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PATIENT PROTECTIONS & WOMEN’S HEALTH: COMPARISON
OF H.R. 358/S. 6, H.R. 448, AND S.
326 updated 3/99
WOMEN-SPECIFIC CRITERIA
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H.R. 358/S.6 (Patients’ 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
women’s needs? |
No |
No |
No |
Are plans
required to allow women to choose a provider trained to meet women’s
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 women’s 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 women’s 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 women’s 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 enrollee’s 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?
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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 patient’s 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 plan’s 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 plan’s
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 plan’s 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 plan’s 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 women’s
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.
Copyright
1998, National Partnership for Women & Families. Disclaimer
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