Senator Kemp Hannon

ONLINE EDITION FRIDAY JUNE 14, 2002

Hannon Responds to Protesters' Allegations

By Carisa Keane

After Lyme Disease patients protested in front of his Westbury headquarters last month claiming he won't support a health reform bill that could potentially change the way the Office of Professional Medical Conduct (OPMC) works, Senator Kemp Hannon said Bill A11330 is solely directed toward procedures a doctor undergoes during the professional discipline process.

"We must ask, 'What is the most appropriate thing for a patient?' whenever questions arise within the health arena. Situations have been brought to my attention about patients who need help and it's obvious that there's something wrong," Hannon, chair of the Senate Health Committee, said in his own defense to protesters' allegations.

He stressed Lyme Disease patients are not being denied treatment. "They're suffering from a chronic illness and feel they want to get long-term antibiotic treatment. We're not denying these folks the treatment. We're not denying something is wrong. It's a question as to whether it's in the disciplinary process that they can achieve their ends. They've convinced themselves that they can. But really, is that going to happen? I'm not sure."

Jill Auerbach, a Hudson Valley Committee for Lyme Disease Patient Advocacy coordinator who attended last month's protest, said, "Doctors are so afraid of being prosecuted by the OPMC or having the insurance companies come after them and drop them as providers, which is what has happened to many of the physicians who treat Lyme Disease, that they actually back away from treating Lyme patients."

Arthur Levin, director of the Center for Medical Consumers, a nonprofit advocacy organization active in efforts to improve health care, said A11330's biggest fault, from the Center's perspective, is that it protects doctors and not patients.

"If there is a problem with the OPMC unfairly targeting a certain group of doctors because of their practice then we need to deal with that. We're not insensitive to what the chronic Lyme Disease patient community is saying but those of us who have spent years working on these issues of physician discipline think it [A11330] would have very negative effects on all patients," Levin said.

"I know that there are a group of Lyme Disease patients who feel that this bill would protect their interests. We think they're misinformed. This is not a bill about Lyme Disease, this is a bill about all doctors, including good ones and bad ones. It's the feeling of those of us that oppose this bill that it simply would make it even more difficult than it is now to sanction bad doctors and to protect the public interest.

"We take into account the interest of all New Yorkers and therefore we have to take into account what we believe this bill would do in making patient protection worse across the state. We would be happy to try to work together to craft a solution that deals with their problem but at the same time doesn't erode public protection," he said.

Founded in 1976, the Center for Medical Consumers has been committed to broadening public awareness about the quality problems that pervade the American health care system. Levin noted that none of the various grassroots Lyme Disease organizations that have been formed over the years have approached the Center for Medical Consumers to discuss the issue at hand.

"If there is a specific problem about Lyme Disease, let's sit down and talk about that. But to pass a bill that basically throws the baby out with the bath water is not in the public's interest. The important thing here is that this is not a Lyme Disease bill. This is a bill that extends more protection to doctors and offers no protection to patients."

In response to protester Ellen Lubarsky's comments regarding how Hannon finally returned her call the Friday before the scheduled May 29 demonstration, the senator said, "There are probably 20 different self-appointed groups in regard to Lyme Disease. We try to give every one of them a chance to talk at one point or another but because one doesn't immediately get a call back - they may have been heard from six months ago - when they call again we sometimes don't talk to them. You can't talk to all of them. There isn't enough time in the day to speak to every one of the 20 every day of the week. With regard to the call she was referring to, it took three weeks to get their schedule in line to set up a time to speak - not my schedule."

If passed, A11330 would amend the public health law, in relation to proceedings and administrative review by the state board of professional medical conduct. It would expand provisions to include physician's assistants or specialist's assistants; provide investigation and interview notice requirements and ensure that hearings shall be conducted in accordance with fairness and due process with the committee's conclusion based on clear and convincing evidence.

According to Hannon, A11330 has been introduced and is now in the Senate's Rules Committee. In the assembly, he said, it was on the calendar last week in the Codes Committee but there were not enough votes to report it out and it was held. He noted that the bill would have to get out on the floor of both the senate and assembly, a procedure that could take weeks or months.

"What we're trying to do is get a balance," Hannon said. "Over the years, New York has been criticized for having the least number of physician disciplines for the size of its population when compared to all the states. And in fact, as recently as about 10 years ago, we probably fell roughly in the low 40s out of the 50 states when it came down to the proportion number of disciplines per say 100,000 population."

At the moment, New York, after the effects of reforms in 1991 and some further procedural changes in 1996, has come to a system where at least by the standards of disciplines per 100,000, we're about midway of all the states," Hannon said. He noted the statute that is currently in effect is a substantial reform over what has existed before. "We've gone back to that statute, tried to strengthen that statute for patient safety," he said.

Joanna Amato, a counter-protester in favor of keeping A11330 as is, said she, along with her mother and sister, were patients of an East Hampton doctor for almost eight years whom the OPMC recently sanctioned.

"My mother died in 2000 of neglect and incompetence by this doctor. My sister and I were in grave condition due to medical neglect. We were clinically diagnosed with Lyme Disease. We didn't have any positive tests and were subsequently treated for an illness we did not have," Amato explained. "He was under investigation since 1993 and we did not know it. In 2000, I got a call from this doctor after my mom died telling me my file had been picked by the OPMC to be used in a formal investigation brought against him. When I specifically asked for the list of charges against him I was astonished about how accurate they were. Those charges were basically a good version of what had happened to me from 1993 to 2000. If we had known this doctor was under investigation we would've left a lot sooner ... I do not want to see Bill A11330 reformed in any way because it will give doctors like him more protections." Amato said her chart was one of nine the OPMC used in their investigation.

In 2000, Hannon said he dealt with a physician profiling statute when a need appeared to have, in a commonly accessible database on the Internet, specific information regarding doctors. The database includes a doctor's place of practice, history of malpractice, if any, and any disciplines that may have been put against a doctor. Since January 1 of this year, Hannon said the website has been up and running and it's steadily improving.

"Along the way we found out that there were several instances, although isolated, that should be looked into," Hannon explained. "Did they need a referral to an alcoholism or drug treatment program? Should they keep practicing?"

Amato also noted she and her family support the Patient Health Information and Quality Improvement Act of 2000, which called for the creation of a statewide health information system designed to collect a wide range of data on heath care providers, practitioners and plans and to make that information available to the public on an ongoing basis. It also established a Patient Safety Center within the New York State Department of Health.

"I think this bill is important and I think it should remain intact. As far as the OPMC, I think they're doing a wonderful job. If it wasn't for the doctor calling me to tell me my chart was being used in the investigation, I would not have known what I know now and wouldn't be here. The OPMC is trying to do their job - nothing more, nothing less - and I think that everyone needs an agency who's going to look out for their best interests," Amato said. She added that she spoke at two assembly hearings - one in November and another in January - about her family's situation.

According to Voices of Lyme/NYLyme, a grassroots organization charged with stopping OPMC harassment of doctors who treat the disease,

doctors who treat Lyme and are practicing in New York and other northeastern states have been investigated, disciplined or have had their licenses revoked over the past three years when medical boards questioned their right to treat the illness in ways they deemed necessary.

Further, the organization believes that some insurance companies believe Lyme Disease can be cured with as little as four weeks worth of antibiotics while some doctors and their patients say that in rare cases, the infection could require prolonged treatment with antibiotics, nutrition counseling and physical therapy.

Hannon noted questions about antibiotics and other issues of practice have arisen. "Those other issues of practice have shown that it's not purely a question of antibiotics or not. It's not a question of Lyme Disease or not," he said. "Patients feel they want to get long-term antibiotic treatment. There are a number of people on the other side, such as the Center for Disease Control, who have looked into this and don't agree. It's not clear-cut whether they're going to get the relief even if this bill passes."

The Statewide Senior Action Council of New York State, the New York Public Interest Research Group (NYPIRG) and the Patient Information Alliance are among several organizations in unison with the Center for Medical Consumers. Specifically, in a prepared statement, these organizations strongly oppose A11330 because, perhaps most importantly, despite years of criticism of New York's physician disciplinary process for its failure to adequately assure that patients are safe when encountering the medical profession, nothing in the proposed amendment addresses patient safety concerns.

Further, the organizations believe the discipline process is already too lengthy, often taking a year or sometimes more from start to finish. Under current law, the fact that the state has initiated an investigation and/or prosecution against a licensee remains confidential until and unless the board sanctions the licensee. Anything that would further extend the discipline process should therefore not be considered in the public's best interest.

In a joint statement, members of the various above-mentioned organizations opposed to reforming A11330, said, "We believe that if the protections afforded a licensee defendant are raised to a higher standard approximating civil or criminal procedure the same degree of openness should apply and victims must be given rights to bear witness to the process."

Comparing the physician discipline process to criminal and civil law cases, the statement continues, stating, "In criminal, and civil law cases, juries are randomly picked from a pool of jurors reflective of the entire population. In the physician discipline process, a majority of 'jurors' are themselves physicians, most often nominated by the state medical society or other physician organization. The Board of Professional Medical Conduct should have a majority of its members chosen from the public at large and at least one of its executive officers must be a public member."

John Eadie, a public policy special advocate for the NY Statewide Senior Action Council, a grassroots membership organization made up of individual senior citizens and senior citizen clubs charged with advocating interests and needs regarding services, programs and policies affecting older persons, said A11330 unnecessarily complicates the health system and "bogs down the state's ability to prevent harm to patients.

"It makes this process so complex, so difficult, that incompetent physicians will find shelter behind this bill," Eadie said. "Senior citizens are also subject to the same type of disease and we want to make sure we protect them against bad medical practice and doctors who are outdated or physicians that are mentally impaired."

With regard to the OPMC, Eadie said if there were to be reforms to A11330, one should include notifying the public during the investigation process so that the public is warned of those incompetent and/or impaired doctors. "This, however, is not included in this bill. Doctors actually have the right to disclosure during the hearing process, even during the pre-hearing process."

Hannon said he is not opposed to looking into how the OPMC or any agency reviews the conduct of doctors. "I think at all times you have to be cognizant of whether good care is being delivered - and it's not just doctors, let me not single them out. It's nurse practitioners, dentists, podiatrists, hospitals, etc. - all of which require constant surveillance and a constant fine ear as to whether or not the people in government - the administration who is charged with that surveillance - are doing a good job. There are people who are adamant and believe this bill would simply allow the perpetuation of bad medicine."