complaints (AHA News Now, 1/4). And the Gazette reports that HHS officials called the story "inaccurate," and according to a HCFA spokesperson: "The old rule is still in effect. The New York Times said doctors will no longer have veto power over disclosure, but that was overstated. Doctors still retain the ability to not be identified, unless they consent." On Monday, HCFA officials ordered Florida's peer review organization -- the agency that investigates the state's Medicare patients' complaints -- to disclose additional medical information to the son of a Medicare patient who died in the hospital after an asthma attack, prompting the confusion. "The confusion arose from the fact that the Florida review organization was withholding complaint information that it should have provided under the current regulation -- HCFA did not tell Florida to provide the names of doctors," HCFA's spokesperson said, adding that while the agency plans to clarify the rules, "no changes are pending." To revise the disclosure policy, HCFA must submit to a "formal rule-making process" and allow a period of public comment, the spokesperson added. Mark McCombs, a spokesperson for the West Virginia Medical Institute, the state's peer review organization, concluded, "There is no new policy out from Medicare, and until there is we will be following the old rules and regulations" (Charleston Gazette, 1/4).

Pull Back the Curtain ...
A USA Today editorial argues that unlike many states that have required doctors to disclose their records -- including malpractice settlements, disciplinary actions and criminal convictions -- Medicare has become "out of step" with Americans' demand for "exposing doctors' mistakes," offering only a "shower of nods and winks." While Medicare officials may hold public discussions on possible changes to the policy this year, USA Today calls the move "better late than never" and criticizes the program's "shocking" practice of "hiding evidence of malpractice" from patients and their families. Supporters of the current system call confidentiality "essential" to maintaining doctors' participation in peer reviews and other assessments of the quality of medical care, but the editorial points out that the shield only provides physicians willing to practice "deception" with "additional cover." Citing an upcoming National Academy for State Health Policy study of error-reporting systems, the editorial contends that "there's no real difference" between those that provide confidentiality and those that do not -- both feature underreporting of medical mistakes. USA Today concludes, "Plainly, consumers want and need to know more about their doctors. Medicare should be leading that parade, not sweeping up after" (USA Today, 1/5).

... Or Preserve the Shroud
In an accompanying USA Today opinion piece, Dr. Jane Orient, executive director of the Association of Physicians and Surgeons, argues that Medicare should not strive to "put heads on the spikes of the Tower Bridge" when medical errors occur, exposing every "bad result" to "aggrieved" patients, their families and "ambulance chasers." Often, she contends, physicians find themselves "between a rock and a hard place" and need to make quick decisions with "incomplete information." Orient asks, "If failure means disaster for the doctor, who will want to accept the toughest problems? Or who will want to try something new that the judges might not approve?" She points out that doctors treating the sickest patients will always have "worse results, no matter how good they are," and that "medical referees" may not prove "fair or even very knowledgeable" and may "garner fortune and glory by destroying individual players." Orient concludes, "[I]ncomplete, distorted information, under the current rules of the legal game, could destroy medicine on the pretext of saving it" (Orient, USA Today, 1/5).