December 2003

Healthcare Alternative Dispute Resolution

By Rod Mathews

Disputes with health insurers or managed health care organizations can be bitter and complicated. The most time- and cost-efficient ways of resolving those disputes are the various forms of alternative dispute resolution (ADR), all of which are more appealing to the insured person than the courtroom option.

ADR Advantages

In general, arbitration is a more formal process than mediation. Independent, impartial, and chosen by the parties in dispute, an arbitrator is trained in the art of dispute resolution. He presides over the dispute and renders a final, binding decision. Mediation, on the other hand, is a more informal process. A mediator, chosen by the disputing parties, facilitates discussion of the dispute between them; he assists the parties in coming to their own resolution. The training and skills of a mediator are more facilitative than those of an arbitrator, whose task is to preside over an orderly final disposition.

ADR’s advantages are particularly attractive for healthcare disputes. When someone’s well-being is at risk, time is of the essence. Delays can adversely affect outcome, and barriers to care such as cost, delay, formality, or complexity are to be avoided. Courts are seldom the most effective means of resolving disputes under these unique circumstances.

But even when a healthcare dispute is not urgent, it is unrealistic to look to the courts for effective solutions. Barriers to access, procedural delays, costs, and limitations on available remedies all serve to provide less than optimal results. Each person’s health status is unique and defies standard solutions.

On the other hand, ADR—such as arbitration or mediation—is adaptable, flexible, and limited only by the creativity and expertise of the participants. Litigation’s usual formalities and conventions can be avoided to suit the exigencies of the particular situation. Little capital investment or special training is required. The parties are guided, but not bound, by such courtroom complexities as the rules of evidence. Specific knowledge—such as healthcare—of the arbitrator or mediator is more readily available than in the courtroom. Custom, complex solutions can be built expeditiously and at relatively low cost, with input from multiple interests and with the patient’s risk level in mind. Fairness and equity are the objectives. Lawyers are not required. The courtroom’s adversarial and polarizing atmosphere is abated, and the feedback that is so important for healthcare quality improvement is facilitated. As a result, ADR often facilitates access to health care.

Healthcare Issues

A closer examination of the general and health care–specific reasons to use ADR reflects why even healthcare insurers or managers favor ADR—despite the advantages these companies enjoy in the courtroom.

ADR’s benefits—speed and efficiency; low cost; privacy; ease of access; informality; confidentiality; and non–precedent-setting—are compelling reasons for the parties to any dispute to be interested. Though not the same as confidentiality, privacy can be attractive when compared to the very public nature of court proceedings. Indeed, the disruptions and distractions to people and resources involved in any such contest should be more manageable under ADR.

But there are additional, unique reasons why health-care stakeholders should bring their disputes to ADR. Healthcare benefits managers, often disappoint the expectations of physicians and their patients. So, conflict is inevitable and constant. Even though the playing field has been leveled by the regulatory and political reaction to managed care, and despite the many undisputed claims that are processed daily, public skepticism, anger, and distrust about healthcare coverage and access decisions persist, fair or not. The enhanced perception of fairness and degree of satisfaction that comes of a dispute resolved by an independently chosen neutral party may by itself be enough reason to choose ADR. Not only can a skillful neutral fulfill the need of the parties to have their day in court, he can do so in less daunting surroundings, without the complexities and specialized skills required in the courtroom. At the same time, insurers and managers will be assured that the knowledgeable neutral will not act as a vindictive jury might, and that the unequivocal terms of a critical document (e.g., an insurance policy) will be given appropriate attention.

Furthermore, developing exceptions to the ERISA shield, new and evolving liability theories in managed care class actions, and increased marketplace savvy all recommend ADR to those whose interests are best served by quiet, confidential, and low-profile dispute resolution. Claims based on quality of care (as distinguished from benefit coverage decisions) and class actions alleging the use of sophisticated claims payment software to minimize reimbursement payments are current examples of anti–managed care litigation that could be better addressed outside of the courtroom.

Additionally, the heat of a public confrontation might be deflected or diminished by referral for private disposition by an independent, well-trained, and knowledgeable neutral party. In contrast, the government’s reaction to disputes in the health-care field, such as various “patients’ rights” proposals, seems bureaucratic, unwieldy, and inflexible.

Solid support for these methods can be found in the 1998 Report of the Joint National Commission on ADR for Health Care Disputes, “A Due Process Protocol for Mediation and Arbitration of Health Care Disputes.” The report is a unique collaboration among the American Medical Association, the American Bar Association, and the American Arbitration Association. It has three parts: a description of fairness standards for ADR in healthcare; a useful explanation of the different types of ADR processes (arbitration, mediation, etc.); and a catalog of the disputes for which ADR would be effective, such as medical necessity, provider access, facilities, procedures or equipment, coverage, reduction or termination of services, treatment coordination by various disciplines, and, especially, any situation where the stakes are high or where strong emotions or distrust are present and time is of the essence. More recent practical thinking on healthcare ADR can be found in Aspen Publishers’ handbook, “Health Care Dispute Resolution: Techniques for Avoiding Litigation” (2000).

Finally, even though mediation is voluntary and might be ended by any party at any time with or without cause, statistics show that nearly 85% of mediations produce successful party-built solutions. All told, there are good and even compelling reasons for parties in healthcare disputes to use ADR.

Rod Mathews practices healthcare and alternate dispute resolution law in the Richmond, Va., offices of Troutman Sanders LLP. He arbitrates disputes for the American Arbitration Association, the American Health Lawyers Association, and the NASD Dispute Resolution. Mathews is also ARIAS-US certified to arbitrate insurance disputes.

Philip Zimmerman, APM, CPA
Mediator and Arbitrator

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