"The greatest dangers to liberty lurk in the insidious
encroachment by men of zeal, well-meaning but without understanding."
-Omstread vs United States, 1928
Justice Lewis Braindeis
Social and Legal Implications of
Managed Care In Psychiatry
Richard C. W. Hall, M.D.
Medical Director, Psychiatric Programs
Florida Hospital/Orlando
Clinical Professor of Psychiatry
University of Florida, Gainesville
Director of Research
Monarch Health Corporation
PART I
HISTORY OF MANAGED CARE AND ITS SOCIAL IMPLICATIONS
During the last decade, managed care and "managed competition"
have become a fate accompli in American medicine. Some applaud their
development as cost saving mechanisms that will ensure that all
Americans receive appropriate medical care,(1-10) and point to the
gross abuses of care that profit driven medicine has caused, while
others decry their impact on the health delivery system and the
medical profession.(11-20) Physicians worry about managed care's
impact on their autonomy and professional identity.(19,21,22) Much
of the rationale for the increasing support of third party intermediaries
has been the cry that patients need to be protected from unscrupulous
physicians; that doctors need more control to force them to practice
honest and cost efficient medicine.(23) Proponents of managed care
argue that it provides better value and increased quality in relation
to cost and provides for better accountability of the health care
delivery system. They note that managed care permits the assessment
of clinical practice, standardizes the types of care delivered and
is better suited to provide clear cut outcome measures than individual
practitioners. They argue that the alarming increases in the cost
of health care mandate that a new system be developed to align incentives
in clinical, administrative and economic terms. Many of the proponents
of managed care argue that this is a system in transition and represents
a first step in equilibrating American medicine, as it evolved into
a care delivery system that is affordable, accessible and avails
all Americans appropriate care. They argue that managed competition
will provide for continuous quality improvement through an outcome
driven delivery system. As health care systems mature, other systems
are likely to emerge such as physician hospital care organizations,
provider controlled health care groups and population-based treatment
models. Many advocates of managed care believe that this diversity
of programs will enhance patient satisfaction, reduce the cost of
care and provide a means to study the outcome of the care given.(1,2,5-8)
Advocates of the managed care system feel strongly that payment
should be related to outcome and clinical efficiency and advocate
the development of treatment protocols, many of which unfortunately,
are currently seen as proprietary and thus kept secret. The more
far sighted among them believe that as outcome research is undertaken,
treatment results will improve and costs will be constrained, a
process benefiting both the nation and the consumer.
Physicians on the other hand argue that the profit motive of the
managed care intermediaries and large corporate entities is destroying
the practice of medicine and that the alleged cost savings that
these systems produce are fantasy not fact. Many feel that managed
care patients suffer from rationed and inferior care.(19,24-32)
This article reviews some of the social forces important in the
development of managed care. A companion article to follow reviews
some of the more important recent legal decisions and defines the
physician's responsibilities to their patients and to managed care
providers.
SOCIAL FORCES AFFECTING MEDICAL PROFESSION DURING THE LAST TWO
DECADES
In 1982, Paul Starr's book, "The Social Transformation of American
Medicine" (33) received considerable national notoriety. Starr traced
the evolution of American medicine over the last two centuries focusing
on the changes in attitude toward physicians and the services that
they provide. He began with a discussion of Americans' traditional
distrust of doctors during the 1800s and followed the physician's
social evolution and their establishment of cultural authority and
control over the practice of the healing arts. Starr demonstrated
how, with the enormous breakthroughs of the twentieth century, American
physicians were able to "increase their control until it extended
over virtually every aspect of health care." He suggested that hospitals
were transformed into medical workshops subsidized by government
programs. He noted that as technology became more sophisticated
and as medical fees increased, that the public became increasingly
disenchanted with the medical care that they were receiving. The
humanism so pronounced in 19th century medicine had become tarnished
during the last half of the 20th century as technology overtook
"compassion" as the basis of medicine. These changes produced a
distrust of physicians and of the health care industry as a whole.
Starr suggested that unless these factors were reversed, that medicine
would become truly regulated and "more bureaucratic and insensitive"
than ever before. The past 11 years have proved his predictions
most prophetic.
Realman(34) calls attention to a variety of social forces that were
operative during the last 20 years that also greatly affected medicine's
transformation. In the early 1970's government health advisors,
in looking at the British and Canadian medical systems, realized
that if America were to move toward a more "regulated" system, that
it would require an increasing number of generalists to serve as
"gate keepers." Recommendations were made for the government to
encourage development of more family practitioners. New government
policy, tied to offers of financial support, encouraged medical
schools to increase their graduates and placed a selective emphasis
on support for family practice residencies. In the late 1970s the
government specifically directed that more primary care providers
be graduated. These directives were followed by legislation encouraging
the development of health maintenance organizations and changes
in governmental policy that specifically encouraged For Profit companies
to enter "the medical marketplace" previously the professions "mare
nostrum."
It was at this time that health care passed from the control of
the profession (i.e., physicians and professional hospital administrators)
to a series of medical entrepreneurs, some of whom had training
and experience in the medical field, others of whom did not. Insurance
companies developed health products with careful attention to the
bottom line, and the structure of medicine in America began to change.
For Profit medical facilities expanded rapidly and companies vied
for market niches and competed for paying patients. National hospital
occupancy rates fell from 80% in 1970 to less than 70% in 1990.
New hospital construction of free standing psychiatric hospitals
became rampant, with increasing costs being paid by the mad scramble
to fill empty beds. Huge profits were taken.
As physicians became aware that there was an increasing supply of
doctors, they became fearful of not being able to maintain their
accustomed life style. Many opted for salaried or contracted employment
with health maintenance organizations, while others guaranteed their
incomes by further specialization or developing new office "procedures."
The technology of medicine expanded rapidly, with CTs, MRIs and
in some regions of the country PET scanners and new cardiodiagnostic
equipment becoming generally available. New advances in all fields
of medicine placed an increasing emphasis on "technology." To stay
competitive, a hospital had to have the "latest" equipment. Defensive
medicine became rampant as medical malpractice suits rose 400% between
1970 and 1990, driving up the cost of physician health insurance
and forcing practitioners to practice defensive medicine based on
"accepted community standards."
During the late 1970s and early 1980s, law suits, government regulations,
and new legislation increased the number and scope of "other qualified
providers" (i.e., Pharm.Ds, Nurse Clinicians, Physicians' Assistants,
Psychologists). These allied health or alternative providers were
permitted by law to perform many of the procedures and treatments
that had heretofore been the realm of the physician. In various
settings, they could prescribe medications, perform physical examinations,
admit to hospital, etc.
Health care moved forward on a two-tiered system; a low tech socially
controlled model which offered limited care, available at a reasonable
price; and a high tech, high cost system that in non-emergent situations,
could in general be accessed only by patients with private indemnity
insurance. The commercialization of medicine caused medical professionalism
to give way to a new spirit of entrepreneuralism. Physicians continued
to lose their relationship with their patients. Lawyers and businessmen
began to "deliver lives," that is, broker patients to various providers
with patients' choices being determined by the "lowest bid" obtained.
It soon became apparent that additional efficiencies could be squeezed
out of the system if "vertically integrated systems" could be developed
permitting brokers to totally control the site, volume, nature,
and providers of care. With these systems, it became possible for
the first time for managed care companies to determine the nature
and extent of care provided as well as by whom. Just as the bottom
line reduced the professional's judgement through protocol driven
medicine, it also restricted the type of care that was available
and rationed the care available to the patient. Articles began to
appear suggesting that patients were receiving less than adequate
"managed care".(19,34)
Although often overlooked and understated, the legal changes instituted
by the courts had a considerable impact on the evolution of managed
care. In the Seminal case of Goldfarb vs Virginia State Bar, 1975,
the Supreme Court ruled that the Sherman Antitrust Act which had
previously been thought to exclude both the legal and medical profession,
should no longer be construed to protect these two groups.(35) The
court directed that the Federal Trade Commission Act should be applied
to these professions. This ruling: (1) directly encouraged medical
advertising; (2) directed competition in health care and was interpreted
to (3) encourage physician joint ventures alone and with hospitals
and (4) approved the concept that insurance companies could assume
the role of "providers of care" rather than simply remain the financiers
of care.
The Act specifically forced the AMA to change its standard of medical
ethics. In 1957, the AMA Code of Ethics contained clear anticommercial
recommendations to physicians, stating that "The principle objective
of the medical profession is to render service to humanity." "In
the practice of medicine, a physician should limit the source of
his professional income to medical service actually rendered by
him, or under his supervision, to his patients."(36) After the Goldfarb
decision this Code was changed to read "1. Physician advertising
is permissible as long as it is not deceptive; 2. Investments in
health care facilities are permissible if allowed by law, disclosed
to patients, and do not interfere with the physician's primary duty
to his or her patients; 3. Competition is 'not only ethical but
encouraged'." The new interpretation of the Antitrust laws stopped
hospitals from negotiating with one another so that there could
be orderly development of services within a community and specifically
precluded them from sharing such expensive equipment as MRIs, CT
scanners, etc. It specifically forbade them to agree not to duplicate
services. The net result of this ruling was to dramatically increase
the cost of health care, rather than to diminish it, since hospitals
marketed themselves by assuring the public that they possessed the
latest technology.
The Goldfarb ruling spurred a rush toward investor-owned health
care organizations where outcome was measured by the bottom line.
Throughout the country, there appeared new hospitals, clinics, nursing
homes, diagnostic laboratories, CT scanning centers, day care facilities,
ACLFs etc. Today the majority of nursing homes, private psychiatric
hospitals, freestanding therapeutic and diagnostic facilities are
investor-owned. Two third of America's HMOs which provide care to
almost 40 million Americans are investor-owned.
Corporate health care became protocol driven, the development of
these protocols being heavily influenced by profit. Profit in these
systems was maximized by a bureaucracy that (1) limited access to
costly technology and therapy, (2) recruited the healthiest citizens
for managed care plans, (3) reduced the availability of specialists
and (4) encouraged the provision of treatment by the least costly
professional, a fact particularly relevant to psychiatry. Realman(34)
in a brilliant article reviewing these changes encouraged medicine
to look carefully at itself and to regain control of the doctor-patient
relationship.
The commercialization of medicine affected medicine as a profession,
challenged the values upon which it was based, set new expectations
for ethical commitment to patients, diminished professional self
regulation, reduced professional identity, encouraged physicians
to follow protocols rather than to develop new methods of practice
and some would argue, reduced clinical excellence while providing
the public with a more homogeneous and cost efficient "product."
The physician's commitment to his/her patients became suspect when
it became clear to the public that many managed care physicians'
economic interests were at variance with providing the best patient
care.
The new commercialism, some argued, also bred increasing compliance,
as managed care organizations increasingly chose only physicians
who were "managed care friendly," i.e. obedient to management's
directives. Compliance was valued over competence. This focus on
compliance bred mediocrity and a physician commitment to the managed
care company rather than to the patients he/she served.
The initial savings that were expected from managed care, particularly
through third party regulatory intermediaries, have not been realized.(37)
Dickey and Azeni(37) in evaluating the effects of managed care strategies,
were able to show only limited effectiveness for psychiatric concurrent
review programs and no support for the effectiveness of the prior
approval review mechanism. These authors raise the question, "Why
do we find so little impact from managed care programs, when so
much has been promised". They suggest that patients hospitalized
in these programs were "more seriously ill" as evidenced by (1)
increasing lengths of stay; (2) an increase in the number of patients
with major mental illness; (3) an increase in co-morbid conditions
(i.e. psychiatric and substance abuse secondary diagnoses). Wickizer(38)
notes that most of the savings claimed by managed care companies
have not been rigorously evaluated and the majority of the information
about them in the past has been anecdotal. He summarizes the studies
published that report reduction in both the use of services and
their cost but notes that the data supporting these claims is not
convincing. In what Dickey and Azeni describe as "The most analytically
sophisticated research to date, two studies tested the effect of
managed care programs on measures of utilization and on expenditures.
They found that the programs reduced hospital use and expenditures
by 8%. Not an overwhelming figure when one considers the cost of
these monitoring programs.(39,40) The initial savings were more
the result of displaced care than reduced waste. As managed care
became more inequitable and expensive, and as the quality of care
declined, the public became more and more disenchanted with physicians,
on the one hand seeing them as the culprits producing the rapid
increases in medical costs and on the other hand, as individuals
who were no longer committed to their Hippocratic Oath or their
patients. They did not direct their anger toward the businessmen
or the government for their plight (in fact, surveys showed patients
were more satisfied with their managed care than with physicians
in general). The public held physicians responsible for health care's
plight, thus seriously eroding the nobility and altruism of medicine
that in Starr's analysis had always given medicine its authority.
The impact of these changes was more profound for psychiatry than
the rest of medicine, in spite of the fact that there have been
no substantive change in the principle diagnoses made in psychiatric
patients from 1987 to present. (i.e. affective disorders are diagnosed
in about 45% of patients; schizophrenia in 10-12%; substance abuse
in at 8-9%; alcohol related diagnoses in at 8-9%; anxiety, somatoform
and dissociative diagnoses in 5%; pre-adult disorders in 5%; organic
mental disorders in 3%; personality disorders in 2% and other psychotic
disorders in approximately 4%.(41) Our patients haven't changed
but the care we provide them has diminished!
Most psychiatric care in America today remains outpatient, (77%
of patients); 5% are treated in partial hospital programs while
18% are cared for in inpatient settings.(42) The total expenditure
in 1986 for inpatient psychiatric care was 18.9 billion dollars
with 6.4 billion dollars being spent at State Hospitals; 3.7 billion
at multi-serve mental health organizations (i.e. CMHCs; HMOs); 3.2
billion in general hospitals; 2.8 billion in private psychiatric
hospitals; 1.5 billion in residential treatment centers, partial
hospitals and outpatient clinics and 1.3 billion at Veterans Administration
Hospitals.(44) The vast majority of patients receive treatment in
the least restrictive setting. The assumption that these costs can
be dramatically changed through the appropriate provision of lesser
levels of care, has not been demonstrated to date. The Office of
Technology Assessment has, however, documented that properly delivered
psychiatric care, administered in a timely fashion is remarkably
effective.(45)
The new emphasis on outcome research will be helpful to psychiatry,
as it will define in a much clearer way the efficacy of what we
do. Nationally, perhaps 10-20% of hospitalized patients could be
appropriately served in a less restrictive or costly setting. The
remaining patients require an acute inpatient stay and assumptions
that inpatient admissions and for that matter, outpatient treatment
can appropriately be cut by one-half to three-quarters are short
sighted and will ultimately result in increased costs being passed
on to society through increased morbidity. One need only look at
the closing of the state hospitals in New York, with the resulting
increase in psychotic homeless living on the streets to understand
the impact of these decisions.(29,30)
The evolutionary trend in managed care development suggests that
these programs are moving toward vertically integrated systems (Figure
1). The administrative costs of many managed care systems are extraordinarily
high. A recent common cause survey showed that health insurance
administrative costs increased from between 10% to 21% in 1980,
to between 20 to 37% in 1990.(43) Third party managed care intermediaries
monitoring psychiatric practice may add an additional 10 to 25 cents
of every premium dollar to this already inflated figure. Some authors
have suggested that the need to disallow admissions by various managed
care corporations has either consciously or unconsciously led to
inappropriate behavior on the part of their employees who deny even
the most clearly appropriate admissions to hospital. In a recent
study, Thompson et al(44) showed that case managers assigned considerably
higher GAF scores (indicating less severe illness) to patients than
did practitioners and subsequently used these scores as a reason
to disallow hospital admission.
Recent dissatisfaction with various aspects of managed care has
produced dramatic changes in the acceptance of these systems.(12)
From 1987 through 1990 the number of U.S. employees in unmanaged
(conventional) insurance plans declined from 41% to 5%. Initially,
many of the patients who joined managed care programs were enrolled
in staff model HMOs, however, from 1986 through 1990 there has been
a dramatic reduction in the percentage of patients who enrolled
in staff model MHOs because of dissatisfaction with these systems,
particularly the patient's inability to choose their physician.
From 1986 through 1991, patients began to shift their allegiance
from staff model HMOs to PPOs which by 1991 controlled 70% of the
new enrollments to managed care because they offered freedom of
choice of physicians and provided what patients perceived as enhanced
care.(46)
To understand some of the practice aspects of managed care, particularly
as it effects psychiatry, one needs to understand the cost containing
mechanisms employed by these systyems. The first is to insert a
level of control between the patient and the physician. This may
adversely effect the physician-patient relationship by impugning
the motives and duty of the physician to the patient. Second, one
must understand that in a managed care format, profit is derived
by controlling cost. The means of controlling cost include (1) controlling
the utilization of services; (2) limiting expensive treatments;
(3) reducing follow up visits; (4) limiting diagnostic studies;
(5) controlling formularies; (6) limiting visits to specialists;
(7) reducing or eliminating laboratory procedures; (8) reducing
or eliminating "heroic" measures to preserve life; (9) providing
care by utilizing the least expensive professional (i.e., substituting
an LPN for an RN, a Bachelor's for a Master's level counselor for
a Ph.D, a social worker or psychologist for a physician, etc.),
and finally by placing the gate keepers and providers at financial
risk.(47)
Industry often attempts to reduce its cost by employing a utilization
review company to act as an intermediary between an insurance company
and the patient's physician. These managed care intermediates constrain
utilization by making the treating physician "request" authorization
and by giving "permission" for the patient's treatment (i.e., determining
"the medical necessity"). They determine what health care the patient's
insurance company will "approve."
Much of the physician dissatisfaction with these systems has to
do with what doctors perceive as the ethically questionable behavior
modeled by some of these companies such as training their staff
to "just say no" (i.e., disallow as much as possible) with the assumption
that only 10% of cases will be appealed because of the paperwork
burden that is placed on the provider. Increasingly managed care
companies have attempted to discourage treatment by demanding excessive
paperwork or requiring daily phone reviews which are seen by physicians
as harassment.(20) Companies may send letters to patients stating
that they have disallowed their "request" for reimbursement because
their physician was "unavailable" or "uncooperative" producing a
potential doctor-patient conflict which places the physician at
risk for suit. Several managed care companies have developed complicated
provider compensation methods which reward contracted reviewers
and providers for disallowing hospitalization and reducing services
and therefore costs. These companies also provide financial disincentives
for physicians in their networks who "over-utilize" care.(19) In
addition, they continually "update" their physician panels and drop
physicians who spend more on patient care than do other more "efficient"
physicians in the system.(47) They continue to employ physicians
who are willing to rigidly follow company protocols.
The hiring of physician reviewers by these companies permits a physician
to be the agent of treatment disallowal. If reviewers are too provider
friendly they are replaced with physicians who more carefully follow
company protocols. Finally, some managed care firms attempt to develop
slow and cumbersome appeals processes that they feel must be exhausted
before final denials and litigation can begin.
Our current system of managed care intermediaries raises several
legal and ethical questions for the practicing psychiatrist. To
whom does he owe his allegiance? What is the extent of confidentiality
of the patient's personal information? How far should the physician
go in appealing the patient's need for ongoing treatment? How much
of a patient advocate should a non-managed care physician be? Should
additional consultation be sought before accepting controversial
managed care decisions? What is the authority and liability of the
physician reviewer? For whom does the private physician work - the
patient or the insurer? To whom is duty owed? Does the patient contractually
have to let a managed care provider make his decisions? Can he exercise
additional free choice? Does managed care represent community care
(i.e. community practice standards)? Can the physician ethically
withhold diagnostic procedures that he feels are in the patient's
best interest because a reviewer determines them medically unnecessary?
If care is disallowed and the patient is frightened to continue
to seek treatment because of financial ruin, does the physician
have an ethical or moral obligation to follow the patient in a setting
that he feels is inappropriate? What rights and authority do physician
reviewers have relative to the treating physician? What legal obligations
do they incur for their disallowal of treatment? The second part
of this article will address the above concerns and provide a review
of some of the more important recent litigation in this area.
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