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Health Care

PATIENT PROTECTIONS & WOMENíS HEALTH:
COMPARISON OF H.R. 358/S. 6, H.R. 448, AND S. 326

updated 3/99

 


WOMEN-SPECIFIC CRITERIA

H.R. 358/S.6
(Patientsí Bill of Rights)

H.R. 448
(House leadership bill)

S. 326
(Senate leadership bill)

Are plans required to provide a full range of health care services to meet womenís needs? No No No
Are plans required to allow women to choose a provider trained to meet womenís particular health care needs (such as ob-gyns or geriatricians) as their primary care provider? Plans that require or allow enrollees to designate a participating primary care provider must permit a female enrollee to designate a participating physician who specializes in obstetrics and gynecology.

Otherwise, plans are only required to permit each enrollee to receive primary care "from any participating primary care provider who is available to accept" such enrollee. The bill also contains provisions concerning the use of specialists as primary care providers under certain circumstances.

No No
Are plans required to allow women to obtain ob-gyn services directly (without referral) from any participating health care professional who provides such care? Direct access to participating health care professionals specializing in obstetrics and gynecology must be allowed for "routine gynecological care (such as preventive womenís health examinations) and pregnancy-related services." Direct access to participating physicians specializing in obstetrics and gynecology must be allowed for "routine gynecological care (such as preventive womenís health examinations)" and "routine obstetric care (such as routine pregnancy-related services)." Direct access for "routine obstetric care (such as pregnancy-related services)" and "routine gynecologic care (such as preventive womenís health examinations)" is required. The bill does not make clear whether women must be allowed direct access to any participating health care professional who provides such services or only to physicians.
Are plans required to include in their network community-based providers that traditionally serve women, such as family planning clinics, particularly if the plan serves low-income women? Plans are required to include in their network federally qualified health centers, rural health clinics, migrant health centers, and "other essential community providers" that are located in the service area "if necessary to meet" the adequacy of network provision set out in the bill. No No
Are plans required to have mechanisms in place to ensure continuity of care for members (including pregnant women) who are undergoing a course of treatment when the provider or the member leaves the plan? Plans are required to ensure continuity with the same provider for enrollees "undergoing a course of treatment" when the provider leaves the plan or the enrolleeís employer changes plans. Care is to be continued for at least 90 days. The transitional period for institutional or inpatient care extends until discharge. Pregnant women who have begun the second trimester must be permitted to receive care from the same provider through the post-partum period. People with terminal illnesses must be permitted to receive care directly related to the terminal illness from the same provider for the remainder of life. No Continuity is not ensured when employers switch plans. When a provider leaves a plan, continuity is available only when the patient is pregnant, institutionalized, or terminally ill. Pregnant women who have begun the second trimester must be permitted to receive care from the same provider through the post-partum period. For patients who are institutionalized or terminally ill, care is to be continued for no more than 90 days.
Are plans prohibited from putting arbitrary limits on the manner in which services are provided if the treatment is a covered benefit? Plans may not "arbitrarily interfere with or alter the decision of the treating physician regarding the manner or setting in which particular services are delivered if the services are medically necessary or appropriate for treatment or diagnosis to the extent that such treatment or diagnosis is otherwise a covered benefit." The bill defines "manner or setting" as "the location of treatment, such as whether treatment is provided on an inpatient or outpatient basis, and the duration of treatment such as the number of days in a hospital." No No
Are plans prohibited from discriminating against members or providers (or potential ones) on the basis of sex?

 

 

 

Plans are prohibited from discriminating against enrollees in the delivery of health care services and against providers on the basis of sex and other characteristics.

Plans are also prohibited from using a high-risk patient base or location of a provider in an area with residents in poorer health as a basis for excluding providers from the network.

No No
Are plans required to adopt mechanisms to ensure confidentiality -- which can be particularly important to women seeking sensitive services, including reproductive health services and mental health services? The bill requires plans to establish procedures to safeguard the privacy of individually identifiable information. The bill does not address the circumstances under which disclosure of information by plans is either allowed or prohibited. The bill does not preempt state privacy laws. The bill requires plans to establish procedures to safeguard the privacy of protected health information. The bill explicitly authorizes any person or entity to disclose protected health information to any health care provider or plan -- without patient consent -- for the purpose of allowing the provider or plan to "conduct health care operations." The term "health care operations" is broadly defined to include even underwriting, which has nothing to do with patient care. The bill also preempts state laws that require patient consent prior to disclosure of protected health information for health care operations. The bill requires plans to establish safeguards to protect the confidentiality, security, accuracy, and integrity of "predictive genetic information." The bill does not address the circumstances under which disclosure of such information by plans is either allowed or prohibited. The bill does not state what, if any, preemptive effect is intended, but given the absence of federally-set requirements, the bill should not preempt state privacy laws that relate to genetic information.
Are plans required to provide exceptions to any prescription drug formulary when the treating professional concludes that a particular drug (or combination of drugs) is medically necessary or appropriate for the patient in question, such as cases where formulary drugs have been ineffective or are contra-indicated for a particular patient? "Consistent with the standards for a utilization review program," plans must "provide for exceptions from the formulary limitation when a non-formulary alternative is medically indicated." No "[I]n accordance with the applicable quality assurance and utilization review standards of the plan," the plan must "provide for exceptions from the formulary limitation when a non-formulary alternative is medically necessary and appropriate."
Are plans prohibited from denying access to clinical trials or discriminating against members because of their participation in clinical trials? Plans are prohibited from denying a member participation in a clinical trial; denying, limiting, or imposing additional conditions on the coverage of routine patient costs furnished in connection with participation in a trial; and discriminating against members because of their participation in a clinical trial. No No. The bill merely requires HHS to contract with the Institute of Medicine to conduct a study of access to clinical trials and the coverage of routine patient care costs by private health plans and insurers.
Are plans required to ensure that premiums, deductibles, and co-payments are affordable? The bill contains three provisions that decrease the financial burden on enrollees: (1) enrollees who seek emergency care from a nonparticipating provider cannot be required to pay more out-of-pocket than if such services had been provided by a participating health care provider; (2) providers who provide transitional coverage to enrollees after the provider leaves the plan cannot require the enrollee to pay more out-of-pocket than would have been required if the provider had not left the plan; and (3) if a plan refers a member to a nonparticipating specialist, services must be provided at no additional cost to the individual beyond what the individual would have paid for services provided by a participating specialist. The bill contains two provisions that increase the financial burden on enrollees: (1) plans can charge enrollees who seek emergency care from a nonparticipating provider more than they could charge if such services had been provided by a participating provider (the only restriction is that cost-sharing be uniformly applied with respect to "similarly situated individuals"); and (2) plans can charge enrollees a filing fee (up to $100) for pursuing an appeal, a fee that may deter patients from initiating an appeal. The bill contains two provisions that decrease the financial burden on enrollees: (1) enrollees who seek emergency care from a nonparticipating provider cannot be required to pay more out-of-pocket than if such services had been provided by a participating provider; and 2) providers who provide transitional coverage to enrollees after the provider leaves the plan cannot require the enrollee to pay more out-of-pocket than would have been required if the provider had not left the plan.
Are plans required to allow patients to appeal denials or limitations of care to an external, independent entity whenever their life or health is jeopardized?

 

 

Yes. The bill provides for external review of a wide range of plan decisions whenever: (1) the amount in dispute exceeds a significant threshold; or (2) the patientís life or health (including, in the case of a child, development) is jeopardized as a consequence of the decision. Review is not limited to disputes over whether care is medically necessary or appropriate, experimental or investigational.

 

No. These provisions of the bill are flawed in many ways, including: 1) The "external" review is merely one step in the planís internal reconsideration of its own denial and is not binding on the plan. 2) The independent medical expert who reviews the coverage decision is not authorized to make a scientifically based objective determination of medical necessity or appropriateness; rather, the expert is authorized only to determine whether the planís denial "was in accordance with the terms of the plan."

3) There is no provision for expedited reconsiderations in urgent or emergency situations. 4) Plans may impose a filing fee (up to $100) that may prevent patients from initiating a reconsideration.

No. The bill does not allow all patients whose life or health is in jeopardy to seek an external appeal. It only provides for an external appeal in limited circumstances: when the plan denied the care because the plan decided the care was not "medically necessary and appropriate" (or was experimental or investigational). (Plans can exercise medical judgment and deny care or access to specialists in situations that may not fall squarely within the "medically necessary and appropriate" framework.)

In addition, the bill allows plans themselves to define the term "medically necessary and appropriate," no matter how inconsistent with best medical practice that definition may be, and the planís definition governs the circumstances under which external review is permitted. A plan does not have to allow an external review when care fails to meet the planís definition of what constitutes medically necessary care -- even if the care is medically necessary by a more objective measure.

 

Does the bill give consumers the legal right to hold health plans accountable for the decisions the plans make?

Yes, by pursuing claims for damages for personal injury or wrongful death under state law. The bill defines "personal injury" as "a physical injury and includes an injury arising out of the treatment (or failure to treat) a mental illness or disease." No. No.
Are plans required to include in their networks a sufficient number and variety of providers who are trained specifically to meet womenís particular health needs? Plans are required to have a sufficient number, distribution, and variety of health care providers to ensure that all covered health care services will be available and accessible in a timely manner to all enrollees. No No
Are plans required to use evidence-based clinical guidelines that address gender differences in presentation, diagnosis, and treatment? Utilization review programs must meet certain standards, including the use of written clinical review criteria that take into account gender-specific criteria. No No
Are plans required to have a structured quality improvement system in place that monitors, measures, and reports on clinical issues relevant to women, and that specifically evaluates underutilization and overutilization of services? The quality assurance program must include gender-specific quality criteria "where available and appropriate." The bill does not explicitly require monitoring of underutilization or overutilization. No. The bill does not require plans to have a quality improvement system. No. The bill does not require plans to have a quality improvement system.
Are plans required to collect (and report) data by gender and collect (and report) data about clinical issues that are important to women? The Secretary is to specify a minimum uniform data set (to be collected by plans) that must include "data on quality indicators and health outcomes ... on a gender-specific basis." A summary of this data is to be made available to enrollees and prospective enrollees. No No
Are plans required to have family-friendly policies (such as evening and weekend hours, locations near public transportation, and child care) that would make it easier for women to obtain care for themselves and their families? No No No

This chart reflects changes to S. 326 made by the Senate Committee on Health, Education, Labor and Pensions on March 17-18, 1999.

Women need access to a full range of health care services -- from preventive care such as osteoporosis screening and family planning services to treatment for acute, chronic, or disabling conditions such as heart disease, cancer, arthritis, and depression. One notable example of the failure of plans to address women's health care needs is the all-too-common lack of coverage for prescription contraceptives, even though nearly all plans cover other prescription drugs.

This type of requirement is intended to address practices like outpatient mastectomies, where plans put arbitrary limits on inpatient stays (or length of stays) that are not based on the particular needs of the patient.

Plans often limit the drugs health care providers can prescribe to those on a plan-approved list, called a formulary. What is and is not on the list can make a big difference for women, especially older women, because they use more prescription drugs than men. Historically, when a drug was tested on men and deemed safe, it was then automatically assumed to be equally safe and effective for women. We now know that men and women respond to some drugs quite differently. By not allowing a provider sufficient flexibility to order the drug that may best meet a woman's needs, health plans jeopardize her health and, in some cases, her life.

Until recently, women and minorities were routinely excluded from participation in clinical trials, and research into diseases that primarily affect women was almost non-existent. Clinical research on women-specific diseases, such as breast and ovarian cancer, is essential to finding more effective treatments. It is equally critical that clinical research explore the differences in the way common diseases appear in women and men, and the differences in how women and men respond to individual drugs or treatments. Health plans should not stand in the way of advancing research into women's health by prohibiting participation in clinical trials or otherwise discriminating against women who participate in them. Nor should they deny coverage for medical expenses incurred in connection with clinical trials that they would otherwise routinely cover.

Because women use more health services and generally have lower incomes than men, affordable care is especially important to them. Women also have higher out-of-pocket costs than men, in part because health plans often do not cover the services women need, such as prescription contraceptives. As employers pass on a greater share of health care costs to employees, an increasing number of the poorest workers are declining health care coverage due to cost.

Many providers still practice medicine based on the traditional male model of biology and disease. Yet, gender plays a leading role in many health issues -- from the types and prevalence of diseases women experience to their symptoms to the treatments that are most appropriate for them. One alarming example points to the need for training in women's health: a 1998 Gallup poll revealed that nearly 2/3 of primary care physicians wrongly believe there is no difference in men's and women's heart disease symptoms. Health plans can play a pivotal role in advancing the practice of gender-based medicine, and they should make sure women have access to both primary care and specialty providers who are trained to meet their particular health care needs.

Health plans use rules known as clinical practice guidelines to direct providers in selecting treatments and to help plans determine what treatments or services to cover. Given gender differences, plans should base decisions about treatment and coverage on gender-specific medical evidence rather than on cookie-cutter rules that best fit the average male's health profile. The plan's clinical practice guidelines should be developed by knowledgeable experts and specialty groups, not the plan's accountants.

In this era of cost-consciousness, women are particularly at risk of not being appropriately treated for conditions like heart disease for which women already tend to receive less aggressive treatment than men. As a result, women can benefit from efforts to measure underutilization of such services. By measuring overutilization, women will benefit from efforts to measure the excessive use of procedures like hysterectomies.



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