Managed care under attack
A steady drumbeat of attack by health care professional groups, the media, and state and local governments is forcing the managed care industry to change policies and procedures considered ethically questionable at best opening a door for your ethics committee to have significant impact on global issues.
The premise that health care is ultimately a business and that patients, providers, and managed care plans are equal partners sharing equal risks and benefits is not acceptable, say physicians, nurses, and other health care professionals. "Laws mandating longer maternity stays and hospitalization for mastectomies have received more media coverage, but there is actually more high-profile reform going on in almost every state," says Tracy E. Miller, JD, a visiting scholar in the department of health policy at Mount Sinai School of Medicine in New York City.
"The intensive activity in state governments over the past year signifies the extraordinary degree to which these legislators are willing to step in to protect patients," she says. (See information on state and federal initiatives, p. 30.)
Ethics committees, meanwhile, are struggling to ensure that their institutions incorporate ethical principles into business behavior and keep patient advocacy at the forefront.
Health care professionals who have ethical concerns about how managed care is affecting the quality of patient care should not give up, says Kit Costello, RN, president of the California Nurses Association (CNA) in Sacramento. The group gathered more than 800,000 signatures to place a sweeping overhaul of managed care on the state’s ballot last year. Although the measure, Proposition 216, lost in November, it signified "a movement that cannot be stopped," says CNA spokesman Charles Idelson.
The initiative would have protected nurses and other health care professionals who advocate for patients from any discharge, demotion, contract termination, or denial of privileges. It also would have set strict requirements for staffing of skilled nurses and physicians in all health care settings.
Short staffing has been an ethical concern of nurses for several years. (See Medical Ethics Advisor, May 1995, p. 57.) Costello and others contend that registered nurses are being replaced by aides with less training and fewer skills and that specific state requirements do not exist to protect patients.
Current California law does outline staffing requirements for severely ill patients in critical care units, but Costello charges that hospitals violate the law. CNA literature on the California initiative cites several hospitals identified for violations in local newspaper reports.
An increasing number of nurses in her state are forming unions, says Costello, because they are concerned that "safe, compassionate patient care is continually compromised." California has fewer registered nurses per patient (according to U.S. Census and Commerce Department data) than every other state except Utah, Costello says.
One way that health care professionals can advocate for patient concerns is to become more aware of abuses, says Idelson. CNA instituted a program called "Patient Watch," which has uncovered managed care abuses, Costello says.
Pressure pays off
California’s giant managed care industry spent $10 million to fight Proposition 216, yet the measure garnered more than 3.4 million votes.
The managed care industry relented recently to outcries against "gag clauses" or portions of managed care contracts that suggested physicians could not discuss treatment options not offered by the plan. The industry steadfastly maintains the requirements were "anti-disparagement" clauses intended to protect the plan’s proprietary interests.
In late January, the Washington, DC-based American Association of Health Plans (AAHP) announced that it would discourage all of its 1,000 health maintenance organization (HMO) members and other managed care plans from using gag clauses and instead support new federal legislation that would require "free exchange of information" between plan doctors and patients in Medicare and Medicaid managed care plans.
AAHP will launch a public relations campaign this spring titled "Patients First" to encourage members to adopt policies on mastectomy hospital stays as well as on disclosure of information about pay and incentives for plan doctors and about how and why a plan decides whether a treatment option is covered.
Some physicians who manage HMOs say the current debate is forcing the public and legislators to recognize that the market is the driving force behind health care delivery.
"Are there genuine concerns about managed care? Yes, of course," says Donald Lurie, MD, director of Meridian Medical Group in Atlanta. "A physician has to be able to tell a patient about all treatment options. But the next step is letting the patient know how that option can or cannot be obtained," he says. "Society is avoiding this debate and the [managed care] industry is falling in line."
"An aggressively low capitation rate for one doctor doesn’t even begin to address the issue of how we care for the uninsured," says Lurie. "My fear is that we will dismantle the managed care apparatus that has saved resources and dump the larger problem of who gets what into the primary physician’s lap."
"This is not always pretty. If we want to slow down health care spending and look at a more rational way to allocate resources, there is the obvious potential for individual harm," agrees William Winkenwerder, MD, vice president of Emory Healthcare in Atlanta.
"We need to thank the managed care industry for clearing up some of these abuses [such as gag clauses]," says Joel Mattison, MD, a member of the ethics committee at St. Joseph’s Hospital in Tampa, FL. Mattison says that Florida’s providers are especially thankful that the state legislature enacted a measure in December to curb HMO abuses of emergency care.
The previous law demonstrates how managed care and federal regulations caught hospitals and patients with managed care plans in a bind. Patients enrolled in certain managed care plans came to the hospital emergency department, but the physician affiliated with that plan was not necessarily on call at the time.
Federal law prohibits hospitals from asking patients about their ability to pay, but the managed care plan could deny coverage if their physician was not available to treat the patient. The plans also required the hospital to perform a "bona fide medical screening" to determine if a patient had a "life-threatening emergency."
Under the new law, an HMO cannot require prior authorization for emergency care, use the above terms to limit the type of care provided, or even play a role in determining when an emergency condition exists. In addition, the HMO must pay for the required medical screening.
This new law doesn’t let hospitals off the hook ethically, warns Mattison. "Ethical business practice requires hospitals not to abuse this new law. We have to be fair to the managed care organizations as well," he says.
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