Litigation and Legacy in Education and Medicine

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Distinct Fields Bound by Certain Parallels

[By Jeffrey M. Hartman]  [Dr. David Marcinko MBA]

jhThe fields of education and medicine are distinct, yet bound by certain parallels. In particular, litigation has shaped present practices in each field. Case law has expanded the rights of students and parents while increasing protections for patients. Resulting improvements in the quality of education or health care vary depending on perspective.

Of greater certainty is the comparable increase in procedures, protocols, and overall bureaucracy needed in each field as a result of litigation.

Compensation Culture

Throughout the 1980s and 1990s, a perceived rise in civil cases led some pundits to ascribe a compensation culture to certain segments of America. Sensationalistic stories about plaintiffs seeking outrageous damages generated concern that this compensation culture was real and threatening to business interests across the country.

Media outlets frequently portrayed those behind the questionable suits as poor but entitled people looking to take advantage of tort law for personal gain. Pundits claimed these cases represented a decline in personal responsibility matched by an increase in shameless greed. At the same time, the notion of frivolous litigation creating unnecessary layers of bureaucracy took hold in the American conscious and remained there.

Predatory Litigation

The actual incidence and impact of supposedly predatory litigation remains debatable. Some civil liberties advocates suggest American companies created smear campaigns in the media to make the issue appear more prevalent than it was while attempting to curtail future suits. Without question, some companies have had to pay significant damages, particularly in class action cases.

However, the claims against these companies typically haven’t materialized without cause. Tort law always has existed as a protection. A few plaintiffs and attorneys may have exploited these laws and others may continue to do so. Such exploitative cases haven’t outnumbered cases built around legitimate claims.

Ethics

Questions about the ethics and even the prevalence of civil suits are the stuff of legal philosophy. The more immediate question is whether or not such cases have impacted particular fields and if so, what has been the nature of the impact. Legal precedents often lead to regulation of industries. Some forms of regulation can alter business practices. This can be for the better of all involved. Even if regulation increases costs, it often improves safety or quality.

In fields such as education and medicine, litigation has profoundly influenced practices. Influence on quality is another matter.

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Education

The impact of litigation on education has been most apparent in special education. Class action suits resulted in the foundational special education law in America. Case law continues to establish precedents and corresponding mandates that states and school districts must follow. Many of the cases parents bring against districts stem from these districts struggling to abide by demanding mandates. Large districts retain teams of attorneys who spend a disproportionate amount of their time handling special education cases. Special education bureaucracy requires many schools to employ administrators who deal solely with compliance and protocol. In special education, litigation has led to more litigation.

Special Education

Special education litigation affects school practices in several additional ways. Compensatory education losses in special education pull from overall budgets. Teachers need to compile data on special education students not just for planning, but to protect themselves and their schools in disputes with parents. School members of IEP teams construct programs from the perspective of how readily they can defend themselves should a legal case develop. Decisions about goals for students are often based on the likelihood of students appearing to make progress in a way that prevents potential conflict. When lawsuits do emerge, school districts have demonstrated a historic willingness to settle and give parents what they want rather than getting involved in lengthy and costly legal battles.

Medicine

In medicine, public perception of the effects of litigation are somewhat skewed. Malpractice cases make for attention-getting headlines. However, the number of malpractice suits has decreased in recent years. The average amount for damage claims has leveled off as well. These cases tend to be reserved for incidents involving serious injury and death. Although this might seem counter-intuitive, plaintiffs often lose malpractice cases. Preventable mistakes still account for a massive amount of loss in medicine, but the public perception of malpractice suits driving up insurance costs isn’t exactly accurate.

Malpractice Liability

This isn’t to say litigation has had no effect. Some health care professionals have had their careers upended by ruinous malpractice suits. A few states have enacted damage caps to limit what plaintiffs can claim. Expensive malpractice insurance has become ubiquitous for health care professionals. Many physicians have been suspected of practicing defensive medicine, or over-diagnosing for their own protection from suits. Defensive medicine resembles the tendency of special education teachers to write IEPs that ensure student progress. Layers of bureaucracy weigh on health care systems. Much of this exists as liability protections. Again, this parallels how schools have to handle special education.

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Improvements?

So, has litigation improved either field? In education, programs for students with special needs have expanded opportunities for equitable education. The expansion stems directly from litigation. However, special education has not solved the dearth of opportunities waiting for students with special needs after high school. At the same time, the expense of special education—including the continuing need for defense against further litigation—mires the most vulnerable school districts.

Health care has improved in many ways in recent decades, but most of these improvements are tied to technological advancements rather than litigation. Technological innovations also have contributed to increases in costs. The surge in bureaucracy does more to protect health care systems than patients, but patients have indirectly benefitted somewhat from the precautions litigation has made necessary. Patient behavior continues to drive the incidence of illness, but widespread health education campaigns have made some impact in behaviors such as smoking. Litigation has aided the creation of such public campaigns through pressure on lawmakers.

Imperfect Analogues

Education and medicine aren’t perfectly analogous, so certain comparisons can’t be made fairly. Despite differences, each field has had to respond in similar ways to changes in society. Pressure from litigation is just one of these changes. Other changes have involved how each field interacts with the public it serves. Schools and hospitals have increasingly become de facto social service providers for needy communities. Educators and physicians have had to become wary of their reputations via online ratings sites and their presence in social media in general.

Experts in both fields have their positions challenged by what information parents and patients find online. These similarities might be more analogous than similarities wrought by litigation.

Although the effects of litigation have been different in the two fields, the response in each field has been noteworthy. Litigation more or less created special education. The burgeoning field has improved equitable opportunities while creating logistical quagmires for schools. Outcomes for students have been limited by factors schools can’t control, thus derailing some of the idealistic aims of litigation. Poor outcomes haven’t lessened the burden special education law places on schools.

Meanwhile, public perception of how malpractice has affected medicine differs from the actual effects. Litigation has affected physician practices more than it has affected costs. Patient care has improved through technology more than through legal mandates. Protections have improved vicariously through the threat of litigation, but this might be inadvertently affecting how physicians offer treatment.

Assessment

Overall, litigation has complicated each field by adding layers of protective bureaucracy. Improvements in quality might not be commensurate with the effort expended. Often what the public gains in protection is loses in simplicity and effectiveness. These fields exemplify this maxim.

ABOUT

Jeffrey M. Hartman is a former teacher who blogs at http://jeffreymhartman.com/

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A Brief History of Managed Medical Care in the USA

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By National Council on Disability

The origins of managed care can be traced back to at least 1929, when Michael Shadid, a physician in Elk City, Oklahoma, established a health cooperative for farmers in a small community without medical specialists or a nearby general hospital. He sold shares to raise money to establish a local hospital and created an annual fee schedule to cover the costs of providing care. By 1934, 600 family memberships were supporting a staff that included Dr. Shadid, four newly recruited specialists, and a dentist. That same year, two Los Angeles physicians, Donald Ross and Clifford Loos, entered into a prepaid contract to provide comprehensive health services to 2,000 employees of a local water company.endnote[i]

Development of Prepaid Health Plans

Other major prepaid group practice plans were initiated between 1930 and 1960, including the Group Health Association in Washington, DC, in 1937, the Kaiser-Permanente Medical Program in 1942, the Health Cooperative of Puget Sound in Seattle in 1947, the Health Insurance Plan of Greater New York in New York City in 1947, and the Group Health Plan of Minneapolis in 1957. These plans encountered strong opposition from the medical establishment, but they also attracted a large number of enrollees.

Today, such prepaid health plans are commonly referred to as health maintenance organizations (HMOs). The term “health maintenance organization,” however, was not coined until 1970, with the aim of highlighting the importance that prepaid health plans assign to health promotion and prevention of illness. HMOs are what most Americans think of when the term “managed care” is used, even though other managed care models have emerged over the past 40 years.

Public Managed Care Plans

The enactment of the Health Maintenance Organization Act of 1973 (P. L. 93-222) provided a major impetus to the expansion of managed health care. The legislation was proposed by the Nixon Administration in an attempt to restrain the growth of health care costs and also to preempt efforts by congressional Democrats to enact a universal health care plan. P. L. 93-222 authorized $375 million to assist in establishing and expanding HMOs, overrode state laws restricting the establishment of prepaid health plans, and required employers with 25 or more employees to offer an HMO option if they furnished health insurance coverage to their workers. The purpose of the legislation was to stimulate greater competition within health care markets by developing outpatient alternatives to expensive hospital-based treatment. Passage of this legislation also marked an important turning point in the U.S. health care industry because it introduced the concept of for-profit health care corporations to an industry long dominated by a not-for-profit business model.endnote[ii]

In the decade following the passage of P. L. 93-222, enrollment in HMOs grew slowly. Stiff opposition from the medical profession led to the imposition of regulatory restrictions on HMO operations. But the continued, rapid growth in health care outlays forced government officials to look for new solutions. National health expenditures grew as a proportion of the overall gross national product (GNP) from 5.3 percent in 1960 to 9.5 percent in 1980.endnote[iii] In response, Congress in 1972 authorized Medicare payments to free-standing ambulatory care clinics providing kidney dialysis to beneficiaries with end-stage renal disease. Over the following decade, the Federal Government authorized payments for more than 2,400 Medicare procedures performed on an outpatient basis.endnote[iv]

Responding to the relaxed regulatory environment, physicians began to form group practices and open outpatient centers specializing in diagnostic imaging, wellness and fitness, rehabilitation, surgery, birthing, and other services previously provided exclusively in hospital settings. As a result, the number of outpatient clinics skyrocketed from 200 in 1983 to more than 1,500 in 1991,endnote[v] and the percentage of surgeries performed in hospitals was halved between 1980 (83.7%) and 1992 (46.1%).endnote[vi]

mind-investing-behavioral-finance

The Influence of Medicare Prospective Payments

Health care costs, however, continued to spiral upward, consuming 10.8 percent of GNP by 1983. In an attempt to slow the growth rate, Congress in 1982 capped hospital reimbursement rates under the Medicare program and directed the secretary of HHS to develop a case mix methodology for reimbursing hospitals based on diagnosis-related groups (DRGs). As an incentive to the hospital industry, the legislation (the Tax Equity and Fiscal Responsibility Act (P. L. 97-248)) included a provision allowing hospitals to avoid a Medicare spending cap by reaching an agreement with HHS on implementing a prospective payment system (PPS) to replace the existing FFS system. Following months of intense negotiations involving federal officials and representatives of the hospital industry, the Reagan Administration unveiled a Medicare PPS. Under the new system, health conditions were divided into 468 DRGs, with a fixed hospital payment rate assigned to each group.

Once the DRG system was fully phased in, Medicare payments to hospitals stabilized.endnote[vii] However, since DRGs applied to inpatient hospital services only, many hospitals, like many group medical practices, began to expand their outpatient services in order to offset revenues lost as a result of shorter hospital stays. Between 1983 and 1991, the percentage of hospitals with outpatient care departments grew from 50 percent to 87 percent. Hospital revenues derived from outpatient services doubled over the period, reaching 25 percent of all revenues by 1992.endnote[viii]

Since DRGs were applied exclusively to Medicare payments, hospitals began to shift unreimbursed costs to private health insurance plans. As a result, average per employee health plan premiums doubled between 1984 and 1991, rising from $1,645 to $3,605.endnote[ix] With health insurance costs eroding profits, many employers took aggressive steps to control health care expenditures. Plan benefits were reduced. Employees were required to pay a larger share of health insurance premiums. More and more employers—especially large corporations—decided to pay employee health costs directly rather than purchase health insurance. And a steadily increasing number of large and small businesses turned to managed health care plans in an attempt to rein in spiraling health care outlays.

Managed Long-Term Services and Supports

Arizona became the first state to apply managed care principles to the delivery and financing of Medicaid-funded LTSS in 1987, when the federal Health Care Financing Administration (later renamed the Centers for Medicare and Medicaid Services) approved the state’s request to expand its existing Medicaid managed care program. Medicaid recipients with physical and developmental disabilities became eligible to participate in the Arizona Long-Term Care System as a result of this program expansion. Over the following two decades, a number of other states joined Arizona in providing managed LTSS, and by the summer of 2012, 16 states were operating Medicaid managed LTSS programs.endnote[x]

Scientists at work

Growth of Commercial Managed Care Plans

During the late 1980s and early 1990s, managed care plans were credited with curtailing the runaway growth in health care costs. They achieved these efficiencies mainly by eliminating unnecessary hospitalizations and forcing participating physicians and other health care providers to offer their services at discounted rates. By 1993, a majority (51%) of Americans receiving health insurance through their employers were enrolled in managed health care plans.endnote[xi] Eventually, however, benefit denials and disallowances of medically necessary services led to a public outcry and the enactment of laws in many states imposing managed care standards. According to one analysis, nearly 900 state laws governing managed health practices were enacted during the 1990s.endnote[xii] Among the measures approved were laws permitting women to visit gynecologists and obstetricians without obtaining permission from their primary care physician, establishing the right of patients to receive emergency care, and establishing the right of patients to appeal decisions made by managed care firms. Congress even got into the act in 1997 when it passed the Newborns’ Mother Health Protection Act, prohibiting so-called “drive-through deliveries” (overly restrictive limits on hospital stays following the birth of a child).endnote[xiii]

Research studies have yielded little evidence that managed health care excesses have undermined the quality of health care services. For example, in a survey of 2,000 physicians, Remler and colleagues found that managed care insurance plans denied only about 1 percent of recommended hospitalizations, slightly more than 1 percent of recommended surgeries, and just over 2.5 percent of referrals to specialists.endnote[xiv] In another study, Franks and colleagues found that medical outcomes were similar for participants in HMOs versus FFS health plans.endnote[xv] Franks also reported that HMO patients were hospitalized 40 percent less frequently than FFS patients, and the rate of inappropriate hospitalizations was lower among HMO patients.

Link: http://www.ncd.gov/publications/2013/20130315/20130513_AppendixB

Recent Developments

Over the past 15 to 20 years, the public outcry against draconian managed care practices has waned, primarily due to the expanded out-of-network options afforded to participants in HMOs, PPOs, and POS health plans. But the perception that managed care represents an overly cost-conscious, mass market approach to delivering medical services lingers among the American public, even though more than 135 million people with health insurance coverage now receive their primary, preventive, and acute health services through a managed care plan.endnote[xvi]People with disabilities, especially high users of medical care and LTSS, share many of the same negative perceptions of managed care as the general public.

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Footnotes

[i]. R. Kane, R. Kane, N. Kaye, R. Mollica, T. Riley, P. Saucier, K. I. Snow, and L. Starr, “Managed Care Basics,” in Managed Care: Handbook for the Aging Network (Minneapolis: Long-Term Care Resource Center, University of Minnesota, 1996).

[ii]. D. Mitchell, Managed Care and Developmental Disabilities: Reconciling the Realities of Managed Care with the Individual Needs of Persons with Disabilities (Homewood, IL: High Tide Press, 1999).

[iii]. M. Freeland and C. Schendler, “Health Spending in the 1980s,” Health Care Financing Review 5 (Spring 1984): 7.

[iv]. D. Drake, Reforming the Health Care Market: An Interpretive Economic History (Washington, DC: Georgetown University Press, 1994).

[v]. Ibid.

[vi]. Mitchell, Managed Care and Developmental Disabilities.

[vii]. Drake, Reforming the Health Care Market.

[viii]. L. Weiss, Private Medicine and Public Health (Boulder, CO: Westview Press, 1997).

[ix]. Employee Benefits Research Institute, EBRI Databook on Employee Benefits (Washington, DC: Employee Benefits Research Institute, 1992).

[x]. P. Saucier, “Managed Long-Term Services and Supports,” a presentation to the National Policy Forum, May 11, 2012.

[xi]. J. Iglehart, “Physicians and the Growth of Managed Care,” The New England Journal of Medicine 331, no. 17 (1994): 1167–71.

[xii]. R. Cauchi, “Where Do We Go From Here?” State Legislatures (March 1999): 15–20.

[xiii]. U.S. Department of Labor, Fact Sheet: Newborns’ and Mothers’ Protection Act, http://www.dol.gov/ebsa/newsroom/fsnmhafs.html.

[xiv]. D. Rembler, K. Donelan, R. Blendon, L. Lundberg, D. Leape, K. Binns, and J. Newhouse, “What Do Managed Care Plans Do to Affect Care: Results of a Survey of Physicians,” Inquiry 34 (1997): 196–204.

[xv]. P. Franks, C. Clancy, and P. Nutting, “Gatekeeping Revisited: Protecting Patients from Overtreatment,” The New England Journal of Medicine 337, no. 6 (1992): 424–9.

[xvi]. Statistics taken from Managed Care Online, http://www.mcol.com/factsheetindex.

Conclusion

Your thoughts and comments on this ME-P are appreciated. Feel free to review our top-left column, and top-right sidebar materials, links, URLs and related websites, too. Then, subscribe to the ME-P. It is fast, free and secure.

Speaker: If you need a moderator or speaker for an upcoming event, Dr. David E. Marcinko; MBA – Publisher-in-Chief of the Medical Executive-Post – is available for seminar or speaking engagements. Contact: MarcinkoAdvisors@msn.com

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