Annotated Bibliography - Law and Ethics

This special supplementary section of the bibliography provides an independently produced annotated bibliography on managed behavioural healthcare prepared for the US Substance Abuse and Mental Health Services Administration; please see the first page of the supplement for recommended citation information.

Table of Contents

  1. Introduction
  2. Benefit and System Design
  3. Capitation
  4. Community Mental Health Services
  5. Diagnosis-Related Groups (DRGs)
  6. Economics, Forecasting, and Pricing
  7. Employee Assistance Programs (EAPs)
  8. Health Maintenance Organizations (HMOs)
  9. Law and Ethics
  10. Provider Issues
  11. Public Sector
  12. Quality Assurance and Outcomes
  13. Special Populations
    1. Children
    2. Elderly
    3. Ethnic Groups
    4. Women
  14. Substance Abuse
  15. Training and Education
  16. Utilization Management
  17. Author Index
  18. Keyword Index

Law and Ethics

183. Appelbaum, P. S. (1993). Legal liability and managed care. American Psychologist, 48, 251-257.

Clinicians and managed care companies will incur new legal duties as a result of their activi-ties in a managed care environment. This article discusses potential legal responsibilities of clinicians. These include the duty to appeal adverse decisions of a managed care company; to discuss the potential economic consequences of treatment decisions; and to continue treat-ment without payment or at a reduced rate. The article describes several legal cases involving managed care. The author concludes that clinicians may be reassured by the tendency of courts to recognize the legal responsibilities of both clinicians and care reviewers for their activities in managed mental health care. Keyword: liability

184. Becker, J., Tiano, L., & Marshall, S. (1992). Legal issues in managed mental health. In J. Feldman & R. J. Fitzpatrick (Eds.), Managed mental health care: Administrative and clinical issues (1st ed., pp. 159-184). Washington, DC: American Psychiatric Press.

This chapter discusses some of the legal and ethical issues that arise in connection with man-aged mental health care programs (MMHPs). The authors confine the scope of the chapter to five major issues: State laws relating to managed mental health organizations; confidentiality issues; risk management; selection of providers; and the impact of rules relating to affiliated service groups. The chapter uses legal cases to demonstrate the areas in which a managed care organization may be held liable and makes some suggestions regarding ways that MMHPs can be structured and operated to maximize compliance with State laws.
Keywords: ethics, liability

185. Blum, S. R. (1992). Ethical issues in managed mental health. In S. Feldman (Ed.), Managed mental health services (1st ed., pp. 245-266). Springfield, IL: Charles C. Thomas.

The author argues that the crux of the ethical debate in managed mental health care is the perceived trade-off between the goals of cost containment through management versus quality of care. This chapter uses the discipline of applied health care ethics to examine the implica-tions of managed care for both provider as well as consumer on issues such as patient and provider autonomy, informed consent, and the "double agent" problem (the divided loyalty clinicians feel to both patient and care manager/payor). He concludes that the success of managed mental health must be judged both on its quality and cost-effectiveness as well as on the extent to which the ethical issues are addressed and resolved satisfactorily. Keyword: ethics

186. Boyle, P. J., & Callahan, D. (1995). Managed care in mental health: The ethical issues. Health Affairs, 14(3), 7-22.

This article examines the ethical issues involved with managed care penetration in the mental health care market. The authors discuss the ethical arguments behind six of the major criti-cisms of managed care. These criticisms concern managed care’s supposed adverse effects on quality, limitations on access, a loss of the provider/patient relationship, insufficient promotion of informed patient choice, heightened secrecy of policy and benefit design, and the transfer of decision-making responsibility from physicians to managers under utilization review processes. The report concludes that, from an ethical viewpoint, the problems that confront managed mental health care diverge very little from those of managed care. The authors contend that ultimately the managed mental health care system, if it continues to attempt to curb abuses and rectify ethical problems, should prove superior on the whole to fee-for-service medicine. Keyword: ethics

187. Dörken, H., & Pallak, M. S. (1994). Using law, research, professional training, and multi-disciplinary collaboration to optimize managed care. Managed Care Quarterly, 2(2), 53-59.

Poor collaboration among health professionals leads to negative outcomes for patients. In this article, the authors outline the potential for revisions of law, application of research, professional collaboration, and focused training to maximize collaboration between mental health care professionals and the effectiveness of managed care. They argue that when a multidisciplinary perspective is brought to bear on a situation requiring mental health care, the strengths of these resources far outweigh those of any single professional approach to the same situation. Keyword: providers

188. Elpers, J. R., & Abbott, B. K. (1992). Public policy, ethical issues, and mental health administration. Administration and Policy in Mental Health, 19, 437-447.

Today’s mental health clinician-administrators in both the public and private sector face a number of ethical dilemmas. The authors describe a variety of conflicts and issues, such as patient rights, resource allocation, and problems posed by privatization and managed care. They suggest that a professional organization develop ethical guidelines to assist administra-tors in monitoring and making difficult choices. Keyword: ethics

189. Geraty, R. D., Hendren, R. L., & Flaa, C. J. (1992). Ethical perspectives on managed care as it relates to child and adolescent psychiatry. Journal of the American Academy of Child and Adolescent Psychiatry, 31, 398-401.

The increased influence of managed care on the way child and adolescent psychiatry is prac-ticed has created new ethical and legal dilemmas for the clinician and administrator. This article reviews the history of managed care and medical ethics and discusses the role of social values in medical decision making. Salient ethical issues are discussed, as are current legal decisions addressing clinician responsibility within a managed care system. The authors rec-ommend that child and adolescent psychiatrists anticipate ethical dilemmas before they occur and work with hospital administrators to develop guidelines that address contradictory fiscal and clinical decisions.
Keywords: children, ethics, overviews

190. Hall, R. C. W. (1994). Legal precedents affecting managed care: The physician’s responsibilities to patients. Psychosomatics, 35, 105-117.

This article reviews some of the most significant legal cases related to managed care and physician responsibility for patient care. The author focuses on the implications of these cases for how psychiatrists should practice in a managed care environment. Suggestions are made for how physicians might manage care when they feel they are caught in an ethical dilemma by managed care companies or their third-party reviewers.
Keywords: ethics, liability

191. Higuchi, S. A. (1994). Recent managed-care legislative and legal issues. In R. L. Lowman & R. J. Resnick (Eds.), The mental health professional’s guide to managed care (pp. 83-118). Washington, DC: American Psychological Association.

This article is an extension of Newman and Bricklin’s review (Chapter 4; reference numbers 193 and 194) of legal issues relevant to managed mental health care. The author describes in detail the content of State statutes regarding utilization review, preferred provider organiza-tions, and HMOs. Recent court cases are discussed in light of expanding liability for managed care systems and providers. The author discusses typical legal dilemmas faced by psychologists, particularly those involving utilization review and access to mental health care services. The chapter concludes with a number of legal strategies that can be used by practitioners who are experiencing problems in managed care systems.
Keywords: liability, overviews

192. Lazarus, J., & Pollack, D. (1997). Ethical aspects of public sector managed care. In K. Minkoff & D. Pollack (Eds.), Managed mental health care in the public sector: A survival manual. Amsterdam: Harwood Academic Publishers.

When the public sector enters into managed care arrangements for the provision of services, certain ethical dilemmas can arise. This article discusses the roles of the following ethical con-cerns in public sector managed care (PSMC) systems: confidentiality, informed consent, full disclosure, double-agentry and conflicts of interest, honesty, financial incentives and disincen-tives, outcomes, interference in the clinical relationship, relationships among mental health professionals, consumers as providers, telemedicine, formulary restrictions, leverage, inade-quate experience of PSMC systems, and organizational issues. In addition to discussing ethical concerns that may arise, this article also suggests ways to maintain ethically sound practices.
Keywords: ethics, public sector

193. Newman, R., & Bricklin, P. M. (1991). Parameters of managed mental health care: Legal, ethical, and professional guidelines. Professional Psychology Research and Practice, 22, 26-35.

The authors express concern about the potentially adverse consequences of cost containment on quality of care in managed care settings. They argue that managed care legislation has failed to establish parameters for ensuring the quality of mental health services. More effective laws and regulations are needed to ensure that cost-containment efforts do not compromise quality mental health care. State statutes and regulations to ensure quality are outlined, such as those aimed at licensing and prohibiting false advertising. Also described are recent lawsuits to hold managed care companies accountable for the care they provide. The authors discuss the major legal, ethical, and professional parameters available to guide clinicians and managed care companies. Finally, they propose methods of ensuring that a focus on providing quality care is not compromised by strategies for cost containment.
Keywords: liability, overviews

194. Newman, R., & Bricklin, P. M. (1994). Parameters of managed mental health care: Legal, ethical, and professional guidelines. In R. L. Lowman & R. J. Resnick (Eds.), The mental health professional’s guide to managed care (pp. 63-82). Washington, DC: American Psychological Association.

See Newman and Bricklin, 1991 (reference number 193) for annotation.

195. Olsen, D. P. (1994). The ethical considerations of managed care in mental health treatment. Journal of Psychosocial Nursing, 32(3), 25-28.

This article, written from a nursing perspective, addresses ethical issues in managed mental health care. The author suggests that the three areas most significantly impacted by managed care are restrictions on patient autonomy of choice of treatment and treatment site; relation-ship between the nurse as a managed care agent and the patient; and patient responsibility in treatment decisions made through managed care with concomitant denial or alteration of access to treatment based on compliance. The author argues that while managed care is neither inherently good nor bad, the medical profession must examine managed care in light of these potential ethical dilemmas. Keyword: ethics

196. Olsen, D. P. (1995). Ethical cautions in the use of outcomes for resource allocation in the managed care environment of mental health. Archives of Psychiatric Nursing, 9(4), 173-178.

With the rise in competitive contracting for health care resources, outcome data is becoming a common deciding factor in the allocation of contracts and financial rewards. In this article, the author discusses the ethical concern about using outcome data in the field of mental health. In particular, the paper focuses on the ethical concerns with six specific types of out-come measurements: utilization data, patient reports, clinician reports, objective measures of diagnostic entities, objective measures of functioning, and multifactor research. The author suggests guidelines for addressing ethical concerns and presents the difficulty in defining good outcomes.
Keywords: ethics, outcomes, performance measurement

197. Packer, I. K. (1998). Privatized managed care and forensic mental health services. Journal of the American Academy of Psychiatry and the Law, 26(1), 123-129.

This article describes the introduction of managed care for mental health services into the pub-lic sector, and the special challenges unique to serving the forensic population, such as pretrial evaluation services, pretrial treatment services, and post-adjudication services. Throughout the report, the author describes examples where States have been managing forensic services and highlights the successes and challenges they have faced in serving this population. According to the author, five primary elements are required for any State to properly monitor the delivery of forensic services by the private sector: a specialized utilization review process, a quality assur-ance tool, a standard to properly train and assess the performance of professionals, the release of a risk assessment concurrent with the release of forensic patients, and a tool to monitor the prevalence of severely mentally ill forensic patients.
Keywords: public sector

198. Patterson, R. F. (1998). Managed behavioral healthcare in correctional settings. Journal of American Academic Psychiatry Law, 26(3), 467-473.

This article focuses on issues of concern in negotiating managed care contracts for the provi-sion of behavioral health care services in correctional settings. The author summarizes the factors that contribute to the complexity of providing services in correctional settings. He discusses key decision points in negotiating behavioral health care services with managed care organizations and argues for the involvement of mental health professionals in these areas. These key considerations include staffing levels, drug formulary, level of service requirements, and other costs related to health care which, although typically borne by the State, influence the provision of care and should be taken into account during contract negotiations.
Keywords: contracting, public sector

199. Petrila, J. (1995). Who will pay for involuntary civil commitment under capitated managed care? An emerging dilemma. Psychiatric Services, 46(10), 1045-1048.

With mental health reimbursement increasingly relying on capitation and managed care principles, there are incentives to limit hospital bed use for the civilly committed. Yet these individuals must often remain hospitalized for even longer periods because of their civil pro-file and the perceived risk involved in releasing them into general society. In this paper, the author explores this conflict as well as the relationship between civil commitment and cost-shifting in a capitated payment system. The author suggests six strategies for providers deal-ing with these issues: avoiding negotiations concerning payment questions after evaluation and treatment have begun by including conditions for civil commitment in their contracts; creating services and social supports to reduce the need for commitment; implementing consistent risk assessment standards for all patients; conducting research on the use of civil commitment in managed care settings; ensuring that States with managed Medicaid programs do not create incentives to shift costs through commitment; and engaging in discussions with treatment staff about the dilemma.
Keywords: capitation, involuntary commitment

200. Petrila, J. (1998). Courts as gatekeepers in managed care settings. Health Affairs, 17(2), 109-117.

This article describes instances where the judicial system orders behavioral health treatment for offenders and questions the responsibility of managed care providers to pay for services that might not be "medically necessary." The author examines the often conflicting goals of the courts and the managed care organization (MCO), the plan structure of the MCO, and the enforcement and liability of the MCO that chooses to limit reimbursement of services for court-ordered behavioral health treatment. The author provides solutions reached by different States through legislative means that help to designate financial responsibility, risk, and provision of services between judges acting as "gatekeepers" and the MCO as the payer or provider of services.
Keywords: involuntary commitment

201. Rich, J. P. (1992). Managed mental health: Key legal issues. In S. Feldman (Ed.), Managed mental health services (1st ed., pp. 267-290). Springfield, IL: Charles C. Thomas.

This chapter provides an overview of the trends in the managed health care field, concentrating on legal issues affecting managed mental health care. These include significant court cases and federal and state regulatory actions. The federal and state regulatory environment in which the managed care industry and mental health professionals work is described, as are current legal issues confronting provider-controlled managed care entities. Several managed mental health liability issues are discussed. These include provider credentialing and peer review liability, utilization review decisions, risk sharing and restrictive referrals, refusal to consent to psychotropic drugs, and liability for failing to protect mental health patients or their victims from harm.
Keywords: liability, overviews, trends

202. Simon, N. P. (1994). Practitioner ethics and managed care. Managed Care Quarterly, 2(2), 43-45.

Providers of managed mental health services often argue that the profit motive base of man-aged care companies generates dilemmas for providers that may have serious legal and ethical implications for them. These dilemmas are briefly discussed. The author argues that in the best interests of patients, both managed care companies and care providers should strive for a more cooperative working relationship, open discussion, and resolution of the ethical issues at stake. Keyword: ethics

203. Stone, A. A. (1999). Managed care, liability, and ERISA. Forensic Psychiatry, 22(1), 17-29.

In 1974, Congress passed the federal Employee Retirement Income Security Act (ERISA) to secure health benefits negotiated between management and labor without providing either side an edge over the other. This article provides an overview of the crucial issues that have had an impact on the nature and quality of care that patients receive from physicians, psychiatrists, and other mental health practitioners. These include ERISA’s restrictions on health care, identi-fied by examples from specific court cases; liability for suicide; and ERISA restrictions that cause harm to patients in the era of managed care. With ERISA’s effects of lowering profession-al standards of care and protecting insurance carriers from liability, perhaps malpractice liabili-ty will become the primary vehicle for mitigating the injustices sparked by this regulation.
Keywords: legislation, liability

204. Substance Abuse and Mental Health Services Administration. (1998). Ethical issues for behavioral health care practitioners and organizations in a managed care environment: Vol. 5. Managed care technical assistance series. Rockville, MD: Author.

This monograph of five sections presents discussions and case studies to illustrate a number of core ethical issues in managed behavioral health care. The first section discusses the ethical principles relevant to overall allocation of behavioral health care resources, the second dis-cusses those ethical principles informing the treatment relationship, and the third and fourth sections discusses the impact of managed behavioral health care on these ethical principles. The monograph concludes with a discussion of how behavioral health care individual Special Report 80 providers and organizations might respond to these ethical dilemmas. According to the monograph, ethical issues are especially relevant to the managed care system because it poses particularly difficult ethical issues due to the tension between cost containment and obtaining services for people with mental disorders.
Keywords: ethics, technical assistance

205. Wineburgh, M. (1998). Ethics, managed care, and outpatient psychotherapy. Clinical Social Work Journal, 26(4), 433-443.

The author discusses ethical issues that managed care organizations and mental health care providers should consider in the environment of managed mental health care. These include respect for the patient and patient autonomy, informed consent regarding procedures and treatment, confidentiality, issues of divided loyalty among practitioners who also work for managed care organizations, placing a priority on the promise to do no harm to the patient, resisting the impulse to treat all patients with short spans of care, and taking on the duty to appeal the patient’s case to the managed care organization where applicable.
Keywords: ethics, providers

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This page was last reviewed by Dr Greg Mulhauser, Thursday, 14 October 2021.