Managed care seems finally to have done what health care reformers a few years ago
couldn't accomplish: stir demands for more government regulation. After some health
maintenance organizations cut hospital maternity stays to a maximum of 24 hours, the caption
of one editorial cartoon read "HMOsHeaving Mom Out," with an image of a mother in a
catapult hospital bed. Then the press learned that managed
care organizations had contract clauses, dubbed "gag rules," that bar doctors from making
critical comments about the organization to their patients, discussing unauthorized treatment
options, or disclosing how they are paid. On its cover Time magazine pictured a doctor
gagged with a surgical mask. Soon federal and state
legislators, including Republicans, were falling over each other in the rush to regulation. href="#n5">
Were these freak exceptions in the era of deregulation? Maternity is, well, a
motherhood issue, and gag clauses overtly trample on patients' and doctors' rights. But while
distinctively resonant as symbols, drive-through deliveries and gag rules illustrate a more
general problem: the folly of relying exclusively on market choice to protect the interests of
health care consumers. Yet government rule making about medical care isn't the only
alternative. There's another option: giving consumers a more direct voice in managed care
EXIT, VOICE AND MANAGED CARE
Health policy today gives too much credence to the efficacy of markets and too little
to the efficacy of consumer voice. Consider the ideal system envisioned by Alain Enthoven,
perhaps the single most influential thinker about health policy in recent decades.
Enthoven's core idea is that the best way to control health care
spending and increase the availability and quality of services is to give consumers a choice
among competing managed care organizations. Enthoven does acknowledge a need for
oversight by purchasers, government, or quasi-public "sponsors" to encourage competition
over price, quality, and service. And he would limit consumer choice to standardized benefit
packages to allow for easier price and service comparisons. But, for Enthoven, the engines
driving change are financial incentives for individuals to shop for a health plan that offers the
best value. If the performance of an organization declines, its customers or members will
become dissatisfied, and their defections will signal the firm to clean up its act.
But will consumers switch to a competing health plan they prefer? Will they have a
genuine alternative to switch to? The limitations of Enthoven's model become clear when
compared to the ideas of the economist Albert Hirschman, author of the classic, Exit, Voice,
and Loyalty. In Hirschman's model, there are two choices: not just exit but
voicecomplaints, grievance, protests, and political pressures. href="#n8"> Sometimes exit and voice reinforce each other, while at other
times they may be at cross-purposes. Each has strengths and limitations. Exit, for example,
sends a powerful signal that something is wrong, but little or no information about the
problem or the remedy.
Health policy now emphasizes consumer exitswitching providers and plans. That
emphasis underestimates the limitations of exit as well as the potential role for consumer voice
as a complement and an alternative to exit. For example, the Health Maintenance
Organization (HMO) Act of 1973 requires an annual period of HMO open enrollment to
allow consumers to change providersbut it requires no consumer voice. Federal antitrust
law promotes consumer opportunities for switching providers as a desirable goal. Health care
researchers focus on how consumers choose among competing managed care organizations
and the kind of information consumers want and need to make effective choices. href="#n10"> Consumer groups and others rate managed care organizations
and issue report cards to facilitate consumer choices. What
does such choice entail? Exiting from one managed care organization to another.
Private employers, particularly large ones, typically allow employees to switch health
care insurance plans on an annual basis. So does the
Federal Employees Health Benefits Program (FEHBP), which provides employees choice of
more than 400 health insurance plans meeting minimum standards. href="#n13"> The new managed care organizations also foster more choice.
The fastest growing types of managed careindependent practice associations, preferred
provider plans, and point-of-service plansallow consumers to opt out of the preferred list
of providers if they shoulder greater copayments. This is a change from the traditional HMOs,
which limit services to their own staff physicians.
Advocates of medical savings accounts (MSAs) would provide consumers more
opportunities to switch; individuals would have no restrictions on choice of providers and
increased incentives to shop for low-priced providers.
"Any willing provider" laws would also increase choice of providers within managed care
organizations so that consumers could choose new physicians without leaving the health plan.
And Clark Havighurst, a leading health care lawyer, would expand choice by allowing
consumers to contract for different standards of care.
THE LIMITS OF EXIT
Policy favoring exit is one thing, but market reality is another. Most
firmsparticularly small and mid-sized firmsoffer employees little choice. In 1996, 52
percent of mid-sized firms offered workers only one plan and only 24 percent offered three
or more. The poor, in particular, have few exit options. href="#n17"> Some state Medicaid programs lock beneficiaries into a
managed care plan, generally the one with the lowest premium.
Clearly a powerful tool for change, exit is often limited as an option or in its effect
because of unusual features of medical markets. Ownership of managed care organizations
and hospitals is becoming concentrated. Some analysts believe that a few oligopolies will soon
dominate the market and that these organizations will become complacent about the risk of
losing market share and therefore less responsive to consumer switching. href="#n18"> Hirschman calls attention to what he calls lazy monopoly or
collusive behavior. In a restricted market, a firm may
choose to be rid of its difficult customers rather than change its behavior to please them. If
a problem is endemic among all rival plans, dissatisfied customers will only be able to switch
to an equally unresponsive competitor.
Consumers can't switch among health insurers more than once a year in most
employer-sponsored insurance plans. Current law allows Medicare beneficiaries to leave
HMOs with 30 days' notice, but proposed legislation would limit changing plans to once a
year. There are some sound reasons for this policy. If
people can switch between plans at will, they may first opt for a low-cost plan with limited
benefits until they need a service and then jump to a high-cost plan that provides it. But if the
rates of different plans reflect the health of their subscribers, the market will reward plans that
are good at avoiding sick people, rather than plans that are good at treating them.
Managed care organizations intentionally give consumers fewer exit options than
traditional insurance. They either restrict patient choice of
doctors and other providers to a closed network or offer patients significant financial
incentives to use preferred providers. Even when available, exit often has limited value.
Switching physicians within a plan may amount to no choice among clinical alternatives
because the managed care plan regulates the clinical decisions of all of its physicians through
financial incentives and organizational rules. Switching to another provider, in or out of a
plan, may also mean severing an established patient-physician relationship. Exit is especially
difficult for patients with chronic or complex conditions that require coordination among
medical personnel or particular knowledge of the case. And especially for the sick and the
frail, shopping for medical care may be physically and emotionally difficult.
Exit in medical care is most useful as a last resort. If a
managed care organization's performance is mediocre but not bad enough to make consumers
willing to leave, they may simply suffer poor quality and the market will not do its work.
The fact that managed care is a bundle of varied medical services, medical providers,
and health insurance also makes exit a crude tool. Consider a family of three, each with
different medical problems: the father with a cardiac problem, the mother with breast cancer,
and the child with asthma. Suppose that the family can choose among three managed care
organizations, each of which is strong in only one area of medical care that the family
needs. Which should the family choose?
And, most perverse of all, managed care organizations may prefer to lose subscribers
with high-cost illnesses since, due to fixed premiums, their exit is the organization's gain.
Under these circumstances, the threat of exit will not encourage improved performance.
THE VIRTUES OF VOICE
Mute exit does not tell an organization the source of the consumer's dissatisfaction,
but voice, as the term implies, carries plenty of information. Top-level managers also often
need the dissatisfied consumer as an ally to get clinicians and administrators to change.
Similarly, medical staff and other employees can use the patient as an ally to resist undesirable
practices imposed by managers.
Voice comes in many varieties. Individuals can complain, file grievances, appeal to
higher authority, leak information, participate in governance, bargain collectively, or become
active in politics. They may express their concerns to management, potential customers, or
influential outsiders such as policymakers, the press, or activists who may take up their cause.
Voice can be exercised episodically as special circumstances arise or continuously through
established consultative mechanisms.
Within managed care organizations today, consumers lack effective institutional means
to express their voice. Physicians and other providers often serve on committees that set
medical standards; purchasers decide what benefits are to be covered and bargain with
managed care organizations over what their contract will provide. href="#n25"> Consumers' main options, however, are only to file complaints
or grievances and to express their opinions in membership satisfaction surveys.
Market theory suggests that if enough consumers had wanted longer maternity stays
than were standard, at least some managed care organizations would have tried to lure them
away from competitors by catering to their wishes. That didn't happen, so the political
process delivered what market exit did not. Twenty-eight states and Congress passed statutes
that prevented managed care organizations from imposing short maternity hospital stays. href="#n26"> Similarly, 19 states have prohibited gag clauses, the federal
government has prohibited their use in the Medicare program, and bills are pending in
Congress that would outlaw them entirely.
Still, consumers can't depend on legislation whenever markets fail. Law is costly and
insensitive to individual circumstancesnot a desirable or feasible means for consumers to
express their everyday wishes. Special circumstances made it easier to enact limits on
drive-through deliveries than to get action on other consumer issues. The problem was visible
and easily understood, and the number of potential beneficiaries was large and easily
organized. Gag rules threatened to deny all consumers enrolled in managed care the
opportunity to hear information about alternative treatments.
Gag rules highlight the limited options for consumer voice.
Managed care plans wrote such clauses to restrict the flow of
negative information about their policies from physicians to patients in the hope of decreasing
consumer exit to competitors. They sought to chill
physician speech and thereby to repress potential consumer complaints as well. The clauses
may never have been legally enforceable if tested in court, but their prohibition may do little
to answer the underlying public concern. When the
contracts of troublesome physicians expire, managers of health plans can simply not renew
them, rendering anti-gag clause legislation ineffective. Legislation prohibiting managed care
organizations from suppressing physician and consumer voice won't be sufficient; we need
laws and institutions that actively foster voice within managed care organizations.
In fact, well-run managed care organizations do make efforts to find out what their
consumers want. Consumer satisfaction surveys are a form
of voice. Like polls in electoral politics, they shape how leadership responds to the public, and
perhaps even displace more traditional forms of voice, such as protest and complaint.
Consumer satisfaction surveys have led managed care organizations to increase the hours for
appointments with physicians, to train medical personnel in communicating and empathizing
with patients, and to create new ways of compensating physicians to reward consumer
Not surprisingly, managers typically undertake consumer surveys more for internal use
or public relations. The information can bolster their own
control by helping them to respond preemptively to problems. Managers can disclose results
that show the organization in a good light and keep other data confidential. In short,
consumer satisfaction surveys are not the instruments of consumers, who have no role in
developing or analyzing them or disseminating the results.
FOSTERING COMMUNITY VOICE
While patients are vulnerable to poor care in any setting, managed care organizations
pose two special problems. They have an incentive to withhold services, and they exercise
control over doctors, hospitals, and other providers, which means there may be fewer
independent checks to failure. These features make it important for consumers to have means
to resolve their problems and to make managed care organizations responsive to them.
Consumer voice can be a useful tool, but it will not thrive without institutional support.
Public policy could promote the use of voice by creating communication channels and
lowering the cost of voice. Governments could finance or
create incentives for managed care organizations to give consumers a voice. The institutions
that accredit managed care organizations might set standards for consumer voice.
Hirschman distinguishes between vertical voice (individuals privately and separately
expressing themselves to the organization's management) and horizontal voice (organized
discussions and activities of consumers or employees). Each kind requires different channels.
Many people become concerned with policy only when it affects them directly. Their initial
response often is through grievance: It is direct, tied to individual concerns, and often
produces results quickly. Some problems, however, require changes in policy and even a
consumer role in governance.
Grievance. Managed care organizations should create mechanisms for resolving
formal grievances that are fair, speedy, and easy to use.
Most plans do have grievance procedures, but except for
Medicare HMOs, there are no uniform standards in force, and consumer groups have found
existing procedures deficient.
Most complaints today are reviewed solely by the managed care organizations
themselves. In effect, the consumer is seeking redress from an interested source. Many
consumer groups and legislative proposals, therefore, would allow patients to appeal to a
neutral independent party if their doctor or the managed care organization decides that a
medical service is unnecessary or inappropriate. The managed care industry has not yet
adopted such proposals for all denied services. In California, however, the industry supported
legislation, recently enacted, that would allow appeals to neutral experts outside the managed
care organization whenever it denies a bone marrow transplant or other experimental therapy.
And Medicare already contracts with an expert organization, the Center for Health Dispute
Resolution, to review all denials of services for beneficiaries in HMOs.
Grievance procedures would be fairer if the individuals who adjudicated grievances
were in all cases independent, justified their decisions in writing, and had authority to reverse
an organizational practice or decision without fear of retaliation. There should also be some
kind of institutionalized advocacy for consumers. If purchasers paid for independent
professional advocates to assist consumers, it would inspire confidence in the grievance
process. Finally, there needs to be protection for individuals who initiate a formal grievance,
and prompt and visible penalties against the organization if it retaliates.
Grievance mechanisms, however, are usually designed to resolve individual
complaints, not the underlying institutional problems. Managers sometimes placate individuals
who voice complaintsmaking exceptions to policy or working out some special
accommodationrather than deal with the source of the problems that affect complainers and
the silent alike. Indeed, firms may use grievance
mechanisms as an escape valve for angry consumers who might otherwise complain to public
authorities or other consumers.
Complaints and grievances may be harbingers of systematic organizational problems
that are best addressed through governance. Yet, consumer complaint mechanisms typically
do not include adequate provisions for publicizing or analyzing the problem or informing the
public about them. Publicizing the kind and number of
complaints and appeals for services denied and how they were resolved would spur
organizational change. Funding for an independent partyan ombudsmanto prepare
summaries and analysis of complaints and disseminate the information would help.
Dissemination of information about complaints to shareholders, prospective members,
and the press would create public pressure on managed care organizations to respond to
consumers and would prevent complaints from being buried in obscure files. Voice then
would complement exit. Prospective enrollees might choose managed care organizations
based on how they addressed complaints, which in turn would encourage management to
resolve problems. Members might publish summaries of complaints in a newsletter, informing
individuals with similar problems and facilitating the formation of groups to address common
concerns. State insurance departments could provide more intelligent oversight of managed
Consumers are often reluctant to complain or file grievances, especially for medical
care. One study found that only one-third of consumers
with complaints voiced them, complaints were resolved to the patient's satisfaction only a
third of the time, and consumers' complaints in medicine were resolved less satisfactorily than
10 of 11 service categories surveyed. To cope with the
reluctance of patients to complain, independent parties should conduct surveys of health care
consumers and publicize the results. Independent parties are more apt to design their surveys
in ways that will reveal critical comments. Their surveys also are more likely to reveal
unsuspected problems, allow comparison across health plans, and identify flaws undetected
by a formal grievance process.
Governance. Not-for-profit health care organizations are goverened by boards
that broadly represent the community, including consumers. To be sure, trustees in not-for-profits are usually nominated and
chosen by management, which makes them less than ideal representatives of consumers. But although
some not-for-profits behave like for-profits, many have persued community missions and interests that a profit-oriented organization would
probably not have undertaken. With for-profit managed care organizations growing in number
and size, even this indirect form of consumer participation in governance is fading.
In light of problems with current health care markets and the disillusionment with
traditional governmental regulation, consumer participation in governance ought to get
another look. Since owners can govern, consumers might form cooperatives to own managed
care organizations (or jointly own them with other groups) and elect their own trustees and
management. Coops could require consumer approval for key management choices and
strategic planning. The Group Health Cooperative of Puget Sound is an example. Founded
in 1947 as a cooperative jointly owned by physicians and consumers, it now serves more than
half a million members and is considered an exemplary HMO with a consumer orientation.
Nevertheless, maintaining consumer involvement is difficult, even in cooperatives.
Today, about 6 percent of individuals insured by Group Health are coop members with voting
rights. Voting in elections has been around 5 percent for most of the last decade, but because
of controversial issues in the last two years turnout has been around 15 percent. Since 1989
less than 1 percent have attended the annual meetings that determine what goes on the ballot.
Most consumers simply do not have the time or inclination to become involved in
governance. Consumers who attempted to start a cooperative HMO today would face
immense hurdles, particularly raising capital and obtaining contracts with large firms. Even
Group Health has had to form an alliance with Kaiser Permanente to be able to compete for
contracts with multistate employers.
An option for publicly owned managed care organizations is to establish elected
consumer councils to provide continuing advice and feedback without formal authority to
make management decisions. Councils could express their views on issues that affect
members and work with management to improve the organization's performance.
To be sure, resort to consumer voice in managed care organizations would often be
cumbersome and annoying to those in charge and those who exercise it. But the regulatory
oversight and micromanagement that follow the public outrage at such problems as
drive-through deliveries and gag rules may ultimately be even more costly and burdensome.
Building voice into managed care organizations can help build stronger organizations by
putting managers in touch with the experience and desires of their customers, the patients. If
those customers become sufficiently discontented, they will eventually call on legislatures to
act on their behalf. The spate of consumer protection legislation regulating managed care
suggests that the industry will face increasing constraints. Those who claim that increased
consumer voice is impractical should contemplate the alternatives.
1. In Memory of Sol Levine, inspiring teacher and friend, who once told me that there is nothing so practical as a good theory.
Funded by an investigator award from The Robert Wood Johnson Foundation. I am grateful for the research assistance of Jeffrey Goldenberg, Melina Maniatis, Joe Kim, Jean Kanerva, Peter Dykstra, and Jack Bobo and for the secretarial assistance of Kim Shipley. An earlier version of the article was presented at the seminar in legal theory at Seton Hall University Law School, when I was the Merck health law scholar in residence, March, 1997. The themes in this article will be developed in a white paper to be written by the author and Consumer Federation of America.
2. Marc Rodwin is Associate Professor of law and public policy at the School of Public and Environmental Affairs, Indiana University and the author of Medicine, Money and Morals: Physicians' Conflicts of Interest (Oxford University Press, 1993). With funding from a Robert Wood Johnson Foundation Investigator Award, he is writing a book on managed care and accountable health care. Article reprints available from the author at SPEA, Rm 345, Indiana University, Bloomington, IN 47405. Email: email@example.com.
3. Wasserman, Dan. The Boston Globe editorial page cartoon, October, 26,1995.
4.Time, Jan. 22, 1996.
5. H.R. 2976 was co-sponsored by Rep. Greg Ganske (R-Iowa) and is backed by House Majority Leader Dick Armey (R-Texas). On September 26, 1996 President Clinton signed into law the Newborns= and Mothers= Health Protection Act of 1996. As this article goes to press 28 states have passed legislation which require insurance companies and managed care plans to pay for designated minimum hospital stays and 17 states have passed legislation that prohibit health plans from using contracts or other means to limit discussion between physicians and patients. Language from this bill was included in H.R. 2015 and H.R. 2014 which are now in conference.
6. As this article goes to press an interesting article has just been published which discusses
the use of exit and voice and develops similar themes. See, Emanuel, Ezekial and Emanuel,
Linda. 1997. "Preserving community in health care." Journal of Health Politics, Policy and
Law 22 (1):147-84. For other of my work also drawing on Hirschman's exit-voice framework
see, Rodwin, Marc A. 1994. "Patient accountability and quality of care: Lessons from
medical consumerism and the patients' rights, women's health and disability rights
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