On Sept. 19 a Pittsburgh judge ordered Magellan, Highmark, and Green Spring Health Services to immediately reinstate Pennsylvania Psychiatric Society member Daniel S. Shrager to its provider panel. Dr. Shrager filed the complaint against the health care entities, along with a motion for an emergency preliminary injunction, in the Court of Common Pleas of Allegheny County on Sept. 18.
The order requires that Dr. Shrager be immediately reinstated as a fully credentialed psychiatric care provider in the Highmark system for both new and existing patients. It also requires Highmark and its subsidiaries, with Dr. Shrager's help, to identify all parties whom they have informed that he is no longer a participating provider. The defendants must inform each of them, in writing, of Dr. Shrager's reinstatement. In addition, the order requires the defendants to proceed immediately to an internal administrative review of their decredentialling decision, in order “to insure that Dr. Shrager receives all rights to which he is entitled to under Pennsylvania law and in accordance with the contracts between and among the parties.”
Dr. Shrager, whose efforts are receiving support from the Pennsylvania Psychiatric Society, filed suit on two basic premises: that he has been improperly decredentialled, without the due process to which he is entitled, and that Magellan's demand to review confidential patient records during a site review is contrary to Pennsylvania law and the terms of Dr. Shrager's contract with the defendants.
According to Psychiatric Society President Jeremy Musher, the resolution of both issues will have significant implications for other Pennsylvania psychiatrists in managed care networks and for patients whose mental health care is delivered under managed care plans. “We support the right of physicians to raise ethical and legal concerns with managed care companies, and, in fact, believe that our professional code requires it when patient welfare is concerned. Due process should always be provided when related conflicts arise with managed care companies, which have enormous power over psychiatrists' practices. And certainly every effort must be made to preserve the confidentiality of patient records and their right to provide informed consent.”
The Sept. 19 order of Judge Joseph James, granting the motion for a preliminary injunction, addresses the due process issue. The other – the extent to which a managed care company is entitled to patients' records — was not addressed, presumably pending the outcome of Dr. Shrager's appeal to Magellan.
Magellan decredentialled Dr. Shrager after requesting that he set up a site visit for Magellan representatives to review confidential patient records in his office, as part of the recredentialling process for high-volume providers. Magellan did not provide releases, acknowledge any requirement for signed, informed consent of the patient, or propose any method for preserving confidentiality.
Dr. Shrager responded by letter, expressing his belief that patients' treatment suffers when they know that their records will be disclosed. According to Dr. Shrager, “A patient's knowledge that the very private material that he is asked to share may, at a future time, be read by a total stranger, no matter what the stranger's purpose, can't help but affect that patient's ability to be forthright and candid in subsequent sessions with that therapist. Moreover, the intimate detail noted in each chart would make a patient recognizable to anyone who just might happen to know that person from another setting. . ..”
In the letter, Dr. Shrager asks for Magellan to reconsider its requirement in the interest of patient care, and he asks for a response. According to the complaint, however, Dr. Shrager received no response to his concerns other than phone calls and communications to the effect that he risked being “inactivated” if he did not comply with the site review request. According to the complaint, “At no time did Dr. Shrager refuse to comply with the proposed review; in fact, Dr. Shrager was seeking Magellan's input on how their request for review could be reconciled with his patients' rights to confidentiality.” Nor did he receive any “substantive response to [his concerns] regarding patient confidentiality.”
Dr. Shrager was eventually notified that he had been placed on inactive status, but that he could appeal that decision. Through his attorney, he filed a request for an appeal but received no response. Early in September, the defendants began notifying Dr. Shrager's patients, both by phone and letter, that he was no longer a participating provider. The legal complaint, requesting damages and relief from the requirement to provide access to records for site visit purposes, along with a motion for immediate restoration of credentialled status pending resolution of the complaint, were filed at that point.
The complaint asserted legal theories of interfering with Dr. Shrager's business relations, slander and libel, breach of contract, and civil conspiracy. The charge of slander and libel relates to allegations that the defendants led patients to believe that Dr. Shrager had essentially abandoned them. The civil conspiracy charges allege that Highmark and Magellan conspired to harm his practice, that they knew or should have known that they had no right of access to the records without fully informed authorizations, and that they knew or should have known that Dr. Shrager was obligated to raise the questions he posed.
The breach of contract charges relate to a contract term stating that providers must follow all state and federal confidentiality requirements with respect to patient records. The complaint contends that those requirements prohibited Dr. Shrager from allowing a site reviewer to view patient records unless Magellan procured a written and fully informed authorization from the patient, and that decredentialling him for failure to provide the records is in violation of his contractual (and other legal and ethical) obligations.
Dr. Shrager was named in papers filed last winter by the Pennsylvania Psychiatric Society, seeking a preliminary injunction against Magellan and Highmark for removing several PPS members from their provider panels for Medicare patients. After the motion was filed, the defendants reinstated Dr. Shrager and the other affected PPS members, conceding that their interpretation of Medicare law on provider requirements had been erroneous.
(9/22/00)
