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Managed Care as Regulation: Functional Ethics for a Regulated Environment

Published online by Cambridge University Press:  01 January 2021

Sandra H. Johnson
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Extract

Analysis in bioethics has relied primarily on the identification and application of general principles and on the examination of particular paradigmatic cases. Principalism and casuistry depend on an assumption of generalizability; that is, that learning and insights gained from an understanding of the principles or the case may be effectively applied to other similar situations. For the most part, the particular characteristics of the institutional setting have not played a central role in these approaches. It would appear, then, that what has been learned in the context of one health care setting is transferable, with some few adjustments, to another.

The institutional context does make both a practical and a substantive difference, however, and shifting ethical analyses from one context to another has sometimes proven difficult. This has been so, for example, in the context of nursing home care.

Type
Article
Information
Journal of Law, Medicine & Ethics , Volume 23 , Issue 3 , Fall 1995 , pp. 266 - 272
Copyright
Copyright © American Society of Law, Medicine and Ethics 1995

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References

See generally Pellegrino, Edmund D., “The Metamorphosis of Medical Ethics: A 30-Year Retrospective”, JAMA, 269 (1993): 1158–62; Rothenberg, Karen, “New Perspectives for Teaching and Scholarship: The Role of Gender in Law and Health Care,” Maryland Law Review, 54 (1995): 473–87; and Wolf, Susan M., “Shifting Paradigms in Bioethics and Health Law: The Rise of a New Pragmatism,” American Journal of Law & Medicine, XX (1994): 395–415.CrossRefGoogle Scholar
Conroy is an exception to the norm, in the sense that the court established procedures specifically for the nursing home setting; however, the substantive principles developed in the case did not depend on the setting of care. See In re Conroy, 98 N.J. 321, 486 A.2d 1209 (N.J. 1985).Google Scholar
Collopy, Bart Boyle, Philip Jennings, Bruce, “New Directions in Nursing Home Ethics,” Hastings Center Report, 21, no. 2 (1991): S1–15. See also Collopy, Bart Dubler, Nancy Zuckerman, Connie, “The Ethics of Home Care: Autonomy and Accommodation,” Hastings Center Report, 20, no. 2 (1990): S1–16.CrossRefGoogle Scholar
Collopy, Bart, “Autonomy in Long Term Care: Some Crucial Distinctions,” The Gerontologist, 28 (1988): 10–17.CrossRefGoogle Scholar
See, for example, Hall, Mark A., “Rationing Health Care at the Bedside,” New York University Law Review, 69 (1994): At 740–44.Google Scholar
See, for example, Goldsmith, Seth B., Long-Term Care Administration Handbook (Gaithersburg: Aspen, 1993): At 124–30. Some administrators have described compliance with government regulations to be “at the core of the administrative function.” See Abramovice, B., Long Term Care Administration (New York: Haworth Press, 1988): At 173.Google Scholar
A growing literature is focusing on the tension inherent in the health care administrator's role, especially when that role is assumed by physicians. See, for example, Kissick, William L., “Bridging the Cultural Gaps,” Physician Executive, 21 (1995): 3–6; and Kindig, David A. Kovner, Anthony R., eds., The Role of the Physician Executive (Ann Arbor: Health Administration Press, 1992).Google Scholar
See, for example, McGlinn, Daniel et al., “A Day in the Life of a Physician,” Michigan Bar Journal, 73 (1994): 142–46.Google Scholar
See inter alia Linney, Barbara J., “Changes in the Practice of Medicine,” Physician Executive, 19 (1993): 59–63; and Saxena, Virendra, “Putting Out the Flames that Threaten Medicine,” American Medical News, Mar. 22, 1993, at 31. As to nursing home regulations, see, for example, Childress, James F., “If You Let Them, They'd Stay in Bed All Morning: The Tyranny of Regulation in Nursing Home Life,” in Kane, Rosalie Caplan, Arthur, eds., Everyday Ethics: Resolving Dilemmas in Nursing Home Life (New York: Springer, 1990): 79–89.Google Scholar
See, for example, Jost, Timothy S., “Enforcement of Quality Nursing Home Care in the Legal System,” Law, Medicine & Health Care, 13 (1985): 160–72; and Institute of Medicine, Committee on Nursing Home Regulation, Improving the Quality of Care in Nursing Homes (Washington, D.C.: National Academy Press, 1986).CrossRefGoogle Scholar
On the subject of incentives for overtreatment in fee-for-service (FFS) medicine, see Office of Technology Assessment, Defensive Medicine & Medical Malpractice (Washington, D.C.: OTA, OTA 22–23, 104–105, July 1994) (concluding that it was impossible to separate the overtreatment inducements of the medical malpractice system from those of FFS payments).Google Scholar
Bodenheimer, Thomas Grumbach, Kevin, “The Reconfiguration of U.S. Medicine,” JAMA, 274 (1995): 85–90 (using this phrase to describe the Blue Cross/Blue Shield structure prior to the cost-control drive).CrossRefGoogle Scholar
Roberts, Holly M.D., as described in Ziegler, Jan, “Drive-Through Delivery: Bargain or Blunder?,” Business and Health, Sept. (1995): At 19.Google Scholar
Sanders, Paul M.D., as quoted in Baden, Patricia Lopez, “Are Short Stays OK After Births?,” Minneapolis Star-Tribune, Aug. 8, 1995, at 1A.Google Scholar
Pisano, Marina, “Drive-Through Deliveries,” San Antonio Express-News, Sept. 17, 1995, as cited 1995 WL 9502145.Google Scholar
David Strand as quoted in Baden, , supra note 15, at 1A.Google Scholar
See, for example, Hillman, Bruce J. et al., “Physician's Utilization and Charges for Outpatient Diagnostic Imaging in a Medicare Population,” JAMA, 268 (1992): 2050–54; and Mitchell, Jean M. Scott, Elton, “Physician Ownership of Physical Therapy Services: Effects on Charges, Utilization, Profits and Service Characteristics,” JAMA, 268 (1992): 2055–59. Each report on increased utilization where there is self-referral.CrossRefGoogle Scholar
See, for example, Rodwin, Marc A., “Conflicts in Managed Care,” N. Engl. J. Med., 332 (1995): 604–07 (describing such clauses).CrossRefGoogle Scholar
For an analysis of the impact of race in managed care, see Randall, Vernellia R., “Racist Health Care: Reforming an Unjust Health Care System to Meet the Needs of African-Americans,” Health Matrix, 3 (1993): 127–94. There may also be an adverse discriminatory impact on physicians serving poor and minority populations. See Note, “The Impact of Managed Care on Doctors Who Serve Poor and Minority Patients,” Harvard Law Review, 108 (1995): 1625–42.Google Scholar
Many significant efforts have been made to guide physicians on that difficult question. See, for example, Council on Ethical and Judicial Affairs, American Medical Association, “Ethical Issues in Managed Care,” JAMA, 273 (1995): 1937–12; Wolf, Susan M., “Health Care Reform and the Future of Physician Ethics,” Hastings Center Report, 24, no. 2 (1994): 28–41; and Emanuel, Ezekiel J. Dubler, Nancy N., “Preserving the Physician-Patient Relationship in the Era of Managed Care,” JAMA, 273 (1995): 323–29.Google Scholar
Of course, the physician and the MCO have a legal duty to provide the patient with treatment required under the applicable standard of care. For a complete discussion of the relative legal liability of doctors and managed care, see Furrow, Barry R. et al., Health Law (Minneapolis: West Treatise Series, 1995): Ch. 8.Google Scholar
California has enacted a statute to protect physicians from termination in retaliation for acting as an “advocate for appropriate health care for their patients.” See Cal. Bus. & Prof. Code § 2056. This statute was based on legislation developed by the American Medical Association. Similar legislation was passed by the Texas legislature, but was vetoed by the governor. See Newswire, PR, “Statement of the Group Health Association of America on Veto of Texas Physician Protection Legislation,” June 18, 1995.Google Scholar
For background on the regulatory and other legal issues regarding physical restraints, see Kapp, Marshall B., “Nursing Home Restraints and Legal Liability: Merging the Standard of Care and Industry Practice,” Journal of Legal Medicine, 13 (1992): 1–32; and Johnson, Sandra H., “The Fear of Liability and the Use of Restraints in Nursing Homes,” Law, Medicine & Health Care, 18 (1990): 263–73.CrossRefGoogle Scholar
For a review of such a situation in another context, see Duggan v. Bowen, 691 F. Supp. 1487 (D.D.C. 1988). In this case, the court reviewed an agency action in which the definition of “part-time or intermittent” home health care was altered, through a transmittal letter to intermediaries, to exclude part-time care if given over more than five days per week. The Department of Health and Human Services routinely denied coverage for more extensive home care services, but routinely granted coverage on appeal to its highest level of appeal.Google Scholar
Evans, L. Strumpf, N., “Tying Down the Elderly: A Review of the Literature on Physical Restraint,” Journal of the American Geriatric Society, 37 (1989): 65–74; and Dube, Arthur H. Mitchell, Erik K., “Accidental Strangulation from Vest Restraints,” JAMA, 256 (1986): 2725–76.CrossRefGoogle Scholar
See, for example, Letter from Vivienne Wisdom, Executive Director of the New Hampshire Health Care Association to Sununu, John, Mar. 11, 1991 (describing that the members of the New Hampshire Health Care Association (a nursing home trade association) experienced “profound improvement in the quality of life,” increased staff morale, and more frequent visitors to residents on reduction of restraints).Google Scholar
See, for example, Council on Ethical and Judicial Affairs, supra note 21 (describing a choice between contrast media based on cost and pain); and Faltermayer, Edmund, “Will the Cost of Cutting in Health Care Kill You?,” Fortune, 130 (1994): 221–27 (describing how less invasive techniques preferred in managed care can avoid painful outcomes for patients).Google Scholar
See, for example, Rothman, David, Strangers at the Bedside: A History of How Law and Bioethics Transformed Medical Decision Making (New York: Basic Books, 1991).Google Scholar
See, for example, Somerville, Janice, “Doctors, HMOs Give Peace a Chance: Colorado Providers Negotiate Pact on Physician Contract Protections,” American Medical News, Apr. 3, 1995, at 3.Google Scholar