This article will explore the history, implementation, and impact of state advocacy protection statutes. The article is in four major parts. The first Part provides an introduction to the concept of advocacy, both as it was understood at common law, and as it is presently interpreted by HCPs and MCOs. The article will also examine the phenomenon of HCPs' “deselection,” that is, the termination or non-renewal of their contracts with MCOs. In this context, the article will highlight the distinction between anecdote and data and emphasize the paucity of hard evidence to support either side's version of the truth about these HCP-MCO interactions.
The third part will review the implementation of state advocacy protection statutes. Federal preemption is an important potential hurdle to litigants, as both ERISA and the Medicare program have arguably carved out a significant regulatory domain free from state incursion. In addition, there are state law interpretation problems for an HCP litigant, as well as burden of proof and discovery issues that may make it difficult for deselected HCPs to prevail against MCOs that no longer want their services.
The fourth part will consider whether state advocacy protection laws make any difference for HCPs or their patients. This paper will evaluate the efficacy of these laws, and conclude that they have a limited in terrorem effect, making it somewhat harder for MCOs to terminate HCPs who advocate for their patients. After concluding that current legal rules are inadequate to ensure that health care professionals will vigorously advocate for their patients, I suggest alternative means to encourage and support patient advocacy, which will improve the resolution of disputes among managed care organizations, health care professionals, and patients, and will enhance the quality of health care delivery.
Linda C. Fentiman, Patient Advocacy and Termination from Managed Care Organizations: Do State Laws Protecting Health Care Professional Advocacy Make Any Difference?, 82 Neb. L. Rev. 508 (2003), http://digitalcommons.pace.edu/lawfaculty/323/.