Practice Beat

Practice Beat

By Joan R. Rose, Senior Editor

Doctor Unions:The NLRB takes interns and residents in a new direction ...

It's taken nearly a quarter of a century, but the National Labor RelationsBoard has finally given interns and residents at private teaching hospitalsthe same right to unionize as their public hospital counterparts. The landmarkruling overturns a 1976 decision that interns and residents at private hospitalsare students rather than employees. On this go-round, the NLRB said that,since the doctors work long hours, make medical decisions, and earn salariesand benefits, they're employees.

The decision, which responds to a petition filed in 1997 by residentsat Boston Medical Center, grants collective bargaining rights to more than90,000 interns, residents, and fellows who work in private hospitals nationwide.

The Association of American Medical Colleges, however, takes issue withthe decision, charging that it further erodes the "core principle ofprofessionalism in medicine." Medical education "should be theresponsibility of the faculty and the teaching institution," says AAMCPresident Jordan J. Cohen, "and should be driven by educational considerationsrather than the marketplace." Giving students the right to strike,Cohen adds, "is incompatible with the medical education process."

Physicians weren't favored in a second NLRB decision, though. Hundredsof private-practice New Jersey doctors lost their final bid to be recognizedas de facto employees of AmeriHealth HMO. Dorothy L. Moore-Duncan, directorof the NLRB's regional office in Philadelphia, had twice previously torpedoedthe United Food and Commercial Workers' petition to represent the doctors.Moore-Duncan found that the physicians are independent contractors—notemployees—because they work out of their own offices, run their practices,and can contract with other health plans.

Now a three-member NLRB panel has agreed with Moore-Duncan. But in denyingthe union's petition for review, the board pointed out that its decisiondidn't necessarily preclude a finding that physicians under contract toHMOs may, in other circumstances, be found to be statutory employees.

Meanwhile, in Congress, an intense lobbying campaign by managed careplans persuaded House GOP leaders to bury a bill that would allow doctorsto bargain collectively with health plans. Sponsored by Rep. Tom Campbell(R-CA), the bill had been scheduled for a markup in the House JudiciaryCommittee. But Speaker J. Dennis Hastert (R-IL) asked committee ChairmanHenry J. Hyde (R-IL) to pull it. Now Hyde says that although he's stillinterested in addressing the "difficult relationship between doctors,HMOs, and insurers," he doesn't know whether he'll ever mark up thebill.

. . . as Texas writes the rule book for physician negotiations

The Texas Office of the Attorney General has issued its rules for complyingwith the new state law that allows competing physicians to jointly negotiatewith health plans when certain conditions are met.

The AG's rules require doctors to document imbalancesin the market relationship between themselves and the health plan(s). Thatmeans providing information about themselves, the person representing themin the negotiations, the market for physician services, and what they proposeto negotiate. Also required: information about nonaffiliated physicians,the medical procedures commonly performed by the participants, the geographicarea they serve, and an analysis of the proposed negotiations' expectedeconomic and quality-of-care impact.

The AG expects more than 100 applications to be filed annually, at anestimated fee of $4,656 per physician negotiating group.

Medicare Fees:Does HCFA undervalue physician services?

The American Medical Association thinks it does, and has gone to courtto force the Feds to correct errors in the method HCFA uses to determinephysician fee updates. At issue is how the sustainable growth rate (SGR)is calculated.

Medicare payments for physician services are supposed to be adjustedby comparing actual physician spending with a national spending target.But the AMA maintains that HCFA uses projections instead of actual outlaysin determining the SGR, thus underestimating the growth in overall Medicarespending. And HHS Secretary Donna E. Shalala's refusal to correct the SGRerror, the AMA claims, has resulted in an estimated $3 billion underpaymentto physicians for 1998 and '99.

The Balanced Budget Act of 1997 replaced the former spending target (theMedicare Volume Performance Standard) with the SGR, which is supposed totake into account price changes, fee-for-service enrollment changes, realgross domestic product per capita, and changes in laws or regulations thataffect the baseline.

Shortly after enactment of the BBA, HCFA promised to correct the errors,but has since backtracked. Government actuaries contend that the SGR systemis unstable and will cause unreasonable fluctuations from year to year.What's more, they say, the SGR spending targets can't be revised to accountfor new medical technology or changes in enrollment data.

Pharmaceuticals:Will drug companies make you a miracle worker?

With an eye toward America's maturing baby boomers, pharmaceutical companiesare targeting the debilitating diseases of aging. According to the PharmaceuticalResearch and Manufacturers of America, there are more than 450 medicinesin the pipeline for heart disease, cancer, and stroke—and an additional191 in development for other age-related diseases.

Among the new drugs under development: an inhaled version of insulin,a skin patch for Parkinson's disease, a medicine to counter macular degeneration,and an Alzheimer's drug that inhibits the break-down of a critical neurotransmitterinvolved in the process of reasoning and forming memories.

Meanwhile, the Food and Drug Administration has issued final guidelinesconcerning direct-to-consumer advertising of prescription drugs on radioand TV. Drug companies' ads now must include mention of four specific waysfor patients to obtain additional product information: a toll-free number,referral to a print ad in a concurrent publication (or the provision ofsufficient product brochures in convenient outlets), referral to a healthcare provider, and an Internet Web page address.

In addition, all broadcast ads must contain a "major statement"disclosing every prominent risk associated with the drug.

The FDA is also evaluating its regulations regarding direct-to-consumerprint promotions. If you'd like your comments to be considered, write toDockets Management Branch (HFA-305), Food and Drug Administration, 5630Fishers Lane, Rockville, MD 20852.

Abortion:Montana topples a physician-only law

A state law prohibiting physician assistants from performing abortions"unconstitutionally infringes on a woman's right to individual privacyunder Montana's constitution," the state's high court has ruled. Writingfor the majority, Judge James C. Nelson said that the constitution protectsa woman's fundamental right of procreative autonomy and "prohibitsthe government from dictating, approving, or condemning values, beliefs,and matters ultimately involving individual conscience."

Montana first enacted a law restricting abortions to "licensed physicians"in 1974. But the statute had been understood to include licensed PAs workingunder a doctor's supervision. Then, in 1995, the state legislature specificallymade it a felony for PAs to do abortions. Almost immediately, a group ofphysicians and PA Susan Cahill mounted a challenge, contending that theban imposed an undue burden on women seeking to terminate pregnancies.

Finding little evidence to support such a claim, a US district courtdenied the protesters' request for a preliminary injunction. When an appellatecourt vacated that decision and remanded it back to the lower court, theUS Supreme Court accepted the case. Since Cahill was the only nonphysiciandoing abortions when the 1995 law was passed, and a doctor had to be presentduring the procedure anyway, the high court refused to reverse the districtcourt's ruling.

Abortion rights activists responded by challenging the constitutionalityof the law in state court, where their motion for an injunction was granted.

Do-It-Yourself-Medicine:Are patients getting false hope from unapproved testing kits?

With more and more patients turning to the Internet for medical advice,the federal government is stepping up efforts to protect them from unapprovedand ineffective products available online.

For example, the Federal Trade Commission and the Food and Drug Administrationare investigating and prosecuting firms and persons involved in the saleand distribution of unapproved HIV rapid test kits. The kits use a simplefinger prick for home blood collection or a sponge device for saliva collection.The consumer then applies the sample to a plastic testing device and addsa developing solution; results are available within 15 minutes. Becausethese unapproved tests sidestep medical laboratory procedures and controls,the FDA says, the results can't be relied upon.

Currently, Home Access Express HIV-1 Test System is the only in-homeHIV kit approved by the FDA. It requires patients to send a blood sampleto a lab for analysis, and the results are obtained by calling a toll-freenumber using an anonymous PIN.

Looking Ahead

A handy reference of telephone numbers, as well as e-mail and Web siteaddresses for some sponsoring organizations.

Mark your February calendar

American Heart Month

American Heart Association

7272 Greenville Ave.

Dallas, TX 75231

Phone: 800-242-1793 (national center),800-242-8721(routes to your local chapter)

Web site: www.americanheart.org

Wise Health Consumer Month

American Institute for Preventive Medicine

30445 Northwestern Highway,

Suite 350

Farmington Hill, MI 48334

Phone: 800-345-2476, ext. 247,248-539-1800, ext. 247

Fax: 248-539-1808

E-mail: aipm@healthy.net

Web site:www.aipm.healthy.net

1-6 National Patient Recognition Week

3 National Patient Recognition Day

Strategic Visions

337 Turnberry Rd.

Birmingham, AL 35244

Phone: 205-995-8495

Fax: 205-995-8495

E-mail:jomalley@mindspring.com

Web site: www.strategicvisionsinc.com/nprw.html

7-9 4th Annual Congress on Managed Medicaid & Medicare

"Partnering 2000: Meeting the Challenges of the New Millennium"

Washington, DC, Convention Center

National Managed Health Care Congress

71 Second Ave., 3rd Floor

Waltham, MA 02451

Phone: 781-663-6000

Fax: 781-663-6414

Web site: www.nmhcc.org/events.html

12-19 Eating Disorders Awareness Week

Eating Disorders Awareness and Prevention

603 Stewart St., Suite 803

Seattle, WA 98101

Phone: 800-931-2237,206-382-3587

Fax: 206-292-9890

Web site: www.edap.org

Did you know that...

Patients being admitted to a hospital or other health-system facility worryabout:

• Being given the wrong medication (61 percent).
• Drug interactions (58 percent).
• Cost of treatment (58 percent).
• Complications from a medical procedure (56 percent).
• Having too little information about the medications they receive (53 percent).
• Picking up an infection during their stay (50 percent).
• Drug side effects (49 percent).
• Receiving too much medicine (49 percent).
• Pain (49 percent).
• Cost of filling prescriptions after discharge (41 percent).

Source: American Society of Health Systems Pharmacists' "Patient Concerns National Survey" of 1,008 people



Joan Rose. Practice Beat. Medical Economics 2000;1:22.