Opening the Door on Medicare Peer Review

Article excerpt

Cover Story

The story of David Shipp and his wife, Doris, began as a simple family matter.

On Dec. 15,1998, Mrs. Shipp was admitted to Baptist Hospital East in Louisville, KY, complaining of abdominal pain. Over the next few days and months, internist Peter L. Thurman, diagnostic radiologist David L. Jolgren, and general surgeon Thomas C. Dedman III saw Mrs. Shipp, who was a Medicare beneficiary. Despite treatment, Mrs. Shipp died of cancer of the cecum in June 1999.

That December, David Shipp expressed concerns about the quality of care his wife had received in a letter to Health Care Excel, the private peer review organization under contract to monitor Medicare delivery in Kentucky. Health Care Excel promised Shipp it would investigate his complaint.

The following August, the PRO mailed three replies, one for each physician involved. In the case of Dr. Thurman, Shipp was told, "no quality of care issues were identified" The two other letters, however, contained little information beyond the reassurance that a "thorough review" had been conducted. Without physician consent, the PRO informed Shipp, "we are unable [because of federal laws and regulations] to provide any specific information about the results of our review" If some problem was identified, the letter concluded, "please be assured ... we will take all necessary action."

The PRO's handling of David Shipp's complaint is no longer a private matter. Since early last year, it has been part of a suit brought by the Washington, DC-based consumer advocacy group Public Citizen against the Department of Health and Human Services and its Medicare oversight agency.

At issue is whether HHS has the statutory authority to keep the nation's 53 PROs from revealing investigatory information in cases like the Shipps'. If it doesn't, as Public Citizen argues, then the results of an investigation, including details about any quality-of-- care issues, can be revealed to a complainant without consent from the physician under review.

If HHS does have the statutory authority, as it argues, then physician confidentiality protections will continue. Not surprisingly, provider groups, including the AMA, have sided with HHS.

We sifted through the arguments on both sides to see how all this could affect you.

A question of interpretation

turns on divining Congress' intent

In April 1985, HCFA (now the Centers for Medicare & Medicaid Services) issued regulations that spelled out, among other things, what data must be kept confidential following a Medicare peer review investigation. In the case of physicians, no information that explicitly or implicitly identified a doctor could be revealed, unless the doctor consented to the release, and provided no other individual was identified.

A year after the rules took effect, Congress amended peer review law to require PROs to investigate all patient complaints (the original 1982 act gave PROs some discretion in this regard) and to report the "final disposition of the complaint" to the complainant. In 1989, HCFA proposed changing its policy to conform more precisely to the amended statute, but to date no final rule has been issued.

In its suit, Public Citizen argues that HCFA's (CMS') rules prohibiting disclosure without practitioner consent are clearly out of step with the amended law. Not so, say defendants HHS and CMS. The amended statute requires "only that PROs inform beneficiary complainants that their complaint was received, that it was investigated, and that corrective action was taken if appropriate." Even if the meaning of "final disposition" is somewhat ambiguous, defendants say, deference should be given to the agency's reasonable interpretation.

To break the deadlock, US District Judge Ellen Segal Huvelle did what many judges do when faced with conflicting interpretations of the law: "She went back into the legislative history to try to divine the intent of Congress," says Robert T. …