Perspective on Practice

Advocating for patient-protection legislation, battling managed-care companies on the legal front, helping psychologists enhance their bargaining power and leverage in the health-care marketplace and expanding APA's public education campaign to prevent school violence are just a few of the issues APA's Practice Directorate tackled last year.

To get the latest on these initiatives, and an outlook for what's ahead in 2000, the Monitor recently visited with APA Executive Director for Practice Russ Newman, PhD, JD.

Q. The House of Representatives recently passed a bill that would enable patients to sue managed-care plans for negligent decision-making. Isn't it a long shot to think that Congress ultimately will enact such legislation?

A. Conventional wisdom would say that it is a long shot. Of course, we also considered it a long shot to gain a House bill, but it survived aggressive efforts to derail it.

Although the House ultimately passed the consensus bill brought forth by Reps. Charlie Norwood (R-Ga.) and John Dingell (D-Mich.), the Senate bill is a much watered-down version of patient protection. To achieve a good patient-protection bill, the conference committee would need to maintain some of the significant protections and, of course, keep the most opposed and controversial piece in the House bill: the right to sue. The GOP leadership would love to see the conference process cut that out and throw it away.

While passage may be a long shot, we learned significant lessons during the course of this effort, particularly that this is a key issue for the public. I think the reason we saw it preserved in the House in contrast to the Senate is because the rank and file of the House are more directly connected to their districts. With constituent support, members of the House were able to withstand the leadership's opposition.

We'll see what happens in conference. I won't try to guess the outcome until we see how much momentum this issue has when it comes back around for debate.

Q. What are the prospects for the directorate's other key legislative advocacy efforts in 2000?

A. In addition to monitoring patient protection, we'll be continuing our legislative agenda on several fronts. For one, we're beginning to see the issue of universal health care percolating as a potential solution to the problems in the health-care system. My guess is that not a whole lot is likely to happen on that in the next session of Congress; more likely it will be an issue tied to next year's presidential election. But it is an issue that's starting to show up again for the first time since the Clinton Health Security Act six years ago.

Meanwhile, parity will continue to be an issue both on the state and federal level. On the federal level, as we get closer to the 2001 sunset date of the current parity law, we think Congress will try to expand it. On the state level, 28 states or so have some sort of parity. Our concern is that those states are opting 2 to 1 in favor of a narrow biologically based parity, as opposed to comprehensive parity.

Right now, we're looking at what happened in Connecticut as a potential strategy. Connecticut was the first state to take a serious mental illness (SMI) narrow parity law and expand it. This is the first real evidence that a state that starts with a narrow SMI law after having some experience with it can expand it. There may be merit in concentrating on states that have narrow SMI biologically based parity laws and working to broaden them.

On another front, confidentiality continues to be an issue. This past year, Congress had a few proposals that weren't any better than their 1998 proposals. On this, our posture has been to stop a bad law from being put in place. By and large, the privacy/confidentiality laws don't adequately deal with mental health services, and in some instances, even pre-empt strong state laws. Right now, we're analyzing the confidentiality rules the Clinton administration has proposed. I think Congress, having seen the administration produce something, is going to get back on this issue.

Another key issue for us is seclusion and restraint. Both the Clinton administration and Congress are trying to limit seclusion and restraint to ensure that the abuses that have unfortunately taken place don't continue. In addition to working to stop abuses, our concern is to ensure that therapeutic uses of seclusion and restraint don't get eliminated in the process.

And finally, we'll be continuing to work on Graduate Medical Education (GME). The Health Care Financing Administration (HCFA) has promised to propose a rule making psychologists eligible for GME funds, just as other professions are. But we're continuing to work with Congress to stay poised to legislate psychology's inclusion in GME funding if HCFA doesn't follow through on its commitment. Seeing is believing with HCFA. Until we have a rule in hand, we can't let up the pressure.

Q. The directorate is involved with three lawsuits that target managed-care companies' harmful cost-containment practices. Do you think a handful of legal actions can succeed in dismantling these practices?

A. We're not so unrealistic as to think that just a few lawsuits are going to fix the whole health-care system, but there's an important trend evolving here. Interestingly, some of the law firms that participated in test-case litigation against the tobacco industry are now turning their energies to the health-care system to develop class-action lawsuits on behalf of patients injured by managed care.

In their suits against the tobacco firms, the goal was to hurt the industry in the pocketbook. Now, we're not in a position to take on in large ways the pocketbook piece of this. Our concern is patient care and the need for good public policy. But the combination of targeting both public policy and the industry's pocketbook can have a profound effect.

So, the cases we are supporting are just a part of an overall effort that has taken off over the last year. I'm happy to say that I think we were one of the pioneers to stimulate the use of the legal system and the courts to foster change in the health-care system rather than just relying on legislation. Others clearly have seen the merit of using the courts and the legal system.

Q. There's been a lot of press recently about unionizing as a way of giving health-care professionals some much needed bargaining clout in the health-care marketplace. What's the directorate doing in this area?

A. Practitioners have been looking to unions in hopes of gaining greater leverage and bargaining power in today's market-driven health-care system. There are a number of ways that's being attempted. One is through an affiliate relationship, as the New York State Psychological Association (NYSPA) is forming with the American Federation of Teachers. NYSPA is hoping to benefit by gaining political leverage, maybe even some marketplace leverage. Through affiliation, psychologists are hoping to get something done that they alone have not had the clout to make happen. It's important to understand, though, that an affiliate relationship with a union doesn't give independently contracted providers the ability to collectively bargain.

A related strategy is exemplified by the legislation introduced by Rep. Tom Campbell (R-Calif.). That bill seeks to enable health-care professionals to collectively bargain with managed-care companies without violating antitrust laws. Theoretically, this strategy offers the prospect of increased bargaining power for the independent contractor in the health-care arena. But what I'm concerned about in this approach is that the original exemptions for unions from antitrust laws in their collective bargaining was primarily intended to protect wage negotiations. The health-care community, however, has in large part a different goal: collectively bargaining to provide better care for their patients. The question I have is: Is a collective-bargaining mechanism that is originally intended to benefit wage negotiations able to achieve a goal related to patient care? You have to put that in perspective before deciding that collective-bargaining laws are the way to go to get this all fixed.

A third strategy is what we've seen take place in New Jersey. In that state, a group of physicians attempted to become a collective-bargaining unit certified by the National Labor Relations Board (NLRB), the agency that determines what is and isn't a collective-bargaining unit. The physicians argued that managed-care companies make all the decisions about care through their policies, procedures and contract provisions, despite the physicians' supposed independent professional status.

As a result, they reasoned, independent contractors on managed-care panels are really more like employees under the control of managed-care companies. And if that's true, they argue that they should have the collective-bargaining privileges of employees and be able to band together on behalf of their needs and the needs of their patients.

Unfortunately, the NLRB has continued to refuse to certify the physicians as a collective bargaining unit. NLRB cases are very fact intensive, meaning the outcome is dependent on the specific focus of each case.

It is quite possible that another case with better facts could emerge and persuade the NLRB that the health-care environment has changed and that it must look below the surface to assess the relationship between health-care professionals and managed-care companies. Once it does so, the formation of collective bargaining units for panel providers would be a logical outcome.

These are some things that we're looking at in the union area. But we need to be careful not to be fooled into thinking that unionization and/or collective bargaining is a panacea for what's happened in the health-care marketplace--it's but one piece of a much larger picture.

Q. What are some other emerging marketplace trends in which psychology has a stake?

A. One of the most significant trends is the integration of the health-care system. As I see it, the time is right for re-examining how health-care professionals work with each other. The union piece is part of that, but another piece is how behavioral and psychological health-care professionals are increasingly working with physical and medical health-care professionals.

Psychology also needs to pay closer attention to the potential for disability issues to be integrated with health care. Research is starting to show that as employer health-care costs come down, disability costs for employers seem to be going up. As a result, the appropriate use of psychological services for individuals who would otherwise be forced to remain on disability should be able to improve health outcomes and save employers money in the process, just as with integration of behavioral and physical health. Of course, the more we demonstrate that psychological services can produce better health outcomes and save money, the higher the demand for psychological services.

So, again, we need to demonstrate the value of psychologists' services in ways that consumers, third-party payers, and employer purchasers of health-care services and psychological services understand. While we may not be able to collectively bargain, we can increase our bargaining power to the degree that we provide services that are useful and in demand.

Q. The "Warning Signs" youth anti-violence initiative has been one of the directorate's major public education activities this year. What has it accomplished?

A. The campaign has had two major objectives. The first has been to disseminate information in an effort to tackle a significant social problem--violence in the nation's schools. There's no question that it's critical to put information about the warning signs of violence into the hands of teens and school personnel. Through our partnership with MTV, 4 million teens have watched the APA video, and we've done forums in at least 300 schools reaching well over 18,000 kids.

But it's certainly not a panacea. There are so many factors that have contributed to the now-described culture of violence, it's going to take years until that gets turned around. And it needs to be worked at every level--in families, in schools, in the justice system, in communities, just to name a few.

Our second objective with the campaign is part of our overall effort to establish a grassroots public education campaign among our membership. The Warning Signs initiative is one component of "Talk to Someone Who Can Help," APA's public education campaign, which is intended to have as many psychologists as possible become spokespersons on behalf of psychology. Through this effort, we already had an infrastructure of public education campaign coordinators in place with the help of the state associations and some practice divisions. As a result, we were able to equip a large number of psychologists to go into schools and communities carrying this message, enabling even more of our members to participate in the campaign than had been possible before.

Q. What do you anticipate for the next phase of the APA public education campaign?

A. The information presented in the "Warning Signs" campaign is still very much in demand. The forums are ongoing and some members of Congress are interested in carrying out related activities in their districts. We just ordered another 250,000 brochures, after distributing 300,000 of them.

Now, we're looking at possible offshoots of the campaign. One potential area is helping parents, many of whom feel overwhelmed or powerless in the face of all this. Parents are eager for information and help in how to talk about issues of violence with their kids.

Another potential offshoot is addressing the communication problems that have been described by many teens we talked to during the "Warning Signs" campaign. Many don't feel that there is good communication between them and their parents or other adults. We think there may be some good public education campaign activities to facilitate better communication, whether it's about the warning signs of violence or other issues.

We're also exploring workplace violence because of the extent of the problem that it creates for the culture right now. We're collecting data to see how big a problem it is in order to determine what might be useful.

And last, but certainly not least, is our work with the White House and MTV to develop an antistigma public education campaign for teens.

Q. What else do you consider among the major challenges and opportunities facing the psychology practice community in 2000 and beyond?

A. I'll just mention briefly a few. Prescriptive authority will continue to gain momentum at the state level with more states becoming interested in developing training programs and ultimately in proposing legislation. We're able to make good use of the Department of Defense (DoD) psychopharmacology demonstration project evaluation, which showed that the performance of the DoD graduates has been seen as quite good, excellent in many cases. That's good information for states to have when they pursue prescriptive authority--it's an actual situation that's been carried out, people have been trained, they've been prescribing and the results have been good. That will help that agenda along.

We'll also continue our attention to the reorganization of health care in the Department of Veterans Affairs, trying to ensure that psychology isn't disproportionately affected. As part of that, we're continuing to work to develop psychologists' roles and leadership positions in the VA.

State licensure is another issue that we must always watch vigilantly. Some states have been fighting back licensure challenges. Other states that haven't had a challenge often wonder whether they need to worry about it. Frankly, I believe no state is immune from the potential of a licensure challenge by nondoctoral mental-health providers who want to be included in and protected in some fashion by psychology's licensure.

These are just a few of the many other issues we're working on. Undoubtedly, a set of new issues will surface throughout the year that will demand our attention and action on behalf of practitioners and consumers of psychological services.