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American Pain Society
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Glenview, IL 60025
Ronald Kulich, PhD, Department Editor
If improved access to pain care is the goal, we need to attack the legislative issues on many fronts. Current legislative efforts to enhance pain care have taken many forms. Pain commissions, mandated by state legislatures, have had some impact, and the Massachusetts initiative by Rep. Harriett Chandler offers an effective template. Pain commissions have offered a reasonable alternative to specific laws that address pain treatment, and consumer and professional societies have provided input that has influenced state regulatory boards. For example, the work of the Massachussetts Commission effectively thwarted a legislative effort supporting physician-assisted suicide.
Unfortunately, efforts of this sort run the risk of developing an ineffective document, as a pain commission may seek to please constituents who disagree on the issues. This is most evident with chronic noncancer pain, an issue that motivates special interests within the professional community to get their needs met. Although the Massachusetts subcommittee resisted such efforts and produced a document buttressed by the scientific literature, it was telling that the final version dropped the word “ chronic” from the Commission’s report. However, pain specialists should be pleased that the content remained focused on access to care for patients with chronic noncancer pain.
The contents of a sound document also may not filter down to the critical regulatory agencies. Despite its positive effect, the Massachusetts case illustrates another excellent example. Notwithstanding the stellar legislative product, the Massachusetts Department of Industrial Accidents enacted a chronic pain syndrome rehabilitation guideline in October 1998 with many components that directly conflict with the state’s medical board guidelines on controlled substances for the treatment of pain (New England Pain Association, 1998). In reviewing each document, one certainly might wonder whether either agency read the Pain Commission’s report. Rather than diminishing the importance of such efforts by the legislature, these problems illustrate the complexity of exacting behavioral change despite the best efforts of legislators.
While piecemeal efforts of this sort certainly have had an impact, Rep. Chandler and representatives from other states have been pursuing a larger issue that affects all aspects of health care—comprehensive HMO legislation.
Many have argued against legislating medical practice parameters, although intractable pain legislation has been passed in 16 states (Joranson, 1995). Most of the focus has been on controlling physicians’ prescribing practices, starting with the Uniform Controlled Substances Act of 1970. More recent legislative efforts, especially the proposal of a federal lethal drug abuse prevention act (Fine, 1998), have alarmed pain specialists.
It is not surprising that legislative efforts have been reactive rather than proactive. A silently suffering population has rarely been the beneficiary of legislative relief. The constituents must complain loudly, constitute a significant voting block, or lobby in some effective manner.
As mentioned at the beginning of this article, Massachusetts representative Chandler offered a template for legislative intervention, the pain commission. Legislative pain commissions have provided a reasonable alternative to specific laws that address pa in treatment and have allowed consumers and professional societies to offer input that ultimately influences state regulatory boards.
Other legislative efforts have targeted the issue of pain more indirectly, with efforts aimed at modifying healthcare delivery for injured workers through managed care and capitation (Hashimoto, 1996). In these cases, access to services may be reduced.
It is likely that individual mandates that target access to services will continue to meet resistance from legislators, unless the problem angers a sufficient number of constituents (e.g., length of pregnancy stays). The movement continues to be in the direction of comprehensive “patient bill of rights” legislation. Herein lies a powerful and popular movement that can only help to foster improved access to pain services. As U.S. Representative Norman Gyle (R-CT) has said, “I’m tired of doing legislation by body part.”
The first national legislative movement regarding restricted access to health care came to the forefront in the early months of the Clinton presidency. As national efforts to address the problem collapsed, individual states were faced with voters who increasingly complained about limited access. HMOs became the “demons,” as horror stories of limited access to health care circulated in the popular press, and managed care organizations took the blame (Wehrwein, 1997). With the failure of federal efforts to “control” HMOs, the state legislatures initiated a patchwork of aggressive bill of rights initiatives (Families USA Foundation, 1998).
Almost every state has enacted components of an overall patient bill of rights package, and several have undertaken comprehensive legislation. Depending upon the wording and interpretation of the legislation, each legislative effort offers an opportunity for improved coverage of pain services. Table 1 outlines the specific protections afforded in an HMO bill of rights, as well as this author’s opinion with regard to their benefit for improved pain care. For example, even reduced restrictions on emergency room access can result in improved protocols for specialized pain management. Pain specialists should be ready to offer patient management protocols as the most complex pain patients become more empowered as “prudent laypersons” and seek more frequent emergency room visits.
Again, other bill of rights provisions can only benefit the pain field. These include improved out-of-network access to facilities in HMOs where pain treatment options are unavailable or limited. Three states now require that HMOs offer an out-of-netwo rk option for the patient. Other bill of rights provisions support the concept of standing referrals for pain treatment, as well as liberalized formulas for continued care after the patient drops HMO coverage.
Boards of appeal or an external appeal protection process is most critical, and pain clinicians from all specialties should be aggressively campaigning for a place on such boards. Furthermore, evidence-based guidelines certainly will play a role in the appeal process, as board members will likely be reluctant to challenge such data.
Other benefits noted on Table 1 may appear obvious, although the lack of evidence-based guidelines in some areas may provide a loophole that permits HMOs to argue for reduced access. For example, 46 states now have a legislative requirement that addresses the full disclosure of treatment options by the physician. What does the primary care physician offer the patient who is severely disabled with noncancer chronic pain? Does the physician rely upon the HMO’s consensus-based pathway, American Pain Society (APS) policy statements on opioid treatment, or the consensus rehabilitation guideline endorsed by the American Academy of Physical Medicine and Rehabilitation (Sanders et al., 1995)? Most certainly the physician will choose the path of least resistance in the absence of contrary established guidelines. The rich literature of well-designed outcome studies (Strassels, Carr & Cynn, in press; Turk, 1996), with their arguments for better access, may offer some assistance to physicians.
Although they are not directly addressed in patient bill of rights legislation, many feel that HMO ethics committees have blossomed as a reaction to consumer complaints and legislative efforts (Darragh, 1997; Kassirer, 1998). Whether the motivation comes from an interest in public relations or an earnest desire to address difficult decision-making issues, HMO ethics committees are forming at an increasing rate. Questions about adverse selection or perverse incentives can keep such committees busy, and industry efforts to address these issues may fend off unwanted legislative efforts. Gray (1997) illustrated a situation particularly relevant to the chronic pain population:
Because premiums reflect the cost of an average patient, HMOs have great incentives to avoid enrolling potentially high-cost patients and, even worse, to displease high-cost patients among existing enrollees. Even a report that 90%-95% of enrollees are satisfied could conceal indifference to the needs of the few patients who are particularly vulnerable and need costly services (p. 45).
The pain specialist must either lobby for a place on such ethics committees or monitor the committees to ensure that they are addressing the needs of individuals who suffer from chronic pain.
Pain specialists can contribute to a number of currently existing advocacy forums. These include groups within APS and the American Association for the Study of Headache, such as the Pain Care Coalition (Saper, 1998). At the local level, regional pain societies have developed legislative committees that have systematically sought to address issues regarding access to care. In addition to efforts that include a place for pain treatment in future bills of rights efforts, Chandler offers a template for the best approach.
Current regional and national legislative efforts are likely to have a substantial impact on the type of pain services we offer in the future. The importance of a strong bill of rights legislation for improving access cannot be underestimated. Similarly, efforts to work for change inside the HMOs remain critical, and ethics committees may provide an important area of influence for pain specialists. If pain specialists are armed with evidence-based guidelines and are backed by activist legislators and vocal HMO enrollees, they may have some impact on future access to comprehensive pain services.
Darragh, M. (1997). Ethical issues in managed care: Selected biography. Kennedy Institute of Ethics Journal, 7, 421-426.
Families USA Foundation. (1998). Hit and miss: State managed care laws: A report. Washington, DC: Author.
Fine, P.G. (1998). Legislative update: Assisted suicide funding restriction act of 1997. APS Bulletin, 8(2), 8.
Gray, B.H. (1997). Trust and trustworthy care in the managed care era. Health Affairs, 16(1), 45.
Hashimoto, D.M. (1996). The future role of managed care and capitation in workers’ compensation. American Journal of Law and Medicine, 22(2, 3), 233-261.
Joranson, D.E. (1995). Intractable pain treatment laws and regulations. APS Bulletin, 5(2), 15-17.
Kassirer, J.P. (1998). Managed care: Should we be adopting a new ethic? The New England Journal of Medicine, 339, 378-398.
New England Pain Association (1998). Legislative subcommittee recommendations: Chronic pain syndrome guideline no. 27. (For reprints, contact the New England Pain Association, PO Box 11086, Richmond, VA 23230.)
Sanders, S.H., Rucker, K.S., Anderson, K.O., Harden, R.N., Jackson, K.W., Vicente, P.J., & Gallagher, R.M. (1995). Clinical practice guidelines for chronic nonmalignant pain syndrome patients. Journal of Back and Musculoskeletal Rehabi litation, 5, 115-120.
Saper, J. “Protecting Patients in Pain.” Letter from the APS Pain Care Coalition to members of the U.S. Senate, July 1998.
Strassels, S., Carr, D., & Cynn, D. (in press). Health-related quality of life and chronic pain in managed care: Instruments and assessments. In Managed care and pain, S. Lande & R. Kulich (Eds.). Glenview, IL: Americ an Pain Society.
Turk, D. (1996). Efficacy of multidisciplinary pain centers in the treatment of chronic pain. In M. Cohen & J. Campbell (1996). Pain treatment centers at a crossroads: A practical and conceptual reappraisal. Progress in pain research and management (Vol. 7). Seattle: IASP Press.
Wehrwein, P. (1997). Why is managed care getting a bad rap? Managed Care, February, 28-36.
