Managing Managed Care by Reviewing the Reviewers

Lawrence I. Sank, Ph.D.

It is my contention that no mental health practitioner operating within the scope of his or her license or certification can ethically be employed by a managed care organization as a utilization reviewer. My stance rests on three pillars. First, that the process of psychotherapy requires confidentiality-freedom from the disclosure of information regarded as private by the patient to unwanted third parties. The recent (July 13, 1996) Supreme Court opinion from Justice Stevens in Jaffee v. Redmond addresses this very issue.

Whereas patient treatment for physical ailments by a physician relies on examinations, tests and patient information. . . effective psychotherapy, by contrast, depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories and fears. The possibility of disclosure, therefore, might impede development of a relationship needed for successful treatment .

Second , reviewers (be they psychologists, social workers, psychiatrists, professional counselors, nurses or marriage and family therapists) operate under licenses that subsume a set of ethical principles written and adopted by their respective professional associations which are tailored to each of these professions. While the initial level of review in the managed care process may not be performed by a mental health professional, it is a least overseen by such a professional and, in certain states (e.g., Annotated Code of Maryland, 1994), all appeals of adverse decisions must be directly addressed by such professionals.

Third, each profession's code of ethics contains a common core that applies to the issues of the "doctor-patient" relationship, confidentiality, and collegiality, and can be interpreted to pertain to the act of utilization review. This application would not be an exercise in Talmudic hair-splitting because each code of professional ethics must be capable of being applied to every activity a professional might or does perform. Such interpretation can be shown to not allow such an act of review by an ethical practitioner in any of the professions. The specifics of the infraction will vary by profession but all have in common the necessity of avoiding the overriding menace against which Justice Stevens cautions. That is, utilization review, per se, weakens the process of psychotherapy and thus does harm to the patient. Each act of questioning as to the content of therapy, each inquiry into the private life of a patient is a sword thrust into the body of the psychotherapeutic process. The question then arises as to how to parry those thrusts. In the following section I will review the relevant sections of the ethical codes of each profession as it pertains to the role of the managed care reviewer.

Ethical Standards by Profession

A. Psychology.

The APA's Ethical Principles of Psychologists and Code of Conduct (American Psychological Association, 1992) offers very strong support for the proposition that psychologist reviewers violate our profession's ethical standards when they require that the therapist furnish confidential information beyond the most basic level of facts (diagnosis, frequency of visits, nature of intervention).

I suggest that a reviewer does not weigh the welfare of the patient or the therapist in requiring disclosure of information in the performance of his/her role as reviewer, nor is the reviewing psychologist sensitive to the differences in power between reviewer and therapist, nor does the reviewer avoid this misuse of power, and in the performance of this review, the reviewing psychologist does harm the patient because the very act of coercing the disclosure of information in return for financial reimbursement causes harm. Thus, the reviewing psychologist's skills are being misused and this exercise of his/her power is exploitative as he/she coerces the therapist and patient to comply with the unreasonable demands of disclosure.

B. Psychiatry

The Principles of Medical Ethics with Annotations Especially Applicable to Psychiatry (American Psychiatric Association, 1995) can also be interpreted as supportive of the position advocated here.

The psychiatrist is ethically bound to respect both the rights of other "health professionals" and patients in safeguarding confidences, even with the patient absent. Therefore the coercion of disclosure of these confidences by the psychiatrist reviewer under threat of withholding approval and financial reimbursement for continued care is ethically incorrect because the patient has a right to confidentiality and to be free of harmful and unsolicited intrusion into the psychotherapeutic setting. In addition, since the disclosure of sensitive information in case reviews is now the norm, the very act of requesting this disclosure, i.e. forcing a fellow professional into this ethical breach would, in itself, be disrespectful and thus an ethical lapse.

C. Social Work

The National Association of Social Workers Code of Ethics (National Association of Social Workers,1993) is especially supportive of the thesis put forward in this paper. It states

The Social Worker should act to prevent practices that are inhumane or discriminatory against any person or group of persons (Section I, C, 2). The social worker should be alert to and resist the influences and pressures that interfere with the exercise of professional discretion and impartial judgment required for the performance of professional functions (Section I, D, 1). The Social Worker's primary responsibility is to clients (Section II, F). The social worker should respect the privacy of clients and hold in confidence all information obtained in the course of professional service (Section II, H). The social worker should treat colleagues with respect, courtesy, fairness, and good faith (Section II,J). The social worker should create and maintain conditions of practice that facilitate ethical and competent professional performance by colleagues (Section III, J, 3). The social worker should extend to colleagues of other professions the same respect and cooperation that is extended to social work colleagues (Section III, J, 8). The social worker should not use a professional position vested with powerto exploit others (Section III, J, 12). The social worker has the responsibility to relate to the clients of colleagues with full professional consideration (Sect III,K).

Bearing these ethical precepts in mind, the social worker reviewer would be bound to place primary consideration on the welfare of the client (Section II, F) even if this client were that of a fellow social worker (Section III, J) or a colleague in another profession (Sect III, K). In the role of reviewer, the social worker would need to be aware of any undue influence he or she might bring to bear in his or her relatively more powerful role as the overseer of approval for continued insurance coverage and subsequent reimbursement. This power should not be exerted such that it might exploit others, colleague or client (Section III, J, 12) because the social worker's primary responsibility is for the client's welfare, not the agency's (i.e. managed care organization) (Section II, F). Also, in performing such a utilization review, the highest consideration, from an ethical standpoint, must be given to preserving the confidential nature of communications between the reviewer's fellow social worker or colleague and his or her client (Section II, F). Finally, ethically, the social worker as reviewer should not abuse his or her position of power by withholding reimbursement authorization if confidences were not divulged.

D. Nursing

The American Nursing Association's Code for Nurses with Interpretive Statements (American Nurses Association, 1985) contains a similarly unequivocal mandate to the nurse reviewer and supports this paper's position.

E. Marriage and Family Therapy

The American Association for Marriage and Family Therapy (AAMFT) Code of Ethics seeks to regulate the professional conduct of its membership. The most recent version of the Code (1995) indirectly addresses the issue of the appropriateness of reviewing cases for a managed care organization.

3.6 and family therapists do not diagnose, treat or advise on problems outside the recognized boundaries of their competence. 6.1 Marriage and family therapists remain accountable to the standards of the profession when acting as members or employees of organizations.

Since the great bulk of reviews are based on individual functioning and since insurance reimbursement commonly requires DSM diagnoses which apply to individuals, not relationships or affiliative groups, then being identified solely as a marriage or family therapist would not be an appropriate qualification for conducting case reviews for individuals. Oversight of or psychotherapy for individual functioning would be beyond "the recognized boundaries" of competence (paragraph 3.6) even if this were required by the AAMFT certified therapist's employer (paragraph 6.1). Thus any reviewer functioning solely under such licensure/certification would be in violation of his/her professional association's ethical standards and any state license that encompasses this Code in its licensing law.

F. Counseling

The Code of Ethics and Standards of Practice (American Counseling Association, 1995) of the American Counseling Association states that "the primary responsibility of counselors is to respect the dignity and to promote the welfare of clients" (Section A.1.a). Further, the Confidentiality section of the Standards of Practice emphasizes that "counselors must keep information related to counseling services confidential unless disclosure is in the best interests of clients" (Section B).

Even the most partisan managed care advocate would be hard pressed to convince an ethics board that requiring disclosures about the intimate details of the client's psychotherapy serves the client's interest, promotes his welfare, or respects his dignity. The professional counselor, even while in the role of reviewer, must be in compliance with the profession's ethical standards. Even if the counselor's employer is the managed care company, the client's interest is paramount.

The Response

Psychologists and organized psychology have not stood still in the face of the managed care juggernaut. The APA and others have made various recommendations. My own response has been to challenge the enemy foot soldiers in this battle for the very existence of the psychotherapeutic enterprise as we know it. I have challenged the case reviewers, who have contacted me to request that I relinquish information to them about my patient and the psychotherapy which I provide to that patient. My response has been to metaphorically counter their attack on my patient and the therapeutic process with an attack of my own-on the organizational practice of requesting such private information and being the agent of such a request.

I have filed ethical complaints against the reviewers, with their professional associations (where applicable) and state licensing boards. My strategy is straight-forward. If the reviewers are held accountable for their actions before these two organizations and are thereby forced to defend their activities to them there will be natural consequences. First, the very act of defending themselves will be cumbersome. I am told by an ex- APA ethics officer (Sanders, J.R. Personal communication, November,1995) that the very process of defending oneself against an ethical complaint is both time consuming and odious. Second, there is a likelihood that my complaint will be upheld. If responding to one complaint is a burden, a second complaint might be experienced as a real hardship, a third might get this reviewer to consider another line of work. This type of guerrilla warfare is reminiscent of the tactics employed during the 1960's anti-war movement where efforts were made to overload the Selective Service system.

As I have referenced above, each of the professional organizations representing the mental health professions implicitly have ruled out the activity in which these reviewers are engaged. A favorable action by each of these Boards is not guaranteed but the sense of satisfaction I have had from filing such a complaint is not to be underestimated. When I have been "reviewed" I have felt violated and powerless to defend my patient and our work together. They were engaging in a destructive, immoral and, in my opinion, unethical act and getting away with it. No more.

Filing a Complaint with the Professional Association

Unfortunately there is no uniformity between professional associations in their procedures for lodging complaints of ethical violations against members. In filing my complaints, I have called each national association's headquarters as a first step. The purpose of my call was to ascertain if a certain reviewer was a member in good standing and where such a complaint was to be lodged (i.e., nationally or locally, or both). My contacts with these organizations have been very positive. Their phone numbers follow:

American Psychological Association: (202) 336-5500

National Association of Social Workers: (202) 408-8600 or (800) 638-8799

American Psychiatric Association: (202) 682-6000

American Nurses Association: (202) 651-7000

American Association for Marriage and Family Therapy: (202) 452-0109

American Counseling Association: (703) 823-9800

Why Both

My rationale for filing with the professional association (except nursing), as well as the state licensing authority is to alert as many of the agencies who exercise authority over practice as possible. Also, so long as they have the power to censure such acts, they are potential allies in this crusade. When I have met with reluctance or refusal to process such a claim, I have inquired about my right to appeal and have exercised it.

Conclusion

I am well aware of the admonition contained in ethical standard 8.07, Improper Complaints (APA, 1992)."Psychologists do not file or encourage the filing of ethics complaints that are frivolous and are intended to harm the respondent rather than to protect the public"(p.15). The actions I have taken, I believe, are in compliance with this standard. The public must be protected from the pernicious intrusions of the managed care industry and its minions.

I have found that making the informational phone calls, writing the letters of complaint, and filling out the appropriate forms has not been onerous. Actually, I have felt it to be very therapeutic. I feel that I am regaining some of the ground lost to the managed care juggernaut, both for myself but, more importantly, for my patients. Others may even wish to join me. References

American Association for Marriage and Family Therapy (1991) AAMFT code of ethics. Washington, DC: American Association for Marriage and Family Therapy.

American Counseling Association (1995) Code of Ethics and Standards of Practice. Alexandria, VA: American Counseling Association.

American Psychiatric Association (1995) The principles of medical ethics with annotations especially applicable to psychiatry. Washington, DC:

American Psychiatric Association. American Psychological Association (1992) Ethical principles of psychologists and code of conduct. The American Psychologist 47, 1597-1611.

American Nurses Association (1985) Code for nurses with interpretive statements. Washington, DC: American Nurses Publishing.

Jeff McKee
Saturday, April 25, 1998