Mediating with an 800-Pound Gorilla: Medicare and ADR

I. IntroductionA. Whose Program Is It?In 1965, President Lyndon Johnson's signature brought the Medicare program to life. Initially, this statutory creation did not receive an open-armed welcome from the majority medical establishment. For decades, the American Medical Association had fought against such legislation, condemning the very concept of government-financed health care insurance as "socialism."1 In the ensuing years, Medicare evolved from being vilified as an unwanted interloper that disrupted the doctor-patient relationship, to being vilified for not paying enough for the privilege of interfering. Physicians, hospitals, and medical schools may have begrudgingly embraced Medicare, but embrace it they did, nevertheless.Medicare reimbursed capital expenses, including depreciation and other long-term financing costs, in ways that fueled the construction of everimproving health care facilities.2 Health care grew from a profession to an industry, complete with a publicly-traded, for-profit segment holding some of the hottest stocks on Wall Street.3 Medical schools came to rely upon millions in Medicare revenues from faculty practice plans along with more millions for the ephemeral, additional costs of graduate medical education.4With the infusion of over 200 billion Medicare dollars annually, health care services now constitute one of the largest industries in the country. Medicare serves about forty million elderly and disabled persons annually and pays "nearly 1 million hospitals, physicians and other health care providers."5 In 2000, the Medicare program represented about 11% of the federal budget.6 According to colloquial labels for power relationships, Medicare surely qualifies as "the 800-pound gorilla" that sits "wherever it wants."A skeptical observer might question the marginal role the beneficiary-patient plays in the perennial Medicare debates. Relative to those whose incomes derive from Medicare payments, the beneficiary-patient has only a muted voice. This outcome should not surprise us. It is the logical result of having relegated the recipient of services to the sidelines. In so doing, health care for seniors and the disabled has increasingly veered away from doctor-patient relationships of long duration and substantial trust, and towards highintensity, invasive tertiary care that increases revenues to providers, but does not increase satisfaction to the patient.7B. Using Mediation to Refocus Medicare on the Doctor-Patient RelationshipThis Article proposes that we reorient Medicare. Medicare should refocus financing in ways designed to sustain a collaborative doctor-patient relationship, emphasizing primary care fitting the level of support the beneficiary and her family prefers. Such a reorientation would shift the direction of Medicare from provider-oriented to beneficiary-centered.8 The mechanism for effecting this change would be mediation aimed at developing a collaborative medical treatment plan. This plan would establish principles for anticipated hospitalizations and other tertiary care, establishing the balance of services (degree of intensity and invasiveness), and institutionalized versus non-institutionalized long-term care that comports with the patient's preferences. Mediation between the patient, the patient's relevant family member(s), and the medical team would facilitate efficient use of known Medicare (and other) resources.A third-party neutral trained in the skills of restating and refraining to build consensus can: (1) reveal mistaken assumptions and unrealistic expectations; (2) identify shared values so that services meet underlying needs; and (3) address otherwise unarticulated and poorly managed anxieties. A nonstakeholder can bring confidence in the process itself specifically because this neutral person is not a member of the medical team, nor a designated patient representative (whom the medical team could view as an adversary). …