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October 10, 2000
G. Lewis Chartrand, Jr.
Chief of Legal Services
Department of Managed Health Care
980 9th Street, 5th Floor
Sacramento, CA 95814
Re: LS 03/00, Comments on Draft IMR and
Grievance Regulations
Dear Mr. Chartrand:
The organizations listed above, California
Pan-Ethnic Health Network (1)
(CPEHN), Center for Health Care
Rights,(2)
Consumers Union,(3)
Health Access,(4)
the Latino Issues Forum(5)
(LIF), and the Western Center on Law
and Poverty,(6)
submit the following
comments on the Department's draft
independent medical review (IMR) and grievance regulations. Our
organizations broadly represent the interests of California consumers
on health-related issues. Several of our organizations spent
substantial time working on the legislation creating the IMR system.
Contact information for each organization is listed on a separate
page following this letter.
We appreciate the work of the Department in
drafting the regulations. In many instances shown in the attached
comments, we applaud the provisions as written. At the same time,
however, we have very substantial concerns about some provisions in
the proposed regulations. In general, we believe some of the
regulations ignore or contradict the consumer protections in the
statute, thus narrowing the law far beyond the intent of the
legislature by placing burdens on the consumer to the benefit of
health plans.
In brief, our major areas of concern are:
1. "Coverage" versus "medical
necessity": The proposed regulations (Section 1300.74.30, p. 17,
lines 15-23) give the plans the ability to evade IMR by
mischaracterizing denials or delays of health care services as
coverage decisions, rather than medical necessity decisions. In
contrast, the statute (Health & Safety Code §
1374.30(d)(1)-(3)) allows consumers to seek redress from the
Department to determine eligibility for IMR even if the plan claims
the dispute involves a "coverage decision." Yet, the regulations
completely ignore these aspects of the law and leave the consumer at
the mercy of the plan's characterization of the dispute. This
represents an enormous loophole that would encourage plans to deny
care on the basis of coverage and not medical necessity in order to
avoid IMR.
2. Definition of "health care service":
The proposed definition of "health care service" for IMR purposes
(Section 1300.74.30, p. 17, lines 19-23) is extraordinarily narrow.
For example, it eliminates diagnostic and preventive care, perhaps
even pregnancy-related issues, as well as plans' refusal to give
appointments or make referrals.
3. Cultural and linguistic competency/access
for disabled: The proposed grievance regulations (Section
1300.68(b)(3), p. 2, line 23 - p. 3, line 2) use a 10% language
threshold of the enrollee population in any service area before a
plan must provide written translations and translators. This
threshold would prevent hundreds of thousands of non-English speaking
consumers from participating in the grievance system. For example,
10% of those enrolled in Kaiser Permanente means more than 600,000
people statewide. The threshold should be eliminated. Because plans
covering Medicare and Medi-Cal beneficiaries are subject to federal
Title VI requirements for linguistic competence, the proposed
regulations do not far enough to protect consumers.
While the grievance regulations at least
mention the issue of cultural and linguistic competence, the IMR
regulations completely fail to address these issues. The IMR
regulations should be amended to have requirements similar to those
of the grievance system. The Department should convene a working
group to examine cultural and linguistic issues relevant to these
regulations, as well as for Department operations in general.
The proposed regulations set up barriers for
the disabled population as well. For example, they require
individuals to request translation services and fail to provide for
those with barriers such as blindness and deafness. The regulations
should be amended to address these shortcomings.
4. Medi-Cal fair hearing right: In
direct contradiction to the intent of the law, the proposed
regulations (Section 1300.74.30(f), p. 21, lines 12-14) appear to
deny Medi-Cal beneficiaries access to independent review if they
choose to pursue a Medi-Cal fair hearing. Supporters of the
legislation creating IMR fought hard to ensure Medi-Cal recipients
had the same right to IMR as other enrollees. That is the legislative
intent of Health and Safety Code Section 1374.30(f).
5. Continuation of hospital stays pending
completion of urgent grievance or expedited review process:
Disputes over length of hospital stays will make up a large number of
urgent grievance and expedited IMR cases. The statutory scheme for
resolving urgent grievances and expedited IMR would be defeated if an
enrollee could be discharged before the grievance or IMR process was
completed. In other words, plans should not be allowed to render such
cases moot by simply denying and delaying the care sought by the
enrollee until it is too late. Instead, the enrollee must be allowed
to remain in the hospital until a decision is reached. Such a
requirement would give the plans, the Department, and the independent
review organization a strong incentive to make decisions quickly. The
draft regulations, however, do not provide for continuing a hospital
stay pending completion of urgent grievance and expedited review
processes.
6. "Papeleo" in IMR application: Instead
of the simple one-page IMR application required by statute, the
proposed regulation (Section 1300.74.30(e), lines 1-22) requires
consumers to assemble a daunting package of information. This
burdensome requirement is completely inappropriate and unnecessary
because the statute and regulations place the duty on the plan to
submit all required documents. The requirement will simply deter
consumers' use of IMR and contradicts the Department's goal of
reducing "papeleo." In fact, this requirement is so burdensome that
it may have the same effect as the requirements in the workers
compensation system that force applicants to retain attorneys before
entering the system. The complexity of the requirement is also
reminiscent of the uniformly criticized and recently streamlined
original 28-page application for Healthy Families/Medi-Cal created by
the prior Administration. Consumers in need of care and bewildered by
the health plan system need easy access to IMR, not more
"papeleo."
7. Reporting and use of grievance and IMR
decisions: The regulations should require the Department to
analyze and issue reports on the numbers, types and outcomes of
grievances and IMR decisions for each plan. The Department should
also make available brief summaries of IMR cases to allow analysis of
trends in health plan decisions and to allow the Department to use
such information in its regulatory oversight of the industry.
The attached document discusses our concerns in
greater detail. We have drafted proposed language to address many of
those concerns. In a few instances, we have made comments and
suggestions for which we have not yet drafted language (such comments
are in italicized text). These comments are based on our initial
review of the draft regulations. If other issues arise, we will
submit additional comments as necessary.
We look forward to working with the Department
on regulations that will create an exemplary, consumer-friendly
system for managed care grievances and independent medical review
that fully implements the statute.
Sincerely, Julio Mateo Bridget Sheehan-Watanabe Melinda Paras Elizabeth Imholz Viola Gonzales Deborah Cantrell
California Pan-Ethnic Health Network
Center for Health Care Rights
Health Access
Earl Lui
Naomi Meyer
Consumers
Union
Latino Issue Forum
Marjorie Swartz
Western Center on Law and Poverty
_____
Notes:
(1) CPEHN is a nonprofit
501(c)(3) corporation. Through its statewide network of over 50
multicultural health organizations, including community-based
organizations, health care providers, and policy experts, CPEHN is
committed to working together to improve health care access and
eliminate health status disparities in California's communities of
color. The mission of CPEHN is to promote changes to health policy
decision-making and health care delivery systems that improve the
health status of our communities. Through a collaborative process
with its partners in the African American, Asian and Pacific
Islander, Latino/a, and Native American communities, CPEHN monitors,
analyzes, and informs health care policies, legislation, and business
strategies.
(2) The Center for Health Care Rights
is a California-based, nonprofit organization dedicated to assuring
consumer access to quality health care through information,
education, counseling, advocacy and research programs. The Center
currently provides individual and systemic advocacy for elderly and
disabled Medicare beneficiaries - serving over one million Medicare
beneficiaries in Los Angeles County. The Center also has a long
history of promoting protections for all consumers, particularly
those enrolled in health maintenance organizations and other managed
care plans. The Center is currently the sponsor of the Health Rights
Hotline (funded by The California Wellness Foundation, the Henry J.
Kaiser Family Foundation, and the Sierra Health Foundation), a pilot
ombudsman program providing free assistance to all health care
consumers in the Sacramento area. The Center also seeks to improve
the delivery of quality health care by conducting research and policy
advocacy on the oversight and monitoring of managed care, and by
publishing reports on health consumer issues.
(3) Consumers Union is a nonprofit
membership organization chartered in 1936 under the laws of the State
of New York to provide consumers with information, education, and
counsel about goods, services, health, and personal finance; and to
initiate and cooperate with individual and group efforts to maintain
and enhance the quality of life for consumers. Consumers Union's
income is solely derived from the sale of Consumer Reports, its other
publications and services, and from noncommercial contributions,
grants and fees. In addition to reports on Consumers Union's own
product testing, Consumer Reports, with approximately 4.3 million
paid circulation, regularly carries articles on health, product
safety, marketplace economics, and legislative, judicial, and
regulatory actions which affect consumer welfare. The West Coast
Regional Office of Consumers Union represents consumers' interests,
with a focus on the concerns of low- and moderate-income consumers.
The office advocates on behalf of consumers in the legislature,
administrative agencies, and the courts.
(4) Health Access is a nonprofit
organization founded in 1987 and dedicated to achieving quality,
affordable health care for all Californians. Health Access is a broad
coalition of more than 200 member organizations representing
communities of color, immigrants, the disabled, seniors, labor, and
health care providers.
(5) LIF is a non-profit public policy
and advocacy institute dedicated to advancing new and innovative
public policy solutions for a better, more equitable and prosperous
society. Established in 1987, LIF's primary focus is on the broader
issues of access to higher education, economic development, health
care, citizenship, regional development, telecommunications issues
and regulatory issues. LIF also serves as a clearinghouse to assist
and provide the news media with accurate information and sources in
the Latino community for fair and effective coverage of issues.
(6) The Western Center on Law and
Poverty opened its doors in 1967 with a promise to the impoverished
in California to effectively advocate for them on issues related to
welfare and public benefits, health and housing. Since that time,
Western Center has represented California's poor in the courts, in
the legislature and in administrative agencies. Western Center is the
largest statewide support center for neighborhood legal services
programs, providing local advocates with advice, counseling, resource
materials and training on emerging poverty issues. Since its
inception, Western Center has focused on health issues affecting the
poverty community and its advocates are recognized experts on health
issues in California.
