Safeguarding the Interests of People with AIDS in Managed Care Settings
Blum, John D., Albany Law Review
Routine encounters with health care advertisements have become standard realities of daily life. In contrast to prior decades, it hardly seems striking in the late 1990s to see glossy, expensive ads for health care institutions and managed care plans.(1) Recently, an advertisement for a large managed care plan appeared in a national magazine, which, in the succinct, stylish format of Madison Avenue, touted the managed care plan's commitment to provide state of the art medical care. The copy detailed the health plan's pledge to seek appropriate clinical advice from leading academic medical centers on issues concerning treatment and prevention.(2) The various programs announced in the ad are impressive, and on their face quite progressive. But in the midst of the ad copy, the text states that the primary focus of health care must be quality: "It should be the only reason we're in this business."(3) What is truly noteworthy is not the plan's stated dedication to quality, but its willingness in promotional material to openly acknowledge that the sum total of its endeavors are commercial. The matter of fact statement that a managed care plan is a business is hardly a startling admission, but it is an admission which subsumes the purported commitment to quality, and reaches the essence of what organized health care delivery has become at the end of the twentieth century.
Managed care, in all of its manifestations, is the dominant force in the American health care landscape, and, within this context, issues of individual and public health need to be evaluated.(4) The managed care arena has become controversial as opponents of this form of medical care quote an ever increasing litany of anecdotes about the inadequacies and inequities that this business-oriented system engenders.(5) At the other extreme, proponents of managed care, purchasers and clinicians alike, see managed care organizations WOO as vehicles to bring about order, reduce costs, provide medical treatment, and in addition, promote health and continuity of care.(6) Like all areas of controversy, it is likely that the truth about the viability of managed care lies somewhere in the middle of an undefined world of efficient treatment and health promotion/protection. Seemingly, the real test for managed care businesses is whether they can successfully extend their broad range of services not only to healthy populations, but to the aged and chronically ill. The question of whether MCOs can serve all sectors of society effectively is ultimately a question of whether a commercial model can remain economically viable when serving populations that have profound medical needs. In addition, MCOs will be tested through their increasing linkages to government-funded programs, which bring to the managed care world the aged, the poor, and the disabled within highly regulated formats.(7)
The purpose of this Article is to explore the managed care medical treatment format in the context of AIDS with the overall focus on ways to safeguard the interests of HIV/AIDS patients. While the Article is driven by clinical concerns about whether the commercial managed care system can meet the needs of people with AIDS (PWA), that is a question beyond the scope of the Article. Rather the specific purposes of this Article are to explore, in a public context, the types of problems regulators confront in using managed care to treat PWAs, and in the private context, the development of legal rights that PWAs have in protecting themselves in coverage disputes with MCOs. The first portion of the Article will be devoted to consideration of Medicaid managed care, and in this context, particular issues such as capitation, risk sharing, availability of primary care physicians, drug treatment policies, quality assurance, and scope of benefits will be considered.(8) The second half of the Article will focus on a series of legal approaches that PWAs can use in private sector MCO coverage disputes. …