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ASSEMBLYMAN GOTTFRIED: Next panel is Lee Marks on behalf of the Health Plan Association and Sheila Frawley from Health Now.

MS. FRAWLEY: Lee Marks is not here. He had to remove himself and his testimony is on file.


MS. FRAWLEY: I am Sheila Frawley. I am Corporate Director for Credentialing and Provider File for Health Now. We are an insurance company in New York State that practices under both Article 43 and 44. Two of our subsidiaries for the record is Blue Cross and Blue Shield of Western New York and Blue Shield of Northeastern New York.

The testimony that I have to give is based actually as we came forward today on questions that have come up. It's the health plans insight or their role in reporting to OPMC and their own termination policies and procedures. On my submitted testimony there are flow charts that identify those that will be far easier to go through than any of our policies, which are very rigorous as, they have gone through our legal department.

One thing that I do want to point out initially is that health plans have a variety of statutory obligations to report providers who place patients in harms way.

In 1996 legislation sponsored by Chairman Gottfried reinforced the role of health plans by providing greater oversight of participating providers by compelling HMO's to report information to OPMC which reasonably appears to show that a licensee is guilty of professional misconduct as defined in the education law. At the time Governor Pataki held this decision and indicated that it would promote the protection of the public from physicians who may pose serious risk.

Both the Health Plan Association, which is comprised of 30 HMO's, PPO's and our plan take that very seriously in the quality of patient care. That's what the underlying portion of my process is. I basically own for our corporation the credentialing which identifies that practitioner have appropriate training, that there have been no other sanctions against their licenses in other states. It's quite a rigorous and expensive process that is well worth as far as we are concerned.

Provider file just indicates that I manage the database that is basically claims payment and reportable entities. There is significant reporting processes that the Department of Health and other entities require us to do. I own that also.

The initiation of an issue with any physician is collected in a number of ways. The largest portion of that is a member issue or complaint. When a member calls in to complain we do explain the entire process at that point in time to the member. We offer them anonymity if that's what they would like. But we do look, we are bound by law to look to see if there is truly a quality of care issue. We also at that point in time send the member a letter with an OPMC complaint form and the website. One of the reasons we do that is that was requested for us to do that by the Department of Health at our annual Article 44 review.

We also collect information from medical record keeping for a couple of different issues. Our Department 44 annual review we do have to record keeping. So if we identify issues at that point in time we do have to follow up on the quality as we are required to by law. As well as HEDIS Information which is a set of standardized performance measures designed to measure the quality of the health plan. We are required to submit our HEDIS measures on a yearly basis. That does tie back to the National Committee of Quality Assurance Accreditation. We are fully accredited for all of our plans in New York State right now with a commendable accreditation status.

The other thing how we identify an issue is outcomes review. We have professional practitioners in the hospitals looking at our patients and our charts as is appropriate and if there are poor outcomes we do do a focused review at that point in time. There is also data review.

Informationally any time we initiate an investigation at Health Now we notify the practitioner immediately. We tell the practitioner what the issue is to the best of our knowledge and we keep the practitioner apprised of the progress of that as we go through the process.

If the member has requested anonymity we do not give out the members name. It's my personal opinion that usually a provider just based on the clinical information that is provided in a complaint would be able to probably logically figure that out.

We do a thorough investigation to the best of our ability. Most of the reviews if we identify something that seems like a quality review we ask the physician what the issue was. If they are able to provide us with appropriate information and that's appropriate according to National Standard Community Standard then we identify that as an unsubstantiated issue and its basically dropped at that point in time. There is no punitive issues whatsoever. If we identify that there may be something or there is most probably something we do do an investigation. We collect the documentation. We catalog it as you would for a court case and we send that to two places at that point in time. An internal consultant who is usually at a minimum a part time or full time employee of the plan and we send it to an external consultant. Grant it we do pay the consulting firm but in our contract its clearly states that they are required to give us a fair and appropriate review of that policy. We do not, it is not the intent to be punitive. It's to make sure that we are providing quality care to the members.

Once the external consultant has reviewed it and the internal consultant we compile the information. We notify the provider at that point in time. Present him with what we have collected up until that point and give him the opportunity to address the issues. He is able to provide us with scientific data to support his position where we may not have that. We do have a new technologies committee. If he supplies something to us at that point in time that we feel as though that would be the appropriate place we do take that to that committee. It theoretically lengthens the process internally at the plans end but we feel as though that that's the most appropriate way to make sure that we are rendering appropriate decisions.

Once we have collected all that information we take it to an internal peer review committee, which would be a quality assurance, at the different plans they are called different things but it would be Quality Assurance Utilization Review. There are a couple of other review committees. There is a Clinical Competency Review Committee and some other committees at least at our plan. At that point in time the peer review committee which comprises 1/3 of the committee is required to be a like peer not an employee of the corporation and not in competition with the practitioner. We are extremely stringent about that. Just informationally right now if you sit on this committee or you have reviewed the file previously you are no longer eligible to sit on any other committee. You are only allowed to review one practitioner one time. That's it. We will go outside of the area if we need to. We have done that in the past. On occasion its difficult to find a peer review if you have a popular physician. We do not put the name of the physician on any of the documents. But realistically people can pretty much figure it out. That's just reality. I have been a nurse in New York State for twenty years. Figure most people know what's going on because the physicians are usually out there saying I am under review. They sent me this letter.

Confidentiality of the members information is clearly maintained at that point also. Provider confidentiality is maintained. We get a recommendation from that committee and the recommendation can be anything from counseling the physician for something to termination and we have a number of steps in between. Which do include education. Its our corporation issue is to identify issues of quality and help the physician to fix them. It's not the intent whatsoever to terminate a physician. To report him to OPMC unless its appropriate to report him to the data bank. If it is appropriate we will very rigorously follow up on those procedures.

We do present everything to the committee, Credentials Committee so that there is a record out there and the committee knows exactly what is going on. That is their duty to address those issues. Credentials Committee voting members are all comprised of outside non-employee physicians other than the medical director. I do sit on those committees myself also but we are not a voting member.

We will go to the committee and at that point in time if the Peer Review Committees have recommended termination the Credentials Committee who would not have seen that information previously or if anyone has seen they are not allowed to vote for that meeting. Go through the information once again so this is the third peer review portion with non-length peers on it. At hat point in time no matter what the previous recommendations were the credentials committee has the opportunity to recommend termination or not to recommend termination with or without any restrictions. More often than not it is non-termination with a recredentialing cycle of one year to make sure we go and look at that physician again with some sort of education counseling. On occasion CME credits. I understand that that's not retraining but that is a portion of what we recommend. If there seems to be one specific area of the clinical practice that is suspect to quality issues. If the physician is voted to termination the physician is offered the opportunity for a hearing. The hearing is held within thirty days of the notification. This is once again an opportunity for peer review. The same rules apply to this panel. One third of the panel will be a peer. There will be one member of the corporation that sits on it. There are two physicians that are not employees of the corporation. At that point in time that panel makes a decision and we abide by that decision. That is also where the decision can be appealed in court. Informationally I do have the statistics for our corporation. When it gets to the termination hearing 14% of those are not upheld and the physician comes back on board for terminations hearings. Of the complaints that we get 88% are member complaints-issues.

I would like to just speak to you. Many members do request anonymity. I personally have a couple of ideas on that. Realistically that patient and that physician have a very close working relationship. There is something that is wrong with the relationship. It's like a marriage that has a problem. You don't always quit it right away. I have worked in nursing for twenty years. Patients even though they get angry and are not happy with care they stay with their physician a long time even with issues out there.

Data and medical record review. We get approximately 10% problems there and on occasion, it actually is like 11%, on occasion we do have other physicians send in I guess complaints about physicians. We take those seriously. We look at them. We probably with far more suspect than we do on other things because usually they are with direct economic competition and/or the same specialty and there is usually you have to really carefully tread that water there. You're not absolutely positive if it's a true complaint or its basically sour apples. We are extremely careful with that. Of the complaints that we find substantiated of those 92.6% we recommend education. We have asked for the physicians to go for retraining. One specific physician that I think of was doing critical care and he was having poor outcomes. Another one was having poor outcomes with arthroscopic procedures. We suspended those particular -- he was not able to do those particular procedures until he went for the retraining and once he did those and had a certain amount that were reviewed by a board certified practitioner than those privileges were reinstated.

That is most of the process. I do have some recommendations and I do agree with some of the other people who have given testimony today. I have interaction with the Credentials Committee on a regular basis. That is a total of twenty physicians across the United States. I did tell them that I was coming to testify for this and I did ask for some input. Some of the physicians were quite verbal.

Recommendations were that the process clearly is not open enough at the OPMC level. And, the discovery process is basically nonexistent. We probably afford the physician more discovery than OPMC per the physicians who sit on our panel. I am bringing this testimony to you. I don't have direct knowledge of that. I haven't been in those processes though some of those physicians have.

Public information one of the reasons that I got into Credentialing after nursing forever is there is nowhere for the public to go and figure whether they have a good physician or not. There is nowhere for you to go to figure out if you have a bad physician. You can look to see if there is a sanction but that doesn't tell the whole story. We should strongly be recommending or requiring our hospitals to participate with Leap Frog. That identifies quality on the website of each physician that practices at their facility. That personally would help my job significantly.

In the past I have been told off the record that there is issues at hospitals. I can't drag that information out of those hospitals. Even after I have had physicians sign an attestation and a waiver that they would not sue them. They will not submit that information. And they cite the peer review nondiscovery issues out there.

Restrictions on a license. I think there should be a way for members. I look at it as members because I am mostly managed care. We do have a lot of indemnity and we equally apply all of our standards. But for a member, a member doesn't know if there is an issue. I recently had a pediatrician who was not allowed to examine females ten years or older without a chaperone. You can't tell these people this is an issue and it's not readily available. Most folks aren't going to go to the website every other week to see if something came up on their physician. It's not realistic. I have had truthfully people, once it was up, people who had long term relationships with this physician no less than twenty that's begging us to bring him back on board. We obviously didn't based on that irritation.

I don't know exactly how to do that but I think that there should be a call for that to be done. It's huge. If he's sanctioned and there is permanent restriction put it up in his office as part of your OPMC allowing you to continue to practice. This has to be clearly in your office just like your office hours have to be. Department of Health requires you to have office hours in your office. The doc can be cited if he doesn't. But he can have permanent sanctions on his license that he can't see female patients ten years or older without a chaperone and that's okay. That's an issue as far as I am concerned.

As a health care professional and as someone who got into this because I did see a lot of things that shouldn't go on. I do love what I do because I can try to make a difference and that's why I am here.

That would be it.

ASSEMBLYMAN GOTTFRIED: A couple of questions. Concern was raised earlier about insurance companies, managed care companies either threatening or carrying our a threat to report physicians to OPMC essentially as a way of fighting out business disputes or disputes about proper coding of a case or something along those lines. Does that go on? Should it go on if not how might we prevent it from going on?

MS. FRAWLEY: Number one that should never go on. That's inappropriate and its poor business practice across the board. That would be, I would hope our corporation does not do that. I can't guarantee you. I am not the person that does the upcoding portion. I would be happy to get those folks in another meeting and we could go through our entire process. We have probably far more detail than I have given you. I gave an overview of we call it special investigations.

A physician I feel as though should be able to, actually there is two things there. If someone is threatening to do that and they are not doing it they are in violation of the law itself because they are telling you I have information here I should be reporting and I am not doing it. He should be reporting the health plan to the Department of Health for underreporting at that point in time which sounds, it does not sound reasonably that a physician would. But there are statutes out there that say we are required to do that.

In addition to that we are not acting in good faith. You can lose your indemnification at the National Practitioner Data Bank as well as under Article 44 of 6(d) for basically trying to strong arm physician when it is inappropriate. Our corporation I have been there for five years. Four years ago they turned all reporting over to me so that no one else is allowed to make those threats. We publish that in our provider newsletter twice yearly so that they know exactly what the, and we do publish the process also, so that they know what the process is, who owns it and who can and cannot threaten it.

ASSEMBLYMAN GOTTFRIED: Okay. Question has been raised about whether the OPMC proceedings either the identity or the category of the complainant should be disclosed to the practitioner where it does not involve either a patient or a close colleague. What would be your reaction to that notion particularly as it would involve disclosure or your health plan if it were the complainant?

MS. FRAWLEY: I would be in full support of that actually. If we are following the policies and procedures that are defined under Article 4406 or 44 period but specific to Article 4406 and actually the legislation that you provided I believe that was Chapter 627 that's what out responsibility is to do. At our health plan truthfully I send a letter to all practitioners we report tell them I have sent in a report based on whatever the information is. They have finished this process at that point in time. They are well aware of what the issue was. I do confirm that you are terminated or we have had a final action that is going to last greater than the thirty days as prescribed by law. We are reporting you. That should be up and you can do a physician inquiry. I believe it cost $10 at the Data Bank and that all the information we have recorded will be available to you. The physician at that point in time has the option of disputing that.

ASSEMBLYMAN GOTTFRIED: Okay. Thank you. Questions?

ASSEMBLYMAN MILLER: I just wanted to make sure. Since you are actually telling the provider that they were terminated I assume you mean that they were released from employment rather than the more current use of the word terminate.


ASSEMBLYMAN MILLER: Or as some people put it you have graduated from the corporation.


ASSEMBLYMAN MILLER: And you said before that you had a significant number of patient members who would file complaints against the physician but still wish to continue on that physician's panel.

MS. FRAWLEY: Yes. I could actually get the number for you but I did not bring that with me.

ASSEMBLYMAN MILLER: The type of complaint I mean I can understand a minor complaint and they may not feel it comfortable enough bringing it the physician's attention personally. But so you find that there are serious complaints and the patient still wishes to stay on that physician's panel?

MS. FRAWLEY: When they are extremely serious, no. At that point in time the member has decided to move on. If they are on occasion failure to diagnosis ohema something, that's okay I just thought you should know. But I don't want him to know y name. These are types of things that happen. I could actually, being truthful I would be happy to supply you with a report. We keep a record. I don't have everything else.

ASSEMBLYMAN MILLER: Just subjectively I mean if you look there can be a whole bunch of complaints that are typically or really minor. Those people again may want to just stay with the doctor. It wasn't important. Do you think you reach a point where by the time you get to the complaints that are serious enough to really do something in your own judgment not the patient's judgment, do you find that those are the patients who no longer want to stay with that doctor or are some of those in your judgment this is worth reporting and disciplining the physician and the patient still wants to stay with them. Do you have that scenario?

MS. FRAWLEY: Most of the reportable issues that are going to go through the hearing process are not those that patients are staying with the docs. I am not saying all. There are some people that do. Probably 95% will not have a long term relationship with that patient.

ASSEMBLYMAN MILLER: The reason why I get to that is in this whole process you know you have frivolous complaints or just people who are very picky uny and somehow I don't think that should be involving the entire state in the process. But if you have the Office of Medical Professional Conduct preparing to bring a physician up on charges and that patient still wants to be with that doctor I think we have a real problem here. Again it goes down to when you are talking for real at that point if that complaint is that significant we can agree that that patient is not staying with that physician or they have a real serious problem if they still want to stay with that physician. It's really at that point they don't fall in the category that you talked about before where they don't want their names given out because they still want to stay with the person.

MS. FRAWLEY: Once it's at the final stages at OPMC and there is true disciplinary action that is appropriate probably 99% of those patients have left that physician and severed the relationship. Or the physician may have severed the relationship. There is a few out there. At the beginning of the process probably 97% of those patients are still with that physician. That's that point where I am mad at him but I don't really want to leave him yet. I am unhappy with my care but I am not sure where to go so I am going to stay with what I know until I figure that out. That process at the member level probably takes anywhere from three to six months depending on what the issue was. Is it an ongoing chronic problem that they are having. Was it a one time thing they were unhappy with? If it's a one time thing they were unhappy with and their satisfaction level increases they very well may at that point in time still be with that physician at the time its identified as OPMC. The general public and the medical community do not always agree on what's truly egregious or not.