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Pain Management and Palliative Care in the Era of Managed Care: Issues for Health Insurers

Published online by Cambridge University Press:  01 January 2021

Extract

The problem of inadequate pain management for both terminally ill patients and patients with chronic pain has recently been documented by a number of authors and studies. A 1997 report by the Institute of Medicine (IOM), for example, states that “a significant proportion of dying patients and patients with advanced disease experience serious pain, despite the availability of effective pharmacological and other options for relieving most pain.” There are particularly impressive data that pain associated with cancer is not adequately treated.

The problem has been attributed to (1) inadequate education of physicians on approaches to pain management and an often misguided belief that prolonged therapy with certain pain medication will lead to addiction; (2) legal obstacles, such as physicians’ fear of criminal prosecution and other disciplinary actions by state licensing boards for overprescribing narcotics; and (3) inadequate insurance coverage as a result of narrow eligibility criteria for hospice care for Medicare beneficiaries, and inadequate reimbursement more generally for pain management and palliative care.

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Article
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Copyright © American Society of Law, Medicine and Ethics 1998

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References

Email Comments of Michael Chamberlain, M.D., Medical Director, Blue Cross Blue Shield of Maine (July 15, 1998) (on file with author).Google Scholar
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At the same time as we have become aware of the inadequacy of pain relief practices, our health care system is undergoing revolutionary changes. More and more of the insured population has moved into managed care. Over 70 percent of employees in medium and large organizations are enrolled in managed care plans, and the number of Medicare and Medicaid recipients in managed care is growing rapidly. See Findlay, S. Meyeroff, W.J., “Health Costs: Why Employers Won Another Round,” Business & Health, 14 (Mar. 1996): at 49–51; see also Office of Managed Care, Health Care Finance Administration, National Summary of Medicaid Managed Care Programs and Enrollment (Washington, D.C.: HCFA Office of Managed Care, Sept. 20, 1996); and Health Care Finance Administration, Monthly Medicare Managed Care Contract Report (Washington, D.C.: HCFA Office of Managed Care, Sept. 1, 1996).Google Scholar
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At issue in this case was whether the determination would be evaluated on a “de novo standard or a more lenient arbitrary and capricious standard,” as desired by the defendant. The court ultimately applied the arbitrary and capricious standard. See id. Interestingly, an opinion by a federal district court regarding claimants governed by the Employment Retirement Income Security Act found that, under the same set of facts, the decision was not “arbitrary and capricious.” Semmler v. Metropolitan Life Insurance Co., 172 F.R.D. 86 (S.D.N.Y. Mar. 24, 1997), aff'd, 133 F.3d 907 (2d Cir.), cert. denied, 118 S. Ct. 2391 (1998).Google Scholar
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Id. Although California Senate Bill 687 was subsequently modified and the pain provisions deleted, Senate Bill 402 remained focused on pain treatment and was passed and signed into law in October 1997.Google Scholar
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The senior medical director (SMD) was chosen because he/she would be most likely to have a sense of the importance of pain management and palliative care to the plan relative to other plan priorities, and to be knowledgeable about the plan's product lines. Other medical directors, although more likely to have detailed knowledge about pain management and palliative care, would be less likely to see the issue in the larger context of plan administration and plan products.Google Scholar
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Palliative care is distinguished from pain management for terminally ill patients because it is considered to be somewhat broader in scope, encompassing not simply pain management but also other approaches to comforting patients at the end of life and helping them to cope with an impending death. The survey form defined palliative care as “comfort care and other non-aggressive treatment for patients who are terminally ill.”Google Scholar
Prior to initiating interviews, an exemption from institutional review board approval was obtained by the University of Maryland, Baltimore Institutional Review Board.Google Scholar
In addition, one plan director, speaking as a Medicare carrier, said that the issue had come to him in response to uncertainty over coverage (“loading of pumps by home nurse is not provided by Medicare, so it becomes cost to patient. Turfed problem to Medicare.”).Google Scholar
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One SMD said it had come to his attention with regard to “off label use of neoplastic agents for supposedly palliative care.”Google Scholar
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Id. To explain the difference between coverage for Medicare beneficiaries and non-Medicare beneficiaries, the policy states that “Medicare policy is developed separately from BCBSMA [Blue Cross Blue Shield of Massachusetts] policy. While BCBSMA policy is based upon scientific evidence, Medicare policy incorporates scientific evidence with local expert opinion, and governmental regulations from HCFA [Health Care Financing Administration] … and the U.S. Congress.” Id. According to a medical director at BCBSMA, local expert opinions are also used to develop medical policy for non-Medicare policies.Google Scholar
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One respondent said that state law mandated coverage of pain management for a minimum of sixty days and because TENS units were not effective for chronic pain, the plan had made a decision not to cover it. A later conversation with this respondent indicated that the state law he was referring to did not explicitly mention pain management but had been interpreted to include pain management. More recently, he said, the plan's interpretation of the law had been revised.Google Scholar
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Evidence indicates that persons with more severe and chronic pain use health care at rates substantially above population means. See Von Korff, M., et al., “Chronic Pain and Use of Ambulatory Health Care,” Psychosomatic Medicine, 53 (1991): 6179.Google Scholar
For example, in Maryland, as of June 1998, only seventeen physicians were certified by the American Board of Hospice and Palliative Medicine.Google Scholar
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See also Technology Evaluation Center, Blue Cross Blue Shield Association, Biofeedback (Chicago: TEC Assessment Program, Vol. 10, No. 25, Jan. 1996). In its official statement, the panel defines “biofeedback” as “a procedure intended to train a patient to control a physiological process (e.g., blood pressure).” The Technology Evaluation Center's (TEC) criteria for review include the following:Google Scholar
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According to one report, “[t]he advantage of the pumps—which can cost $25,000 to implant in the patient's abdomen—is that only 1/300th of the amount of morphine usually given orally is required when it's delivered directly into the spine.” “Pain Control Innovations,” supra note 33.Google Scholar
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The American Geriatrics Society Panel on Chronic Pain in Older Persons made this point in the introduction to its recent clinical practice guideline on the management of chronic pain in older persons. The panel said, “Pain is an unpleasant sensory and emotional experience…. Unfortunately, there are no objective biological markers of pain. Therefore, the most accurate evidence of pain and its intensity is based on the patient's description and self-report.” AGS Panel on Chronic Pain in Older Persons, supra note 5, at 635.Google Scholar
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Id. The Office of Inspector General's focus on hospice was motivated by rapid growth in the size of the Medicare budget going to hospice providers and evidence of abusive billing practices. See also Shapiro, J.P., “Death Be Not Swift Enough: Fraud Fighters Begin to Probe the Expense of Hospice Care,” U.S. News & World Report, Mar. 24, 1997, at 34; and Franz, D., “Hospice Boom Is Giving Rise to New Fraud,” New York Times, May 10, 1998, at 1. Supporters of hospice have argued that it is difficult to predict the life expectancy of many patients and it is unfair to penalize hospices for predicting wrong. Moreover, this type of scrutiny may discourage physicians from earlier referrals to hospices so that patients may benefit in their last months from the services hospices have to offer.Google Scholar
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See Justins, supra note 93. In the year 2000, the American Board of Medical Specialties will also allow physicians board certified in psychiatry, neurology, and physical medicine and rehabilitation to subspecialize in pain management by meeting the requirements for the subspecialty established for anesthesiologists. However, the subspecialty is in pain management, not pain medicine, a significant difference according to pain treatment experts.Google Scholar
Id. For example, in 1997, California went to court to ban doctors from advertising certification by the American Academy of Pain Management (AAPM). AAPM was formed in 1988 “to issue credentials to multidisciplinary practitioners, including physicians, nurses, counselors, priests and social workers.” Walsh, D., “Judge Allows State Limits on Doctor Ads,” Sacramento Bee, May 24, 1997, at B4. The ban applied only to physicians. The California Medical Board had previously denied AAPM's application for recognition on the grounds that, among other things: “the academy gives a two-hour test consisting of 100 multiple-choice questions, while the state wants the 16 hours of testing required by the national specialties board” and “of the 5,000 practitioners certified by the academy as of April 1996, only approximately 1,000 had taken the test.” The judge who heard the case initially granted AAPM's request for a temporary restraining order (TRO) preventing the state from implementing the ban, but subsequently reversed his decision and refused to issue a preliminary injunction and dissolved the TRO. The decision was based in part on a 1990 statute that “sought to remedy situations in which ‘a physician who takes a weekend course can advertise [him or herself] as board certified in that specialty.’” Id.Google Scholar
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See id. In 1992, there were just over 100 such certified facilities. Today, according to the Commission on Accreditation of Rehabilitation Facilities, there are just over 200. Id.Google Scholar
Id. In 1992, there were over 1,000 such facilities. Id.Google Scholar
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An addendum has been issued for this article: