Managed care and the corporate practice of medicine.
We ended a century of modern medical-success with a great paradox. On one hand, the evolution of clinical science makes more medical conditions curable or relievable. On the other hand, the devolution of health care economics makes these successes less and less available--even to people who pay for them. Under the rubric of managed care, the practice of medicine radically shifts from physicians bound to patient best interest to individuals and organizations bound primarily to corporate best interest.
We have the only health care system in the world in which care is limited or denied systematically by those who stand to financially benefit from its withholding. Patients, who once worried only about the ill effects of a devastating disease, now must also worry about the unprecedented harms arising from the management of these diseases.
Statistical norms replace individual patients. Utilization reviewers replace individual physicians. Cookbook guidelines replace complex diagnostic evaluations. Economic rationales replace clinical judgments. Cost savings replace compassion. Add to this the grave lack of ethical, legal, and safety protections for patients subjected to this new kind of practice, and it is little wonder that our country is outraged by managed care.
Few people understand the systemic effects of managed care, as evidenced by the press reaction to United Healthcare's recent move to return decision making to physicians.(1) The media portrayed the decision as a dramatic shift, but it is nothing more than a public relations coup. United Healthcare has simply given a spin to the most sophisticated form of cost cutting: co-opting physicians.
Control tactics by managed care plans have evolved from primitive methods --using company doctors and nurses as gatekeepers--to more subtle methods in which treating physicians become the gatekeepers. The former methods of control have proven to be labor intensive, adversarial, and costly. Making a patient's physician a company doctor is far more effective. Through various types of arrangements, health plans ensure that physicians will make decisions based on utilization and economic goals determined by the health plan.
We are now in an era of medicine in which medical negligence rarely occurs at the hands of a single physician. In 1991, in a talk to a local group of lawyers, I predicted that we were entering a time when every malpractice case would have a larger health-system or managed-care component. Now, nine years later, I have seen that prophecy fulfilled. Patients experience bad outcomes in unparalleled, dehumanizing ways, suffering harm or death because of network structures, utilization targets, cost-savings reports, financial incentives and disincentives, economic credentialing, manipulation of words, abuse of science, and contract designs, to name just a few.
Except for rare cases in which a physician has completely rejected managed care, almost every medical decision by a physician is now affected in some way by the changes wrought by managed care. Doctors no longer practice autonomously. Their contracts, financial arrangements, utilization targets, practice structures, medical protocols, and referral and network rules expose their new partners. Corporations have the last word in determinations of medical necessity. Company doctors hold the final authority over the life and death of patients.
Even when a physician strongly resists these pressures, his or her practice of medicine is changed fundamentally. The most financially successful plans control medical decisions from beginning to end--from defining the disease to deciding the treatment.
Because few people understand this new kind of medicine, an inside view is necessary.(2) If one were to accept what the health industry claims, one might be tempted to believe that cost-cutting strategies eliminate only unnecessary care, while preserving quality. One might also be willing to accept that health plans deny only payment, not care. One might even think that a health plan wants a sick person to have the care for which he or she has paid.
An inside look, however, reveals that no managed care plan in this country that I know of reports denial rates, tracks outcomes of denials, detects when the line between unnecessary and necessary care has been crossed, changes its practices when harm occurs, or welcomes the sickest and most expensive patients.
Little has been done to examine the real costs to patients of managed care. Studies show repeatedly that HMOs and other managed care organizations achieve their results by lowering hospital admission rates, shortening hospital stays, relying on fewer subspecialty services, and making less use of laboratory, radiology, and other technological services.(3) We have only the industry's claim that it is eliminating only the excesses of the fee-for-service era.
Where is the line between necessary and unnecessary care? How do we define that line when the processes used by managed care companies are constantly changing the norms?
Twelve years ago, I worked as a medical reviewer for a managed care company. I sat at a desk, shuffling paper involving the lives of hundreds of patients who did not know that I gambled with their fate to meet my quota of denials. I remember vividly the day I calculated the cost of this process: the computer software designed to generate as few approvals as possible; the team of physicians organized to deny as much treatment as possible; and the bank of "nurses" trained to catch "failures" (some reviewers had no medical background, used computer programs to match a doctor's request against company guidelines, and watched for cases that did not meet company criteria). There were myriad costs I failed to consider, such as marketing, public relations, executive salaries, corporate profligacy--all contributing to the machine whose goal was to lose as little of the premium dollar as possible.
The great costs of management could only be justified by our denials of care. It was then that I realized that we had constructed a complex, highly efficient denial machine, designed to extract every dollar possible poured in through premiums.
We defended this machine with the unquestioned assumption that lower numbers of treatments and lower costs were for the good of society. This led to several other dangerous beliefs:
* Any cuts in service involve only care that is excessive and unnecessary.
* These cuts can be achieved without independent clinical research to determine the appropriate treatment norms.
* It is unnecessary to monitor the consequences and clinical outcomes of the managed care organization's economic tactics.
With these premises, we ensured that we would not know the full effects of our cost cutting. Even today, there are too few studies addressing the impact of economic decisions on the clinical care of plan members, especially chronically ill patients. To date, there is only one extensive outcome study that begins to give us a clue. It reveals that elderly and poor, chronically ill patients had worse physical health outcomes in HMOs than in fee-for-service systems.(4)
This conclusion was significant enough to prompt a special hearing before the Senate Appropriations Subcommittee on Labor, Health and Human Services, and Education on November 13, 1996. During the discussion of this study, a critical point was made: The data for the study were collected in 1986, and we are now over a decade more entrenched in managed care.
What is happening now? We only know through evidence of individual tragedies. As for the system as a whole, we may be like astronomers examining the light of a star that has already exploded. We continue to operate as if all is well in the system. Unfortunately, in health care, by the time we know the facts, it may be too late.
It is critical that we use every source of information available to determine the effects of these incomparable changes in our health care system. The real-life stories from people who encounter managed care directly have inestimable value. We know this from "quality management" work. Regardless of what aggregate data and statistical summaries can tell us about how a system is performing, when there is a particular failure, it no longer matters what the cold numbers of history show.
For example, if a patient dies from something the hospital could have prevented, it matters little at that moment for that individual whether the hospital's mortality rate is rising or falling. Such a failure is 100 percent evidence of itself.
Although we may need studies to identify sources of failure and ways to correct it, individual incidents of failure sound the alarm. No one can deny that we are receiving ample evidence (consumer stories, legal cases, legislative hearings, and so on) to suggest that increasing numbers of individuals, especially those who are vulnerable and expensive for insurers to cover, risk serious obstruction to services when placed in some managed care plans. The industry rationalizes or discounts each incident to avoid accountability for the specific plan or for the industry as a whole.
We need to acknowledge that we have developed a complex, bureaucratic system for delivering health care that has the potential, as with any system involving human lives and their well-being, to cause harm. When an airplane crashes, we do not allow the airline industry to dismiss its importance by calling the crash anecdotal. It is something (what systems analysts call a signal event) that should not occur, and it represents a failure in the system. We investigate, not only to identify responsibility, but to prevent future disasters.
We should do the same for health care. When a patient experiences inappropriate obstruction to care with increased suffering and harm, then the system of care has failed. We need to determine how the failure occurred and whether it represents a pattern. Unless we do this, the industry avoids the kind of detailed dissection that reveals incompetence, negligence, or abuse, which the public has the right to know about and correct.
Monitoring the industry
How do we monitor managed care's failures? First, we must acknowledge that managed care is a highly organized system in which the insurer is directly involved in patient care.
By the industry's own definition, managed care "alter[s] the decision making of physicians and hospitals by interjecting a complex system of financial incentives, penalties, and administrative procedures into the doctor-patient relationship."(5)
Furthermore, managed care "attempts to redefine what is best for the patient and how to achieve it most economically."(6) Obviously, managed care is more than a claims payment system. It distinguishes itself from the pre-managed-care system by directly influencing physician decision making and the conditions of care. As all plans make clear to their members, the plans--not the members' doctors--make the final medical determinations on any request for services.
Of course, a plan wants control over medical decision making until adverse consequences arise from those decisions, and then the plan claims that it is simply making benefit or payment decisions. Such sleight of hand enables the plan to play it both ways, and always to its own economic advantage.
However, despite the euphemisms, denying payment under managed care means denying care, and when necessary care is denied, there are consequences--some serious enough to cause death. This is more than a benefit decision, and it is certainly a decision for which a managed care plan should be held accountable.
Second, we must pay attention to the language of the industry. Defenders of managed care repeatedly say that they do not deny care. Unfortunately, this is just another rhetorical flourish that disguises the process. What managed care organizations do, by their own admission and de sign, is authorize care. Authorization, however, is merely the euphemistic flip side of denial.
This is, in fact, the inherent nature of managed care. The genius of managed care is that it integrates delivery and payment, and this can be done best by determining prospectively what care will receive payment. A leading textbook on managed care states that "one of the definitive elements in managed health care is the presence of an authorization system.... It is the authorization system that provides a key element of management in the delivery of medical services."(7)
What this means is that a member, depending on the extent of authorization processes, essentially begins with no benefits until the plan approves them. Technically, this starts with designations in the benefit package, but examination of most member handbooks reveals there are wells of ambiguity and nuance that make the clearest of benefits questionable.
When needs arise, plans erect various barriers that give them the opportunity to examine the request's merit. Approval (or lack of denial) is the only way to ensure payment. Only when a request makes its way through the series of authorization barricades will the service be provided. It is easy for plans to claim that they do not deny benefits pet se; they only choose to authorize them or not--a semantic distinction lost on the people who experience the effects.
The textbook quoted above notes that authorization procedures can be "as simple as precertification of elective hospitalizations in an indemnity plan or preferred provider organization (PPO) or as complex as mandatory authorization for all nonprimary care services in a health maintenance organization (HMO)."(8) In fact, this is a helpful way to understand the spectrum of managed care organizations. If one understands that plans inherently focus on controlling patients and doctors, one can examine any organization based on the types of barricades erected to thwart requests for medical services.
These authorization barricades include medical necessity determinations, benefit ambiguity, and other less obvious ways to limit and deny care. Generally, the controls include the following:
Medical necessity determinations
This is managed care's gold mine. By claiming the final authority for determining medical necessity, a plan assumes the right to make the final decision about any request. When the other barricades fail, anything that a patient might need can be considered medically by a company doctor paid to protect his or her employer's financial interest. It makes little difference that these doctors may have insufficient clinical experience, come from a different specialty, or receive financial rewards for the denial. Simply having an M.D. after one's name is sufficient for the plan. As I was told early in my work as a medical reviewer, I was there to give medical rationalization to the company's economic decisions.
Marketed benefits often do not match actual benefits made available. When a patient has a specific need, a plan can interfere in the medical decision-making process by defining the medical conditions and standards for care, specifying conditions and contexts in which care can occur, limiting the availability of services and providers, and rewarding physicians for limitation or denial.
For example, a woman may buy what appears to be comprehensive maternity coverage, only to find out that hospitalization for a pregnancy-related condition is denied because she can only be treated as an outpatient. There may be nothing in the benefit booklet that alerts the woman to this restriction.
Furthermore, the legitimacy of the denial will not be assessed. Whether it is appropriate can only be determined by follow-up monitoring of the patient's condition. Did her condition worsen? Did she have complications because she was not as aggressively treated as she would have been in the hospital? Did the baby suffer any damages? These are clinical questions that would have to be asked to determine the consequences of the denial.
Whether the benefit in question involves hospitalization, new treatments, out-of-network referrals, or any other clinical need, it should be clear that any decision about these matters is not a payment or benefit decision only. It is a medical decision with potentially serious clinical effects.
Medical standards and policies
Managed care shifts the science of medicine from research and academic institutions to corporate centers. Even though many plans refer to common sources for guidelines and protocols, they typically pick and choose among them to produce the desired result: greater numbers of denials. Some plans subcontract with outside companies that offer criteria designed to produce high denial rates. Others tighten prevailing standards unreasonably to filter out expensive patients.
The guidelines become the norm. Company nurses and doctors bend or ignore them at great peril to their careers or income. By claiming the right to define diseases and treatments, a plan affects patient care. Of course, to claim that this is just a benefit decision is easier when the plan has no responsibility to report denials or to follow up on clinical outcomes.
The organizational and financial success of managed care depends on exhibiting certain performance results, particularly in the areas of lengths-of-stay in hospitals, number of hospital admissions, referral rates, and per-member-per-month costs. These have become the normative standards for comparing the profiles of differing plans, hospitals, and physicians.
As the recent debate over hospital stays for mothers and newborns represents, there may be no independent clinical research on the issue of the appropriate care for a particular type of patient. On the issue of maternity stays, we witnessed a race to the bottom by competing plans, culminating with a plan in California dropping its postpartum stay to eight hours.
This kind of economic experimentation should be taken seriously, because it is happening with many conditions in medicine. We are aware of it with mastectomies and other surgical procedures. The current norm becomes the next number to beat, and downward the industry goes.
The problem with defining benefits is that we may not know what the appropriate care is. Even though federal and state legislatures have passed legislation mandating minimum hospital stays for postpartum care,(9) we still do not know what the appropriate mix of hospital and home care is for certain mothers and babies. Until we begin to monitor the decisions managed care companies make and their consequences, we will not know the industry's true impact on patient outcomes.
Targets for control
In many plans, financial gains are achieved by targeting high-cost, high-volume requests--for example, requests for MRIs, referrals to specialists, and admissions to the hospital--or high-cost diseases--for example, AIDS, cancer, and congestive heart failure. Consumers are not warned that their risk of failing to get a treatment authorized rises with certain costs and areas of need, especially when particular services, diseases, or patients become the targets for control or bottom-line improvement in a plan.
Medical directors and reviewers
Physicians who take these positions cease to be the autonomous professionals they were trained to be. They become "company doctors."
There is no code of ethics or review body to ensure that they do not lose sight of their medical ethics and responsibilities. In fact, the pressure to succeed (that is, to ensure the financial success of the plan and themselves) is so pervasive that it is easy for many of these doctors to become economic agents who use medical knowledge and experience for the benefit of the plan, not for the benefit of patients.
Appeals and reviews by other physicians
Appeals of a medical decision are usually made to the same physician who made the initial denial or to a physician or group with whom the plan has contracted for appeals. Either way, the system is weighted in favor of the plan, not the patient.
Appeals are increasingly used to delay decision making, especially when an employer group may be switching to another company or a patient has a narrow window of time in which to receive a treatment. Even here, it is clear that plans are practicing medicine: They are making decisions with direct clinical effects. Furthermore, the very idea of appeal is foreign to most people who still have remnants of trust in doctors and health care delivery.
The conditions necessitating an appeal are usually traumatic and associated with confusion, anxiety, fear, and grief--the conditions most unlikely to produce the strong self- or family advocacy, clear thinking, and perseverance necessary to make a successful appeal. It is also unreasonable to believe that plans that do not have 24-hour authorization services would have appeal processes available for emergency situations. Furthermore, with the fox guarding the henhouse, a member will always be at a disadvantage in attempting to appeal to the very plan that made the adverse decision in the first place.
Proving a pattern
How can a lawyer go about proving a pattern of practices that may have harmed a patient or a group of patients? First, lawyers should know there is no single piece of evidence that will sufficiently prove the pattern. Rather, attorneys should look for pieces of evidence that fit together like a puzzle, in which the pieces that are missing are just as important as the ones that are present. Plans may try to purge the incriminating documents or hide behind a peer-review or proprietary shield.
It is still possible to uncover and analyze evidence of plan practices and the ways in which they may have produced harm. Generally, obtaining the following would be a useful beginning:
* Benefit booklets and promotional materials. These show what is told and not told to members, especially with regard to medical necessity determinations, restrictions on treatment, definitions of words like ,experimental," and financial incentives for participating doctors.
* Medical standards, protocols, and policies, along with evidence showing how these are determined and used. For example, the definition of "medical necessity" or "experimental" given in the certificate of coverage may not be the same as the definition actually applied when medical reviewers interpret benefits.
* Documents outlining a plan's authorization process. These address what services are authorized, the basis for authorization or denial, details of the process, and the credentials of those who authorize and deny procedures. Internal documents may also describe the company's system for tracking authorizations and denials and how this information is used for utilization management, quality management, physician profiling, credentialing and recredentialing, and financial management.
* Policy and procedure manuals that describe plan administrative operations.
* Utilization monitors, financial reports, savings tables, or other documents that show the kinds of requests that are made and their disposition. Using this kind of information, a plan can keep track of the economic results of its authorization procedures and identify areas over which it must get tighter control.
* Provider contracts. These will show the means by which physicians are made agents of the plans.
* Medical director and reviewer contracts, performance standards, salaries, bonuses, penalties, incentives and disincentives, and methodology for decision making.
* Member surveys, especially if there are narrative sections in which members can lodge complaints.
* Other evidence that varies from plan to plan--for example, internal communications, audit reports, regulatory complaints, and committee minutes.
With these and other puzzle pieces, an attorney can determine the degree to which a plan balances medical and economic responsibilities to members against its financial gain. It is important to realize that obstruction to care can occur as much in nonprofit as in for-profit organizations.
Regardless of type, plans resort to standard cost-cutting strategies at times of financial crisis: They increase denials to lower utilization and increase savings. Even the industry's literature says that "an effective authorization system is a requirement of any managed care plan" and "the tighter the authorization systems, the better the plan's ability to manage the care."(10) Translated simply, this means the success of "authorization" depends on the flip side: restriction or denial of service. Like all puzzles, the patterns will be obvious when enough pieces are present.
Getting more for doing less
Finally, there is one larger and increasing concern: the transfer of the authorization and denial process to the treating physician. Under a capitation arrangement, in which doctors are paid a fixed amount per patient, physicians make more money by doing less. This mechanism makes limitations on benefits less obvious and accountability more elusive. It removes plans one or two steps further away from the consequences of the processes they have put in place, making it easier for them to claim they are only making benefit decisions and are not responsible for the clinical consequences of their system of care. Now the treating physician--not the plan --limits or denies care, a much more dangerous system of rationing.
Until the entire managed care process is systematically understood, we cannot know how to build in the means for industry accountability and patient protection. Medicine should be practiced one patient at a time.
Diseases are simply abstractions, useful categories for research and knowledge. Patients, however, are very real people who suffer and die. For example, 100 individuals with a common label of diabetes have 100 different experiences of this condition. To practice medicine appropriately requires individual attention to the patient's particular manifestation of any disease.
When a new doctor takes the oath of Hippocrates, he or she vows "to follow that method of treatment which, according to my ability and judgment, I consider for the benefit of my patients, and abstain from whatever is deleterious and mischievous." A physician's ability and judgment are honed by years of preparation, education, and experience.
The practice of medicine requires memory, data, interpretation, experience, judgment, and responsibility. Even then, individual patients perplex and challenge the best diagnosticians and healers. As Dr. Sherwin Nuland writes: "I try to do what seems right, but sometimes the course that seems right for this particular patient today is exactly the opposite of what seemed right for someone with what seemed to be exactly the same problem yesterday."(11)
When corporations and company doctors strip away patient particulars, when they quantify away the nuances of a disease, when they rationalize away patient needs as just matters of economics, they vitiate a 3,000-year tradition of patient-focused medicine. For this they should be held accountable, not only for the harm done to particular individuals but for the harm done to the profession and the practice of medicine as a whole.
(1.) See, e.g., David S. Hilzenrath, HMO to Leave Care Decisions Up to Doctors, WASH. POST, Nov. 9, 1999, at A1.
(2.) For more details about the inner workings of managed care, see Issues and Standards for Managed Care: Hearings Before the Subcomm. on Health and Environment of the House Comm. on Commerce, 104th Cong., 2d Sess. (May 30, 1996) (testimonies); Health Managed Care Standards and Regulation: Hearings Before the Subcomm. on Health and Environment of the House Comm. on Commerce, 105th Cong., 1st Sess. (Oct. 28, 1997) (testimonies); Linda Peeno, What Is the Value of a Voice?, U.S. NEWS & WORLD REP., Mar. 9, 1998, at 40-46.
(3.) Eli Ginzberg & Miriam Ostow, Managed Care--A Look Back and a Look Ahead, 336 NEW ENG. J. MED. 1018 (1997); Eli Ginzberg, The Uncertain Future of Managed Care, 340 NEW ENG. J. MED. 144 (1999).
(4.) John E. Ware Jr. et al., Differences in 4-Year Health Outcomes for Elderly and Poor, Chronically Ill Patients Treated in HMO and Fee-for-Service Systems: Results from the Medical Outcomes Study, 276 JAMA 1039 (1996).
(5.) PETER BOLAND, MAKING MANAGED HEALTHCARE WORK: A PRACTICAL GUIDE TO STRATEGIES AND SOLUTIONS 3 (1991).
(7.) PETER R. KONGSTVEDT, ESSENTIALS OF MANAGED HEALTH CARE 342-351 (2d ed. 1997).
(8.) Id. at 342.
(9.) Charles E. Schmidt Jr., Managed Care Faces Stinging Backlash, BEST'S REV., Nov. 1995, at 22; Robert A. Rosenblatt, Federal Mandates in Health Insurance Alarm Providers, L.A. TIMES, Oct. 3, 1996, at D1.
(10.) KONGSTVEDT, supra note 7, at 342.
(11.) SHERWIN B. NULAND, DOCTORS: THE BIOGRAPHY OF MEDICINE 12 (1988).
RELATED ARTICLE: ATLA fights for patients' rights
ATLA strongly supports the Bipartisan Consensus Managed Care Improvement Act, which passed the House of Representatives on October 7, 1999, following a historic two-day debate on patients' rights.
The act, widely known as the Norwood-Dingell bill, lifts Employee Retirement Income Security Act (ERISA) preemption of state law to permit actions to recover damages for personal injury or death against an insurer or plan administrator for an ERISA-protected plan. Under the bill, punitive damages also would be available if permitted by state law, but only when a plan failed to comply with the recommendation of an external review panel. The bill prohibits lawsuits against employers except where an employer makes a medical decision.
In addition to giving patients the right to hold plans legally accountable, the House bill expands patient protections by ensuring Americans with private health insurance access to emergency room treatment, pediatric care, OB/GYN care and certain clinical trials. It also provides for continuity of care and other guarantees.
New law pending?
The result achieved in the House, on a vote of 275-151, does not necessarily mean that Americans will have a new law on patients' rights to celebrate before Congress adjourns later this year. The House bill must first be reconciled with a much narrower, deeply flawed bill passed by the Senate last July.
Although a House-Senate conference committee likely will begin meeting soon in an effort to resolve the differences between the two bills, the powerful health insurance lobby is already actively opposing sending anything that looks like the Norwood-Dingell bill to the president.
And the Republican leadership in the House has declined to appoint any of the 68 House Republican supporters of the legislation to the conference committee--even including Rep. Charlie Norwood (R-Ga.), one of the bill's chief sponsors.
Meanwhile, the Senate Republican leadership also appears steadfastly opposed to allowing Americans to hold managed care plans accountable. By a 53-47 vote, the Senate passed a managed care bill that provides too few protections to too few patients. (Only 2 Republicans joined all 45 Senate Democrats in voting against the bill.)
Appeals allowed, but ...
Although the legislation would allow patients to appeal care decisions to an external review panel, the bill gives patients no new right to sue providers, and it preserves ERISA preemption of state law. It guarantees access to OB/GYN and other specialty care, and it ensures coverage of emergency room services. But unlike the House bill, it protects only patients in federally regulated plans, not all Americans with private health insurance.
ATLA is working hard to help enact a real patients' bill of rights, with real reforms and real protections. It is abundantly evident by virtually every reliable measure of public opinion that Americans want the right to hold their managed care plans legally accountable. Still, while pressure may build for some conference agreement that includes legal accountability, the president and the bipartisan coalition that championed the House bill are likely to insist on something that looks very much like Norwood-Dingell. That is the right course.
One possible result may be a stalemate in conference that turns managed care accountability into a major campaign issue next fall.
--ATLA Public Affairs Department
Linda Peeno is a doctor practicing in Louisville, Kentucky.
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|Date:||Feb 1, 2000|
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