FORT LAUDERDALE, FloridaWhen managed care companies deny
reimbursement for care decided upon by the physician and patient,
have they crossed the line from managing medical care to practicing
medicine? A panel of physicians, lawyers, patient advocates, and
representatives from managed care held forth on this issue at a
roundtable held during the Fifth Annual Conference of the National
Comprehensive Cancer Network (NCCN).
Moderator Clifford Goodman, PhD, of the Lewin Group, a
Washington-based health care consulting firm, posed the question and
further asked if managed care companies should be held liable for
their decisions in a court of law.
Robert C. Young, MD, president of Fox Chase Cancer Center, believes
they should be held liable. When a patient and physician
determine that a certain intervention is the best medical care and
another set of physicians in an insurance company decides that it
isnt, then the insurance company is practicing medicine,
Dr. Young said, adding that, if this is the case, they should
be subjected to the same liability risks that physicians have when
they practice medicine.
Gail Agrawal, JD, MHA, professor of law, University of North Carolina
at Chapel Hill, agreed that if a physician makes a medical decision,
that physician is practicing medicine, whether the decision is
made in a doctors office, a hospital office, or an insurance
company. But she considers questions of regulation and
liability a separate issue, one that is complicated by the fact that
regulation of medicine falls to the states. This is why we have
50 different laws governing managed care, she said.
Stephanie W. Kanwit, Esq., of Washington-based Epstein, Becker &
Green, added that on top of the various state regulations, we
also have a federal regulation system under ERISA (Employee
Retirement Income Security Act).
ERISA, she said, was passed by Congress in 1974 to regulate
employer-sponsored pension plans and health care benefit plans.
The basic concept was to impose uniformity, so that a national
company such as Xerox could have one standard for its employees
across the 50 states, Ms. Kanwit said.
However, in 1974, only about 4% of the population was enrolled in
plans subject to ERISA regulations; now that figure is close to 80%,
with the majority enrolled in managed care plans. ERISA regulation of
managed care is often at odds with state regulations on such issues
as liability and utilization review.
Nancy Davenport-Ennis, of the Patient Advocate Foundation, said that
the problem, from the patients viewpoint, is that policies are
often written with ambiguous language, and when a treatment is
denied, the patient has nowhere to turn, with ERISA plans, short of
going to federal court, which can take an average of 18 months.
Grace Powers Monaco, JD, director of the Medical Care Ombudsman
Program, in the Washington area, said that managed care plans are
commercial entities that cannot practice medicine. We should
instead be talking about responsibility, she said, not only the
responsibility of the insurer not to deny needed care, but also the
responsibility of patients and their lawyers not to bring
irresponsible lawsuits, and perhaps even of the insurer not to pay
for unproven treatments, except in the setting of a clinical trial.
Ms. Monaco agreed with Ms. Davenport-Ennis that most problems stem
from misunderstandings of the contract language. When treatment is
denied, she emphasized the importance of a speedy internal review
and, if needed, an external review by an independent panel of
physicians, to add another layer of fairness to the system.
Lawrence J. Rose, Esq., a private practice attorney in San Francisco
who represents health plans and provider groups, said that for
insurers to enforce the provisions of their coverage policies is
not the practice of medicine, even if it means that
reimbursement for certain treatments is denied.
He said that the principal areas of friction between health insurers
and oncologists now are less with denial of big-ticket items such as
bone marrow transplants and more with, for example, denial of CT
scans and other diagnostic tools as not medically necessary.
Lee N. Newcomer, MD, of United-Health Group, argued that insurance
must remain affordable. For every percentage point that
weve raised premiums, 300,000 people drop out of insurance, so
there is a constant balancing act about what to cover.
He pointed out that many potentially useful things are specifically
excluded from contracts, such as air conditioners for patients with
allergies and most cosmetic surgery. If experimental treatments are
specifically excluded, he said, the insurer is not practicing
medicine when it makes that decision.
Ms. Davenport-Ennis pointed out that when the employer selects a plan
for its workforce, it may want a Ford policy and not a Cadillac
policy. When the employee needs something that isnt covered in
the plan, such as speech therapy for a child, he or she blames the
Dr. Newcomer noted that some employers have approached
UnitedHealth-care about dropping maternity coverage, to avoid premium increases.
Ms. Monaco and Ms. Davenport-Ennis both suggested the need for a
uniform area of basic coverage that is always guaranteed,
with consumers having the opportunity to purchase additional coverage.
A Red Herring
Although some plans offer financial incentives to physicians or
physician groups for keeping costs down, Ms. Kanwit called this a
red herring. She cited a case of appendicitis
misdiagnosed as an ovarian cyst. The patient received a malpractice
settlement from her physician, who clearly had made a mistake; then
she sued her health care plan, citing its cost-containment mechanisms
as contributing to the misdiagnosis.
Ms. Kanwit pointed out that care of the patient, who developed
peritonitis because of the misdiagnosis, ending up costing the
insurer many thousands of dollars more than an appendectomy.
That any doctor in his or her right mind would leave a patient
with appendicitis untreated, because he or she was more interested in
earning a bonus, strikes me as really absurd, she said.
Dr. Newcomer argued that the panel was discussing the wrong
issue. The real issue, he said, is how do we make the
health care system better? How do we ensure that medical decisions
get made more rationally?
UnitedHealth Group has taken the lead in giving physicians and
patients more autonomy in making decisions. The company has agreed to
pay for patient care expenses for cancer patients enrolled in
clinical trials, and has abandoned the concept of medical necessity.
We found that we only overturned the physicians decision
about 1% of the time, he said.
Instead of reviewing what it considers questionable medical decisions
on a patient-by-patient basis, the company is using physician
profiling to determine patterns of care that merit a closer look and
a possible need for physician education about their practices.
Dr. Newcomer cited studies of cardiologists showing that treatment
decisions are incorrect two thirds of the time. If you have a
heart attack, they forget to give you beta-blockers 42% of the
time, he said. So the question, as he sees it, is not who makes
the decisions, but how do we make the decisions better?
Ms. Monaco agreed that lack of up-to-date medical knowledge rather
than pressure from insurers is more often at the root of poor medical
decision making. We need to have the medical community, in
concert with the health plans, police their own doctors, she said.
She also emphasized the need for consumer education. We need a
curriculum that starts at the grade school level in science that
makes our kids informed medical consumers, she said.
With the problems of managed care clearly delineated, Dr. Goodman
turned to possible solutions. How do we get out of this
mess? he asked the panel.
Dr. Newcomer said that he hoped that other insurers would follow
United-Healthcares example in doing away with medical necessity
clauses and agreeing to reimburse patients for clinical trials. He
also commented that plans, including those under ERISA, should be
obligated to give a timely response when patients challenge their
decisions. He suggested an internal appeals process taking no more
than 30 days, followed, if needed, by an external appeals process to
be done within 10 days.
Dr. Newcomer agreed with the patient advocates that insurers need to
make their contract language and explanations of denials more
Several panelists said that insurers, which can be sued under some
state laws, need to be protected from punitive damages. Some kind of
harmonization is needed to overcome the hodgepodge
of state initiatives, Ms. Monaco said.
Dr. Goodman summarized the main suggestions as follows:
Better education, not just of consumers but also of clinicians.
More open policies toward paying for clinical trials, and greater
efforts to enroll patients in clinical trials to get evidence-based
information about what works and what doesnt.
Turning decision making back to physicians and trying to separate
medical decisions from fiduciary and other managed care pressures.
Ensuring that plans make a timely, cogent, and material response to
Availablity of independent external appeals processes.
A uniform basic coverage package to serve as a starting point from
which consumers could purchase more extensive coverage.