Patients’ Rights Headed For Debate In Congress
Support Needed for Bills with "Real" Protections
June 15, 2001—Legislators from both parties and both chambers of Congress have long been trying to enact federal protections for consumers with private health insurance. In the last Congress, both House and Senate passed managed care bills. However, they were very different and the conference committee chosen to reconcile the differences stalled. Ultimately, the debate deadlocked over whether to hold a managed care provider liable for harm caused by delay or denial of necessary care. A new Congress, especially with the recent shift to Democratic leadership in the Senate, is in a better position to advance a meaningful consumer protection bill.
Several managed care bills have been introduced this year. The major proposals include the Bipartisan Patient Protection Act of 2001 (S. 283), sponsored by Senators John McCain (R-AZ), John Edwards (D-NC) and Edward Kennedy (D-MA); its House counterpart, H.R. 526, sponsored by Representatives Greg Ganske (R-IA) and John Dingell (D-MI); and S. 889, sponsored by Senators Bill Frist (R-TN), John Breaux (D-LA) and Jim Jeffords (I-VT), also known as the Bipartisan Patients' Bill of Rights Act of 2001.
Not All Patients' Bills of Rights Are Created Equal
Although the two Senate bills (S. 283 and S. 889) claim to set out comprehensive patient protections, they are, in fact, similar in name only.
- The McCain-Edwards-Kennedy bill (S. 283) creates a uniform federal floor of protection for all Americans with employer-sponsored private health insurance. The Bazelon Center supports S. 283.
- The Frist-Breaux-Jeffords bill (S. 889), on the other hand, would allow states to implement their own standards, even when they are weaker than the protections called for by the federal guidelines.
- Furthermore, the McCain-Edwards-Kennedy bill and its house companion (H.R. 526) provide core rights, such as guaranteed access to specialists, the right to independent external review in the event that coverage is denied, and unlimited recovery of damages for wrongful denial of benefits. S. 889 offers none of those protections.
Advantages of the "Real" Patients' Rights Bills
The McCain-Edwards-Kennedy bill (S. 283) and its House counterpart (H.R. 526) would offer the best line of defense against managed care practices that infringe on patients' rights.
- Quality. S. 283 and H.R. 526 would protect participants in all private health insurance plans and create strict guidelines for state law certification, ensuring that the states will meet federally set levels of patient protection. These bills would also require health insurance plans to protect continuity of care and provide access to all necessary treatment modalities, with no arbitrary denial of benefits.
- Choice. The bills guarantee health care consumers timely access to specialists so that patients get the care they need, when they need it.
- Fairness. In the event that a plan denies coverage, patients would be entitled to immediate referral to
an independent external review process. Insurance companies would be required to provide to the reviewing
entity all information necessary for it to make a coverage decision, and are barred from delaying the process
by withholding that information.
- Justice. Patients would have the right to sue if the plan does not comply with the decision of the reviewing
entity. The bills create a federal cause of action for patients who experience injury due to insurers' refusal or
limitation of care. Patients who take their cases to external review entities would not forfeit their right to judicial review, and would be able to recover unlimited damages. Insurance plans could face civil penalties of up to
$5 million for arbitrary denials of benefits.
S. 889 Falls Short
The Frist-Breaux-Jeffords bill falls short in many areas:
- No quality assurance. S. 889 does not require states to adhere to federal patient protection standards. Instead, the bill would give states wide discretion to implement their own standards, even if their standards are weaker. Furthermore, insurance plans could challenge and potentially overturn the state standards, but patients would have no such power.
- Limited coverage. S. 889 would not even apply to self-insured state and local plans, leaving many Americans without protections.
- Limited choice. S. 889 makes no meaningful assurance of direct access to specialists.
- Unfair procedures. S. 889 does not guarantee patients an independent external review process. It allows plans to select their reviewers. Again, patients have no such power. In addition, plans are not required to provide all necessary information to the review entity-they need only provide information that is specifically requested. Reviewers must begin their inquiries by determining whether a benefit is included in the plan-a decision that may be affected by a reviewer's lack of information on the plan's coverage policies. Finally, the bill does not include civil monetary penalties that would ensure compliance with reviewers' findings.
- No Justice. S. 889 minimizes patient access to federal courts by narrowly defining the federal remedy. Patients
could entirely lose the right to sue based on the decisions of the plan's chosen external review entity. The bill
limits damages, allowing a maximum of $500,000 in non-economic damages, does not permit punitive damages,
and limits plans' liability under ERISA and RICO.
Action Needed Now
The McCain-Edwards-Kennedy bill (S. 283) offers the best consumer protections combined with the legally enforceable remedies that are necessary to make them effective.
The bill will be on the Senate floor for debate as early as June 18. Now is the time for Senators and Representatives to hear from their constituents about the importance of providing a comprehensive package of protections to health care consumers. Public pressure is urgently needed to pass the real patients' rights bill (S. 283 and H.R. 526) into law.
What You Can Do
Call your Senators today and urge them to support the strong managed care protections outlined in the McCain-Edwards-Kennedy bill (S. 283)
Urge your Representative to support the Ganske-Dingell managed care reform bill (H.R. 526).
Call the U.S. Capitol switchboard at 202-224-3121, and ask for your Senators' and Representative's offices or visit their website and look up the phone numbers.
Stress that:
- All Americans enrolled in managed care plans need and deserve these protections.
- Managed care plans must be held accountable when their decisions to withhold care injure consumers.
- Physicians, not insurers, should have the authority to decide what treatment is medically necessary.
- Consumers want independent external review processes to determine whether benefits have been wrongly
denied.
- Direct access to specialists should be guaranteed.
- Only two bills in Congress
provide real protections in a comprehensive manner: S. 283 and H.R. 526.
If you have a personal story on how a managed care plan
arbitrarily denied coverage or treatment, please
share it.
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