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Enact Patient
Protections in Health Insurance Reform
March 6, 2000
Government Relations
Practice Directorate
Managed care reform conferees should address these
essential patient protections to ensure quality care:
- Health Plan Legal Accountability. Conferees should adopt the
House-passed provision, as contained in the Norwood/Dingell bill, H.R.
2990. The House accountability provision affords injured patients a
right of recourse, while protecting employers from inappropriate
actions. According to CBO, the Norwood/Dingell provision will increase
insurance premiums by only 1% (CBO, 2-10-00), which is a mere penny per
person per day.
A legal "loophole" in ERISA denies patients, injured by
the negligent health care decisions of their ERISA-regulated managed
health plans, the right to hold these plans legally accountable for their
decisions. This loophole has allowed negligent managed health plans to
avoid accountability and has removed an important incentive for their
provision of high quality health care.
Compromise is possible to further protect employers
from frivolous claims. A strong internal and external appeals process,
punitive damages limitations, and reasonable judicial procedural
limitations could be included to prevent frivolous actions. Compromise,
however, should not be reached at patient expense:
- A "substantial harm" standard that requires a "physical
injury" should not be included, as this standard bars from any
legal recourse patients with mental health diagnoses, who are injured
by the negligent denial or delivery of their treatment.
- A noneconomic damages cap should not be included since
children and stay-at-home parents, who have no or very low economic
damages, may not be afforded adequate relief for potentially
devastating injuries.
- Physician-only References. The Senate-passed bill, S. 1344,
permits only physicians to fully participate in internal and external
review of services to the detriment of patients under the care of other
health care professionals. Only physicians may advocate on behalf of
their patients during review. Only physicians may review care, even when
other professionals are qualified to review services. The Conferees
should accept the House provisions with an amendment to ensure that
psychologists may review the services that they are qualified to
provide.
- Patient Choice of Provider (Point-of-Service). Conferees should
include the "point of service" provision contained in both the House and
Senate bills. Sponsors of health plans that offer services only through
a closed network of providers should offer also a separate POS plan that
allows patients access to out-of-network services.
A POS plan option permits patients to continue current
relationships with providers whom they rely upon and trust. It is a
quality check for managed health plans by permitting dissatisfied patients
to seek care from providers and specialists outside networks of care. A
POS option is also particularly important for persons seeking and
receiving mental health and substance abuse services for reasons of trust,
confidentiality and treatment success.
- Patient Access to a Range of Providers. Conferees should include
the "provider nondiscrimination" provision contained in both the House
and Senate bills. Providers should be able to compete to deliver
services to patients. Managed health plans, therefore, should not
exclude a type of provider from fair participation in their networks
based solely on licensure or certification.
Patients in rural and frontier areas would benefit
particularly from this provision, gaining greater access to services near
their homes, where nonphysician providers are more prevalent than medical
specialists and qualified under State law to provide many of the same
services.
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