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[Woodstock Report, March 1999, No. 57]
Copyright © 1999 Woodstock Theological Center
All rights reserved
The Woodstock Theological Center sponsored a February forum to mark the publication of Ethical Issues in Managed Health Care Organizations (Georgetown University Press, 1999). The publication is a consensus statement to which all of the 54 Woodstock seminar participants subscribed after two years of study and four major conferences. Participants represented all aspects of managed health care: physicians, nurses, and other clinicians, executives and medical directors of health care organizations, corporate purchasers of health care plans, directors or presidents of national associations, and academic experts in ethics and economics. The moderator of the discussion was seminar participant Sister Carol Taylor, CSFN, senior research scholar at the Center for Clinical Bioethics and the Kennedy Institute of Ethics and an assistant professor of nursing at Georgetown University. The three forum panelists were also seminar participants: John M. Ludden, M.D., Raymond L. Scalettar, M.D., and Paul M. Schyve, M.D. We present an edited and abridged version of the forum.
OVERVIEW OF THE SEMINAR
Paul M. Schyve, M.D., is a senior vice president at the Joint Commission on Accreditation of Healthcare Organizations. From 1988-93, Dr. Schyve was vice president for research and standards and from 1986-89, he was director of standards for the Joint Commission. Prior to 1998, he was a clinical director of the State of Illinois Department of Mental Health and Developmental Disabilities. He has published on psychiatric treatment, quality assurance, continuous quality improvement, health care accreditation, and health care ethics.
Good evening. I’m especially pleased to be able to participate in this evening’s forum. I had the privilege of being a member of the Woodstock Theological Center seminar on "Ethical Issues in Managed Care Organizations." For me, it was an enlightening—and a growing—experience.
Based on this experience, I would like to set the stage for our discussion tonight by providing an overview of how the seminar worked, the questions we confronted, what we learned, and our conclusions and recommendations.
How many of you have had concerns personally about the ethics of decision making in managed care? How many of you have read about others’ concerns? Just about everyone has these concerns, including those working in managed care.
Case study. Let’s place ourselves in the position of Dr. Stanley. Dr. Stanley is a medical director at Springdale Health Systems, a regional managed care organization. He chose to work for Springdale because it had a reputation for, and a strong commitment to, delivering appropriate, high quality care to its covered population and was at the forefront in developing practice protocols based on careful population-based outcomes research. He serves on an internal review committee that sets Springdale’s policies about coverage for new, experimental treatments, and reviews applications for exceptions to those policies. This week, the committee must review an application by a family that wants to go outside the network to get a highly experimental—and in Dr. Stanley’s opinion, risky and unlikely to be successful —treatment for an eight-year-old boy with inoperable brain cancer. The family has already managed to gain intensive media attention in response to the initial denial of coverage by his organization. On the medical facts alone, given his doubts about the efficacy of the treatment, Dr. Stanley would be quite comfortable in denying the exception, and he is worried that granting the exception would set a bad precedent. But he is also worried that continued negative publicity involved in denying coverage could undermine Springdale’s hard-earned reputation for excellence. What should he do? How many of you are sure—right now—of what Dr. Stanley should do? What is the ethical decision?
Medical directors and administrators in managed care organizations face those kinds of decisions on a daily basis. For all the Dr. Stanleys in the world to be able to make good ethical decisions, they need some help. That was the purpose of the seminar. But that help couldn’t come from all the Dr. Stanleys in the world talking with each other. It had to come, instead, from many stakeholders talking together.
By "stakeholders" I mean all who will be affected by these decisions: the patients, families, physicians, payers, medical directors in managed care organizations (the Dr. Stanleys), and the administrators in managed care organizations. The membership of the seminar was composed to represent these various stakeholders. It included doctors, nurses, managed care medical directors and administrators, purchasers and insurers, representatives from patient advocacy groups, lawyers, policymakers, ethicists, government representatives, educators, and accreditors—that’s how I became involved.
Problems and perspectives. We began by telling each other what we thought the problems were—what were the "unethical" decisions we had seen managed care organizations make. But something interesting started to happen. First, people who we assumed would have the same perspective—say, all the doctors—didn’t always agree on what would be the right decision. Second, we each began to understand the perspectives of those with whom we disagreed. It wasn’t that they were unethical in their decision making; it was that the set of ethical principles that guided their decision making—principles that we all usually agreed with when we heard them—was not the same set that had guided our own decision making. When we listened, what others said made sense, even if they reached a different conclusion than we did. The seminar participants also realized that we had heard these same disagreements before—before managed care. We had just never heard them so explicitly and so frequently.
As we tried to tease apart these disagreements between stakeholder groups, we recognized an interesting pattern. Some of us came from backgrounds focused on providing care to individual patients. These participants had an ethical tradition based on principles such as patient autonomy and commitment to the individual. Others of us came from backgrounds focused on public health and public policy. These participants had an ethical tradition based on principles such as balancing the good of the individual against the good of the many. Still others of us came from backgrounds focused on business and the financing of health care. These participants had an ethical tradition based on principles such as the obligation to fulfill contracts and truth telling.
Our discussions led us to conclude that sometimes the principles in these three ethical traditions clashed. It is difficult, for example, to commit resources entirely to one patient, while also balancing the good of the individual against the good of the many. That’s when we saw why these conflicts were suddenly more explicit and frequent under managed care. It’s because managed care merges these three activities into a single organization. That is, caring for individual patients, distributing care throughout an enrolled population and trying to improve that population’s health, and financing the care are all responsibilities of a managed care organization. No wonder Dr. Stanley faces such challenges. Society is asking him to resolve ethical conflicts—on a daily basis—that society as a whole has been avoiding up to now. Poor Dr. Stanley! How could the seminar participants help him?
Ethical principles. First we thought we could list all of the ethical principles that guided each of the three traditions: providing individual care, improving population health, and financing care. We thought we could then reach a consensus on the priority of each principle; that is, which principle "trumped" which other principles—the child’s game of rock, paper, and scissors. Unfortunately, this grand idea failed. It turned out that determining which principle was to be dominant when two principles were in conflict was often dependent on the facts of the case. We could find no universally applicable hierarchy of these ethical principles. So no help to Dr. Stanley came from this direction.
But, if each decision required knowledge of both the principles and the facts, we realized that we could offer Dr. Stanley a process for making an ethical decision. Notice, I did not say the ethical decision. There may be more than one decision derived from a specific set of principles and facts that can be recognized as ethical—even if each of us might arrive at a somewhat different decision.
A fundamental question the seminar focused on in designing this process was: is the goal to have consensus among stakeholders? While we agreed that consensus is the ideal, we also recognized that it often can’t be achieved—yet a decision must be made. So, in the end, we proposed a process that may lead to consensus, but need not. It is designed to yield ethical decisions when values are in conflict, whether or not consensus is reached.
The eight-step process. The eight steps of the process are as follows. First, assemble the facts and describe the problem. Clarify the nature of the conflict or uncertainty and its relationship to the mission of the organization. Secondly, identify the stakeholders who are or will be affected by the decision. Third, identify the interests, values, and preferred outcomes of each of these stakeholders. Face-to face interaction at this step is desirable, but not always feasible. For example, patient confidentiality may prohibit the sharing of the patient’s identity and personal health information. Fourth, evaluate the priorities of each of the various stakeholders. This is facilitated by each stakeholder hearing the priorities of the other stakeholders. Five, brainstorm about possible solutions or courses of action. Six, make the decision. If consensus is achieved, great. If it is not achieved, but seems close, retrace the steps of identifying values, evaluating priorities, and brainstorming to see if it can be achieved. If consensus is out of reach, the clinician or administrator must make the decision. The seminar advises him or her to "sleep on it" and to consult with a wise and trusted colleague before making the final decision. Seven, communicate the decision. The decision must be clearly explained to those who are affected by it and to others for whom it sets policy for future decisions and actions, but always with respect for the confidentiality of patients. The eighth step is to monitor, learn, and make adjustments. It is important to determine whether the decision is followed, and if not, why not. Perhaps it was not communicated well; perhaps it was faulty to begin with; or perhaps conditions have changed. While the ethical principles may not change, the facts may (e.g., growing evidence of the safety—or lack thereof—of the experimental treatment Dr. Stanley was evaluating).
A checklist for the decision maker. You may wonder if this eight-step process is applicable in the real world. We did. So seminar participants tried two things. First, we role-played Dr. Stanley’s dilemma using the eight-step process. A health plan medical director played Dr. Stanley. It worked. Although not everyone agreed with our "Dr. Stanley’s" decision, everyone respected it and agreed that it was an "ethical" decision. Second, we recognized that this process cannot be followed for every daily decision, so we developed a checklist of questions the decision maker should ask him or herself when discussions with—let alone among—the many stakeholders are not feasible. The basis for this list of questions is the same as that for the eight steps.
Is there a Dr. Stanley in the house? The seminar participants hope that this report will be helpful to you and to your colleagues. Thank you.
CONFLICTING CLAIMS AND VALUES
John M. Ludden, M.D., was until recently a senior vice president for Harvard Pilgrim Health Care (HPHC) and prior to that served for nine years as HPHC’s medical director. Dr. Ludden practices psychiatry at Brigham and Women’s Hospital and the Kenmore Center, Harvard Vanguard Medical Associates. He is a member of the editorial advisory board of Managed Healthcare News, the board of directors of the American Association of Health Plans, the editorial board, Health Care Business Digest, and the ethical FORCE oversight body of the American Medical Association.
I want, first, to express gratitude for the chance to participate with the entire Woodstock group in the preparation of this document. If we learn anything in this information age, it is how isolated our individual ways of thinking about the world can be.
Distrust of "managed care" is widespread, deep, and well documented. For instance, medical professionals, as a class, are suspected of pursuing their own economic success rather than caring. Yet, at the same time, measured satisfaction with health plans remains high. And, the trust and satisfaction that we each have for our own physician is very strong. How can one explain this contradiction?
My assignment tonight is to discuss "conflicting claims and values in managed health care that need to be resolved in the decision-making process." I want to spend a few minutes on "conflicting claims and values" and then a few minutes on the word "resolved."
Our document suggests that a clear and equitable process for evaluating a complex issue considers all the ethical dimensions of a problem. Concrete issues of health and disease, intervention and treatment always come with a story. The story may be the patient’s, or it may be the doctor’s, or the chief financial officer’s. The process provides a structure, almost a checklist, that assures that the different voices will be heard. While it is perilous to generalize too easily about "conflicting claims and values," some are regularly repeated. I will mention three of these "themes."
Population vs. individual. The first theme is the conflict between "population" and "individual." In the words of Star Trek’s crew, "When does the good of the one outweigh the good of the many?" I want to force you to think of that in concrete terms. These are not abstractions but involve real suffering. If I give you an advanced antibiotic for your probably viral head cold, I compromise the effectiveness of that drug in its future use for someone else by helping to create resistant microorganisms. I may also drive the general costs of pharmacy benefits a little bit higher and increase next year’s premium for you or your company or both. As a physician I may also deviate a little from my own "measured practice profile" and cost myself a small bonus payment. On the other hand, if I do not give you the antibiotic, you may feel uncared for and/or you might even change doctors. If you turn out to have a bacterial complication you might lose your job or sue me.
Medical necessity. The second troublesome theme concerns something called "medical necessity." "Medical necessity" means that some medical treatment (an examination, a test, an operation, a drug, a therapy) is a requirement for care. But, when legislators try to define it, or when medical directors try to apply it, "medical necessity" becomes a complicated set of questions. Can something be medically necessary if there’s no proof that it works?
What does this document have to contribute to the debates about "medical necessity?" First, the document counsels a process of listening to the voices of the different actors, listening with the ear of empathy. That means empathy for those in charge of the budget, for those charged with formal quality assessment, for physicians at the patient’s side, and for the patients and their families. It is easy to take sides. It is hard to listen in earnest to differing views, harder still to listen with an open mind. And hardest to listen to conflict knowing that a decision—an "either/or"—will have to be made. What we sought to construct in this document was a structure, a process that might make such a personal and interpersonal debate tolerable.
Accountability. A third theme is "accountability." In the case study Paul Schyve just described, you can see how the number of accountable people, functions and organizations can multiply. At a population level, accountability means being responsible for results. My colleagues Jim Sabin and Norm Daniels, in the Department of Ambulatory Care and Prevention at Harvard, in a recent article in Health Affairs, have emphasized the need for something they call "accountability for reasonableness." Complex decisions need open exploration and clear explanation.
Resolved. Finally, I would like to comment on the word "resolved," in accord with my assignment this evening: "discuss conflicting claims and values in managed health care that need to be resolved in the decision-making process." Physicians and other executives in managed care organizations are in the difficult position of making decisions in real time in the presence of information that is often incomplete. It is my belief that an ethical approach in such decisions has to honor the importance of both. Simplicity or legalism can be seductive. We must avoid premature resolution. In medical care, not everything is possible. Resources are not unlimited, even though we don’t know what the limits are or should be.
Conclusion. It is not clear what the next developments will be in the evolution of our health care system, but the conflict of claims and values will persist. Conflicts and consequences will be on the table and people will respond to them with continued distrust and diversity.
Our work in this seminar will have been useful if it provides some structure and a few lampposts for this journey.
MANAGED CARE: A WORK IN PROGRESS
Raymond L. Scalettar, M.D., is a clinical professor of medicine at the George Washington University Medical Center. A past commissioner of the Joint Commission on Accreditation of Healthcare Organizations and a former member and chair of the board of trustees of the American Medical Association, Dr. Scalettar is a master of the American College of Rheumatology and a frequent discussant and presenter on health policy issues.
I am honored to have been asked to participate in this forum. Many believe that managed care, as currently structured, is an anachronism. However, as one who believes in a pluralistic health care delivery system, I think that managed care is a work in progress which will continue to evolve. With the demise of the Clinton health plan, managed care has flourished and has been the dominant method of health care delivery throughout this decade. Contentious issues of overutilization in indemnity or fee-for-service plans and underutilization in managed health care plans have served to focus our attentions on a fundamental tenet: there are finite economic resources which limit our funding of health care delivery.
Greater insight. I have been asked to comment on specific questions. For example, "How can physicians benefit by the recommendations of our publication?" Hopefully, our recommendations will give physicians greater insight into the conflicts that abound in the decision-making process. This would include a better understanding of the competitive pressures on managed care plans and their need to improve performance to attract more members and more capital. This, of course, is the economic aspect of the equation, which physicians and others are being asked to understand and accept—perhaps reluctantly.
The crux of the conflict. But this brings us to the crux of the conflict of cultures, values, and goals. While physicians may have gained better insight into the economics and the budgetary practices of managed care, the basic conflict remains. It is over the implications of "distributive justice," in which concern is oriented towards the group or public rather than to the individual. Many physicians simply cannot abandon their covenant to be ethical healers in exchange for "the greatest good for the greatest number." Is the Oath of Hippocrates dead in the world of managed care, or is it, too, just one more work in progress?
With these fundamental gnawing conflicts, one must ask how we can improve the health care delivery system in the future. Is for-profit managed care justifiable at a time when plans are continuing to transfer increased risk and cost to patients and employers? Should shareholders of publicly traded companies be part of the group of competing stakeholders at a time of such enormous economic constraints?
The ongoing dichotomies in this dialogue are the standards of medical necessity and quality care versus contractually covered goods and services. As we saw in the case study in our document, medical judgment ultimately triumphs over contract language. However, our medical director is making decisions of medical practice with life and death consequences. It is on a razor’s edge that a medical director walks, with potential tragic consequences for the patient.
A new paradigm. Do we need a new paradigm? One might put patients in control of their own medical destiny and decision making through an insurance policy no longer funded by employers but by the patient him or herself. Or, can we not at least encourage plans to have more point-of-service options? Is the future to be determined by successful innovative local community plans, or will we go to a federalized single-payer system? Whatever the new course, consumer groups and patients must be empowered in the future health care delivery system. This cannot be left to corporate benefit managers alone.
How can physicians contribute to the ethical decision making in managed health care organizations? In the concluding remarks of the monograph, at least seven problems are identified as those of broad social policy which managed care cannot solve. They include: the uninsured, portability of benefits, continued economic cost pressures, marketplace pressures, cost shifting to the insured of losses from the uninsured, loss of financial support for medical education and research, and parity of benefits for medical services. Solving these problems will require fundamental public-private decisions regarding the direction health care will go in the next decade.
Physicians and health care profession leaders already have experience in dealing with certain of these problems. For example, managed care organizations could utilize the medical staff model that exists in hospitals for evaluating outcomes and credentialing. A non-partisan "bill of rights"
to protect the patients makes sense. If the leadership of many of these health plans had voluntarily adopted and implemented such strategies, the negative attacks on managed care could have been averted.
Conclusion. In conclusion, we should heed the remarks of the late, beloved, Joseph Cardinal Bernardin, Archbishop of Chicago, as he addressed the AMA House of Delegates on December 5, 1995, on the subject of "Renewing the Covenant With Patients and Society." He reaffirmed that medicine has a moral center which must not be lost or shattered by the marketplace; that we must reset our moral compass and renew our covenant with our patients. To sustain our covenant requires a willingness to incorporate into our lives "the ancient virtues of benevolence, compassion, competence, intellectual honesty, humility, and suspension of self-interest!"