Copyright 1999 Federal News Service, Inc.
Federal News Service
MARCH 24, 1999, WEDNESDAY
SECTION: IN THE NEWS
LENGTH:
2612 words
HEADLINE: PREPARED TESTIMONY OF
PETER W.
THOMAS ESQ.
FORMER CHAIR
SUBCOMMITTEE ON CONSUMER RIGHTS, PROTECTIONS
AND
RESPONSIBILITIES OF THE PRESIDENT'S ADVISORY
COMMISSION ON CONSUMER
PROTECTION AND QUALITY
IN THE HEALTH CARE INDUSTRY
BEFORE THE
HOUSE COMMERCE COMMITTEE
HEALTH AND ENVIRONMENT
SUBCOMMITTEE
BODY:
Chairman Bilirakis,
Congressman Brown, and Distinguished Members of the Subcommittee:
It is an
honor to testify before you today. I commend the members of this subcommittee
for their extensive efforts in addressing the critical issue of consumer
protection in health care. While I am testifying today in my individual
capacity, I was a member of the President's Advisory Commission on Consumer
Protection and Quality in the Health Care Industry and chaired the Subcommittee
on Consumer Rights, Protections, and Responsibilities, which drafted the
Commission's Patients Bill of Rights. As Congress considers
legislation in this area, I am grateful for the invitation to participate in
this hearing and provide input into this process. As a user of two artificial
legs since the age often, I can attest to a long history of interaction with the
American health care system. I have had five surgical operations and extensive
medical rehabilitation from rehabilitation hospitals and other providers over
the past 25 years. I have consulted numerous medical specialists and have had
ten sets of prosthetic limbs provided by seven different prosthetists in five
different states. I have been given the opportunity to access the health care
that meets my needs. With high quality care, I have been able to live completely
independently, working in a good job and raising a family.
However, for many
consumers, particularly people with disabilities and chronic illnesses, the past
decade has brought pressures in the health care system to limit important
benefits and restrict access to specialists and specialty providers.
These
restrictions in the health care system are now commonplace and are having a
profound impact on people's lives.
For instance, anecdotal evidence suggests
that patients with traumatic physical injuries--such as spinal cord and brain
injuries--who are covered by health plans that have restrictions of this nature
are more likely to be sent to nursing homes rather than medical rehabilitation
hospitals. Rehabilitation hospitals and units provide a far greater level of
specialty rehabilitation care and generally produce better clinical outcomes for
persons with severe physical disabilities. These specialty hospitals and
physicians and other providers with training and experience in medical
rehabilitation are critical to high quality and cost effective health care and
should not be arbitrarily restricted.
The pressures within managed care
networks to restrict access to specialty care manifest themselves in the
continuing erosion of public confidence in our health care system. My intent is
not to discredit managed care, for managed care that is managed well can lead to
major improvements in quality. My intent is to stress the importance of making
sure that managed care plans serve all users of care at comparable levels of
quality, regardless of the frequency or complexity of services a particular
enrollee needs. Above all, health plans, particularly managed care plans, must
not sacrifice sound medical decisions to considerations of the plan's bottom
line.
I would like to focus my remarks on the Patients Bill of
Rights and Responsibilities that was developed by the President's
Commission. As you know, Mr. Chairman, the Commission's Bill of Rights was
translated into legislative language and now forms the basis of the
Patients Bill of Rights Act, H.R. 358. The access to specialty
care provisions in that bill closely parallel the Commission's recommendations
on this issue. There are a number of other bills that also address the access to
specialty care issue, some of which have been sponsored by distinguished members
of this subcommittee. I commend the subcommittee for examining closely the
specialty care issue, for I believe that any law that purports to protect
patients must include provisions ensuring access to specialists, particularly
for people with disabilities and chronic illnesses.
The Need for Federal
Legislation
Other than several federal health care programs, the American
health care system is largely a market-based system. The hallmark of a well-
functioning marketplace is the concept of competition, and optimally,
improvements in quality and consumer satisfaction that come from this
competition. But the federal government often establishes certain ground rules
within which the American marketplace must function. The antitrust and
securities laws are good examples of federal rules that provide structure to a
well-functioning competitive market. The market in health care also requires
structure in order to function well. Without the establishment of basic ground
rules that will prompt the health care market to compete on quality and consumer
satisfaction, the health care market will compete based on the avoidance of
risky patients.
I am not an advocate of micro managing the health care
marketplace or stifling some of the progress the health care industry has made
in improving quality while reducing the rate of health care inflation. I am an
advocate for the creation of a basic set of consumer protections at the federal
level that all health plans must meet, including self- funded ERISA plans.
Without federal legislation, health plans that operate under the Employee
Retirement Income Security Act (ERISA) will be free to deny consumers basic
rights that health plans subject to state laws may be required to provide.
Unless all health plans are subject to the same set of consumer protection
standards, plans that do not adhere to such standards will be at a distinct
competitive advantage in the marketplace. Without federal standards to level the
playing field, there is actually a disincentive to improve the quality of care,
because those plans that develop a reputation for high quality and good outcomes
will be adversely selected by individuals who need health services the most.
Competition within a framework that protects consumers will have a significant
impact on the quality of care and. the confidence that Americans have in their
health care system.
The Commission's Recommendations
This is the
underpinning behind the Patients Bill of Rights and
Responsibilities recommended to the President by the Commission. The
Patients Bill of Rights was drafted after months-long
negotiations between a very diverse panel of representatives, including
consumers, patients, providers, health insurers, health plans, large and small
businesses, labor, state and local governments, and health quality experts.
Virtually every major sector of health care was actively engaged in the
Commission's efforts. The Commission operated under a rule of consensus, which
had the practical effect of requiring unanimous support for any recommendation
before it went forward. While the Commission was able to reach consensus as to
the substance of the Patients Bill of Rights,
it was not able to reach consensus as to the implementation and enforcement of
these rights; whether they should be enacted into law or implemented on a
voluntary basis.
This was not surprising, however, due to the diversity
of the Commission's members and the rule of consensus, or more accurately,
unanimity. It is unfortunate, though, that some of the same constituencies that
were at the table, engaged in the Commission's process, and in agreement with
the final version of the Patients Bill of Rights are now
actively opposing the creation of these very standards for all consumers.
How the Process Impacted the Substance
The seven rights on which the
Commission was able to reach consensus derive from common elements included in
the previous work of numerous organizations representing the entire health care
spectrum, from the American Association of Health Plans to the National
Committee for Quality Assurance to Families USA. The Commission's Subcommittee
on Consumer Rights met in open session on seven occasions over a six- month
period, heard from numerous witnesses, and considered background papers on each
subject. The Subcommittee reviewed two or three drafts of each chapter and
conferred with the full Commission until refinements were made and consensus was
achieved on the overall document.
The process of reaching virtual unanimity
on a set of patient rights that the Commission members agreed should apply to
all consumers was a difficult one. All of the major health care constituencies
were engaged in the process and many compromises were made during the course of
debating and drafting the substance of each patient right. Many wanted to go
much farther, establishing a patient right to certain mandated benefits. This
and other proposals either found their way into the preamble of the Bill of
Rights or were taken off the table due to considerations of cost, lack of time
for full debate, or claims of micro-managing the health care system.
The
point is that the final Patients Bill of Rights that emerged
from the Commission represents a consensus set of patient protections, a
moderate approach to ensuring that all health care consumers have the tools they
need to access the health care they require. Each of the seven rights are
integral to truly protecting consumers and improving the health care system and
each right is diminished when one of the other rights is not present. In my
view, any legislation that purports to adequately protect patients must include
these elements.
The Bill of Rights Should Apply to Everyone
Since the
announcement of the Patients Bill of Rights in November 1997,
the Clinton Administration has implemented these rights across each of the
federal agencies that administer federal health programs, including Medicare,
Medicaid, the FEHBP, the VA health system, the Department of Defense programs,
the Indian Health Service, and the Department of Labor. In total, by the end of
1999, one third of the American people will be covered by the Patients
Bill of Rights. It is now in the hands of Congress to extend these
basic consumer protections to the rest of the American population.
While the
creation of the Advisory Commission was largely, spurred by consumers' problems
with managed care plans, as already stated, the Commission felt strongly that
these protections should apply to all health care consumers in all health plans
receiving care in all health care settings.
Access to Specialists
This
provision in the Patients Bill of Rights derives from one of
the principal complaints of consumers in managed care plans; restricted access
to specialty care providers. The Commission heard testimony from a woman with
epilepsy whose long term relationship with her neurologist was interrupted when
she joined a network plan, even though the plan initially stated that she could
continue seeing her current providers. The Commission effectively rejected the
"any willing provider" approach to ensure adequate choice of provider, but
established a number of provisions that assist consumers in accessing
appropriate specialty care.
The Commission's choice-of-provider provisions
have three aspects that are directly relevant to improving health care quality:
network adequacy; standing referrals; and transitional care. The network
adequacy requirement ensures that enrollees in a health plan that utilizes a
network of providers will have adequate in-network access to the specialty
providers and professionals necessary to provide enrollees with the full range
of benefits offered by the plan. To meet this requirement, plans would have to
offer in-network providers with an appropriate degree of specialization and
within a reasonable proximity to enrollees. If a plan did not provide adequate
in-network access to specialty care, it would be obligated to provide referrals
to out-of-network specialists, but at no greater cost to the patient than
in-network care.
The standing referral requirement would permit enrollees
with chronic or disabling conditions to have direct access to specialists
without needing repeated referrals from primary care providers. Plans would have
to permit an adequate number of direct access visits but reasonable limits could
be imposed before a patient would be required to revisit his or her primary care
provider. For a patient with a complex or serious medical condition, direct
access to specialists under an approved treatment plan can be highly cost
effective, eliminating the need for unnecessary primary care visits when
specialty care is required.
Some of the patient protection bills in this
Congress also permit patients with "ongoing special conditions" to select a
specialist as a primary care provider. While the Commission could not reach
consensus on this approach, this provision makes imminent sense for people with
chronic illnesses such as multiple sclerosis and similar conditions.
The
transitional care provision would allow patients who are undergoing a course of
treatment for a chronic or disabling condition (or who are pregnant) to continue
seeing their current primary and specialty care providers for up to 90 days in
the event of a disruption in care. For instance, if a health plan were to become
insolvent, transfer ownership, or stop serving enrollees within a state, or if a
provider were to be dropped from a plan's network for any reason other than
"cause," the enrollee would be able to continue seeing his or her same providers
for up to 90 days while suitable alternative providers are contacted. In
addition, under the Commission's recommendations, women would have direct access
to women's health services.
These policies would improve the quality of care
by ensuring that managed care enrollees get all the necessary and appropriate
care covered by their health plan, including specialty care. It will also be
cost-effective by guaranteeing that patients with . disabilities and chronic
conditions will be able to access specialty providers without first being
required to make an unnecessary visit to a primary care provider. Finally,
ensuring that patient care is not disrupted after involuntary changes in
insurance coverage will enhance quality.
Point-of-Service Option for Managed
Care Enrollees
While the Commission did not reach consensus on the
point-of-service option, this provision is a critical patient protection when a
closed panel HMO or network plan is the consumer's only option in obtaining
health coverage. The point of service provision would require closed panel plans
to permit enrollees to elect to purchase an option at the time of enrollment to
access out-of-network providers, at an additional premium and/or co-payment to
the enrollee. The option could be structured to create minimal costs for the
health plan or employer sponsor and tremendous benefits for enrollees who
develop the need or desire to obtain care from providers and/or specialists of
the enrollee's choice who are not within the plan's network of providers. The
point of service option is an important element of effective access to
specialists and maximizes patient choice of provider.
Access to Emergency
Services
To build confidence among the American people that emergency care
will be covered by health plans when and where an emergency arises, the
Commission included provisions on access to emergency services in the
Patients Bill of Rights. The Commission agreed that health
plans should provide payment when a consumer presents to an emergency department
with acute symptoms of sufficient severity--including severe pain--such that a
"prudent layperson" could reasonably expect the need for emergency care. Similar
provisions were enacted as part of the Balanced Budget Act of 1997 for Medicare
and Medicaid patients.
LOAD-DATE: March 25, 1999