Has The New York Medical Board Become
Violators of Private Medical Records and Your
Interview with Monica Miller, FAIM's legislative
affairs consultant, on 2004 bills to minimize due
process abuse by the OPMC
Marcus A. Cohen
In January's column, I reported on bills passed by the New York Assembly and Senate late in the 2004 legislative session. Both bills would require the Office of Professional Medical Conduct (OPMC) to observe due process in dealing with physicians allegedly providing 'substandard' medical care. Early in December 2004, the bills were submitted to Governor George Pataki for his signature.
During the second week in December, I interviewed Monica Miller by phone. The legislative affairs expert for the Foundation for the Advancement of Innovative Medicine (FAIM), she had been monitoring negotiations on signing between the Governor's office and the bills' proponents and opponents. On the afternoon of our interview, I found her tensely awaiting news on whether these negotiations had convinced Pataki to add his signature.
"When the government fears the people, you have liberty. When the people fear the government, you have tyranny."
If the Governor has signed the bills into law, the new legislation should strengthen the likelihood that the OPMC will allow MDs their full constitutional protections against biased or frivolous proceedings. In particular, it should make it more difficult for the OPMC to train its sights on doctors who specialize in nonconventional treatment--simply for departing from mainstream approaches.
For Monica, who has represented FAIM in Albany since the late 1980s, it would constitute a grand "feather" in her career as a legislative affairs consultant for physicians practicing complementary and alternative medicine (CAM).
Monica's familiarity with CAM harks back to her teen years in Salt Lake City. Her mother had suffered a compound fracture of her right leg, and conventional treatment had failed to heal the fracture completely. Versed in books by Adele Davis and Carleton Fredericks, Monica's mother tried vitamins and nutritional supplements described by these CAM pioneers; they worked.
Still in her teens in Utah, Monica developed digestive ailments, which mainstream care couldn't satisfactorily ease. She turned to naturopathic remedies; they, noted Monica in our interview, "worked to an impressive measure."
At 22, Monica married and moved to upstate New York, where her husband had been offered a job. Pregnant in 1979, she searched for a physician who would supervise a home birth. Philip Incao, the doctor she picked, practiced anthroposophical medicine, assisted in births at home by a midwife. Dr. Incao helped deliver Monica's firstborn, a son, and a second child, a daughter, in 1984.
The OPMC investigated Dr. Incao in 1988, reacting to suspicions about his use of homeopathic therapies. Monica had experience in peaceful civil disobedience, and when OPMC investigators appeared at Incao's office door to search randomly through his patient files, they found it barricaded by a cordon of women with babies and toddlers in their arms.
Her defense of Dr. Incao involved Monica with supporters of other nonconventional MDs then under attack by the OPMC; these included the late Emanual Revici, Warren Levin, and Nicholas Gonzalez. She attended strategy meetings cosponsored by FAIM, the Healing Arts Association (Hawthorne Valley), and Patients Have Rights (representing the Spring Valley Fellowship Community, an anthroposophically-oriented group).
From these meetings, Monica recalled, a loose umbrella association developed, naming itself the Coalition for Rights and Responsibility in Health Care. Soon after, the New York Chapter of Citizens For Health joined the Coalition. The focus of activity from the start was passage of legislation that would safeguard CAM practitioners from OPMC disciplinary action based on their departure from conventional therapeutic norms.
Within a few years, the Coalition had built up enough political muscle to persuade the Legislature to pass a healthcare reform bill, "The Alternative Medical Practice Act of 1994," which the Governor signed. This Act mandated representation of CAM practitioners on the Board for Professional Medical Conduct, which supplies members of OPMC's hearing panels.
In the course of our interview, Monica emphasized that the landmark achievement of the 1994 Act was to allow--in the language of the Act--"the use of whatever care, conventional or nonconventional, which effectively treated disease."
Between 1994 and 2001, spurred by both her own concerns and the interests of FAIM, Monica tracked every OPMC case related to quality of care issues; i.e., cases which raised questions about therapeutic choices by clinicians.
According to Monica, the number of such cases appeared to be on the rise, and this rise seemed to correlate with the growth in managed care and insurance industry challenges of claims for reimbursement of treatment for medical necessity.
Other factors in the swelling number of OPMC quality of care cases, thought Monica, were the increasingly public debate concerning evidence-based medicine and employment of evidence-based medicine in determinations of medical necessity. These factors, she felt, may have prompted certain consumer advocates and organizations to speak out about therapeutic approaches that in their view lacked scientific corroboration of effectiveness, pressuring the OPMC to cast a more critical eye on quality-of-care matters.
During the same 1994-2001 time period, Monica's activities beyond New York led to noteworthy comparisons between New York's medical boards and other state boards: Most boards issue volumes of regulations on authorized clinical practice. New York's board does not.
Findings of medical misconduct in other states are usually made by administrative law judges who are not medical professionals. In New York, peer review determines misconduct: OPMC prosecutions are judged by panels consisting of two physicians and a lay person--all proceeding without regulations on authorized care to guide them. Consequently, contending that the sole workable means of obtaining a fair, unbiased hearing is strict observance of due process, proponents of health-care reform have pushed for bills in the Legislature that would prevent due process abuse by the OPMC.
On the issue of medical necessity, I inquired about progress. Over the past five years, answered Monica, FAIM had managed to pass five bills through the Assembly setting unprejudiced standards for determinations. Prospects for additional progress seemed poor, she said, because New York recently "has evolved from not only being a regulator of insurers, but into being an insurer itself; now, the state does not want to be held to practitioners' definitions of medical necessity."
"What's next for Monica Miller?" I asked at the end of our interview. The next move, she said, is to tackle lab testing. New York is the lone state with a distinct licensing procedure for labs everywhere in the US that test any tissue from New York residents. This is bad for New York patients and physicians alike with regard to correctly diagnosing and treating conditions hard to identify and resolve. To take one example, one of many that could be cited: Patients in other states can readily have hair analyses of trace elements done by labs. New Yorkers cannot; not in New York, not even in another lab outside New York. Stay tuned for a wrap-up on the 2004 bills requiring New York's OPMC to observe due process....
by Marcus A. Cohen
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