The Unwanted Participant Business and the Professions

In the last decade of the twentieth century and the first few years of the twenty-first, the whole philosophy of licensing and regulation of the healthcare professions has undergone a sea change. By 1990, there was a strongly felt undercurrent that healthcare was taking up too much of the national budget (13 percent, higher than any other developed nation) and that it was badly distributed. Often the poor in this rich country had only minimal access to healthcare: They could not afford private fees, they received no health benefits through their employment, and they fell somehow through the cracks of the government-sponsored programs, Medicare (federally funded, for the elderly and disabled) and Medicaid (state funded, for the poor.) In 1992 Bill Clinton was elected U.S. president, and aided by his wife, Hillary

Rodham Clinton, he set out to create a single-payer system, a national health insurance plan, to provide universal access to decent healthcare. Overwhelmed by special interests (especially the private insurance companies, who wanted to run the system themselves), the Clinton plan failed in 1994.

In the aftermath of this failure, major insurance companies took over payment arrangements for the practice of healthcare, under a confusingly diverse pattern of plans. Some insurance company plans simply employ physicians, or contract with physicians' group practices, to provide services for all their subscribers. In such plans, a patient has to consult either physicians employed by the company or those in the groups under contract to the insurance company whose policy the patient purchased (or more likely, whose policy the patient's employer purchased). Other plans offer a choice from a select list of physicians and specialties. Most require preapproval for at least some medications and treatments, and some require preapproval for visits to the emergency room. No two plans cover quite the same list of consultations, treatments, medications and devices, under quite the same terms. The insurance companies arrange the terms, as they have had every right and duty to do, to serve the financial interests of their shareholders. Such arrangements include deliberate policies of delaying reimbursement payments to physicians and medical groups, because all funds retained can be invested for interest; refusal of authorization for payment for medical procedures or hospital days for those cases in which it seems that the patient would have no choice but to avail himself or herself of the service and pay anyway, out of pocket; and selective deselection of physicians who cost the plan more than the average over the course of the year because of referrals to specialists or the ordering of tests.

Deselection means that the plan subscribers can no longer receive reimbursement for consulting that physician. In effect, a deselected physician can no longer have those subscribers as patients. If the physician's income heavily depends on that group of patients, she may effectively find herself unemployed; if she belongs to a medical group that depends on a contract with that company, she may find herself rapidly separated from that group in order to preserve the contract. In both cases, because most practices depend heavily on insurance contracts and no group can afford an "outlier" who will attract negative attention to the group, the physician may be separated from all chance of making a living in the practice of medicine. Under the circumstances, it is not surprising that physicians feel that they have little choice but to stay well within the unspoken insurance guidelines, even if that means effectively turning away or deceiving certain patients.

The insurance contracts place healthcare professionals in a clear conflict of interest, a conflict that can affect the lives and health of their patients. (A conflict of interest, for a professional, involves any arrangement in which the personal interest of the professional [physician] is adverse to the interest of the client [patient].) Because all parties to the contract are competent adults, there is nothing the law can do to prevent such contracts from being signed. (Incidentally, according to the code that governs the ethical practice of law, which has legal force, any lawyer who put himself in such a position vis-à-vis a client could be disbarred.) The accrediting body for most U.S. hospitals, the Joint Commission for the Accreditation of Healthcare Organizations (JCAHO), has a special section on "Organizational Ethics" in the 2001 edition of its Comprehensive Accreditation Manual for Hospitals. The requirement of the main standard (RI.4) is simply the following: "The hospital operates according to a code of ethical behavior." Of particular interest in the context of bioethics is Standard RI.4.4: "The hospital's code of ethical business and professional behavior protects the integrity of clinical decision making, regardless of how the hospital compensates or shares financial risk with its leaders, managers, clinical staff, and licensed independent practitioners." Translated, this means that whatever impossible conflicts of interest physicians may have signed themselves into, it is the hospital's job to make sure that patient care is not affected. It is not clear how this standard might be met.

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