FAQs for Physicians/Providers

About Mediation in the Medicare Beneficiary
Complaint Response Program

Provider FAQs to print and hand out 75K

1. Who makes sure that the terms of a mediation for a beneficiary complaint are complied with?

To the extent that a party’s compliance or non-compliance is predictable during the hearing, a mediator’s role includes the effort to prevent, so far as possible, misunderstandings that might result in non-compliance. The mediator’s function does not extend beyond the hearing. After the mediation session, the QIO is responsible for monitoring terms of the mediated agreement to assure compliance.

2. I am perfectly satisfied with medical record review. Why should I try something like mediation that I’ve had no experience with?

From a business point of view, mediation is an effective way to avoid litigation, saving you significant amounts of time and money in the long run. Even if many of such lawsuits might ultimately be dismissed, they take up your time and attention, and cause stress to the patient-physician relationship. From a professional standpoint, mediation allows you and the complainant, rather than a third party, to determine the resolution.

Previous experience with mediation shows that both the physician and the patient are generally very satisfied with the outcome of mediation. By letting your patients know that you are open to mediation, you are sending them the message that you want to hear their concerns, improve the quality of care you provide and ultimately have their best interests in mind. By communicating this message and displaying this attitude, you are bound to see increased patient satisfaction and potentially more patient referrals as well.

3. I am confident in my clinical expertise and abilities and the quality of care I provide to my patient. What good will mediation do?

A mediation is conducted in a neutral environment where both parties have the opportunity to explain their side of the story. People are generally more inclined to listen to one another when a third person — the mediator — present. Besides, there may be other factors in your relationship that are leading your patient to doubt your word. It may be a matter of trust at this point. It may also be that the patient simply wants to feel that their complaint is really being heard. The fact that you are taking the time and trouble to meet with them may convince them to trust what you say.

4. But isn’t it risky to go into mediation and get entangled in a situation where a complaining patient can use what I say to hang me up in court later on?

The mediation process is consensual and confidential. Whatever is said in mediation cannot be used against either party as evidence in court. Even if you agree to mediate, you cannot be compelled to come to an agreement if it doesn’t seem satisfactory to you.

If the complainant is inclined toward going to court, communicating with you in mediation might change his or her mind. If the patient is inclined toward mediation, you need to ask yourself whether your declining to participate in mediation would increase or decrease the patient’s likelihood to sue.

5. Will the QIOs mediate cases involving potential medical malpractice?

Any case could potentially involve medical malpractice if a beneficiary chooses to make such a claim. However, we will exclude cases involving gross and flagrant issues, concerns that indicate a pattern of substantial violations in the expected standard of care and cases already in litigation. As part of the Beneficiary Complaint Response Program, the initial physician peer review procedure will include determining if mediation is appropriate for a case and can be offered as an alternative to the medical records review.

6. You have said that a mediator does not judge the right or wrong of a case; then what does he/she do?

The mediator helps the parties make decisions and come to an agreement by eliciting responses, helping with interpretation of what is being said and what is happening in the exchanges between them.

7. I think that some of my patients may not be capable of dealing with mediation. Some are just troublemakers and do not really have a case. Is this really worth my time?

We have case management staff who spend a significant amount of time explaining the case review aspects involved as well as the ins and outs of the complaint process. A patient who is not ready to mediate in good faith is likely to pass up mediation as an option. As far as competence to participate in mediation is concerned, a complainant would be encouraged to get a relative or friend to help if he/she is not capable of participating. We also can provide a trained mediation advisor to assist either party in dealing with the mediation process.

8. What does a mediation advisor do?

Either party may bring a mediation advisor to the session if agreed to by the other party. The role of the mediation advisor is mainly to answer questions about the mediation process; he/she does not advise either party about what to do, or how to do it. The advisor can also attend the mediation for moral support.

9. What about the mediator — how can he/she mediate if he/she doesn’t have special medical knowledge or know much about managed care?

Remember that the mediator is not going to decide how the matter should be settled. The mediator will have received training to orient him/her to the characteristics and the issues of the health care system. Besides, you, as a health care professional, will be there to bring in medical data and explanations in terms that a layperson can understand. We also are using a co-mediation model in which retired health care professionals, including doctors, have volunteered and been trained to mediate. The professional mediator is experienced in eliciting additional explanation as necessary and would serve as an impartial spokesperson who would have the trust of both parties.

10. Has mediation been used before with any success between doctors and patients, or is this an experiment?

Medicare is at the forefront of using mediation in the health care system. While mediation has a long history of being used in various industries and situations, its use in health care has been somewhat limited, though successful. In a number of studies of its actual implementation, mediation has proved to have distinct advantages over the traditional medical record review process. Also, mediation has resulted in greater satisfaction, a sense of closure, avoidance of litigation and improved relationships between physicians and patients.

11. Are mediation hearings recorded or is there a contemporaneous record maintained?

Mediation sessions are not recorded and the notes of the mediators and parties are destroyed at the end of the session. No record of any mediation details are kept on file.

12. Could I bring my attorney to the hearing?

You may bring an attorney to the hearing if all parties agree, but it is most important for the parties to talk with each other, rather than through lawyers. The attorney could be there with the understanding that his/her function is for private consultation when necessary, not to argue a case.

13. Can a health plan representative attend the hearing even if the dispute is between a member and a physician?

It depends on the nature of the beneficiary’s complaint. For example, if the complaint is specifically against the physician, the physician could decide that, because some aspect of his/her employment affects what the beneficiary is complaining about, he/she would want a representative of the health plan to be there. Or he/she might not. If the health plan felt it had a stake in the situation, it could decide to become a party to participate in mediation and participate fully as a party. Or it might offer to participate in mediation with the complaining party separately about an issue or issues that affected the health plan.

14. Can a physician send a representative to the hearing as opposed to attending in person?

If the complaining party agrees, a physician could conceivably send a proxy with decision-making authority to be present in the mediation hearing. The beneficiary, in some instances, particularly when too disabled to participate in person, has the same option. It is always preferable, however, for the parties themselves to be able to communicate directly with each other in order to experience new understanding that both can learn from as they solve their problems collaboratively.

15. What about insurance? Do I remain covered if I am in mediation?

Where mediation has been used, the experience is that insurers sometimes recommend mediation. That is also true of attorneys who are representing physicians. However, it is recommended that you check with your insurance company to verify your situation.

16. What is the impact to professional liability?

We do not know what the impact will be at this time. However, the feedback from representatives of malpractice insurers has been positive. Malpractice insurance companies, as well as others in the health care industry, will be watching the rollout of mediation and evaluating the results of our program.