The common managed care practice of hiring utilization review personnel whose credentials and experience fail to match those of the organization's providers will also be challenged. UR personnel have suggested different diagnoses and different kinds of treatment when they've never seen the patients and when they don't know the situation," Maderer said.
Although accounting for only two paragraphs in the complaint, the allegations that MCC's managed care practices violate New Jersey's law against the unauthorized practice of psychology could, if sustained, have a profound impact on the way treatment decisions are made. The NJPA and the individual psychologists will ask the court to decide whether the termination of providers without cause because of an assessment that they were not managed care compatible actually has a direct effect over the control and delivery of treatment afforded to patients. If it does, the argument goes, then MCC's practices are in fact the unauthorized practice of psychology.
"Managed care companies are making decisions about psychological and medical care and they're not just managing the benefit," said Wahler. "They are actually providing the care and they're not qualified to do so."
The constant fear, Wahler said, is that practitioners want to provide the services they believe are in the best interests of their patients, but fear they may be "dumped from a panel for no cause with no recourse." She said that the seven psychologists who joined the suit face an additional risk- concerns that other managed care organizations may blackball them as a result of the litigation.
Wahler said that the purpose of the suit is not to eradicate managed care, agreeing that its techniques have resulted in many positive changes. All of health care needs to be cognizant of controlling costs, but the solutions that [managed care] has come up with are far more dangerous to the health of people in this country than overutilization."
Russ Newman, Ph.D., J.D., executive director for professional practice at the American Psychological Association in Washington, agrees that "nobody until now has looked at the issue of termination without cause." Acknowledging that such terminations are customary business practices in many industries, he questioned whether patients' interests can be served when the "no cause" deselection process is applied to health care.
"The question is, is there a uniqueness to the patient/therapist relationship that is medically impacted by termination without cause?" said Newman. "Even if the court were to determine that it is an appropriate practice, the question is can one misuse [it]?"
Courts have tended to view managed care agreements as business arrangements, Newman said, applying traditional contract theories to their interpretation. But when courts have viewed a body of dispute as a health care relationship- for instance medical malpractice litigation- then they apply principles that require greater accountability. He sees a shift in the legal system away from a contract-oriented view of managed care.
"Is what's happening in the health care system simply the creation of a financial or business arrangement in order to then separately, but in that context, provide services, or do these business arrangements and managed costs strategies actually influence the health care that is being provided?" Newman asked. "I would argue that managed care is, in fact, the provision of health care."