Disputes arising in accountable care settings across the United

States will be different in substance and other important respects from

those previously confronted by physicians, hospitals, health plans,

and payers across the health care continuum in connection with how

care is provided and how providers get paid. This article explores the

nature of these potential disputes, and how and why mediation can

offer the most affordable, efficient, and least disruptive means for

resolving them.

 

A snapshot of two disputes, both unheard of in our nation's prior

health care delivery system and likely to arise in the new paradigm of

accountable care, should help illustrate the novelty and complexity of

this new paradigm.

 

First Snapshot: Dr. Elder and her partner Dr. Older have received

written notice from Best Accountable Care Organization (Best) that:

(1) their report card scores for patient disease outcomes, quality of care

process, and patient experience are low, (2) this has contributed to Best

being unable to lower its costs and meet benchmark quality and value

standards, (3) this has resulted in Best's being financially penalized by a

third party payer, and (4) Best will exclude them from its physicianpanel

if their scores do not come up to specified levels within three

months. Drs. Elder and Older argue in response to Best, to no avail,

that they cannot meet the measures, because their patients are

exclusively geriatric and comparing their scores to those of general

internists, whose patients are less expensive and easier to treat, is unfair

and inappropriate. Best responds that Drs. Elder and Older have not

completed any special training and do not hold any special certification

in geriatric care and, therefore, must be held to the same report card

standards as all internists at Best. Drs. Elder and Older promptly retain

legal counsel and prepare to sue Best for wrongful exclusion and

breach of contract because, in their judgment, it would be futile to try

meeting Best's specified metric scores and continuing to provide good

care to their geriatric patients. Drs. Elder's/Older's attorney advises

them to expect Best to cross-claim against them for breach of contract
in the event they sue Best following their termination.