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The Patient Centered Medical Home as a Model for a Client Centered Legal Practice
By Ryan McClead Part I: The Similarities Like all good children living far from where they grew up, I try to call my parents at least once a week. I usually discuss family matters with my mother for a while, then she puts my father on and we talk shop. My father is the Medical Director for Quality Improvement Service at Nationwide Children's Hospital in Columbus, Ohio. To all appearances, he and I could not be in more different lines of work, and yet, over the last few years, we have noticed that our conversations about the legal and medical businesses have overlapped a great deal. I often drone on and on about this correlation with my fellow 3 Geeks, and they generally nod politely, give each other a knowing sideways glance, and order another round of beers. Geek #1, Greg, recently tweaked my little pet topic by forwarding a tweet from fellow blogger, and legal industry pundit, Jordan Furlong.
As usual, I mostly agree with Jordan. However, I want to make a distinction between the legal and healthcare systems and legal and healthcare businesses. Both systems are unquestionably flawed, difficult to navigate, and in desperate need of reform. But the systems are merely the environments in which the businesses operate, not the businesses themselves. Law firms and hospitals are like exotic fish in a dirty aquarium. While many hospitals have begun to take a scientific approach to changing the way they work in order to improve the functioning of their ecosystem, most law firms are comfortably swimming in their own filth and complaining about the view. This is the point where many people pipe up and say, "Other than both being professional service providers, doctors and lawyers have nothing in common." I will concede that the law and medicine are very different practices, but I think it's a
Doctors and Lawyers: The PCMH as a model for a CCLP by Ryan McClead mistake to conclude from that that the businesses of law and medicine are so wildly different that one cannot learn anything from the other. First, doctors and lawyers aren't so different. They are both highly educated professionals that use impenetrable language to practice their generally poorly understood "dark arts", and are therefore simultaneously revered and despised by the general public. A lot of physicians bristle at the idea of performing "cookbook medicine", while most attorneys can't stand the thought of producing "commodity" legal work. Hospital medical staffs have historically been made up of solo and small private practice physicians, while most BigLaw firms are partnerships in name only and are more closely akin to solo practitioners sharing support staff and office space. Physicians are extremely intelligent and trained to look for problems; since they can imagine all of the difficulties down the road, they will often reject potentially innovative solutions out of hand. For many doctors, the patient relationship is proprietary, with some insisting that no one else should see or treat their patients, even at the expense of the patient's own health. Physicians often fall prey to the circular logic that because they are successful, they must be doing things correctly, because they are successful, etc. (I stopped with the analogous attorney behavior, but drop me a line if you don't see the correlations.) In addition to the personal similarities between physicians and attorneys, the businesses of law and medicine are both currently undergoing extreme changes caused by forces largely outside of their control. Jordan Furlong, Bruce MacEwen, and our own Toby Brown, among many others, have written extensively about the outside forces affecting firms - I won't reiterate their points here - but many similar forces have been acting upon hospitals and doctors. As recently as ten years ago, even if they were affiliated with a hospital, most physicians were self-employed or in private practice. The rising cost of insurance, the needs to invest in technology (including Electronic Medical Records and complex billing systems), and new requirements to account for performance quality, have led many solo and small practice doctors to join large conglomerate medical groups or become full-time hospital medical staff. Doctors are not "owners" of these companies in the same sense that law partners are "owners" of a firm, but the management of these newly affiliated, formerly autonomous actors is remarkably similar to that of a law firm. While physicians and hospitals are fundamentally different entities than attorneys and firms, I believe the modern relationships, interactions, and struggles between Hospital, Doctor, and Patient are very analogous to those between Firm, Attorney, and Client. The medical profession is enduring its own New Normal and they are dealing with it very differently than we are. It would be well within character, but we would be sorely remiss if we were to ignore their activity, and fail to learn from their experiences, simply because they are not attorneys. Part II: The Patient Centered Medical Home In the midst of the very same economic turmoil that set Law Firms spinning in 2007, a number of medical care professional organizations came together to craft the Patient Centered Medical Home (PCMH). The PCMH is part manifesto, part bestpractice guidelines, designed to put patients at the center of their own medical care. -2-
Doctors and Lawyers: The PCMH as a model for a CCLP by Ryan McClead I believe the use of the word "home" in this case muddles the meaning, but it's intended to be less off-putting and more inviting to patients than the words "Medical Practice". The PCMH model, is an attempt to re-engineer the practice of medicine from the unholy mess that naturally evolved between the interactions of hospitals, doctors, government agencies, and insurance companies in the late 20th century, into an efficient 21st century medical care machine, with patient well-being as its primary focus. There are four areas that the PCMH addresses: Team-based Primary Care is about doctors sharing the responsibility for patient primary care with "nurses, care coordinators, patient educators, clinical pharmacists, social workers, behavioral health specialists, and other team members."i Historically, doctors have been very proprietary with patient access, refusing to allow other doctors, or especially non-doctors, to treat their patients. In a PCMH, data and records are openly shared (within appropriate regulatory guidelines) and primary patient care is a group effort. Active Patient Involvement is making patients active participants in their medical care, rather than passive recipients of treatment. This requires the help of the larger team to educate and work with the patient to arrive at the best course of action. Evidence-based Practice Improvement means applying the scientific method to common medical procedures, which sounds obvious, but has not always been the case. Doctors, often believe that the way they have always done it is the best way to do something. Practice improvement challenges the status-quo by testing and confirming best practices with actual data rather than anecdotal evidence. And finally, Payment Reform is restructuring the way that doctors and insurance companies are paid to align the financial incentives in the medical industry with the needs of the patient, instead of the needs of the medical practitioners or insurance companies. This sounds great, but the value is not in defining the areas that need reform, but in actually creating a clear path to get there. There is a regulatory component to the PCMH that is administered by a non-profit organization called the National Committee for Quality Assurance (NCQA). NCQA has established clear guidelines for any medical practice to qualify as a PCMH. They've broken the guidelines down into 6 distinct Standards which each include between 2 and 7 individually scored elements and a single Must-Pass Element. The Must-Pass Elements are: 1) Access During Office Hours; 2) Use Data for Population Management; 3) Care Management; 4) Support Self-Care Process; 5) Referral Tracking and Follow-Up; and 6) Implement Continuous Quality Improvement. These 6 MustPass Elements are things that any competent medical practice should already be doing.
Doctors and Lawyers: The PCMH as a model for a CCLP by Ryan McClead Barely squeaking by on the 6 Must-Pass Elements will give a PCMH applicant a minimum score of 15 out of 100. If they can cobble together another 20 points out of all of the other elements to get a score of 35 out of 100, they will qualify as a Level 1 PCMH. Level 2 requires the 6 Must-Pass and a score of 60; Level 3 the 6 Must-Pass and a score of 85. The value of this system is that the barriers to Level 1 PCMH qualification are truly minimal. Most organizations should already meet Level 1 requirements, or should meet them with a very few enhancements to their practice. At the same time the Standards and Elements provide a clear road map to improve patient centered care and to eventually reach a Level 3 certification, which is much more comprehensive and difficult to achieve. A Level 3 PCMH is a truly exemplary practice in which Doctors, Staff, and Hospitals work together seamlessly to provide the best possible care to a very well-informed and participatory patient. Why can't the same concept work for legal? As established in the last post, we have very similar problems, and very similar needs. Of course the details are different, but we could easily have a non-profit regulatory organization that certifies law firms as Level 1, 2, or 3 Client Centered Legal Practices. Part III: The Client Centered Legal Practice In previous posts I have addressed the similarities between the legal business and the medical business, and briefly described the Patient Centered Medical Home approach that the medical community has taken to address some of their issues. In the next few posts, I would like to imagine what a similarly designed Client Centered Legal Practice might look like. I think the four general areas that the PCMH addresses, can be copied and pasted almost wholesale into our CCLP. The CCLP should seek to establish 1) Teambased Legal Support, 2) Active Client Involvement, 3) Evidence-based Practice Improvement, and 4) Comprehensive Legal Payment Reform. Team-based Legal Support The primary relationship in any legal services transaction is necessarily between the partner and the client, just as a medical transaction is primarily between a doctor and patient. However, in both cases, there are entire teams necessary to maintain and support these relationships. Those teams must have direct and regular access to the client. In a law firm that would mean, not only the associates and staff immediately involved in a particular matter, but also fellow partners who could step in when the primary partner is not immediately available. If the client's satisfaction and well-being is to be the central focus of a legal practice, then legal partnerships must become actual partnerships and not loosely affiliated solos sharing expenses and resources. Active Client Involvement In many ways, this is much easier in a legal context than it is in medicine. Clients usually know exactly what their problem is before they contact their attorney. Many matters are managed with regular and comprehensive input from the client, but
Doctors and Lawyers: The PCMH as a model for a CCLP by Ryan McClead lawyers rarely keep their clients up to date on all aspects of a matter's progress. In the CCLP context, active client involvement would include keeping the client "in the loop" at all times. Giving them web access to track the team progress throughout the management of the matter. Clients should be constantly aware of hours spent and tasks completed, when and by whom. They should have education resources available through the firm to answer basic legal questions without racking up charges for speaking to a partner. Clients should never be surprised by the content of a bill, unless they've chosen to actively avoid firm resources. Evidence-based Practice Improvement This one is much trickier in legal than in medicine. In medicine, there is a constant metric for progress, the health of the patient. If the patient's health deteriorates, stop what you're doing and try something else. If it gets better, then try what you just did on the next patient. (Of course, I'm grossly oversimplifying, but the concept is sound.) There is not an immediately obvious equivalent metric to patient health in a legal context. In fact, there are very few metrics in the law firm. And those that exist are virtually meaningless. (Profits per Equity Partner, tell's you what exactly about a firm.) This is what we must change. An old adage says, "You can't improve what you don't measure." We need to begin to measure efficiency, productivity, and profitability at the task, matter, and firm levels, so that we can begin to adjust our practices to improve all three. Until we accurately measure these things, any changes we make are just guesses as to what might be better. Comprehensive Legal Payment Reform Notice, I didn't say billing reform. This is not about adopting alternative fee structures, or non-hourly billing schemes, this is about aligning the financial incentives for the attorneys and the firm to the needs of the client. In medicine that means ending the practice of fee for service, where doctors get paid based on the total number of procedures they perform instead of for maintaining the health of their patients. In legal, we need a similar realignment from meeting hourly targets to maintaining client satisfaction. How we should do that is a huge topic of conversation, beyond what can possibly be summarized in this paragraph. This change will be a difficult adjustment for attorneys and firms, but is absolutely key to putting the client at the center of legal services. Part IV: The Standards and Elements of CCLP Just as the NCQA established standards and elements for evaluating and regulating PCMH applicants, any number of alphabet soup entities could fulfill the same type of role in legal: the ABA, the LMA, ILTA, AALL, or my personal favorite the ACC. It doesn't much matter who is evaluating or what authority they have, just that they are evaluating consistently and publishing an updated list of CCLP qualified firms and their associated levels achieved. We could even create a new not-for-profit organization with CCLP certification as its sole purpose. (Hint, hint.) Once one firm is certified using an open standard, how long before large clients begin asking outside counsel why they aren't certified? If a first level certification is
Doctors and Lawyers: The PCMH as a model for a CCLP by Ryan McClead relatively easy to achieve, as it is with the PCMH, then what excuse will firms have for not doing it? Of course, a level 1 certification begs the questions, "Why are you only a Level 1? Which elements don't you adhere to? And why not?" A well-defined and open set of standards and elements, if evaluated fairly, should lead to an all-out arms race for firms to achieve a top-level CCLP certification. Which, if done correctly, should correlate to a better all-around experience for clients. The hardest part will be defining those standards and elements. Here again, I think we can look to the PCMH as a guide. Of course the individual elements to achieve will be wildly different for legal, but the standards will have some overlap. The 6 PCMH standards are to: 1) Enhance Access and Continuity, 2) Identify and Manage Patient Populations, 3) Plan and Manage Care, 4) Provide Self-Care Support and Community Resources, 5) Track and Coordinate Care, and 6) Measure and Improve Performance. Adjusting for legal specific terminology, these all kind of work as is. We would want a CCLP certified firm to meet the minimal obligations to Enhance Client Access to firm resources, Identify and Manage Client Populations (Business Intelligence), Plan and Manage Matters, Provide Self-help Legal Support and Resources, Track and Coordinate Matters, and Measure and Improve Performance over time. There are probably better ways to phrase these standards and there may be more or different standards we should add, but even with this simple translation a proto-CCLP could begin to take form. My intention is not to say that the legal industry should immediately adopt this concept as pioneered by the medical industry and run with it, but to suggest that maybe a more holistic approach to imagining the future of law is called for. Here on the 3 Geeks blog we each have our areas of interest and we all attend our separate conferences to discuss the roles of technology, knowledge management, library and information management, project management, pricing, competitive intelligence, and on and on and on... But maybe we need to think a little bigger. Rather than trying to fix the law firm model one discipline or one system at a time, maybe we should put the client in the center and rebuild the firm around them. If we can imagine and define that type of firm, then we can give firms a path to follow and a goal to strive toward, and we can give clients a series of metrics with which to evaluate the quality of the legal services they are receiving.
For more information on the Patient Centered Medical Home concept see the following articles and resources:
Rittenhouse DR, Shortell SM “The Patient-Centered Medical Home: Will It Stand the Test of Health Reform?” JAMA Vol. 301, No. 19 May 20, 2009
Doctors and Lawyers: The PCMH as a model for a CCLP by Ryan McClead Nutting PA, Miller WL, et. al. "Initial Lessons From the First National Demonstration Project on Practice Transformation to a Patient-Centered Medical Home" Annals of Family Medicine Vol. 7, No. 3 May/June 2009 NCQA Patient Centered Medical Home webpage NCQA PCMH Brochure Download the complete NCQA PCMH Standards and Guidelines (2011) in PDF format for free. Requires registration.
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