The Journal of law, medicine & ethics : a journal of the American Society of Law, Medicine & Ethics, 2015
Because ethics consults are often more about conflict than moral puzzlement, the skills of confli... more Because ethics consults are often more about conflict than moral puzzlement, the skills of conflict resolution and communication facilitation are now deemed a core competency for ethics consultants. Those skills range beyond the traditional ambit of "bioethics mediation," as illustrated here by a recent mediation regarding a difficult discharge. As conflict permeates healthcare, often spawning downstream ethical issues, conflict resolution services might be deemed a genre of preventive ethics suitably offered by ethics committees. If so, a strong distinction must be made. "Bioethics mediation" as historically defined is a curious amalgam between a consultant who recommends, and a mediator who facilitates consensus among the parties at the table. On closer examination this approach is problematic, particularly in the clinical setting. A mediator who acts as consultant, telling parties what they should do or directly circumscribing the limits of an "acceptable...
Conflicts in the clinical setting can spiral downward with remarkable speed, as parties become ev... more Conflicts in the clinical setting can spiral downward with remarkable speed, as parties become ever more incensed and entrenched in their positions. Productive conversations seem unlikely at best. Nevertheless, such situations can sometimes be turned into collaborative problem solving with equally remarkable speed. For this to happen, those providing conflict-resolution services such as mediation need to bring, not just a set of skills, but also some key norms: the process must be voluntary for all; the mediator must abjure giving advice or taking sides, and must honor the privacy of privately offered thoughts. This article describes a conflict that had reached the point of a hospital's requesting judicial coercion. However, a conflict-resolution process was then initiated that, in the end, led to amicable resolution and mended relationships, obviating the need for court orders. This article describes that conflict and the resolution process in detail, along the way annotating s...
Emerging Challenges I n just a few decades American healthcare financing has, in a sense, come fu... more Emerging Challenges I n just a few decades American healthcare financing has, in a sense, come full circle. After being largely patient-financed in the early twentieth century, generous insurance coverage in mid-century largely permitted providers to do as they wished and charge what they pleased-an Artesian Well of Money that left patients and physicians well-insulated from the costs of care. That system's inevitable explosion of costs spurred urgent efforts to contain healthcare expenditures, as payors sought to control or at least influence medical decisions. In many ways, this "managed
Http Dx Doi Org 10 1080 01947649309510922, Jul 23, 2009
When Greg Chapin checked in with the receptionist at his gastroenterologist's office, he noticed ... more When Greg Chapin checked in with the receptionist at his gastroenterologist's office, he noticed a small sign in the lower left corner of the window: "John Baker, M.D., is a limited partner in Medical Imaging, Incorporated." Following a medical examination, Dr. Baker recommended, and Chapin agreed, that his symptoms warranted a series of radiologic tests. "See Sandy on your way out, and she'll make your appointment," Baker instructed. Sandy found a time that fit Chapin's schedule and handed him a small card bearing the name and address of "Medical Imaging, Incorporated" with the time of his appointment written down on it. What is wrong with this picture? The scenario concerns one of the most hotly debated issues of medicine's new economics: physician investment and self-referral. In recent years, physicians have begun to invest in a wide variety of health care facilities, such as diagnostic imaging centers, home health agencies, and physical therapy services. Such enterprises often promise lucrative success, because the physician who owns them is also in a position to create the demand for them by prescribing these facilities' services for his or her patients. Some commentators suggest that there is no problem. Chapin sought out Baker's medical advice, and must trust that he will provide a quality referral in the same way that he provides quality care. Besides, Baker did disclose his investment interest. If Chapin had not wanted to patronize Medical Imaging, Incorporated, then he could have asked for alternatives. *360 Many other observers, however, contend that when such physician entrepreneurs steer patients into their ancillary facilities, there are serious dangers of overutilization, overpricing, and poorer quality of care. Either physicians must not make such investments at all, these commentators conclude, or they must be forbidden from referring patients there. After reviewing why this issue has posed such vigorous controversy in the past few years, this article shows why current legislative attempts to ban or severely restrict self-referral are fundamentally misguided. As they forbid physicians to send patients to such facilities, these bans reciprocally prohibit patients from using ancillary facilities in which their physicians happen to be investors-even if such a facility is more convenient, medically superior, less expensive, or simply preferable to the patient. Patients are thereby potentially harmed. Most fundamentally, it is a mistake to cast this issue as a question whether physicians should be permitted to refer patients to their facilities or should instead be required to send them elsewhere. That formulation presupposes that the choice of ancillary provider belongs to the physician-that it is the physician's prerogative to "refer" or "send" the patient in the first place. Once it is recognized that patients should be entitled to choose their own providers, just as they are entitled to make informed choices among treatment options, the entire self-referral debate must be re-cast as an issue of free and informed consumer choice. This article then suggests that instead of broad prohibitions, the abuses of self-referral are better managed by enforcing existing laws. For instance, traditional common-law doctrines concerning informed consent and fiduciary duties can enforce patients' rights to make informed decisions among reasonable health care options. The most potent protection for patients as consumers in the health care marketplace, however, comes from antitrust law. On a broad level, groups of physicians who collectively channel their patients into a jointly owned enterprise can quickly drive out existing and potential competitors. Thereby, they may be guilty of monopolization, boycott, or other antitrust offenses. There need not be large groups exerting collective market power, however. Even in the narrower context of individual physicians and patients, selfreferral can offend antitrust law as a tying arrangement. The physician begins with power over the first product, medical care. It is a service that patients need for their health and sometimes their very lives, and which they cannot obtain except through the prescription of a licensed practitioner-usually a particular provider in whom they have invested enormous trust. In self-referral, the investor-physician then uses his or her knowledge and powerful influence over the patient to preempt the patient from exercising choice over the second product, the ancillary health care *361 provider. The leverage exerted in such a tie is not the express requirement or agreement found in typical tying arrangements, but rather is rooted heavily in the fiduciary influence found in the physician-patient relationship. However self-referral is accomplished, it offends antitrust law in the same way as other tying arrangements: by precluding consumers from making purchasing decisions on the merits of the products, and by making new competitors' entry into the field unacceptably difficult. As elsewhere in the antitrust arena, competitors and patients who have been injured can claim treble damages, thus creating potent incentives for physician investors to transform habits of self-referral into careful conversations about options. In the end, the best way to avert the hazards of physician self-referral is not to forbid physicians from investing in potentially useful new facilities, or to prevent patients from using them. Rather, patients as consumers of care should be empowered to make genuinely free and informed choices among competing providers. Patients thus empowered, it is to be hoped, can then help to promote the kind of competition that a vigorous marketplace ought to produce-continually improving quality, efficiency, and price. I. SELF-REFERRAL: DEFINITIONS AND ISSUES This article begins by defining self-referral and locating the issue in its historical context. A referral is preceded by a prescription. In prescribing, the physician both recommends and permits a medical intervention. The recommendation is that the identified test or treatment is in the patient's best medical interests. Permission is necessary because most medical interventions can not be provided for the patient (or paid for by an insurer) without the express prescription of a licensed physician. Some interventions, such as surgery, are provided directly by the physician but others, such as drugs or hospitalization, must be secured through other providers. In the latter situation, physicians commonly refer the patient elsewhere. That is, while the prescription is for a particular service, the referral is for a particular provider. That secondary provider could range from a physician consultant, to a hospital, a diagnostic imaging center, or a supplier of durable medical equipment or home infusion services. Historically, such physician referrals have not been controversial. Hospital choice was usually fairly simple. Even if there were more than one hospital in town, the physician often only had staff privileges at one of them, and thus the choice of hospital was obvious. Similarly, when a subspecialist medical consultant was needed, the physician would select a trusted colleague. So long as physicians were mainly in solo or in small-group, single-specialty practices, a referral to a consultant of another specialty carried no *362 possibility of financial gain for the referring physician. [FN1] Only rather recently have groups of physicians begun to join together in large, multispecialty group practices and to share in the revenues of keeping consultant referrals within the group. Selecting the site for ancillary tests and treatments was likewise usually straightforward. Until just a few years ago, insurers typically only paid for certain procedures, such as invasive diagnostic or sophisticated imaging studies, if they were performed in a hospital. Hence, virtually all such technologies, such [FN239] R. Bloch, supra note 93, at 15.
ABSTRACT One of the causes of the recent upheaval in health care is health plans' adoptio... more ABSTRACT One of the causes of the recent upheaval in health care is health plans' adoption of the concept of "medical necessity" as the limit of their coverage -- i.e., that the plans will cover the cost of procedures that are "medically necessary." The concept has caused hardships for the plans, physicians, patients, and coverage purchasers because medical necessity has proven to be legally vague, clinically artificial, and both unreliable and restrictive for patients. To avoid those problems, plans should jettison medical necessity and the notion that they will provide "all of the care someone needs." Instead, the plans should turn to guidelines-based contracting: They should lay open to consumers the clinical guidelines by which they make benefit determinations, and make those guidelines the explicit basis on which the plans contract with enrollees. That way, people would have a clearer idea of what coverage the plans provide.
A. The Rise of HDHPs Recent decades have witnessed enormous and ongoing change in the American he... more A. The Rise of HDHPs Recent decades have witnessed enormous and ongoing change in the American health care scene. 1 The "Artesian Well of Money" 2 that followed World War II-lavish funding that paid health care providers virtually anything they asked, for virtually any service they rendered-spawned roaring inflation in health care that, in turn, triggered a nearviolent reversal: managed care. 3 Though temporarily successful in
Http Dx Doi Org 10 1080 15265160802662049, Jan 29, 2009
and-conditions-of-access.pdf This article may be used for research, teaching and private study pu... more and-conditions-of-access.pdf This article may be used for research, teaching and private study purposes. Any substantial or systematic reproduction, redistribution , reselling , loan or sub-licensing, systematic supply or distribution in any form to anyone is expressly forbidden. The publisher does not give any warranty express or implied or make any representation that the contents will be complete or accurate or up to date. The accuracy of any instructions, formulae and drug doses should be independently verified with primary sources. The publisher shall not be liable for any loss, actions, claims, proceedings, demand or costs or damages whatsoever or howsoever caused arising directly or indirectly in connection with or arising out of the use of this material.
The Journal of law, medicine & ethics : a journal of the American Society of Law, Medicine & Ethics, 2015
Because ethics consults are often more about conflict than moral puzzlement, the skills of confli... more Because ethics consults are often more about conflict than moral puzzlement, the skills of conflict resolution and communication facilitation are now deemed a core competency for ethics consultants. Those skills range beyond the traditional ambit of "bioethics mediation," as illustrated here by a recent mediation regarding a difficult discharge. As conflict permeates healthcare, often spawning downstream ethical issues, conflict resolution services might be deemed a genre of preventive ethics suitably offered by ethics committees. If so, a strong distinction must be made. "Bioethics mediation" as historically defined is a curious amalgam between a consultant who recommends, and a mediator who facilitates consensus among the parties at the table. On closer examination this approach is problematic, particularly in the clinical setting. A mediator who acts as consultant, telling parties what they should do or directly circumscribing the limits of an "acceptable...
Conflicts in the clinical setting can spiral downward with remarkable speed, as parties become ev... more Conflicts in the clinical setting can spiral downward with remarkable speed, as parties become ever more incensed and entrenched in their positions. Productive conversations seem unlikely at best. Nevertheless, such situations can sometimes be turned into collaborative problem solving with equally remarkable speed. For this to happen, those providing conflict-resolution services such as mediation need to bring, not just a set of skills, but also some key norms: the process must be voluntary for all; the mediator must abjure giving advice or taking sides, and must honor the privacy of privately offered thoughts. This article describes a conflict that had reached the point of a hospital's requesting judicial coercion. However, a conflict-resolution process was then initiated that, in the end, led to amicable resolution and mended relationships, obviating the need for court orders. This article describes that conflict and the resolution process in detail, along the way annotating s...
Emerging Challenges I n just a few decades American healthcare financing has, in a sense, come fu... more Emerging Challenges I n just a few decades American healthcare financing has, in a sense, come full circle. After being largely patient-financed in the early twentieth century, generous insurance coverage in mid-century largely permitted providers to do as they wished and charge what they pleased-an Artesian Well of Money that left patients and physicians well-insulated from the costs of care. That system's inevitable explosion of costs spurred urgent efforts to contain healthcare expenditures, as payors sought to control or at least influence medical decisions. In many ways, this "managed
Http Dx Doi Org 10 1080 01947649309510922, Jul 23, 2009
When Greg Chapin checked in with the receptionist at his gastroenterologist's office, he noticed ... more When Greg Chapin checked in with the receptionist at his gastroenterologist's office, he noticed a small sign in the lower left corner of the window: "John Baker, M.D., is a limited partner in Medical Imaging, Incorporated." Following a medical examination, Dr. Baker recommended, and Chapin agreed, that his symptoms warranted a series of radiologic tests. "See Sandy on your way out, and she'll make your appointment," Baker instructed. Sandy found a time that fit Chapin's schedule and handed him a small card bearing the name and address of "Medical Imaging, Incorporated" with the time of his appointment written down on it. What is wrong with this picture? The scenario concerns one of the most hotly debated issues of medicine's new economics: physician investment and self-referral. In recent years, physicians have begun to invest in a wide variety of health care facilities, such as diagnostic imaging centers, home health agencies, and physical therapy services. Such enterprises often promise lucrative success, because the physician who owns them is also in a position to create the demand for them by prescribing these facilities' services for his or her patients. Some commentators suggest that there is no problem. Chapin sought out Baker's medical advice, and must trust that he will provide a quality referral in the same way that he provides quality care. Besides, Baker did disclose his investment interest. If Chapin had not wanted to patronize Medical Imaging, Incorporated, then he could have asked for alternatives. *360 Many other observers, however, contend that when such physician entrepreneurs steer patients into their ancillary facilities, there are serious dangers of overutilization, overpricing, and poorer quality of care. Either physicians must not make such investments at all, these commentators conclude, or they must be forbidden from referring patients there. After reviewing why this issue has posed such vigorous controversy in the past few years, this article shows why current legislative attempts to ban or severely restrict self-referral are fundamentally misguided. As they forbid physicians to send patients to such facilities, these bans reciprocally prohibit patients from using ancillary facilities in which their physicians happen to be investors-even if such a facility is more convenient, medically superior, less expensive, or simply preferable to the patient. Patients are thereby potentially harmed. Most fundamentally, it is a mistake to cast this issue as a question whether physicians should be permitted to refer patients to their facilities or should instead be required to send them elsewhere. That formulation presupposes that the choice of ancillary provider belongs to the physician-that it is the physician's prerogative to "refer" or "send" the patient in the first place. Once it is recognized that patients should be entitled to choose their own providers, just as they are entitled to make informed choices among treatment options, the entire self-referral debate must be re-cast as an issue of free and informed consumer choice. This article then suggests that instead of broad prohibitions, the abuses of self-referral are better managed by enforcing existing laws. For instance, traditional common-law doctrines concerning informed consent and fiduciary duties can enforce patients' rights to make informed decisions among reasonable health care options. The most potent protection for patients as consumers in the health care marketplace, however, comes from antitrust law. On a broad level, groups of physicians who collectively channel their patients into a jointly owned enterprise can quickly drive out existing and potential competitors. Thereby, they may be guilty of monopolization, boycott, or other antitrust offenses. There need not be large groups exerting collective market power, however. Even in the narrower context of individual physicians and patients, selfreferral can offend antitrust law as a tying arrangement. The physician begins with power over the first product, medical care. It is a service that patients need for their health and sometimes their very lives, and which they cannot obtain except through the prescription of a licensed practitioner-usually a particular provider in whom they have invested enormous trust. In self-referral, the investor-physician then uses his or her knowledge and powerful influence over the patient to preempt the patient from exercising choice over the second product, the ancillary health care *361 provider. The leverage exerted in such a tie is not the express requirement or agreement found in typical tying arrangements, but rather is rooted heavily in the fiduciary influence found in the physician-patient relationship. However self-referral is accomplished, it offends antitrust law in the same way as other tying arrangements: by precluding consumers from making purchasing decisions on the merits of the products, and by making new competitors' entry into the field unacceptably difficult. As elsewhere in the antitrust arena, competitors and patients who have been injured can claim treble damages, thus creating potent incentives for physician investors to transform habits of self-referral into careful conversations about options. In the end, the best way to avert the hazards of physician self-referral is not to forbid physicians from investing in potentially useful new facilities, or to prevent patients from using them. Rather, patients as consumers of care should be empowered to make genuinely free and informed choices among competing providers. Patients thus empowered, it is to be hoped, can then help to promote the kind of competition that a vigorous marketplace ought to produce-continually improving quality, efficiency, and price. I. SELF-REFERRAL: DEFINITIONS AND ISSUES This article begins by defining self-referral and locating the issue in its historical context. A referral is preceded by a prescription. In prescribing, the physician both recommends and permits a medical intervention. The recommendation is that the identified test or treatment is in the patient's best medical interests. Permission is necessary because most medical interventions can not be provided for the patient (or paid for by an insurer) without the express prescription of a licensed physician. Some interventions, such as surgery, are provided directly by the physician but others, such as drugs or hospitalization, must be secured through other providers. In the latter situation, physicians commonly refer the patient elsewhere. That is, while the prescription is for a particular service, the referral is for a particular provider. That secondary provider could range from a physician consultant, to a hospital, a diagnostic imaging center, or a supplier of durable medical equipment or home infusion services. Historically, such physician referrals have not been controversial. Hospital choice was usually fairly simple. Even if there were more than one hospital in town, the physician often only had staff privileges at one of them, and thus the choice of hospital was obvious. Similarly, when a subspecialist medical consultant was needed, the physician would select a trusted colleague. So long as physicians were mainly in solo or in small-group, single-specialty practices, a referral to a consultant of another specialty carried no *362 possibility of financial gain for the referring physician. [FN1] Only rather recently have groups of physicians begun to join together in large, multispecialty group practices and to share in the revenues of keeping consultant referrals within the group. Selecting the site for ancillary tests and treatments was likewise usually straightforward. Until just a few years ago, insurers typically only paid for certain procedures, such as invasive diagnostic or sophisticated imaging studies, if they were performed in a hospital. Hence, virtually all such technologies, such [FN239] R. Bloch, supra note 93, at 15.
ABSTRACT One of the causes of the recent upheaval in health care is health plans' adoptio... more ABSTRACT One of the causes of the recent upheaval in health care is health plans' adoption of the concept of "medical necessity" as the limit of their coverage -- i.e., that the plans will cover the cost of procedures that are "medically necessary." The concept has caused hardships for the plans, physicians, patients, and coverage purchasers because medical necessity has proven to be legally vague, clinically artificial, and both unreliable and restrictive for patients. To avoid those problems, plans should jettison medical necessity and the notion that they will provide "all of the care someone needs." Instead, the plans should turn to guidelines-based contracting: They should lay open to consumers the clinical guidelines by which they make benefit determinations, and make those guidelines the explicit basis on which the plans contract with enrollees. That way, people would have a clearer idea of what coverage the plans provide.
A. The Rise of HDHPs Recent decades have witnessed enormous and ongoing change in the American he... more A. The Rise of HDHPs Recent decades have witnessed enormous and ongoing change in the American health care scene. 1 The "Artesian Well of Money" 2 that followed World War II-lavish funding that paid health care providers virtually anything they asked, for virtually any service they rendered-spawned roaring inflation in health care that, in turn, triggered a nearviolent reversal: managed care. 3 Though temporarily successful in
Http Dx Doi Org 10 1080 15265160802662049, Jan 29, 2009
and-conditions-of-access.pdf This article may be used for research, teaching and private study pu... more and-conditions-of-access.pdf This article may be used for research, teaching and private study purposes. Any substantial or systematic reproduction, redistribution , reselling , loan or sub-licensing, systematic supply or distribution in any form to anyone is expressly forbidden. The publisher does not give any warranty express or implied or make any representation that the contents will be complete or accurate or up to date. The accuracy of any instructions, formulae and drug doses should be independently verified with primary sources. The publisher shall not be liable for any loss, actions, claims, proceedings, demand or costs or damages whatsoever or howsoever caused arising directly or indirectly in connection with or arising out of the use of this material.
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