ACCPPS Arguments

      The repeal of any law or regulation that limits or prohibits an activity will encourage people to engage in that activity. Eliminating legal restrictions on substances of abuse, for example, or the laws prohibiting the sale of alcohol to minors, will have predictable results. The same is true of the Civil Rights act of 1968, and a great many other laws proscribing certain kinds of activity.
      Generally, the credentials requirements for hospital staff membership and privilege delineation are set by the staff physicians. These staff physicians usually tend to display a preference for credentials identical to their own in prescribing their hospital s credentials requirements. This tendency, unimpeded by prohibitive regulations, will predictably result in unwarranted credentials discrimination to the detriment of the health care professions and the public they serve.

Interdisciplinary Discrimination

      There are over fifty (50) specialty certification boards serving Doctors of Medicine (M.D. s), of which only twenty-four (24) are recognized by the American Board of Medical Specialties (ABMS). Those hospitals that require staff physicians to be certified by ABMS-approved boards will, but for the provisions of 42CFR482.12(a)(6) and (7), thereby bar all other certified, and noncertified, M.D. s, and all other physicians having other than M.D. degrees, and all their patients, from those hospitals. Deletion of the COP will encourage hospitals to adopt such policies. These doctors who would be excluded from hospitals account for many millions of patient visits annually. Each of their patients who comes to require hospitalization would lose the services of their trusted physicians because of credentials discrimination by hospitals.
      Podiatrists have long been recognized as limited license specialty practitioners. They have also been long criticized by doctors of medicine and doctors of osteopathy for their limited training. There are many physicians among the medical and osteopathic specialties of orthopedic surgery who believe that podiatrists should not be permitted to have hospital privileges, or perform surgery. Quite recently, M.D. s created a specialty college or society dedicated to the study and teaching of foot and ankle surgery. Physicians such as these will, given the opportunity, implement or cause to be implemented, hospital policies and credentials requirements that will remove and bar podiatrists from those hospitals.

Intraprofessional Discrimination

      Many hospitals do presently have podiatrists on staff. As staff members, they have some ability to influence the hospitals credentials policies. Wherever they have privileges, members of the American Board of Podiatric Surgery (ABPS) have lobbied their hospitals to establish policies that would admit only those podiatrists certified by the ABPS. The ABPS itself has taken an active role in bringing this about. Such policies now exist in many hospitals. In such hospitals, applicant podiatrists who are certified by boards competing with the ABPS are denied privileges without regard for their clinical knowledge, skills or experience. The same is true for provider appointments in a substantial number of managed care plans. Samples of correspondence from hospitals and HMO s documenting such policies are provided in the Exhibits section of this submission. This discrimination is the subject matter of a federal antitrust suit presently awaiting the attention of the U.S. Court of Appeals (6th Circuit). This discrimination is not based in any concern for patient care, as there is no difference in the kinds or quality of care provided by members of competing certification boards. This discrimination is based strictly in podiatric political issues. For a number of years, the ABPS itself had admission policies that were viewed by many podiatrists as discriminatory, favoring those persons having certain organizational and personal relationships and training in designated programs.
      Deleting this COP will ratify the unfair discrimination practiced by hospitals under the influence of the ABPS and its members. In hospitals where the subject COP is honored, the deletion of that COP will have predictable results: the barring of podiatrists who are not certified by the ABPS. Deleting this COP will facilitate the anticompetitive actions of the ABPS and its members.

      Any physician who is denied staff privileges is denied the means of providing the health care services his patients may come to need. His professional obligations would require him to refer those patients to other physicians who have hospital privileges derived from membership in a specific organization. Patients who are referred to other physicians for nonspecialty care seldom return to the referring physician. Such referrals represent a permanent loss of the referred patients, and an economic decline for the referring physician. The patients who may require referral to obtain hospital care are not limited to Medicare beneficiaries. Even those patients who are insured by commercial carriers would be affected.
      The current corporate trend for moving employees into managed care programs compounds the problem. Millions of consumers are now covered by managed care plans, and the number rises steeply every day. Many managed care plans provide services for Medicare beneficiaries. Managed care plans typically require panel physicians to hold hospital privileges so as to be able to provide their patients with hospital care when necessary. Physicians who are denied hospital privileges are consequently denied provider appointments with managed care plans. As physicians lose their patients to such plans, they again suffer economic harm. Already, many physicians have been forced to close their formerly stable practices because they have lost patients to managed care plans from which the physicians were barred as providers. The predictable economic harm to be suffered by excluded physicians is catastrophic. Some physicians have already had their practices and careers destroyed, and a great many more will suffer the same fate, because of unfairly wrought, restrictive credentials requirements engineered by competing physicians.
      There are an estimated ten thousand (10,000) podiatrists practicing in this country. Let s assume that the number of podiatric patient visits per day nationally is estimated at ten (10) per physician, a conservative number. That works out to be in excess of twenty million (20,000,000) podiatric patient visits annually. If just half the podiatrists practicing today are denied access to hospitals, and their practices destroyed, their share of the annual patient visit load will be shifted to those physicians favored by the credentials authors. Those patients will lose the benefit of their established, long-trusted and respected patient-physician relationships.

      HCFA wishes to discard the provisions of 42CFR482.12(a)(6) and (7) as one of the COPs it labels as process-oriented , and that as such, it is not a patient-centered standard, and is a regulatory burden. HCFA asserts that the proposed COPs are patient-centered, and outcome-oriented, and that they were drafted in accordance with the comments solicited from organizations representing hospitals, practitioners, patients, and States.

These COPs are absolutely consistent with, and necessitated by, the cited statutory basis for COPs.

      HCFA cites the Social Security Act as the statutory mandate for establishing the requirements that a hospital must meet to participate in the Medicare program. Section 1861(e)(9) of the Act provides for the Secretary to set standards necessary to assure the health and safety of the hospital s patients. Under that authority, the Secretary established the regulations at 42 CFR Part 482. The stated purpose of that COP was to protect patient health and safety and to ensure that quality care is furnished to all patients in Medicare-participating hospitals . (Proposed Rule, Page 66727)
      The stated purpose of the COP at 42CFR482 is certainly one against which no argument can be made. In furtherance of that purpose, the Secretary established the provisions of 42CFR482.12(a)(6) and (7). It is generally presumed that statutes and regulations have purposes. It is presumed then that the Secretary had a reasonable basis for assuring that hospital staffs would be open for all physician providers and provider types who possessed the necessary skills, education and experience for hospital privileges and clinical service without regard to their organizational affiliations. It is also generally accepted that a statute or regulation should not be set aside or repealed unless its purpose no longer exists, it proves detrimental to its purpose, or a new statute or regulation replaces it in fulfilling its intended purposes. The proposed COPs will delete these previously necessary regulations, and replace them with nothing more than a grant to hospitals of the freedom to discriminate against physicians in the very manner previously forbidden. This HCFA justifies by outrageously denying the very purpose of the original rule, leaving to hospitals the power to make staffing decisions with which they could not previously be trusted.
      The wisdom and necessity of 42CFR482.12 to ensure the health and safety of, and the delivery of quality care for patients, cannot be doubted. The Secretary s duty to ensure the health and safety of hospital patients continues, and the deletion of this COP without replacing it or otherwise fulfilling its purpose, is inconsistent with that duty.

The provisions of 42CFR482.12(a)(6) and (7) are patient-centered COPs.

      These COPs do not prescribe any specific task, service, reporting requirements, or quality control mechanisms. These COPs do not require hospitals to undertake any costly, tedious, laborious or otherwise burdensome activity. They do not deny hospitals the right to select staff physicians for their clinical knowledge, skills and experience, nor do they force hospitals to accept physicians lacking those attributes. They simply proscribe a discriminatory process, that of barring physicians from hospitals on the basis of the physicians organizational affiliations. In fact, these COPs PROHIBIT the establishment of a hospital-imposed process-oriented mechanism to create, implement and maintain against challenges, a procedure for discriminating against physicians merely on the basis of their organizational relationships. Such discrimination is currently practiced by a large number of hospitals without any basis in the quality of care or consideration for the clinical expertise of the excluded physicians.

      Generally, the credentials requirements for hospital staff membership and privilege delineation are set by the staff physicians. These staff physicians tend to display a preference for credentials identical to their own in prescribing their hospital s credentials requirements. This is particularly true of certification credentials, especially among those podiatrists who are certified by the American Board of Podiatric surgery. Wherever such podiatrist have hospital privileges and are able to so influence the hospital s credentials criteria, identical certification is required for any prospective podiatric staff member.     
      These COPs assure that hospitals will not be able to exclude any class of physicians, such as podiatrists (D.P.M. s), for their failure to hold membership in, or certification by, an organization of doctors of medicine (M.D. s), or for failure to hold certification by a specific board. Without these COPs, hospitals will be free, will have the flexibility , to implement discriminatory certification and organizational affiliation requirements that are unrelated to the physicians clinical knowledge, skills and experience. HCFA acknowledges that there is considerable disagreement between hospitals and physicians as to whether board certification or eligibility is an important indicator of professional competence , yet decides to give hospitals the power to make this decision on the basis of mere personal opinion. (Proposed Rule, page 66749)
      Barred physicians are unable to take their patients to hospitals. Their patients will thereby be denied access to hospitals and the interdisciplinary team approach health care HCFA seeks. Outcome studies will be blind to the failure of care for, and dissatisfaction of, these patients. These patients could regain access to hospital and interdisciplinary health care only by terminating their long standing, trust-based relationships with their physicians and seeking new, untested and untrusted relationships. Will outcome studies reflect the patient dissatisfaction resulting from the destruction of their prior patient-physician relationships? A patient who can obtain necessary hospital services under the care of his or her chosen and trusted physician will certainly be more comfortable than if cared for by a stranger. When a hospital s credentials requirements are such as to bar all podiatrists, an important member, and service, is missing from the interdisciplinary team care that HCFA so fervently seeks in the proposed COPs.
      The benefit of leaving intact the provisions of 42CFR482.12(a)(6) and (7) is the preservation of valuable, often times limb-saving services of podiatrists on the interdisciplinary team, and the ability to provide necessary hospital services for patients without destroying or otherwise interfering with established patient-physician relationships. The patient-centered aspects of these COPs are quite obvious, they represent no burden to hospitals, and compliance is effortless. Retaining these COPs can only benefit the hospitals, the patients, and the American public.

      In the introductory materials presented in the proposed rule, HCFA asserts that it is working in partnership with the rest of the health care community to institute better, more commonsense ways of operating . (Proposed Rule, Supplementary Information, Section I. Introduction, page 66726) (Emphasis added)

The application of commonsense suggests that:

• neither the President nor the Vice President intended that the REGO Initiative should interfere in the long protected and long respected patient-physician relationship. Deleting these COPs will destroy countless patient-physician relationships.
• neither the President nor the Vice President intended that the REGO Initiative should facilitate the intra- and interprofessional credentials-based discrimination, without regard for the physician s clinical knowledge, skills and experience, that is certain to follow the deletion of these COPs.
• deletion of an antidiscrimination rule will produce discrimination.
• the loss of a necessary medical specialty from hospitals must produce an undesirable decline in the quality of care.

      Medicare is a federal program, the funding for which is derived from the taxpayers, including among their millions, those who are physicians and those who are Medicare beneficiaries. Each taxpayer is, at least in theory, entitled to share in the benefits of tax-supported programs. Of course taxpayers must meet some set of qualifications to participate as beneficiaries in some programs. The qualifications for Medicare Part B beneficiaries include attainment of a certain age, and the presence of certain disabilities or debilitating illnesses. Deletion of the subject COP would empower the hospitals to indirectly add the requirement that beneficiaries must select their physicians from among the rolls of specifically named professional organizations in order to obtain hospital services under the care of their chosen physicians. Of course, patients would not learn about this additional requirement until they need hospital services.
      The requirements for physicians to serve as Medicare Part B providers are valid licenses to practice, and agreement to comply with the rules for participation. Deletion of the subject COP would empower hospitals to indirectly add the additional requirement that physicians must have specific organization affiliations. Those physicians without the specified organization affiliations would be disqualified from participation, or they would be forced to join organizations they would otherwise eschew for personal, professional and philosophic reasons.
      Surely the taxpayers do not intend that their tax dollars should be distributed in accordance with the unfair, anticompetitive and political ambitions of certain groups of physicians, or that the Medicare beneficiaries among them should be denied hospital services for exercising their rights to choose their physicians.