Section 5: Suggestions for Addressing Ethical Issues in Managed Behavioral Health Care

The ethical issues described in this monograph can be addressed in a variety of ways. Some responses lie beyond the capacity of payers or providers. For example, an accessible, universal behavioral health care benefit would eliminate many of the incentives to cost-shift in the behavioral health care system. Recent Federal legislation that begins to address the parity issue moves in this direction; full coverage for behavioral health care benefits, and the elimination of incentives to cost-shift or undertreat are issues not yet resolved.

Other initiatives by the professional associations also may assist behavioral health care providers. The development of practice guidelines by the American Psychiatric Association contributes to standardizing at least the parameters of practice through a process accessible to and ultimately controlled by practitioners. Managed care companies already employ the equivalent of practice guidelines in determining how benefits will be allocated in their plans. The practice guideline project reinserts the practitioner in the debate over what constitutes appropriate practice in treating individuals with some types of diagnoses.

The State mental health agency and Medicaid agency can also act in their roles as payer and regulator to ensure that the managed care contract addresses the issue of payment for court-ordered services. These agencies can also take steps to try and minimize incentives to cost-shift to the State system from both commercially and publicly financed managed care plans. There are also a number of actions behavioral health care providers and practitioners can take to anticipate and address ethical issues arising from managed behavioral health care.

The behavioral health care organization shapes the practice of its practitioners by the contracts it signs. If those contracts are underfunded, they can create significant ethical issues for practitioners and put clients at risk. Given the importance of these issues, the behavioral health care organization can adopt formal processes that provide an opportunity to formulate and discuss ethical issues. These processes include creation of an ethics committee and adoption of a workable grievance process.

Creation of an ethics committee and adoption of a code of ethics

In the last 20 years, ethics committees have become commonplace in hospitals. Their development was stimulated by the New Jersey Supreme Court's suggestion in the Quinlan case that a hospital "prognosis committee" consider the physician's request to withdraw life support; by a report in 1983 by the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research recommending that institutional ethics committees be established to address ethical issues in patient care; and by a 1985 suggestion by the American Academy of Pediatrics and the American Hospital Association that hospitals caring for newborn infants establish review committees to address issues arising from the care of babies born with disabilities. Finally, in 1992, the Joint Commission on Accreditation of Healthcare Organizations (JCAHO) issued a directive that all hospitals have in place a way of addressing ethical concerns. Given this history, many providers of behavioral health care will already have an ethics committee in place; behavioral health care organizations that do not will have examples to study if they wish to form one.

While ethics committees originated in health care in hospital settings, in the last few years, a number of health care and managed care organizations have adopted formal organizational codes of ethics. For example, the American Association of Health Plans, representing approximately 1,000 HMOs, PPOs, and similar organizations, has created a Philosophy of Care statement. This statement articulates a set of principles that are not binding on the Association's membership but do set forth general principles on patient access to affordable, quality care.

In addition, two large health care providers with holdings in the Midwest and the East have created a Shared Corporate Ethics Committee, which has issued Ethical Guidelines for Managed Care Contracting. The guidelines are based on three premises, titled Dignity of the Human Person, Dignity Can Only Be Protected and Realized in Community, and Special Responsibility for the Poor. The guidelines seek to ensure that members ground their contract negotiations in a set of ethical principles, and at least in part appear to be designed to ensure that the traditional mission of the members to provide care to the poor is not left out of negotiations.

In other settings, State officials have attempted to create ethical parameters for providers. For example, the attorney general of Massachusetts has issued voluntary ethical guidelines for hospitals and for health maintenance organizations. As these various activities suggest, health care organizations (as well as managed care organizations) increasingly have focused on incorporating ethical principles into organizational culture, rather than treating such issues as an afterthought or as unrelated to the business of providing health care. Adoption of a set of ethical principles as part of organizational policy can have the effect of legitimizing discussion within the organization about such issues.

While the composition of an ethics committee, as well as its functions, may vary from organization to organization, a number of issues appear to be worth considering in creating an ethics committee in a managed care setting.

First, an ethics committee designed to consider the types of issues raised in this monograph may have a somewhat different role than the traditional, hospital-based ethics committee, which often exists to consider questions of access to or withdrawal of clinical care for individuals at the end of life, or to determine whether experimental or costly technologies should be made available and if so under what circumstances. For example, an ethics committee designed to ensure that organizational values in conducting the business of managed behavioral health care are grounded in ethical principles may become involved in issues of contracting and advertising, issues that might not be considered by a traditional ethics committee.

Second, the composition of the ethics committee usually will reflect the different perspectives of the organization. For example, an ethics committee designed to reflect on clinical/ethical issues in a hospital setting might be drawn from the various medical staff departments, the pastoral service, and quality assurance and nursing, and might include a representative (for example an ethicist) from outside the hospital. In the managed care context, however, committee members might include not only clinical representatives, but representation from the business and personnel sides of the organization, as well as the counsel's office. Outside representatives might include a consumer or family member. A formal "ethicist" viewpoint might be available through a local university. There is no ideal composition; the point is to ensure that the different organizational perspectives are part of the ethics committee's discussion.

Third, the role of the ethics committee needs to be defined. Are its opinions advisory or binding? How do issues come to the committee? How often does it meet? Is one of its tasks to create an organizational code or principles of ethics? Does it provide training? Does it review contracts to identify ethical issues that the contract might create?

Fourth, where does the ethics committee fit organizationally? Does it report to the company CEO? the chief clinical officer? Or is it viewed organizationally as an appendage, a marketing tool with little visibility internally?

The behavioral health care industry is at an early stage in developing organizational vehicles for considering the ethical issues raised by managed behavioral health care. An ethics committee is one tool for beginning this task. The committee may be provider specific, or, as in the examples noted above, it may span a number of providers with similar organizational values and cultures. Regardless of the vehicle chosen, or its exact composition, development of an organizational strategy for considering the ethical questions raised by managed care contracting may prove useful to the behavioral health care organization in bridging the gap between business decisions and their impact on individual clinical transactions.

Grievance procedures

Federal and State law require health maintenance organizations, managed care companies, and other entities to have a formal grievance procedure to address consumer complaints. Even if such a process is not required, adopting a grievance procedure is a tool that enables a behavioral health care organization to adhere to ethical standards.

A grievance process will have several elements. Those typically mandated by law for entities that must have a formal process include

1. The availability of formal and informal steps for resolving a grievance;
2. Designation of an individual who is responsible for overall administration of the grievance process;
3. Communication to clients regarding the grievance process, including phone numbers of company representatives and information on filing a grievance, with the communication available in the languages of the clients;
4. Posting of information regarding the grievance process, as well as forms for initiating a grievance, at each site where services are provided;
5. A process by which grievances are resolved, including an acknowledgment to the client that the grievance has been received, a fixed amount of time in which the grievance is to be resolved, and notification to the client of the outcome of the grievance;
6. Monitoring by the behavioral health care organization of the outcome of grievances, including changes in practice or policy resulting from the grievance; and
7. Training of staff in the grievance process and its importance to the organization.

In addition to an ethics committee and a good grievance process, the behavioral health care organization might examine such issues as its policies and procedures in the areas of informed consent, what steps the organization takes to ensure continuing care if it is clinically indicated after reimbursement ends, and the organization's stance on the use of coercion. As this monograph has suggested, these are core ethical and legal concerns in a managed care environment, and adopting organizational policies and procedures addressing them may anticipate the problems noted in the text.

The primary burden for ensuring that practice conforms to ethical principles, and for reconciling the tension between cost containment and client treatment needs, falls on the practitioner. This is not a new burden. Ensuring that practice was ethical has always been primarily the responsibility of the treatment provider, and as noted earlier in this monograph, ethical issues existed in a fee-for-service environment as well. In dealing with ethical concerns raised by managed behavioral health care, a number of commentators have made suggestions worth considering.

The ethical stance of the treatment provider

The practitioner, like the behavioral health care organization, will be well served by considering his or her stance on ethical issues before they arise. Dr. James Sabin, whose work in this area was referred to earlier, suggests that practitioners base their work on four ethical principles, including

1. Acceptance by the practitioner of responsibility to the client and to society (the twin duties of fiduciary and steward discussed earlier);
2. Use of the most efficacious and economical treatment available;
3. Promotion of the greatest good for the greatest number of people; and
4. Judicious use of resources.

Others urge the treatment provider to assume the role of advocate for his or her client, particularly in advocating for the benefits the practitioner believes are in the client's interest (Morreim 1991). While advocacy can take many forms, two types of advocacy are noted here. First, the clinician may act as advocate with the managed behavioral health care company. In some circumstances, advocacy may mean pursuing formal appeals processes established by the managed care plan. In other circumstances, it may mean going beyond the appeals processes in attempting to persuade the plan's administrators to make available benefits the clinician believes are appropriate.

Second, the clinician can act in concert with his or her colleagues through professional associations to advocate for ethically based managed care plans. This is not to suggest that every position taken by a professional association in response to managed care necessarily is based on ethical principles or will lead to more ethical care. However, professional associations play a significant role in shaping the environment in which behavioral health care is organized and financed, and participation in professional associations may be a constructive way to act as advocate.

Acting as an advocate is not without risk. Clinicians fear retaliation if they advocate too aggressively with a managed care plan, and so may be inclined only to advocate for the most serious needs. Such a strategy obviously raises its own set of issues, as it forces the clinician to choose which among his or her clients is more "worthy" of advocacy. Concerned with this bind, States have begun adopting legislation prohibiting retaliation against a clinician based on client advocacy. While such legislation does not create absolute protection for clinicians, it does suggest a legislative preference for the role of advocate. Supporting such legislation may be one way in which professional associations can enable their members to play an advocate's role.

Issues to consider when entering a managed care contract

In a managed care setting, terms of the contract are critical. Contracts define the relationship between payer and provider or practitioner, define the rights of enrollees, specify benefits, and establish rates. Contractual terms can establish the parameters of a well-functioning behavioral network; contractual terms can also lead practitioners into the most difficult ethical problems. Yet most behavioral health care professionals have had little if any formal training in contract law or contract negotiation. Today, professional meetings increasingly include sessions on these topics, and practitioners might take advantage of such opportunities to better prepare themselves for negotiating contracts.

Haas and Cummings (1992) suggest several issues that a behavioral health care provider should consider before entering a managed care contract. These suggestions will assist the practitioner in thinking in advance about a number of the issues identified in this monograph:

1. The practitioner should identify who bears the financial risk in the contract, recognizing that the greater the financial risk borne by the treatment provider, the greater the temptation to skim in client selection, limit access and utilization, and "dump" clients onto other systems.
2. The practitioner should identify the ways in which the plan intrudes into the therapeutic relationship. Note that capitated contracts can create great flexibility as well as risk for the treatment provider; in an adequately funded plan, the provider may enjoy even more flexibility in meeting service needs than in a traditional fee-for-service program. Conversely, in an inadequately capitalized plan, or in a plan with significant utilization limits, the ability of the provider to meet client need may be significantly reduced.
3. Does the plan provide exceptions to the rules? Haas and Cummings suggest that if there is not some flexibility to the rules, providers will be tempted to engage in activities (for example, changing the diagnosis) designed to capture additional reimbursement but that violate ethical standards and may do harm to the client.
4. What alternatives exist if the client requires them or exceeds plan benefits? As the earlier discussion of the legal decisions suggests, some providers have abandoned their patients as benefits expire. The provider should consider in advance what alternatives are available if the client needs continued care but financial resources within the plan are exhausted.
5. Does the plan provide assistance to the provider or training to help the provider reach treatment goals? Haas and Cummings observe that many plans favor short-term therapies. If the provider is not trained in these approaches, will the plan help him or her in gaining the necessary competencies?
6. Does the plan create incentives to hospitalize clients? As noted earlier, some plans may create incentives to hospitalize clients or transfer them to other, more restrictive treatments for financial rather than clinical reasons. Such incentives are problematic clinically, ethically, and financially (in terms of the overall allocation of health care resources).
7. Does the provider have the opportunity to raise concerns about the plan and otherwise make suggestions to the managed care plan?
8. Does the plan inform enrollees about benefit limitations? As this monograph suggests, the emerging doctrine of "economic informed consent" places at least some of the burden for ensuring that the client understands the impact of benefit limitations upon the treatment provider. However, the provider may wish to review the materials used by the plan in advertising and marketing its services, as well as the materials used to inform enrollees of benefits and benefit limitations.

In addition to these issues, the practitioner should pay particular attention to the contractual definition of "medical necessity" (or "clinical necessity" if that phrase is used). This definition, applied to the benefits available in the plan, generally will control reimbursement decisions.

Summary

Unless great care is exercised by payers, caregivers, and government, managed care systems can place undue pressure on both managed care organizations and providers to violate basic principles of medical ethics. While incentives in both fee-for-service and managed care behavioral health care systems can contribute to unethical behavior, managed care poses particularly challenging ethical issues due to the frequent tension between the goals of cost containment and obtaining services for people with mental disorders.