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I’m Adrienne Mitchem, Legislative Counsel at Consumers Union, publisher of Consumer Reports magazine. We support a real Patients Bill of Rights. Consumers Union believes the managed care industry has a track record of skimping on care to increase profits. The current system where managed care companies serve as both judge and jury for every appeal is stacked against patients. We believe real reform demands an appeals system that gives patients access to an independent entity to settle disputes whenever benefits are denied, terminated or delayed.
Unfortunately, the Republicans’ bill allows plans to exert too much influence over the external review process, which calls the integrity of decisions into question. I’m here today to tell you why we believe that the fix proposed for external appeals in the Republicans’ bill is woefully inadequate and far from independent. We think that there are vital differences on scope, financial barriers, speed, exclusions and bias.
Consumers Union is troubled that the GOP’s bill limits the scope of the external review to care that the plan -- not the treating physician -- deems not medically appropriate or necessary or experimental.
The managed care plan -- not the doctor -- selects the criteria under which the reviewer decides what is medical necessary. Instead of allowing the treating physician who is most familiar with the patient’s medical history to determine the appropriate course of action, the GOP’s bill lets the plan decide. In addition to overlooking the physician’s judgment about whether the care is medically necessary or not, the GOP’s bill actually prohibits the physician, patient or the patient’s representative to make their case before the external reviewer. The result? The information used by the external reviewer to make what could be a life or death decision is terribly one-sided.
If limiting the scope of the appeal to disputes over medical appropriateness or necessity is not enough to discourage enrollees from exercising their right, the Republicans’ bill entirely precludes external appeals over denials of treatments that cost less than $1000, even if the treatment is life-saving.
There are many critical medical procedures that are relatively inexpensive, like a biopsy, that would nonetheless be inaccessible to consumers on a tight budget if they were forced to pay for them out-of-pocket. For many of these patients, a plan’s refusal of payment and a lack of external appeal are tantamount to a denial of care.
The real Patients’ Bill of Rights, by contrast, would allow all adverse decisions that threaten the life, health or recovery of a patient to be appealed to an external reviewer.
Where are the provisions for a speedy review of denials of urgent care when a patient’s life is in jeopardy? Not in the GOP’s bill, which makes you wait the regular 30 business days, about six weeks, after the plan selects the reviewer and submits the paperwork. Under this scenario, it could take several months until the reviewer has reached a final decision, even in an emergency medical situation. In a life-threatening situation, urgent care delayed is unquestionably care denied. No patients should have to die waiting to hear whether the treatments that could have saved them have been approved.
In contrast, the real Patients’ Bill of Rights guarantees expedited appeals for emergency situations that must be completed in 72 hours.
In order for external review to be truly independent and unbiased, state and federal governments should be allowed to establish procedures for the selection of the reviewers that are not unfair incentives to rule in favor of health plans. By mandating that health plans select and contract directly with the review entity, the GOP’s bill creates a potential conflict. The perceived promise of future contracts could create a powerful incentive for the reviewer to side with the plan instead of the patient in settling disputes over care that is denied or terminated.
Under the real Patients’ Bill of Rights, the Department of Labor and state authorities are required to set rules governing the selection of the reviewer, with strict requirements to mitigate conflicts of interest in the review process.
By excluding 23 million state and local employees and 15 million people who own individual insurance policies from its external review requirements, the Republican’s bill aggravates the current ad hoc regulation of health plans creating chaos and confusion.
Under the real Patients’ Bill of Rights, all of the patient protections will apply to every privately insured individual.
Finally, even a good external appeals process cannot compensate consumers for harm that they have sustained as result of a plan’s negligence. Unless patients have a way to hold plans accountable when their reckless decisions cause injuries or death, plans will continue to have an financial incentive to put profits ahead of quality care.
Consumers Union is disappointed that the Senate Republicans’ plan immunizes HMOs from responsibility for medical mistakes that exacerbate consumers’ illnesses or for failure to treat life-threatening conditions. By immunizing HMOs, Republicans are turning a deaf ear to the clamor from consumers for accountability from the profit-driven managed care industry. Consumers want doctors, not accountants, to call the shots when they get sick: so, giving the managed care industry immunity from callous mistakes over life or death decisions is dangerous to consumers’ health.
Compensatory damages act as an important counter-balance to the financial incentive to under-treat which plagues the current health care market. In fact, the effectiveness of other reforms would be seriously diluted if managed care remains immunized from responsibility for egregious behavior that causes injury or death.
We all took notice when the GOP unveiled their managed care bill and it was given the same name as the Democratic Patients’ Bill of Rights. After all, imitation is the sincerest form of flattery. But, under a microscope, the details of the GOP’s bill show serious and fatal flaws. The advice of Consumers Union to America’s consumers is this: accept no imitations. Demand the real Patients’ Bill of Rights, S. 1890.
