Bazelon Center on S1890

[Peter Marshall <techdiff@ix.netcom.com>]

Congress Looks at Rights in Managed Care

Senate May Vote Soon on Bill with Most Consumer Protections

May 8, 1998-The rapid expansion of managed health care is leading the
President and members of Congress' Democratic leaders and some
Republicans-to press for a Consumers Bill of Rights.

In 1997, President Clinton created a Health Care Advisory Commission to
identify problems in the health care system and propose remedies. Last
November, the commission proposed a Consumer Bill of Rights, listing seven
basic health care rights that all Americans should be guaranteed.

The President highlighted the need for such a bill of rights in his State of
the Union address. Now legislators have introduced their proposals.

A bipartisan bill, HR 1415, was introduced in the House by Representative
Charlie Norwood (R-GA) some months ago. The bill has a number of
protections, especially for providers. But it is now being revised-the
protections presumably weakened to be more acceptable to the Republican
leadership. In the Senate, James Jeffords introduced S. 1712, which
emphasizes the information health plans must collect and provide to
consumers but does not include any quality-of-care standards.

The only bill modeled on the Advisory Commission recommendations is S. 1890,
the Patients' Bill of Rights Act, introduced by Senators Tom Daschle (D-SD)
and Edward Kennedy (D-MA). Representative John Dingle (D-MI) has introduced
the same legislation in the House, as H.R. 3605.

What the Patients' Bill of Rights Act Does

The Democratic leaders' bill spells out the basic health care rights
endorsed by the President's Advisory Commission and provides a mechanism to
enforce these rights. The bill guarantees:

   + Nondiscrimination in delivery of health services. Health plans may not
     discriminate in the delivery of health care against any member of the
     plan, and specifically may not discriminate on the basis of mental or
     physical disability.
   + Access to specialty care. Plans must have adequate specialists, which
     means that members diagnosed with a mental illness will have access to
     providers with the requisite expertise to treat their illness. The bill
     allows members to go outside their plan's network for specialty care
     (at no extra cost) if no appropriate provider is available in the
     network to provide covered services. Otherwise, members will have their
     choice of specialists or mental health care providers within the
     network and must be able to access this specialist without a referral
     from a primary care provider. Children have the same right to access
     pediatric specialists.
   + Continuity of care. To lessen problems of transition from one plan to
     another, the bill would allow patients to continue treatment with a
     terminated provider for up to 90 days. Institutionalized patients would
     have longer exceptions.
   + Access to information about the plan. The health plan would have to
     provide understandable information about the plan, its policies and its
     procedures to help consumers understand their rights.
   + Access to an ombudsmen. The bill would authorize grants for state
     ombudsman programs to help people navigate the health care system. If a
     state does not establish such an office, the federal Department of
     Health and Human Services would provide services in that state.
     Ombudsmen's duties would include helping people choose among plans and
     assisting those who encounter difficulty in using a plan.
   + Access to needed prescription drugs. If a health plan covers
     prescription drugs through a formulary, it would have to disclose
     formulary restrictions and provide a process to enable coverage of
     non-formulary drugs, such as atypical antipsychotics, when medically
     indicated.

Enforcement Mechanisms

S. 1890/H.R. 3605 would enforce these rights by:

   + creating an independent external appeal process, set up by the
     Department of Labor. Consumers could appeal through this process when a
     case was not resolved through the internal appeal. Plans would not be
     allowed to retaliate against consumers who choose to use this external
     appeal process.
   + holding insurers liable. The bill would allow state law to determine
     whether or not a consumer can bring a state cause of action against
     health plans whose actions cause harm, such as death or injury.

Protections Are Affordable

Some health plan lobby groups have
put out misinformation on cost.
According to the Congressional
Budget Office, the President's
proposals (on which S. 1890/H.R.
3605 are modeled) would increase
employers' premiums by only 0.3%.
Another study funded by the Henry J.
Kaiser Family Foundation projects an
increase of 0.61%, roughly 72 cents
per person per month--suggesting
that meaningful consumer protections
are affordable.



Bazelon Center for Mental Health Law - chrisk@bazelon.org