Published in the American Medical News, April 20, 1998, Vol. 41, No. 15, page 1:

Washington -
"As the AMA moves to convene a large working meeting late this month to improve Medicare guidelines for evaluation and management services, one physician organization plans to conspicuously abandon cooperation between organized medicine and the government.

In a move possibly timed to steal thunder from the AMA's efforts, the Assn. of American Physicians and Surgeons, a small Tucson, Ariz.-based group, plans to sue the government, claiming that the guidelines are unlawful and unconstitutional.

AMA leadership is soon to respond to a "Dear Colleague" letter that AAPS sent to many doctors last month publicizing the suit. The response will be shared with Federation leaders.

AAPS is fiercely opposed to all forms of third-party intervention between doctors and patients. To illustrate that point, its executive director, Jane Orient, MD, refuses to fill out insurance forms for her services.

According to Dr. Orient, the AMA should not be attempting to negotiate documentation standards with HCFA and other physician groups. "What the AMA should be doing is fighting against price controls," she declared.

But the AMA's approach intends to involve as wide a spectrum of medicine as possible in a constructive effort to correct the guidelines to better fit medical practice. "We are trying to take a responsible position and bring medicine together," said AMA Board Chair Thomas R. Reardon, MD.

As for price controls, Dr. Reardon said that was an entirely different issue. At the same time, he said, "We don't like price controls any more than Jane Orient does."

Dr. Orient's letter to physicians included a membership pitch and a request for contributions to the American Health Legal Foundation, which would fund the suit.

Her approach is distressing to some in organized medicine. Stuart Hayman, executive director of the Westchester (N.Y.) County Medical Society, said the AAPS program is "playing on physician fears and condemning the AMA as a means to elicit financial support for her organization as well as a currently needless lawsuit."

According to Hayman, "the AMA has already proven that they can delay and favorably adjust the guidelines by working with HCFA and not spending additional physician dollars."

Added Dr. Reardon: "There's no doubt that (AAPS) is using this as an issue for membership and money."

Suit Makes Analogy With Wiretaps-
Dr. Orient's group claims that the guidelines are a threat to confidentiality. "The E&M guidelines are analogous to a government wiretap of a private telephone call," said a legal memo from AAPS general counsel Andrew Schlafly.

But Dr. Reardon said he was unaware of any instances where Medicare carriers in payment review had breached the Association's own strict policy on physician-patient confidentiality. He also noted that medical reviews had been standard private sector practice for years.

Among other arguments AAPS unveiled in announcing its intention to sue, the group said the guidelines' creation failed to comply with the Federal Advisory Committee Act, which mandates that certain government/private sector groups meet publicly. AAPS said HCFA had used the AMA as its "advisory committee."

AAPS has successfully sued the Clinton White House under the same statute, contending that the operations of its health care reform task force were not appropriately public.

But this situation may be different. According to Dr. Reardon, the meetings have involved a wide range of various specialty input. Moreover, deliberations on guidelines have been conducted by the CPT editorial panel, which operates at "arm's length" from the Association, he said, and is not subject to rules on government groups.

AMA Initiatives on E&M-
The Association's three -part campaign aims to correct the guidelines, vigorously lobby federal policymakers against inappropriate "fraud and abuse" actions against doctors who make simple mistakes, and eventually educate physicians on what is contained in the guidelines.

According to Dr. Reardon, the Association is seeking "substantial, significant corrections to make the guidelines workable." The current version, he said, is burdensome and difficult to follow. At the same time, the AMA believes that appropriate documentation is key to patient care.

Guidelines were first issued, with relatively little fanfare, in 1995. Last year's revised guidelines with new detail on examination documentation have caused widespread physician anger. The AMA already has successfully delayed enforcement of last year's guidelines through this June, and is seeking further delay.

Physicians are deeply concerned they may be subjected to enforcement actions for inadvertant coding errors; HCFA last year began random prepayment audits of less than 1% of Medicare physician visit claims and is taking other aggressive steps to eliminate inappropriate payments.

HCFA has attempted to calm doctors by emphasizing that an intent to defraud is necessary for civil or criminal proceedings.

But it is not backing off of greater scrutiny of claims. According to agency official Linda Ruiz," doctors should expect that we will be regularly looking at claims, including E&M, on a prepayment basis." Once the prepayment audit is completed later this year, she said, "the list of optional steps we might take next year includes another sample, either the same size or larger. It could also include more focused reviews rather than a sample."

The Fly-In-
Close to 300 attendees are expected at the April 27 "fly-in" that the AMA is hosting in Chicago as a working meeting for physician leaders and HCFA. AMA leaders expect Dr. Orient will attend the fly-in as president-elect of the Pima County Medical Society in Arizona.

Discussion proposals touching on the major aspects of the guidelines are being developed with input from HCFA and the CPT editorial panel. Changes must allow more flexibility in applying the guidelines, Dr. Reardon emphasized, since coding has subjective elements.

The Association has received more than 100 comments from state and specialty organizations. In addition to backing a six-month delay in enforcing the guidelines, the AMA backs pilot-testing them first.

The guidelines issue has finally hit the major national daily newspapers, with an April 1 Wall Street Journal editorial decrying the guidelines. Meanwhile, the House Government Reform and Oversight Committee planned an early April subcommittee field hearing on Medicare coding and billing that would feature testimony from working physicians, HCFA and the AMA.

Doctors diverge on the prospects for success with revising the guidelines.

William Waters III, MD, who is attending the fly-in with others from the Medical Society of Georgia, said that "some massive renovation of this system is necessary." Last year's guidelines, he claimed, "are best described as a major systematic error." As for April 27, "I'm sure it will be a rather stormy day."

But others are more optimistic. Lee McCormick, MD, president of the Pennsylvania Medical Society, predicted that "the guidelines themselves are fixable. At the fly-in, we will go a long way to fixing them."