Introduction
Studies of German health policy often highlight institutional constraints to reform. In this respect analyses point to an institutional context, where the role of the state in health governance is limited to setting the framework, and where the medical profession, as part of the joint self-administration of purchasers and providers, plays a key role. However, based on a case study of the introduction of clinical standards as part of the Disease Management Programmes for chronic illnesses, this article suggests that negotiating reform at an arm's length from the state can also lead to governance change, although the strengthening of hierarchy is not as prominent as in some of the countries studied in this special issue. More specifically, the reform weakened professional self-regulation as the Disease Management Programmes introduced statutory guidelines and thereby also strengthened network-based forms of governance.
As such, the case of Germany offers interesting insights into the politics of governance change that occur in the shadow, but largely without the direct involvement of the state, which is typical of a corporatist health-care state. In this respect, the analysis identifies three leverages for change. First, the change in medical governance explicitly builds on earlier reforms and especially on those parts of the reform that had broadened the remit of the joint self-administration. This allows tampering with an already existing blueprint and gives the reform alliance a competitive edge. Second, the organisations of the joint self-administration play an influential role throughout the reform process. This is key as the organisations are more or less an open ally of the state. Importantly and third, this is complemented by the state steering at a distance.
This study is based on an analysis of a range of primary and secondary sources. The analysis uses written material, including legislative texts and press releases issued by relevant actors, to map out the interests and strategies of key actors, as well as to identify the central arenas and phases of the dynamics of governance change. In addition, a search on the MEDLINE database helped to identify further articles and commentaries from professional journals. This research material is complemented by expert interviews with nine representatives from actors at federal level, most of whom had taken part in the negotiations leading to the Disease Management Programmes. The purpose of the interviews was to gain a more finely tuned picture of the specific interplay among actors and their strategies and the ways in which this shaped the negotiations.
The institutional context of governing medical performance
In many European countries, the state has to a lesser or greater extent a highly influential role in the governance of consumption and provision in health care. This contrasts with Germany, where the (federal) state has a largely regulatory role, whereby the state, through initiating legislation, sets a substantive framework for policies and defines the procedures for specifying the substance of policies. Instead and as outlined in more detail below, statutory organisations of insurance funds and provider organisations act as a small legislature and specify the substance of policies at an arm's length from the state (for an overview, see Busse and Riesberg, Reference Busse and Riesberg2004; Rosenbrock and Gerlinger, Reference Rosenbrock and Gerlinger2004). This is typical of a corporatist health-care state. In terms of the governance of consumption, it is significant that funding for health services comes from social insurance contributions paid by employers and employees. Access to health services is based on employment-related membership in a health insurance fund, but includes elements of redistribution among different risks. The non-public component is also present in the governance of provision, where the ownership of hospitals is mixed and where office-based doctors in ambulatory care work as private entrepreneurs. Further, formal negotiations between the statutory organisations of insurance funds and providers, especially doctors, are a central feature of the health-care state. The two parties form the so-called ‘joint self-administration’ and negotiations take place at both federal and state levels. This reflects the federalist structure of the polity and results in significant decentralisation in the health-care state. The negotiations at the federal level tend to be concerned with the specification of the provisions of the federal ‘framework legislation’. Further adaptations occur at the state level, where the parties to the joint self-administration negotiate the reimbursement of services.
The importance of formal negotiations in Germany is similar to that in Denmark, but the crucial difference is that negotiations in Germany explicitly involve doctors, who, thereby, also decide on the allocation of funding. This follows a closer integration in health-care governance and corresponding constraints. The involvement of doctors in health governance is underpinned by normative institutions that define medical authority as a highly institutionalised medical authority, which is an integral part of the statutory governance of health care. Medical authority also includes strong elements of private practice, with the majority of office-based doctors working as private entrepreneurs and the majority of hospitals in private ownership. In relation to the governance of medical performance, the professional self-regulation is nevertheless key to the developmental pathway, but increasingly co-exists with statutory negotiations, which represent a form of network-based governing, as well as elements of hierarchy-based governance in the form of framework legislation.
As in other countries, statutory organisations of professional self-regulation are responsible for setting professional and ethical standards. The state-level Chambers of Doctors (Ärztekammern) set standards directly through general codes of good practice and more indirectly through their responsibility for secondary training and continuing education, as well as through dealing with cases of malpractice. This is complemented by voluntary clinical guidelines developed by specialist societies. The last decade saw the introduction of more direct approaches in the form of professionally led quality management. In 1997 for example, the Federal Chamber of Doctors (Bundesärztekammer) and the Federal Association of Insurance Fund Doctors (Kassenärztliche Bundesvereinigung) issued guidelines for clinical practice. In 1999, this culminated in the creation (together with the insurance funds) of a clearing hub for clinical guidelines as part of the Medical Centre for Quality (Ärztliches Zentrum für Qualität in der Medizin), a non-statutory organisation for medical quality created by several organisations of doctors in the early 1990s (Wigge, Reference Wigge2000).
In addition, as noted above, doctors are also part of another pillar of governance, the joint self-administration of insurance funds and doctors. This pillar consists of (substantive and procedural) legislation regulating the statutory health insurance and the collective (and often statutory) agreements by joint self-administration and more specifically by the Federal Committee of Doctors and Insurance Funds (Bundesausschuss der Ärzte und Krankenkassen). The Committee includes the statutory Federal Association of Insurance Fund Doctors and the federal associations of the different insurance funds. Here, the governance of medical performance often takes the form of financial incentives, such as budgets for office-based doctors or catalogues over services and drugs reimbursed by the social health insurance. The catalogues are especially powerful, as they operate as a type of positive list, which allows excluding services/drugs from the coverage of the insurance, and thereby represent a rather direct means of governing medical performance (for an overview, see Busse and Riesberg, Reference Busse and Riesberg2004: 164).
This offered a springboard for change, and as a result, the governance of medical performance based on the joint self-administration, the second pillar of governance, has become both more formalised and finely tuned (for an overview, see Igl, Reference Igl2002; Sauerland, Reference Sauerland2001). For example, the inclusion of services into the statutory health insurance in the form of the catalogue of reimbursable services follows a more explicit approach. As a result, the basis for evaluating medical treatments and procedures was extended to include benefit and efficiency in addition to medical necessity, making for a more comprehensive and more formal assessment process (Busse, Reference Busse1999: 78). In addition, the assessment process is now closely tied to the notion of evidence-based medicine, which underlines the importance of explicit standards. Further, the assessment process has been linked to procedures of quality assessment and thereby has become embedded in a broader framework of policy tools (Schmacke, Reference Schmacke2001). For instance, the extended responsibilities of the Federal Committee include defining (evidence-based) guidelines for both medical treatment and compulsory quality assurance.
Consequently, the mainstreaming of clinical guidelines is framed as a new way of defining quality for treatment and diagnosis within the statutory health insurance (Schmacke, Reference Schmacke2002). Importantly, the ‘quality turn’ is firmly embedded in wider organisational reforms. For example, in 2000, the Federal Committee was extended to include a sub-committee on co-ordination, charged with, among other things, defining treatment guidelines for inter-sectoral care. In conjunction with the development of new, more flexible forms of contracting, clinical guidelines also gain further operational meaning (Müller de Cornejo, Reference Müller de Cornejo and Essers2005). This means that the guidelines can be written into the contracts between the insurance funds and the providers and as such can become an explicit requirement vis-à-vis doctors.
Changes in the governance of medical performance: Disease Management Programmes
The general leverage for change is closely related to the institutions underlying the joint self-administration as the second pillar of governing medical performance and, especially, the relative autonomy of statutory organisations. Here the perception of a persistent failure to contain the expenditure of social health insurance has challenged the central role of joint self-administration in the governance of health care. This has also highlighted the traditionally strong focus on managing health services funding and the corresponding lack of control over the provision of health services, including issues of quality. The latter problem is compounded by the prominent role that doctors and their self-regulatory organisations play in the governance of health care. These institutional tensions also pertain to the governance of medical performance. In connection with the Disease Management Programmes, the underlying institutional tensions present themselves as follows: the heightened focus on chronic illnesses and their treatment highlight the persistent lack of integration of health-care services and the apparent failure of earlier reforms. This is coupled with concerns about the unequal distribution of the costs of treating chronically ill patients among insurance funds. The institutional tensions frame the policy problem as a question of controlling the quality of health-care delivery together with (and in fact often through) funding health-care services.
The Disease Management Programmes define standards for diagnosis and treatment in relation to selected chronic illnesses and link the operation of Disease Management Programmes to the transfer of funds among the insurers to compensate for the unequal distribution of poor risks. Introduced in ambulatory care in 2002, the Disease Management Programmes build on the developmental pathway of ‘mainstreaming clinical guidelines’ outlined above, but, importantly, also include elements of institutional and associated policy change (Bundesministerium für Gesundheit, Reference Bundesministerium für Gesundheit2001).
The direct and indirect means of setting clinical standards through professional self-regulation continue to exist, but they now are complemented by statutory clinical guidelines set by the joint self-administration. In conjunction with the Disease Management Programmes, the joint self-administration has become involved in a new area of governance, thus shifting the goal of the statutory negotiations from governing medical performance indirectly through, for example, setting budgets and defining catalogues of reimbursable services to governing medical performance more directly through setting standards for service delivery. Furthermore, the statutory negotiations are embedded in stronger elements of hierarchy. More specifically, the substantive remit of the Committee is unusually specific, and its final decisions only have the status of recommendations to the Federal Ministry.
This also has implications for the substance of policy change itself. The coupling of clinical standards to the risk-equalising mechanism means that, as a governing mechanism, clinical standards are now embedded in statutory forms of governing and are related to the distribution of funds among insurance funds. Moreover, compared with the earlier initiatives of the specialist medical societies, the evidence base of clinical standards has moved more firmly towards randomised controlled clinical studies, as the Disease Management Programmes also include procedures for monitoring clinical standards. Even under the Disease Management Programmes, however, procedures for evaluating clinical standards remain loosely defined and mainly rely on different forms of organisational self and peer control. Significantly, sanctions continue to be absent.
The process of negotiating Disease Management Programmes
The process of negotiating Disease Management Programmes occurred in two phases, and the negotiation of institutional and policy change was closely intertwined. First, at the federal level, Disease Management Programmes emerged as the organisational frame for introducing clinical standards as part of the policy process leading to the reform of the risk adjustment mechanism. The federal government created the Co-ordination Committee (Koordinierungsausschuss) as a sub-committee of the Federal Joint Committee and charged the Committee, in a first step, with identifying those chronic illnesses for which Disease Management Programmes should be set up, and, in a second step, with setting clinical standards and specifying the organisation of Disease Management Programmes. Second, the negotiations of the Co-ordination Committee include both filling in the details of institutional change and deciding on the corresponding policy change.
Federal policy making: setting the framework for governance change
The integration of service delivery is the first frame that paves the way for the subsequent governance change in connection with the introduction of earlier guidelines. Earlier reforms provided an important reference point and even template for change in terms of both building on existing organisational infrastructures and learning from past reforms and their shortcomings. Reforms in the 1990s put inter-sectoral collaboration on a firmer footing by introducing pilot projects as well as specific contracts, which challenged the traditionally sharp separation between different sectors of service provision (cf. Müller de Cornejo, Reference Müller de Cornejo and Essers2005). This separation closely reflects the fact that the delivery of ambulatory care is the exclusive right of generalists and specialists working outside hospitals. Although far-reaching in principle, the implementation of the reforms was slow (Busse, Reference Busse2004).
In terms of the more specific framing of the introduction of clinical standards, an expert report by the Expert Committee in Health Care (Sachverständigenrat) in 2001 was influential (Sachverständigenrat für die Konzertierte Aktion im Gesundheitswesen, 2001). The Committee is an independent statutory body of experts and publishes reports on specific aspects of health-care delivery on a yearly basis. Importantly, in terms of problem diagnosis, the expert report points not only to the continuously strict separation between different sectors of health-care provision, but also to the lack of evidence-based practice and financial incentives necessary for insurance funds to address these issues. On this basis, the expert report recommended the introduction of new, evidence-based forms of provision, including Disease Management Programmes.
As such, the expert report resonates with the more explicit focus on quality as part of the Reform Act in 2000, which was the other important reference point for the framing of the introduction of clinical standards (Müller de Cornejo, Reference Müller de Cornejo and Essers2005). In particular, this applies to the work of the newly created Co-ordination Committee (Koordinierungsausschuss), a sub-committee of the Federal Committee of Doctors and Insurance Funds, which is at the heart of the corporatist governance regime of the health-care state in Germany. This sub-committee is meant to identify standards of service delivery in relation to a set of common chronic diseases where service provision is deemed deficient. In doing so, the sub-committee is expected to take existing clinical guidelines into consideration.
The second strand of the framing of the introduction of clinical standards is concerned with the shortcomings of the risk adjustment mechanism. This concern relates to the fact that the existing redistribution mechanism does not take sufficient account of variations in morbidity among patients (for an overview, see Buchner and Wasem, Reference Buchner and Wasem2003). Following the Reform Act in 2000, the government and the insurance funds commissioned a number of expert reports to explore policy options for the development of the risk adjustment mechanism. The expert reports also made a connection between the risk adjustment mechanism and the quality of service provision for chronically ill patients (for an overview, see Deutscher Bundestag, Reference Bundestag2001). Here, the two main expert reports (one commissioned by the government, the other by insurance funds) explicitly include Disease Management Programmes as one of the short-term measures to take better account of variations in morbidity.
The coupling of issues around service integration (and quality assurance) with issues of funding politicises the introduction of clinical standards. Service integration and quality assurance tend to be ‘soft issues’ on which most actors agree in principle. In contrast, the coupling with funding places these issues in a much more starkly defined and firmer framework and allows for the inclusion of financial incentives (similar to Kuhlmann, Reference Kuhlmann2004). This raises the stakes of the policy process considerably, especially as the coupling of the two issues provides a lever for institutional change. First, within the new framework clinical standards are no longer a concern of only the exclusive circles of medical specialists and their medical societies, but also of the joint self-administration. Second, the joint self-administration thereby can broaden its remit beyond setting financial incentives and defining the service range to include standards of service delivery.
The legislation itself is mainly concerned with institution building, and, more specifically, with defining the procedures of how to identify chronic illnesses and how to specify the subsequent Disease Management Programmes (Bundesminusterium für Gesundheit, without year; Bundesministerim für Gesundheit, Reference Bundesministerium für Gesundheit2001). This procedural focus is typical of a corporatist health-care state, where the role of the federal government is mainly concerned with setting the framework of the negotiations of the joint self-administration. Together with an institutionally embedded medical authority, this also means that many of the substantive decisions are delegated to the joint self-administration as a non-state but statutory arena of decision making and are made at a later stage.
In sum, what made governance change possible? As discussed in the previous section, earlier reforms had already begun extending the remit of the joint self-administration to include evidence-based criteria for evaluating the service range of the health insurance and to include standards of service delivery. At the same time, other parts of earlier health reforms, especially those related to the integration of health-service delivery and to the risk adjustment mechanism, were viewed as failures. Moreover, there was an underlying agreement between the government and the insurance funds about introducing Disease Management Programmes as the organisational frame of clinical standards.
In terms of the specific conjunctural pressures, the government was under considerable pressure to act. The Reform Act in 2000 was widely perceived as a failure (cf. Burkhardt, Reference Burkhardt, Deppe and Burkhardt2002) while a general election was coming up in 2002. The substantive room for manoeuvre was also limited, as the majority in the Federal Chamber was in the hands of the opposition party. More generally, relations with doctors' organisations remained tense after the controversies related to the Reform Act in 2000. Yet, there was agreement between the government and the insurance funds regarding treating the Disease Management Programmes as the organisational frame of clinical standards. For the government, the Disease Management Programmes were attractive because of their multi-purpose nature. The Programmes promised to square the circle between efficiency and quality, as reflected in the notion of ‘competition for quality’, while also offering a lever for the reform of the risk adjustment mechanism. For the insurance funds, in turn, the Disease Management Programmes offered the prospect of strengthening the position of the insurance funds vis-à-vis the medical profession by opening the collective contract (cf. Deutscher Bundestag, Reference Bundestag2001). For the structurally weaker insurance funds, the Programmes also promised additional sources of funding.
Taken together, this change allows the government and the insurance funds to use their resources as key actors in the health-policy arena to shape the policy process. For doctors and their interest organisations, the coupling with the risk adjustment mechanism is problematic because clinical guidelines could become more directive in nature (cf. Rüter, Reference Rüter2001) and because the Programmes are separate from the collective contract (cf. Korzilius, Reference Korzilius2001). Yet, the medical organisations have balanced their immediate opposition to the Programmes with more long-term considerations about maintaining both public trust in good-quality care and a reasonable level of control over clinical guidelines. This is significant considering the opposition of doctors against similar measures as part of earlier reforms (Schönbach, Reference Schönbach2001).
The negotiations of the Co-ordination Committee: specifying governance change
The Co-ordination Committee is an extension of corporatist governing arrangements and this makes for highly formalised and closed negotiations, which exclusively involve the members of the joint self-administration.
Reform alliance sets the agenda
As argued above, in the policy process leading up to the legislation, the agreement between the government and the insurance funds about treating Disease Management Programmes as the organisational frame for introducing clinical standards was an important driving force. Although this also applies to the initial phase of the negotiations of the Co-ordination Committee, on the part of the insurance funds this primarily includes the Federal Association of General Insurance Funds. This reflects the wide division among insurance funds with regard to the link with the risk-equalising mechanism. For instance, as one of the structurally weaker funds, the General Regional Insurance Funds (Allgemeine Ortskrankenkassen) are a likely beneficiary, and the Federal Association of General Regional Insurance Funds is an active promoter of the Disease Management Programmes. In contrast, the structurally stronger funds such as the Substitute Funds (Ersatzkassen) and the Company-based Insurance Funds fear a loss of funding (Schönbach, Reference Schönbach2001).
Against this background, the Federal Association of General Regional Insurance Funds set the agenda in the initial phase of the negotiations of the Co-ordination Committee as part of a more or less open alliance with the Federal Ministry. Even before the Co-ordination Committee began its work, the Federal Association of General Regional Insurance Funds was pro-active in developing the organisational framework of Disease Management Programmes. In collaboration with Peter Sawicki, one of the leading medical experts in the field of diabetes who promoted the use of evidence-based guidelines, the Federal Association prepared an expert report (also see Schmacke, Reference Schmacke2002), which became an important reference point for the negotiations.
The expert report took other parties to the negotiations in the Co-ordination Committee by surprise. Regarding the medical profession, the expert report filled a vacuum in that the existing initiatives did not necessarily conform to the standards of evidence-based guidelines, a fact that even a representative of the Federal Chamber of Doctors openly acknowledged. At the same time, existing initiatives were seen as too partisan to provide a basis for the negotiations. In particular, the Ärztliches Zentrum for Qualität, a joint initiative of, among others, the Federal Chamber of Doctors, was one of the fiercest critics of the Disease Management Programmes, as a representative of the Federal Insurance Office notes. Other insurance funds have also been less pro-active and therefore were taken aback by the proposals developed as part of the expert report, and have adopted a more reactive stance.
The important role played by the expert report reflects not only favourable timing, but also its closeness to the Disease Management Programmes legislation. The fact that the interests of the two parties coincided formed the basis of an alliance, while various contacts in the lead up to the legislation and during the negotiations themselves strengthened it. A representative of the Federal Association of General Regional Insurance Funds describes the relationship as follows.
We were in very close contact with the Federal Ministry of Health and from the very beginning we put the issue [of Disease Management Programmes] very high on our agenda. […] The Federal Ministry greatly supported the General Regional Insurance Funds, because it was glad that there was an insurance fund which was prepared to invest considerable effort and which had a strong interest in advancing this [the development of Disease Management Programmes].
(representative of the Federal Association of General Regional Insurance Funds)
In summary, in the initial phase the Federal Association of General Regional Insurance Funds set the agenda of the negotiations with its expert report, and this reflected a more or less open alliance with the Federal Ministry. In fact, together with favourable timing, the expert report kick-started the negotiations of the Co-ordination Committee.
Federal Ministry steers at a distance
The subsequent process of negotiations occurred in the shadow of hierarchy, which reflected the fact that as an arena of negotiations the joint self-administration is embedded in the statutory framework of the health insurance. This provided a lever for the Federal Ministry to exert influence through steering at a distance. The influence took the form of procedural steering and was closely related to two elements of the initial federal legislation, a tight timetable and threats of unilateral ministerial decisions in case of delays.
The Federal Ministry took part in the negotiations of the Co-ordination Committee as an observer and very closely followed the course of the negotiations. Indeed, as a representative of the Federal Association of Company-based Insurance Funds points out, the recommendations could largely be incorporated into the legal provisions without any significant changes. Several interviewees suggest that the time pressures helped to focus the negotiations and to arrive at an agreement.
I feel that this [time] pressure also lead to a pressure to come to an agreement, because it was clear that the Federal Ministry would [otherwise] take a unilateral decision. And this is what nobody wanted.
(representative of the Federal Association of General Practitioners who sat on the Co-ordination Committee as a representative of the insurance funds)
The substance of the threat was two-fold: in the short term, exclusion from a decision central to the governance of medical performance, and, in the long term, the weakening of the role of the joint self-administration as the ‘small legislature’. In the present context, the possibility of a unilateral ministerial decision seemed to have been a powerful resource for steering at a distance. To some extent, the possibility of such a decision was real, as a representative of the Federal Insurance Office suggests. The Federal Ministry had increasingly made use of this measure over recent years, even in areas outside its formal remit. The Federal Ministry also had access to the relevant (medical) expertise, either through its own staff or through the Advisory Board of the Federal Insurance Office. The expert report of the Federal Association of General Regional Insurance Funds provided a blueprint for such a decision. At the same time, the fact that the involvement of the Co-ordination Committee had been a concession to the joint self-administration produced considerable pressure to succeed. Moreover, long-standing concerns about cost containment and the ability to agree on reforms put the joint self-administration under considerable pressure to demonstrate its ability to act.
Importantly, the procedural steering by the Federal Ministry also affected the negotiations in indirect ways by providing a platform for the insurance funds and the Federal Association of Insurance Fund Doctors to put their salient conflicts to one side and form an alliance. A representative of the Federal Association of General Regional Insurance Funds characterises the short-term rationale underpinning this alliance in as follows:
Of course, the insurance funds and the Associations of Insurance Fund Doctors knew: If we do not come to an agreement, the Federal Ministry of Health can decide on something on its own. In relation to this, we have even less influence compared to the consensus-based negotiations as part of the Co-ordination Committee. [The fact] [t]hat there could be a unilateral decision put considerable pressure on the negotiations and also made the parties [to the negotiations] look very seriously for a solution of their own.
(representative of the Federal Association of General Regional Insurance Funds)
Beyond the immediate threat of a unilateral decision by the Federal Ministry, the alliance was motivated by a shared interest in safeguarding the continued existence and centrality of the joint self-administration in the governance of health care in Germany, as the following quote by a representative of the Federal Association of General Regional Insurance Funds illustrates:
From time to time, the joint self-administration certainly has to prove that it is an important governing body, which continues to enjoy influence. […] In part, they [the parties to the joint self-administration] have very different interests, but the one thing which unites them is that they prefer to come to a solution themselves and together with each other, and that they dislike the idea that the Federal Ministry of Health decides everything.
(representative of the Federal Association of General Regional Insurance Funds)
The alliance between the insurance funds and the Federal Association of Insurance Fund doctors was highly influential over the subsequent course of the negotiations, not least because the alliance was firmly connected to the institutions of health governance. The two sets of actors are at the heart of the joint self-administration, which, in turn, is the central building block of the corporatist health-care state. In the case of the Federal Association of Insurance Fund doctors, the institutionally embedded nature of medical authority further strengthened the alliance.
More specifically, the strategies used by these actors demonstrate the ability of the joint self-administration to act and to come to an agreement and thus contain conflict and secure legitimacy. This demonstrates the two-fold challenge for the negotiations: to contain conflict and to secure the legitimacy vis-à-vis the parties involved in the negotiations, i.e., the medical community at large and the Federal Ministry. A first set of strategies is concerned with involving medical experts in negotiating the substance of clinical guidelines, while allowing the parties to the joint self-administration to choose the experts. The second set of strategies is about forming a division of labour with the Federal Chamber of Doctors that allows the expression of both critical and moderate views.
Containing conflict I: involving medical experts
The first strategy to contain conflict and to secure legitimacy involves identifying the definition of clinical standards as the prerogative of medical experts nominated by the different parties to the joint self-administration (also see Müller de Cornejo, Reference Müller de Cornejo and Essers2005). Involving medical experts not only acknowledges the substantive complexity of the issue at hand but also succeeds in including a broader range of interests; namely, representatives of the relevant specialist medical societies. At the same time, the approach chosen helps to avoid medical bias in the eyes of the insurance funds:
In relation to diabetes we never had any concerns [about the economic consequences of the Disease Management Programmes]. [This is because] we managed to include experts [in the Co-ordination Committee], who were very important from our perspective, because they were not guided by alien interests, but who were instead highly committed to an evidence-based approach.
(representative of the Federal Association of General Regional Insurance Funds)
The negotiation over the substance of clinical guidelines itself is marred by conflict, not only between different approaches to treatment but also between different views on the nature of clinical evidence. In this latter respect, two schools exist: one defines evidence broadly to include the experience of senior medical practitioners, while the other defines evidence more narrowly as knowledge based on clinical studies using randomised controls. Within the medical profession in Germany, the first, the so-called ‘eminence-based’ approach to clinical evidence, appears to have been dominant at the time of introduction of the Disease Management Programmes. As a result and similar to Denmark, the Programmes mark a significant change of track, as a representative of the Federal Association of Company-based Insurance Funds observes:
Such conflicts [about the substance of clinical guidelines] also have to be seen against the background that in the past, quoting a high profile researcher in the field was enough to define something as given. And this has changed. Here [as part of the negotiations of the Co-ordination Committee] every statement had to be substantiated with a study, which also had to be presented. And this [the evidence base of studies] was also double checked.
(representative of the Federal Association of Company-based Insurance Funds)
Beyond the specific issues of conflict, this also illustrates the more general issue that agreement with evidence-based clinical guidelines is very much unchartered and, therefore, is a sensitive territory. As a representative of the Federal Association of Insurance Fund Doctors points out, this requires first coming to agreement on the ‘standards for clinical standards’.
Containing conflict II: the division of labour with the Federal Chamber of Doctors
The other strategy used to contain conflict and secure legitimacy is to form a division of labour with the Federal Chamber of Doctors that allows expression of both highly critical and more moderate viewpoints. The Federal Chamber has close connections with the ‘hinterland’ of specialist medical societies and, through its earlier initiatives, is also closely associated with the eminence-based school of clinical evidence. In the course of the negotiations, however, the highly critical stance of the Federal Chamber (for a summary, see Bundesärztekammer, Reference Bundesärztekammer2002) emerged, culminating in its withdrawal from the negotiations. Nevertheless and importantly, the division of labour between the two organisations remains intact.
A representative of the Federal Chamber of Doctors characterises the relationship with the Federal Association of Insurance Fund Doctors as a division of labour whereby the former is primarily concerned with the substance of medical practice, while the latter focuses on issues of contracts and fees. The latter describes first and foremost a professional stance, which allows articulating politically controversial views, because the Federal Chamber is a step removed from the statutory negotiations of the joint self-administration. Yet, in the context of the Disease Management Programmes, the two issues are closely intertwined and are decided in a forum where the Federal Chamber is a newcomer. This turns out to be a challenging combination: while the Federal Chamber is highly critical of both the involvement of the joint self-administration and especially the coupling with the risk-equalising mechanism, it is part of the Co-ordination Committee and as such has to engage with the Committee in one way or the other. The following quote of a representative of the Federal Chamber of Doctors poignantly illustrates this dilemma.
And the biggest point of conflict [was] the coupling with the Risk Equalising Mechanism. From then on it was crystal clear that it [the Disease Management Programmes] would be misused to redistribute financial debts among the insurance funds. From my view this, if I may be frank, completely spoiled the issue [of Disease Management Programmes]. […] [W]e and more specifically our representatives [on the Co-ordination Committee] felt that we were used to support decisions, which ran absolutely counter to our views. This relates not only to substantive medical issues, but also to the way in which this was put into practice.
(representative of the Federal Chamber of Doctors)
Importantly, the fact that the involvement of the Federal Chamber of Doctors has proven to be untenable in effect helps to strengthen the legitimacy of the joint self-administration. That way, the Federal Chamber becomes the host for expressing views that are highly critical of the Disease Management Programmes, while allowing the Federal Association of Insurance Fund Doctors to demonstrate its moderate and constructive stance. As a representative of the Federal Association emphasises, the Association has a genuine interest in the Disease Management Programmes as a means to continue some earlier contractual experiments, but also hopes its involvement helps to safeguard the collective contract.
Our main point of criticism of the reform of the Risk Equalising Mechanism was the following: ‘We are not against a Risk Equalising Mechanism which is related to medical performance. Nevertheless we are against the fact that the Disease Management Programmes put a question mark behind the collective contract.’
(representative of the Federal Association of Insurance Fund Doctors)
Throughout the negotiations, the Federal Association adopted a moderate stance, trying to make the best out of a situation that it considers to be less than ideal, as confirmed by a representative of the Federal Association of Insurance Fund Doctors.
The ménage-à-trois among the different parties to the joint self-administration came apart only in the final phase of the negotiations related to the issue of documentation, during which the Federal Association of Insurance Fund Doctors joined the Federal Chamber in its opposition to the transfer of patient data (also see Gerst and Jachertz, Reference Gerst and Jachertz2002; Kassenärztliche Bundesvereinigung, Reference Kassenärztliche Bundesvereinigung2002). However, time constraints led to the Federal Ministry postponing the agreement on the issues until after the publication of the final legal provisions. What is at stake is the relative transparency of medical practice and the opportunities for control that this would give the insurance funds. In relation to this issue, salient tensions between the Federal Association and its rank and file also have come to the fore, and the Federal Association has had to backtrack from its until-then-constructive stance.
Discussion
This article begins by suggesting that governance change did occur in Germany, although the strengthening of hierarchy is not as prominent as that in some of the countries studied in this special issue. As such, the case offers interesting insights into the politics of governance change that happens in the shadow, but largely without the direct involvement of the state, which is typical of a corporatist health-care state. The following discussion summarises the specific leverages for change and points out how these are related to the specific institutional context of the governance of medical performance in Germany.
First, earlier reforms have paved the way for governance change by gradually establishing the role of the joint self-administration in the governance of medical performance. This is part of a development trajectory typical of corporatist health-care states that have witnessed more than two decades of enactment of cost-containment policies. Döhler and Manow (1997) refer to this as ‘Korporatisierung’, whereby the joint self-administration extends its remit while at the same time changing its character. More specifically, the joint self-administration is becoming more centralised, the insurance funds are gaining ground vis-à-vis doctors and the hierarchical elements of the joint self-administration are becoming stronger. As part of this development trajectory, the insurance funds increasingly emerge as the allies of the government. This was also the case in the policy process leading up to the legislation where these two parties, supported by salient and specific conjunctural pressures, succeeded in coupling earlier reforms with the perceived failures of other, unrelated reforms.
Second, the process of governance change benefits from the specific distribution of power among actors. As is typical for the corporatist health-care state, the Federal Ministry delegated the specification of the Disease Management Programmes to the joint self-administration. This makes the Federal Associations of Insurance Funds and insurance fund doctors, together with the Federal Chamber of Doctors, the key actors, while the Federal Ministry of Health takes a back seat. Importantly, however, this did not prevent the Ministry from adopting a more indirect but no less influential role of procedural steering at a distance. This seeming paradox suggests that the joint self-administration has proved to be a highly flexible form of governing: it is based on the logic of network but operates at an arm's length from hierarchy, and the relationship between the two has oscillated over time (cf. Döhler, Reference Döhler1995; Döhler and Manow, Reference Döhler and Manow1997). As the discussion of the strategies of actors below illustrates, this co-existence is full of conflict and the dynamics of the negotiations are concerned with careful, but often only temporary, channelling of conflict.
The same applies to the balance of power among actors. As the original parties to the joint self-administration, the insurance funds and the Federal Association of Insurance Fund Doctors are the key actors and enjoy considerable influence. Yet, the detailed substantive specifications as part of the federal legislation of the reform of the risk-equalising mechanism and the tight timetable for the negotiations imposed some limits on the extent to which the key actors can exert their influence. Similar limitations exist in relation to the involvement of medical experts and the Federal Chamber of Doctors. Both are new parties to the joint self-administration, but their involvement strengthens the influence of medical interests as well as the legitimacy of the joint self-administration as a whole. However, the possibilities of the two new actors to translate their critical views on Disease Management Programmes into practical influence are limited, not least by the interest of the original parties to the joint self-administration to demonstrate their ability to act. In terms of the context of medical governance, this resonates with an institutionally embedded form of medical authority. Here it is indicative that the influence of the medical experts is confined to defining the substance of clinical standards, whereas the Federal Chamber is pushed into a position of a critical outsider.
Third, specific strategies employed by the different actors foster governance change. In this respect, it is significant that the actors tend to adapt their strategies to the operating procedures of the joint self-administration, but with a twist. For example, the Federal Ministry delegates the specification of the Disease Management Programmes to the joint self-administration. At the same time, the Ministry heavily engages in procedural steering at a distance. The specification of the substance and the timetable of the negotiations, as well as the threat of a unilateral decision, are all strategies that fall under the repertoire defined by the institution of the joint self-administration. However, in combination with the other strategies discussed below and together with the contextual factors outlined above, this has helped the parties to the negotiations come to an agreement within the substantive framework set by the Ministry.
Similarly, the insurance funds and the Federal Association of Insurance Fund Doctors have pursued their interests through strategies that strengthen the legitimacy of the joint self-administration and help restrain conflict. One consequence of this is that the influence of medical interests is strong throughout the negotiations. At the same time, the strategies of procedural steering used by the Ministry in effect limit the strategies available to medical interests (and thereby the extent to which they can pursue different kinds of interests). For the Federal Association of Insurance Fund Doctors, adopting a strategy of total opposition is not an option as this may jeopardise its continued short- and medium-term involvement in health governance, not the least through the collective contract. Instead, the Federal Association used a strategy of constructive collaboration and selective opposition, and it was only the issue of the transfer of patient data at the very end of the negotiations that it completely rejected. Similarly, for the Federal Chamber of Doctors with its highly critical stance towards Disease Management Programmes, pursuing insider strategies has proven to be impossible under the circumstances. Instead, the Federal Chamber has had to switch to outsider strategies, which inadvertently strengthen the strategy of constructive collaboration adopted by the Federal Association of Insurance Fund Doctors. More specifically, this offers a host for expressing critical views and for the Federal Association to present itself as adopting a responsible but not necessarily ideal position.
In summary, the analysis of the introduction of clinical guidelines as part of the Disease Management Programmes demonstrates that although the institutional context in Germany puts considerable constraints on reform, it also provides levers for governance change. As such and more generally, the case of Germany offers interesting insights into negotiating reform at an arm's length from the state.
