A Narrative Discussion of the
Bipartisan Consensus Managed Care
Improvement Act of 1999

TITLE I -- IMPROVING MANAGED CARE

Title I contains the patient protection standards of the bill. It amends both the Public Health Service Act and Employee Retirement Income Security Act and the Internal Revenue Code. The standards in the bill apply to all 161 million Americans in private health insurance and employer-sponsored plans.

Subtitle A—Grievances and Appeals

The frustration with managed care stems from the conflict between a doctor’s responsibility to provide adequate care for a patient, a patient’s desire to receive the best treatments regardless of cost, and an insurer’s desire to limit costs. When these goals come into conflict, there needs to be a process that settles the dispute that includes an objective standard of medical care.

The bill establishes basic standards for utilization review. Conflicts can be reduced if practicing doctors have participated in the development of the utilization review criteria used by the insurer. Authorizations for care should be made in a timely fashion according to medical exigencies of the case. For normal cases, an insurer should respond within 14 days from the date the request is made. Within the first five days of a request, a reviewer may ask for an extension to collect further information, but in no case can the decision take longer than 28 days. If a doctor feels the case requires expedited consideration, an insurer should respond within 72 hours. An insurer should respond to an appeal of a reduction of ongoing care as soon as possible and not later than termination of the ongoing care would take effect.

The bill ensures that requests for care are handled quickly. In instances where the insurer and the doctor disagree about a patient’s treatment, the insurer must disclose the reason for the decision and inform the patient of their rights to appeal.

A patient can appeal an initial denial using the insurer’s internal appeal process. This process must meet basic standards: an appeal must be reviewed by a health care professional who was not involved in the original decision, and a decision must be issued within 14 days of the request (or 72 hours in the case of an expedited review). (A reviewer may ask for an extension to collect further information, but in no case can the decision take any longer than 28 days.) If an insurer rejects the patient’s appeal in the internal process, they must inform the patient of the reasons for the denial and their rights to an external appeal.

A patient who is denied care in the plan’s internal process may appeal their case to an external review body. This bill outlines the basic criteria external review organizations must meet and the guidelines for operation of the external appeals process. The process must be independent of the health plan and the reviewers must use an objective standard of professional medical practice. The reviewers must meet strict conflict of interest standards and must also be appropriately knowledgeable of the medical issues in question. The review decision is binding on the plan.

Any decision involving a medical judgment is appealable. However, if a benefit is specifically excluded from contract by a plan, it cannot be appealed.

The clinical peers who review the patient’s case must examine the patient’s medical history and relevant plan documents. They may also look at other sources of information (like peer-review studies and the current standards of professional medical practice) to reach a decision.

The external review organization has 21 days to issue a final decision (72 hours in the case of an emergency). If an insurer does not follow the external appeals decision, the patient can go to court seeking the benefit, attorney’s fees, court costs, and a civil monetary penalty of $1000 for each day the plan was out of compliance. Patients who suffer personal injury or wrongful death as a result of their plan’s denial of care would also be able to hold the plan accountable for that harm in court according to state law (see Title III).

Plans must also have a grievance process to address patient questions, concerns, or complaints that do not involve the provision of medical care, (e.g.,complaints about availability of care, or unsanitary facilities).

Subtitle B—Access to Care

This subtitle creates basic rights for Americans in private health insurance. The bill guarantees every American the right to chose their own health professional. It guarantees every American access to specialty care. And, if the plan does not have a specialist who is available or appropriate to treat the patient, the plan should provide access to a non-network specialist at no extra cost to the patient.

The bill also provides persons the right to elect a point of service option that allows access to any doctor, regardless of whether or not that doctor is in the plan’s "network." (The person would be responsible for any additional costs of this option. It does not require that an employer pay more for the coverage, nor does it apply to patients who already have an option that allows them a choice of doctor.) The bill also gives patients the right to select from a range of doctors if a plan has more than one doctor available.

The bill gives patients the right to go to the closest emergency room in an emergency without requiring prior-authorization from the plan. It protects patients from excess costs or coverage denials if the patient followed a prudent layperson standard (if a prudent layperson could expect that any delay in treatment could result in serious injury or death).

This bill also allows individuals who have complex or continuing medical needs to see doctors who have appropriate expertise to treat their care. Managed care often relies on the use of a provider who acts as a "gatekeeper" to control a patient’s utilization of services. However, sometimes a patient requires continuous care of specialists, or sometimes a patient requires a specialist to coordinate care for their condition. A "gatekeeper" physician should be able to make a referral to a participating specialist for a treatment that is covered by the plan. Where treatment requires numerous visits to a specialist, the patient should be able to get a "standing referral" or direct access for the course of their treatment.

The bill establishes that an insurer must allow a women to have direct access to a health professional who specializes in obstetrics or gynecology. Parents may designate a pediatrician as the primary care provider for a child. There is no requirement that an insurer provide any specific obstetrical or pediatric benefit. It simply says women can see an ob/gyn without a gatekeeper and children can have a pediatrician as their primary care provider.

The bill allows a patient who has an ongoing special condition to have continued access to their treating specialist for their condition for up to 90 days in cases where the provider is terminated from the plan or if the plan is terminated. (The provider must continue to agree to accept the terms and conditions of the patient’s plan.) There are special protections for individuals who are pregnant or terminally ill, or who are scheduled or on a waiting list to have surgery or a transplant.

The Bipartisan Compromise also includes a provision to allow doctors to prescribe off of a plan’s drug formulary when a non-formulary drug is medically indicated. This protection is especially critical for individuals who may have allergies to certain medicines or who may have tried the formulary drugs with no success. The bill also gives patients greater access to certain approved clinical trials approved and funded by government agencies.

Subtitle C—Access to Information

This subtitle sets standards for the flow of information to patients. It requires insurers to provide details about plan benefits, limitations, restrictions and exclusions, utilization review requirements, lifetime, annual or other time limitations, experimental treatments, second or subsequent opinions, specialty care, continuity of care, dispute resolution procedures, plan performance in external review, quality performance measures, measures of enrollee satisfaction, and financial responsibilities of the enrollee. With this type of information, patients will be able to make responsible decisions about their coverage.

Subtitle D—Protecting the Doctor-Patient Relationship

Under the bill, doctors will be free to discuss all treatment options with their patients, and will not face financial incentives to limit necessary care or the threat of retaliation or firing when they advocate on behalf of their patients.

The Bipartisan Compromise bill also requires that insurers follow Medicare guidelines in making payments to providers promptly. The bill also protects health care professionals from discrimination based on their license.

Subtitle E—Definitions

This subtitle explicitly states that plans are not required to cover any services beyond what is provided for in their contract (including abortion services). It also exempts fee-for-service plans from access requirements. A fee-for-service plan will already provide a choice of doctor, access to emergency care, ob/gyns, and pediatricians. These provisions make clear that this bill is not intended to win new benefits that do not exist in their current contract.

TITLE II -- APPLYING STANDARDS TO THE PUBLIC HEALTH SERVICE ACT

The second title of the bill applies the patient protection standards to the Public Health Service Act. For insurers regulated by state insurance authorities, this bill will become a federal floor. States may enact additional consumer protections, but they must meet the minimum federal standards of this bill.

TITLE III -- APPLYING STANDARDS TO ERISA

The third title of the bill applies the patient protection standards in the first title of the bill to the Employee Retirement Income Security Act (ERISA). For health plans regulated by the Department of Labor, this bill will be both a floor and a ceiling. As under current law, states cannot place further regulations on ERISA-based health plans.

However, this bill removes the ERISA preemption for state causes of action based on personal injury. This is a limited restoration of state jurisdiction. Additionally, current state court restrictions would apply. There are numerous protections against liability for employers. Also, a plan cannot be held liable for punitive damages if it follows the external reviewers’ determination.

This provision contains a safe harbor to protect businesses that do not make medical decisions. Only business that exercise discretionary authority to deny care can be held accountable. Discretionary authority does not include the employer’s choice of benefits in the plan. For example, a business cannot be held liable for not including a certain leukemia treatment in a plan. The bill also clarifies that discretionary authority cannot be construed to include an employer’s decision to provide benefits beyond what is explicitly in the plan. For example, if an employee is told by a treating professional that an experimental cancer treatment (that is explicitly not covered) may be the best course of action, a business can choose to provide that treatment and not be held liable for the consequences of that treatment. Finally, the bill clarifies that when an employer exercised discretionary authority, this does not include choosing not to intervene in an appeal process. Current ERISA law allows employees to come directly to an employer to ask for a benefit. If an employer chooses to let the employee go through the normal appeals process, that would not be an exercise of discretionary authority.

TITLE IV -- APPLYING STANDARDS TO THE INTERNAL REVENUE CODE

The fourth title of the bill applies the patient protection standards in the first title of the bill to the Internal Revenue Code. This means that the patient protections would apply to plans regulated by the Department of Treasury.

TITLE VI -- HEALTHCARE PAPERWORK SIMPLIFICATION

The sixth title of the bill requires the insurance industry develop a standard benefits form for providers to use in filing claims. This will minimize the inefficiencies due to the varying, complex filing requirements that providers face.

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