The HMO's Gag Clause


The phone rings at the desk of W. Ho Kares, an employee of Profitable Health Inc., a Health Maintenance Organization (HMO). The caller is Dr. I. Do Care of the Big City Hospital.

W., "Profitable Health. How may I help you?"

I., "This is Dr. Care. I have a male patient under my care, employed by Acme Janitorial and insured by your system, who appears to be suffering from a rather unique form of cancer. I have only had the opportunity to read about this rare form before but can confirm that there is only one test available which can confidently confirm my diagnosis. The obstacle is that this test is not covered by the policy Profitable Health offers. I would like to perform the necessary test as soon as possible but will need your authorization immediately. What is the procedure for attaining this authorization?"

W., "Actually, Doctor, as your contract with Profitable clearly states, there are no exceptions to our coverage. We only provide the medical care explicitly covered in your contract and our policies. Are there any other tests which you might perform?"

I., "As I said, there is only one test which can confirm my diagnosis. It is a new procedure but has been extensively reviewed in medical journals and recommended over the previous procedure, which often indicated negative results in positive cases. I must, therefore, give my patient the highest quality care and am requesting authorization to continue."

W., "Doctor, do you read the Wall Street Journal? If not, allow me to relate the news that Profitable Health Inc. has been rated one of the best HMO stocks due to high return on investment. We achieved that return by minimal spending, not by allowing our network physicians to dictate the medical procedures they prefer. If we allowed that, why, our stocks would be reduced in value, our stock holders would raise pure heck at the meetings and our advertising campaigns to induce more people to join would suffer. You wouldn't want that to happen, now would you?"

I., "I don't care about the performance of your stocks. I'm only concerned with the health of this patient. The prognosis for complete recovery is excellent only so long as the growth of this cancer is halted in the earliest stages. I can only begin treatment if I'm certain that he suffers from this type of cancer. Now, how do I begin the process of attaining authorization?"

W., "Actually, Doctor, the treatment you want to begin, even if we were to allow this test, is also not covered by our policies. As it is, indeed, a very rare disease, we chose not to include it in our coverages."

I., "You people are impossible. I guess my only recourse is to inform my patient that this test and cure are not covered by his policy and that he will have to pay for this, himself."

W., "Again, Doctor, I suggest that you read your contract with us. It contains the standard clause, called a "gag clause" by the nasty media, which states that you are forbidden to discuss treatment options unless the HMO has authorized payment for the specific type of treatment or tell patients about any financial incentives or penalties that we use to restrict tests or referrals. Speaking of referrals, you are also forbidden from referring patients to specialists or facilities not participating in our network. Finally, please refer to the "non-disparagement" provision which prevents you from denigrating our HMO unfairly. I'll let you guess who decides what is considered "unfair"."

I., "So what you're telling me is that I'm legally barred from not only providing the necessary tests and procedures to save this patient's life but I am also forbidden from telling him that he may be fatally ill and giving him the possible options and referrals which would save his life? All of this in the name of stock holder's profits?"

W., "You may phrase it that way, of course, but we prefer to express it as we provide the best basic medical care our contract allows. You, as a network physician, signed that contract and we expect you to follow it faithfully. "

"Don't worry about your patient. The Acme Janitorial's stock will soon be purchased by our subsidiary, Buyem & Firem Inc., and he won't be employed for long, anyway. If he invested in our life insurance and can stand the pain of the cancer long enough to die naturally, of course, he collects. If he commits suicide to spare his family the expense and anguish of a long death, however, they will not receive a thing. Good day, Doctor."

The above is satire except for the explanation of the "gag clause". This is a standard clause in nearly all physician contracts with HMOs. The government can put an end to this practice but only if we, the people, demand it.

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