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November 15, 1999
Dear Senator/Representative:
We urge you and your fellow conferees to concede to the House of
Representatives' patient protections contained in the Bipartisan Consensus
Managed Care Improvement Act of 1999 (Bipartisan bill). Specifically, we urge
you to oppose efforts to substitute patient protections in the Senate-passed
managed care reform legislation for the Bipartisan bill. Equally important, we
urge you to oppose efforts to combine managed care reform legislation with the
so-called "access" bill H.R. 2990 entitled the Quality Care for the Uninsured
Act of 1999. H.R. 2990 contains anti-consumer measures such as Medical Savings
Accounts (MSAs), Association Health Plans (AHPs), and HealthMarts that drive up
the cost of traditional health insurance coverage.
The Bipartisan bill is the only managed care bill that would ensure genuine
accountability of health plans that place profits ahead of patient care. This
bill provides legal accountablity (i.e. liability) for negligent behavior that
results in injury or death. In contrast, the Senate-passed bill leaves in place
the current ERISA exemption that shields employer-based plans from the
consequences of their irresponsible, or even reckless, decisions about patient
care. This allows these plans to continue to enjoy special immunity, rather than
being accountable in the same way that doctors, providers and individual
insurers are.
While adequate external review is important, meaningful accountability can
only be achieved when consumers have further recourse in the courts. After
suffering an injury due to plan's negligence, only the justice system has the
power to make a consumer whole. An external review can reverse an inappropriate
denial of care in certain circumstances, but it provides no compensation for
patients who have already suffered injuries at the hands of a negligent plan.
Penalty based on a plan's unwillingness to abide by an external appeals entity's
recommendation is equally inadequate. The proposed penalties in the
Senate-passed bill fail to fully address the extent of the plan's wrong- doing
and the nature of the injury in compensating the consumer.
However, the Bipartisan bill does not rely upon liability alone to ensure
plan compliance. It also includes a comprehensive external review of grievances
and appeals - far more comprehensive, in fact, than that in the Senate passed
bill. The Senate-passed bill mandates that the plan whose decision is under
review select the external appeals entity that appoints the reviewer - calling
into question whether the word independent is truly appropriate. In order for
external review to be truly independent and unbiased, state and federal agencies
should be allowed to select reviewers that do not have unfair incentives to rule
in favor of health plans. By mandating that health plans select and contract
directly with the review entity, the Senate-passed bill creates an inherent
incentive for the reviewer to side with the plan (the promise of future
contracts). Instead, the Bipartisan bill allows states if they so choose to
select the reviewer or create an unbiased process for selection. Otherwise, the
plan selects the external appeals entity.
The Senate-passed bill also creates a complicated process for determining
whether a medical dispute is appealable. The bill limits external appeals to
covered benefits which are medically necessary and appropriate and that have not
been determined to be experimental in nature. Further, the disputed care must
meet a financial threshold or the health of enrollee must be in jeopardy. Plans
can define whether a covered benefit is medically necessary or not. An enrollee
is also granted an external appeal if the plan fails to meet an adverse coverage
determination deadline. The Bipartisan bill, however, is clear that covered
benefits that are both medically necessary and require a medical judgment are
appealable. The Bipartisan bill, like the Senate-passed bill, grants an external
appeal if the plan fails to meet an adverse coverage deadline. The bill also
provides that the external appeals entity decides whether the covered benefit is
medically necessary or not. By permitting the external appeals entity to make
this determination about medical necessity, the Bipartisan bill ensures that
best medical practices serve as criteria for granting an appeal as opposed to an
individual plan's guidelines.
In addition, the Senate-passed bill establishes an ambiguous timeframe for
conducting an external review, which could be indefinite. The bill establishes
that the plan has five working days after a request for an appeal to appoint an
external appeals entity. The external appeals entity then has 30 working days to
select an external reviewer(s). Furthermore, the external reviewer then has 30
working days to conduct a review - a timeframe that might not begin until the
entity receives all necessary information. Plans are required to release all
necessary information 10 days from the initial request for a review. The above
timeframe could allow a delay of several months until the reviewer has reached a
decision, and even after reaching a decision, the plan is permitted to wait an
additional 30 days before informing the patient about the reviewer's
determination. In comparison, the Bipartisan bill requires that an external
review be completed within 21 days from the initial request at which time the
patient must be informed.
The external appeals process in the Senate-passed bill is deficient because
it fails to include safeguards that ensure a fair process. First, the bill does
not provide for a de novo, evidence-based review by a neutral review entity of
the internal appeals decision. Second, the bill does not explicitly prohibit any
type relationship between the external reviewer and the managed care system but
it does explicitly prohibit any type of relationship for all other vested
parties in the dispute. Third, the GOP bill is binding on the plan, only if the
reviewer adheres strictly to the guidelines for conducting an external review.
In contrast, the Bipartisan bill includes a de novo review, provides
conflict-of-interest protections between the managed care system and the
reviewer, and is binding on the plan without any exceptions.
Moreover, we strenuously object to combining managed care reform legislation
with H.R. 2990 which could move us further from the goal of reducing the ranks
of the uninsured. For example, MSAs are a threat to our health care system
because they divide the healthy from the sick. MSAs over time are expected to
drastically increase the premiums for traditional coverage, and may even drive
policies with deductibles of $250 out of the market, decreasing the choices that
are available to consumers. Moreover, the Boehner bill includes anti-consumer
measures such as AHPs and HealthMarts. AHPs prevent state benefit protection
laws from applying to all consumers. These state consumer benefit protection
laws ensure health insurers offer well-child care, cancer screening, mental
health benefits and many other valued benefits. HealthMarts create a situation
where insurers can cherry pick which can harm risk-sharing thus driving up the
cost of health care.
For all these reasons, Consumers Union urges you to adopt the patient
protection in the House Bipartisan bill rather than in the Senate-passed bill.
Additionally, we urge you to oppose efforts to combine managed care reform
legislation with H.R. 2990 that includes anti-consumer measures such as MSAs,
AHPs, and HealthMarts.
Thank you for your consideration on this very important matter.
Sincerely,
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Adrienne Hahn |
Gail Shearer |
