The National Commission on Health Care Dispute Resolution -- convened by the leading associations involved in alternative dispute resolution, law and medicine -- issued its final report July 27, with recommendations for the use of mediation and arbitration to resolve disputes involving patients, doctors, health care providers and managed care organizations.
In forming the commission, the American Arbitration Association (AAA), American Bar Association (ABA) and the American Medical Association (AMA) expressed the hope that as the health care environment continues to evolve, the dispute resolution models and due process safeguards developed by the commission will be implemented by managed health care organizations across the nation to give consumers the opportunity to have a prompt resolution of their disputes, while at the same time assuring that the parties' constitutional and other legal rights and remedies are protected. A concomitant goal was to provide guidance to legislative and related bodies that are developing systems to regulate the managed health care relationship.
The determination of the three sponsoring institutions to form the commission was prescient. In the several months that followed the creation of the commission in the late summer of 1997, the topic of health care has become a subject of national discourse. The President's Advisory Commission on Consumer Protection and Quality issued a final report to President Clinton in March 1998, urging the creation of a patient's bill of rights. Legislative initiatives, at both the state and federal levels, were commenced with the goal of addressing the emerging issues in health care.
Key Recommendations
Following extensive debate and oral and written presentations from a wide array of key organizations and individuals, including health care providers, patient advocacy groups, health care insurers, health insurance associations, public health officials, elder care groups and law and medical school faculty members, the 15-member AAA-ABA-AMA Commission unanimously made the following recommendations:
Although the commission decided not to study the applicability of ADR to medical malpractice, Medicare, specific provisions of health care insurance contracts or general access to health care outside of the private managed health care relationship, this does not mean that the concepts articulated in the report are not applicable to other health care relationships, such as indemnity plans (i.e., those in which the patient seeks reimbursement from a health insurer for the cost of medical care received). The commission is also aware that managed health care tort liability concepts are developing. These concepts may result in new types of civil claims that may be resolved by means of ADR, just as ADR is used today in may jurisdictions for resolving personal injury civil claims.
Due Process Standards
A key component of the report is the Due Process Protocol for the Resolution of Health Care Disputes, which establishes a 10-point system to ensure fairness and due process in the resolution of health care disputes. It covers such issues as:
ADR Models
As part of its work, the commission reviewed a number of ADR processes that may be appropriate for the resolution of disputes and disagreements that occur among patients, families, health care providers and managed care organizations. The use of external, independent ADR is typically not available until after all remedies are exhausted within the managed care organization. Usually, managed health care plans will offer some form of internal review, through which a provider or participant can challenge the plan's action. While this review can and should include some elements of ADR, the commissioners contemplate ADR playing a role in the next step -- i.e., as a form of independent external review or appeal. Based on the information adduced during the course of its work, the commission has concluded that there is a clear need to help all participants better understand how ADR works, what forms ADR takes and what problems to avoid.
The commission submitted the following proposed neutral models for ADR as prototypes for use in matters or disputes involving managed health care. A consistent theme throughout is an effort to maintain a "level playing field" for all participants. (Fully-developed models and explanations are set forth in Exhibit III of the Appendix to the report.)
Ombudspersons
A neutral third party (either from within or outside the program) is designated to receive information regarding managed health care disputes, and to confidentially investigate and propose settlement of complaints. The ombudsperson may also provide information on how the dispute resolution process works.
Fact-finding
The investigation of complaint by an impartial third person (or team) who examines the complain, considers the facts ascertained and issues a nonbinding report.
Consensus-building
A process that involves the use of a neutral third party, often referred to as a convener, who assists numerous persons or groups in arriving at a consensus through a structured negotiation among chosen representatives of all stakeholders.
Mediation:
The process in which the parties discuss their disputes with an impartial person who assists them in reaching a settlement. The mediator may suggest ways of resolving the dispute but may not impose a settlement on the parties. Mediation offers the advantage of informality, with reduced time and expense needed to resolve disputes.
Arbitration:
The submission of disputes to one or more impartial persons pursuant to established procedures, generally for final and binding determination. Variants include nonbinding arbitration. There are four major types of arbitration agreements:
The concept of the timing of the agreement to arbitrate is discussed in Section XII of the draft final report (Due Process Standards) and in Exhibit III of the appendix (Alternative Dispute Resolution Models). It is worth noting, however, that the commission's unanimous view is that in disputes involving patients and/or plan subscribers, binding arbitration should be used only where the parties agree to it after a dispute arises.
ADR hybrids:
The combination of one or more ADR formats, frequently in sequence. For example: "Med/Arb" is mediation followed by arbitration in the event mediation is not successful. The number of potential ADR hybrids is virtually unlimited.
Conclusion
The commission concluded that alternative dispute resolution has a valuable role to play in the resolution of disputes arising out of the private managed health care relationship. ADR complements internal review programs, serving as the next efficient and effective step for resolving unsettled claims. ADR can function effectively as a means of external review or appeal of determinations made by managed health care organizations. It is essential, however, that ADR programs be developed with due process safeguards for the rights of all participants in the process.
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