Treatment Improvement Protocols (TIP) 13 |
Ethics is concerned with the rightness of human conduct—with the question of what should be done in a particular situation. On a more personal level, ethics is also concerned about what sort of person "I" should be. This is sometimes referred to as virtue ethics. Ethical dilemmas arise when two potentially competing courses of action can each be morally justified or considered to be "right." No area of patient care is devoid of potential ethical questions. Physicians and other care providers have duties to the patient, to the profession in which they practice, to the organization or agency in which they practice, and to the society at large.
Ideally, ethics and laws should reinforce one another, and the law should serve as the mechanism by which ethical values and principles are put into practice. Some laws, however, are blatantly immoral, such as those that allowed slavery. One cannot rely solely on law to provide guidance in the care of patients or clients. The law requires that certain rules be followed and imposes penalties for failure to do so. The law is a rigid system; as such, it is somewhat impersonal. Ethics, on the other hand, is not standardized or impersonal. Ethical judgments are based on the nature of the relationships between persons and on the primary value that individuals should strive to achieve a "good life." In the areas of professional practice, penalties are generally determined by one's profession. Codes of ethics are promulgated by the various professional organizations to guide a professional's behavior.
With respect to patients, several ethical principles based upon duties between individuals emerge. These principles include:
From these principles arise rules about informed consent, confidentiality, truth telling, and disclosure.
Ethical issues that must be addressed in providing alcohol and other drug (AOD) abuse treatment are often more complex than those that arise in the everyday practice of medicine. Many of the ethical dilemmas that characterize AOD treatment concern the need to protect patients' privacy. Because of the stigma that continues to be associated with AOD disorders, maintaining confidentiality is an important aspect of engaging patients in treatment. Two Federal laws and a set of regulations guarantee the strict confidentiality of information about all persons receiving AOD abuse assessment, referral, and treatment services. Many States also have laws and regulations governing the confidentiality of patient records. Legal issues surrounding confidentiality and patient consent are discussed more fully in several other TIPs, including Simple Screening Instruments for Outreach for Alcohol and Other Drug Abuse and Infectious Diseases and Intensive Outpatient Treatment for Alcohol and Other Drug Abuse.
Thus, in the case of confidentiality, law and ethics work hand in hand. The law reinforces the ethical obligation to respect a person's autonomy by supporting patients' rights to control information about themselves.
AOD treatment providers have an ethical obligation to protect patients' privacy and must ensure that communications with persons or agencies about patients in their care adhere to laws, regulations, and ethical standards. However, third-party payers may request access to a patient's entire treatment record. As discussed below in the section on legal issues, implementation of uniform patient placement criteria (UPPC) may help resolve ethical dilemmas about patient confidentiality and provide greater clarity to the legal term "medical necessity."
Other ethical dilemmas arise in the area of patient autonomy—that is, the individual's right to make decisions regarding treatment. In recent years, patient autonomy has become a central tenet in medical ethics, and debate has arisen over such issues as the importance of involving patients in all treatment decisions—including AOD treatment decisions—and their right to be informed about and to refuse treatment in certain situations.
Making treatment decisions based on UPPC may present dilemmas involving patient autonomy if the decisionmaking process relies too heavily on the criteria alone and does not take patient choice into account. For example, results of the biopsychosocial assessment may indicate unequivocally that a certain patient should be placed in a certain level of care and receive specific services. However, the patient may prefer to obtain treatment at a less intensive level of care—a level at which treatment outcomes for that patient are far less likely to be successful.
AOD treatment providers have always been faced with such dilemmas, even outside the framework of patient placement criteria. However, as UPPC are further refined by research, having them in place will provide strong supportive documentation to the treatment provider's clinical judgment. In addition, managed care organizations and third-party payers may tie reimbursement to placements dictated by the criteria. In this way, UPPC may work toward limiting patient autonomy. Providers should ensure that the patient's voice is heard in the assessment process and throughout treatment planning. Treatment providers must be able to make placements based on individual treatment needs.
Clinicians who conduct the biopsychosocial assessment will be placed in an ethical dilemma: Should this patient be forced into a specific treatment setting with better success rates against her wishes? If so, what is the justification for overriding this patient's treatment requests? Do her objections to a specific treatment alter the probability of its success? How should the provider weigh the obligation to benefit this patient against the provider's duty to respect the patient's right to self-determine?
As we obtain additional outcomes data, this dilemma may be lessened. Knowledge of the anticipated risks and benefits of treatment alternatives often leads to better communication and agreement between clinician and client.
Patient placement criteria developed by States and private and professional organizations have arisen in a healthcare environment undergoing rapid changes and pressured to change further. As discussed in Chapter 6, efforts to establish UPPC for alcohol and other drug abuse treatment share many of the goals of healthcare reform efforts: more equitable access to healthcare, better quality care, and a more efficient system of healthcare delivery that reduces rising costs.
The introduction of managed care and other efforts to meet the goals of healthcare reform have led in many instances to disputes between treatment providers and third-party payers about reimbursement, admission, and continued stay and discharge criteria. In many of the disputes that characterize today's treatment environment, third parties often request the patient's entire AOD treatment record, which may contain information that the provider does not consider relevant to placement and treatment decisions. A classic ethical dilemma arises. This dilemma has legal aspects because of Federal and State laws protecting patient confidentiality. The AOD treatment provider may be forced to choose between equally competing obligations. The clinician is obligated to protect the patient's confidentiality. However, the clinician is also obliged to provide information to third-party payers in order to receive reimbursement and ensure continuation of treatment.
Many disputes center on treatment services that payers do not believe are medically necessary. One of the most compelling reasons for widespread adoption of UPPC is the important role they will play in reducing disputes between payers and providers and giving providers and payers a common framework for determining which information is relevant to placement and treatment decisions. Providers are cautioned to err on the side of confidentiality in those situations in which there is no clear answer to the dilemma. The release of AOD treatment records is like Pandora's box—once opened it is difficult, if not impossible, to return to the original state.
Almost all plans for third-party health insurance limit coverage to services and supplies that are "medically necessary." While plans may define the term differently, the intent of such provisions is to exclude from coverage unnecessary treatment services, equipment, and supplies. Most plans' definition of medically necessary services include, at a minimum, the following elements:
Failure to satisfy the second element is generally the issue in disputes between AOD treatment providers and third-party payers. The argument often centers on whether the course of treatment is consistent with generally recognized medical standards. The ultimate resolution of many such disputes is in a court of law. The courts take into consideration the contractual terms of the plan or policy, as well as the differing opinions or testimony of medical experts. The outcomes of disputes that are settled prior to litigation are, of course, influenced by how the courts have settled similar cases in the past.
Uniform patient placement criteria, if they are developed according to the consensus-building process outlined in this document, will represent the opinions of AOD abuse treatment providers from many disciplines. The criteria may be viewed by courts as reflecting generally accepted medical practice, especially as the criteria become widespread. In situations in which an insurer or payer has applied its own criteria or standard of medical practice rather than UPPC, the issue in court will in all probability focus on whether the insurer's criteria are significantly different from those of the medical and AOD treatment community.
As UPPC gain acceptance, the standard they provide will help resolve disputes before litigation is necessary.
Payers have been held liable when they have applied standards of medical necessity that are significantly different from those of accepted medical practice. In 1989, a California court of appeals in Hughes v. Blue Cross of Northern California (263 Cal Reptr. 850 Cal. App. 1 Dist. 1989) had an opportunity to review an insurer's standard of medical necessity in the denial of psychiatric benefits for several episodes of inpatient confinement of a chronically suicidal patient. The patient, who was twice released from inpatient care to outpatient programs, required a series of intensive inpatient admissions and was finally transferred to an institution for long-term care. Blue Cross had denied portions of the inpatient care on the basis that a lower level of care (i.e., outpatient) was appropriate.
The court disagreed and upheld a jury award of compensatory and punitive damages. In reviewing the policy's limitation of benefits to medically necessary care, the court stated:
If the insurer employs a standard of medical necessity significantly at variance with the medical standards of the community, the insured will accept the advice of his treating physician at a risk of incurring liability not likely foreseen at the time of entering the insurance contract. Such a restricted definition of medical necessity, frustrating the justified expectation of the insured, is consistent with the liberal construction of the policy language required by the duty of good faith. . . . Good faith demands a construction of medical necessity consistent with community medical standards that will minimize the patient's uncertainty of coverage in accepting his physician's recommended treatment.
The Hughes decision reaffirms the view taken by many courts that "medical necessity" or similar policy language is an objective standard to be applied by the trier of fact, not a delegation of power to the treating physician. When an insurer employs an unreasonable standard of medical necessity, it acts at its own peril.
Whether UPPC will be recognized in future court decisions as generally accepted standards that reflect accepted practice as defined by the AOD treatment community will depend largely on the extent to which the criteria are accepted and adopted by providers who make AOD treatment decisions. If the field does not act to build consensus around placement criteria and to implement UPPC, then such criteria will probably be applied from outside.
Gone are the days when a course of treatment was considered medically necessary simply because it was ordered by a physician. In terms of patient placement within levels of care defined by UPPC, the decision of the treatment team will be reviewed by the insurer or managed care company and possibly by a judge and/or jury. For this reason, it cannot be emphasized strongly enough that all placement decisions should be well documented at every stage.
Patient records are maintained primarily to provide complete information regarding the care and treatment of patients. The primary purposes of the patient record are to:
A complete and accurate clinical record is as important for reimbursement purposes as it is for treatment purposes. Third-party reviewers, whether prospective or retrospective, do not ordinarily have the opportunity to examine the patient. They obtain information from first-hand evaluations recorded in the patient record. As their decisions are often based exclusively on the patient records supplied by the treatment provider, the records must be well maintained. If not, even a patient clearly needing treatment may have problems when insurance claims are submitted for payment.
With respect to documenting and supporting AOD treatment decisions based on UPPC, the following recommendations are made:
In sum, when the patient record is professional, accurate, and complete, it is the provider's, client's, and attorney's ally in the recovery of a claim denied for lack of medical necessity. While it is possible to submit to payers and introduce into evidence in a legal proceeding information and records developed after the fact in support of a treatment decision, such support is rarely given the same weight and credibility as medical records developed and maintained during the actual treatment period.
Managed care is likely to be the basis for reform of the healthcare delivery system, and many patients currently receive treatment under some form of managed care. Increasingly, managed care agencies and other third parties are scrutinizing treatment decisions, such as decisions to transfer patients to a more intensive and costly level of care. In many cases, they may request a patient's entire record. Deciding what information is material to a treatment decision and should be released to a payer, or whether to release requested information, can present a dilemma. Although patients generally sign forms giving broad consent to providers to release information to insurers, the laws and regulations regarding confidentiality require that providers carefully consider such requests for information.
Having uniform patient placement criteria in place can help providers make decisions about disclosing information to third parties. For example, a decision to place a certain patient at a certain level of care will usually be based on specific guidelines laid out in the placement criteria. If a third party requests to see a patient's entire record, providers may be able to make a case for limiting the release of information to only those records that relate to UPPC guidelines. However, if the third party ties reimbursement to strict compliance with its requests for information, a serious ethical dilemma results. Nevertheless, compliance with requests for information by third parties should be made on a case-by-case basis. Only that information that is considered material to the treatment decision under discussion should be disclosed.
In summary, whether a particular level of care is medically necessary for the treatment of AOD use disorders has historically been a controversial issue between providers and payers. The future implementation of UPPC offers a much-needed solution to this troubled area. The widespread acceptance of UPPC may contribute to the demise of criteria driven primarily by economic rather than medical and treatment concerns. It is hoped that UPPC will provide a level playing field for all players.