Long before the Joint Commission on Accreditation of Healthcare Organizations required an institutional ethics mechanism, before bioethics committees were a twinkle in the 1975 Quinlan court's eye, and even before the medico-moral committees of 1940s Catholic hospitals, there was fraud, abuse and waste.
And long before the Tuskegee experiment ended in the 1970s, before Beecher's treatise on researcher integrity in the 1960s, and even before the gruesome Holocaust probes, there was whistleblowing and guaranteed anonymity.
The issues that have taken center stage in medicine and medical ethics now seem to be just these: fraud, abuse, waste, whistleblowing, anonymity. The immediate past president of the American Medical Association, Percy Wootton, M.D., says as much: "The AMA has zero tolerance for fraud and abuse by physicians or anyone else. This is a cornerstone of our Principles of Medical Ethics."
Is having medical ethics the same as taking a vigilant approach to fraud? Should ethics committees contribute to, or become, compliance programs? What can physicians learn from corporations with many stakeholders and with successful compliance programs?
Fraud and abuse
Understanding and using medical ethics is not the same as understanding and submitting to fraud-and-abuse laws. (See April 15, 1998, Annals of Internal Medicine 128:678 — 684). But payers' understanding of right and wrong includes accurate, effective and honest billing, coding and referring.
More than ever, payers want to know where their money went. According to the Office of the Inspector General, most of the money the Health Care Financing Administration erroneously paid out last year was because of documentation errors and lack of medical necessity — not incorrect coding and noncovered services.
But slamming physicians for inadvertent coding mistakes and calling it unethical is like blaming a lung cancer patient who smoked all his life. Neither action is rational; neither is therapeutic; neither protects patient interests; neither provides skills for change.
As health care takes such forms as a magic blue pill for erections and gene therapy for cancer, people have higher and higher expectations. They do not accept error or tragedy well, especially as the time for creating a therapeutic bond shrinks. Sometimes in lectures I show a New Yorker slide picturing the Grim Reaper about to collect a man near his front door. He asks, "Hey — don't I get a receipt?"
So fraud and abuse — lying and stealing and intending to lie and steal — is wrong. But can ethics committees help?
Most committee members are good-hearted volunteers who want to do the right thing and help others do the same. Many have become expert in dealing with disagreements concerning patient care, especially end-of-life care. Sometimes consultation has been useful — to the physician who requested it, to the family seeking new information, and to the patient suddenly and tragically concerned with such issues.
But ethics committees have problems. Few committees have budgets. Fewer have proved their utility in ways that are meaningful to modern institutions — reduced liability, reduced risk for liability, cost savings, actual revenues generated.
Most have been unable to help with issues concerning outpatient medicine, managed care or genetics.
Even to ethics committee members, "managed care ethics" seems like an oxymoron — managed care cares about profits, not ethics. Cost seems to come before quality. Executives' salaries soar out of sight. Physicians must spend more of their time with paperwork and documentation than with patients and families.
Now ethics committees have an open window. They are poised to take advantage of a huge backlash against managed care. People are fed up with having to fight for access to care for which they think they've paid. People think that managed care executives care more about stakeholder interests than the personal medical problems of any one member.
Ethics committees should try to help. Can the pragmatism of managed care — caring prudently for most of us — be transposed to fulfill its promise: Primary care for all? Is it fair that over 40 million can't afford managed care, even with all its warts?
Committees should suggest ethical and financial incentives to serve patients, to reduce cardiac and cancer risk, and to improve quality of life. They should find ways to help patients deliver more of their own care and to help physicians regain patients' trust. They should understand compliance programs in moral terms.
When most physicians hear "compliance," we think of a diabetic who doesn't check his sugar levels, or look between his toes after a shower, or go to the ophthalmologist's office after we completed the correct referral form to get him there. But this "noncompliance" is now "nonadherence." And so it should be.
Doctors are not martinets any more than patients are disobedient. In the world of health care business, a new era in enforcement and compliance is here. Corporate compliance programs are ethics programs to many corporations. Sometimes, ethics is treatment.
Corporations that have committed felonies or Class A misdemeanors may be able to reduce their punishments by creating effective compliance programs. To be effective under federal sentencing guidelines, corporate compliance programs must have:
- written standards and procedures
- oversight responsibilities
- clear delegation of authority
- employee training
- monitoring and auditing
- enforcement and discipline
- response and prevention
Why have such a program? To prevent fraud, abuse and waste. To identify and prevent criminal and unethical conduct. To identify disgruntled employees who may become whistleblowers. To detect misconduct and to report potential problems such as false billing, medically unnecessary services, upcoding, unbundling, duplicate billing, DRG creep and patient dumping.
Sense of fair play
For better or for worse, physicians in managed care are targets for those looking for ethical abuses. Ethics is no longer just interpreting advance directives or trying to accommodate a patient's preferences. Ethics is having and displaying a sense of fair play. A practice's compliance program can make a huge difference in a world in which perception is reality. Try it.