Health Systems Direct

HIPAA: THE BUSINESS CASE FOR CONFLICT MANAGEMENT SYSTEMS (CMS) & ALTERNATIVE DISPUTE RESOLUTION (ADR) Part II of II

George G. Karahalis, FACHE, President, HealthSystems Direct LLC
Adjunct Professor, Emory/Rollins School of Public Health
Georgia State Registered Neutral, # 2261

HIPAA, Title II, the Privacy Provisions, brought with it a number of new considerations for healthsystems. But, there is an additional, more subtle, but more invasive long term consideration.

HIPAA creates new opportunities for disputes among Business Associates and Covered Entities. Part One of this article presented the problem, pointing out that it has always existed, but was/is rarely managed. And, that HIPAA pressures will surface and magnify these issues. Part Two of the article offers solutions.

Part I observed that, among other things, responding to this situation after the fact is a problem. We suggested that you consider two concrete "Preventive Medicine" steps.

1. 1. Establish Conflict Management Systems that apply the principles of Alternative Dispute Resolution to the processes of your operations. Help your middle managers acquire the skills of CMS and ADR in their dealings with patients, families, their colleagues and employees, and external relations with outside entities such as physicians, MCO's and Plaintiff's Attorneys. This step not only deals with the immediate HIPAA problem, but lays the foundation for improving organizational performance by reducing internal friction and lost traction in the market. The American College of Healthcare Executives (ACHE) and other national, professional organizations provide such courses on a regional basis. There are local sources of classroom-style training, customized coaching and distance learning. We offer additional options below.

2. H2. Negotiate with MCO's, and other Covered Entities and Business Associates to add two items to each contract:

a. An ADR paragraph that emphasizes Negotiation and Mediation. As of January 2003, none of the existing contracts offered by MCO's contain the offer of Mediation. The AMA model contract suggests use of this language, but few have seen the priority (up to this point) of including such language.
Here's the importance: Mediation provides a confidential method for dispute resolution of, for example, culpability for alleged inappropriate PHI disclosures. Unlike Arbitration or Litigation, Mediation can be kept confidential by its implementation contract, unless the contract must be enforced in court because of a breach of the provisions of the dispute resolution.
MCO contracts, contracts between physicians and hospitals, and other vendor relationships are the most pressing places for an ADR clause to be added. Go to www.healthsystemsdirect.com, the ADR Tab, to obtain sample language for your attorney to consider.
An equally important consideration is that Mediation is 1/5th the cost of Arbitration, and, an even smaller proportion of Litigation. Usually, Mediation can be completed in one to two-days, if all parties are properly prepared ahead of the meeting. Of course, Negotiation is, yet again, less expensive and goes to the heart of the idea that all Covered Entities and Business Associates "are in this together," and need to create sustainable procedures or forums where realistic problem solving can and does occur.
b. Procedures for identifying the specific person to be contacted in the event of a PHI disclosure and to assure that HIPAA/PHI mitigation steps have been properly initiated. The HIPAA Tab at www.healthsystemsdirect.com provides an example of the verbiage that should be considered, either as a part of the contract or a special attachment. It is not meant to "over engineer" the solution, but to clearly lay out who is the accountable party - the Privacy Officer - in each organization and the steps that each party should expect to occur as a "responsible/accountable party" to any interchange of personal patient information for "operations purposes." This document is a jumping off point for creating workable notification and management procedures, and should not be considered comprehensive.

What other general guidance and justification for CMS and ADR exist?

Below, we briefly cite a few other sources of information about CMS. These articles and book references give you a flavor for the urgency and considerations that these other sources see for this concept. Consider these sources:

1. In American College of Healthcare Executives (ACHE) writings, there was a December 2002 article, as follows:

"Managing Workplace Conflicts--When Should You Intervene?"
"Conflicts in the workplace happen every day in countless different situations. As a manager, you are responsible for ensuring that such conflicts do not interfere with the operations of your department. But as you have probably discovered, many conflicts resolve themselves without management action. Indeed, personal conflicts between employees are often best left alone; employees tend to feel better if they solve their own problems. When a conflict infringes on how a job is performed, however, you may need to step in. Authors Kirk Blackard and James W. Gibson have developed some easy guidelines for determining when management should become involved in workplace conflicts.
"Management should intervene when:
The conflict is one that directly affects management's interests, such as a department budget.
The conflict is disruptive to others and has a negative effect on the work environment, including employees having public arguments or refusing to work together.
The conflict could potentially become a harassment case.
The conflict is between employees at different levels in the organization, creating a power disparity such as an argument between a supervisor and a direct report.
An employee requests management's intervention in the conflict.

While this guidance is certainly appropriate, it does not mention that organizations need to have created a culture, procedures, forums, methods, etc., that make employees and middle managers feel that they CAN be successful in initiating a conflict resolution at their level. The "How to" process described at www.healthsystemsdirect.com website, the ADR Tab, contains information that will help you assess the opportunity to create a CMS and whether an outside facilitator is needed. This process was adapted from the book, "Designing Conflict Management Systems," by Cathy Constantino with a foreword by William Ury (who wrote the book, "Getting to Yes."). Still another good resource is an old favorite of mine, "Analyzing Performance Problems" by Robert Mager. His coverage of the topic is, however, not as comprehensive as a complete CMS.

2. The Miami Herald, as reported by John Dorschner, related that "HMO attorneys are urging arbitration not litigation" (2002) in their dispute with physicians about deliberate payment delays to the doctors.

While arbitration is a form of ADR, sometimes the resolution is that the people who need to continue to work together, in sustainable working relationships, do so with pre-agreed provisions for effective Negotiation and Mediation.

But, they must arrange this before they get to the expensive step of Arbitration and Litigation. Small providers, such as solo physicians, cannot afford Arbitration or Litigation, except as a desperation step. Thus, if the HMO's had realized that they could not "stonewall" the community of physicians forever, they might have decided to take a collaborative approach, rather than spend all the money needed to defend themselves from a class action suit that might be on behalf of 35 million patients! The HMOs involved include United Healthcare, Prudential and Wellpoint. The cases are expected to go on for several years. The Associated Press contributed to this report.

3. In another 2002 article in HealthLeaders.com, Lawrence Levin, PhD, wrote, "Aligning the stars: The essential act of dialogue within senior healthcare teams."

"Those of us who have been part of running a healthcare organization know full well the importance of teamwork and communication at the most senior levels of the organization. Yet executive teams often don't do a great job of being fully candid or having open and high order dialogue with one another - even when the stakes are high and the winds of change are in the air….

"It is not unusual for senior healthcare team meetings to be characterized by careful, deliberate presentations often so well polished that the "real" issues never get surfaced.

"What makes good dialogue often so difficult for such competent and experienced healthcare executives? Three reasons for the difficulties are:

1. Old habits die hard - Senior meetings take on a form and rhythm based on history, culture and habits. A common phrase is "it's the way we've always run these meetings." Since old habits are hard to break, a shift in focus is usually required to allow good dialogue to occur.

2. Culture is a shadow of CEO style - Dominant personalities and titles often dictate the comfort level, content, and degree of disclosure within senior teams. True alignment is only reached if people can shoot straight, differ publicly, raise different ideas and dialogue fully. Being careful won't get you there.

3. What if it gets worse? - A fairly common fear is that truly open dialogue will create conflict or worsen issues that are simmering. Many senior teams choose to keep a lid on those issues that are commonly known but not dealt with. The team leader must set the bar for either being candid or being careful. Issues which go unexpressed and unresolved consistently limit the very things that an executive healthcare team is tasked to do. If you can't talk about it, then how can you do it better, or different, or faster?

Dr. Levin suggests: "ACTION STEP: Ask yourself, what are the important issues your executive team doesn't talk about? What are the issues you as a healthcare leader notice but don't know how to address? Ask yourself, what could our team accomplish if these issues weren't in the way? Just by taking time to notice and acknowledge these issues, you will be taking an important first step toward "aligning the stars" within your organization."

We will go a step further to say that, HIPAA requires a carefully thought out and systematic approach to the management of differences in opinion, outright conflict and informal and formal disputes. We also believe that this preventative step is a priority because of growing cost pressures on the healthcare marketplace, as a whole, and its organizations in particular. External facilitation is often the only way to help a CEO or physician entrepreneur achieve a change in culture. CMS and the formalized, dispute management mechanism of ADR are essential executive skills for the future.