Looking Inside
The ‘Patient’s Rights’ Debate

J. Greene


Mental Health Alert:  If you’re crashed on the couch watching the tube some evening, fading in and out of consciousness, and think you hear the people on TV talking about HMOs and about insurance and choice, don’t worry, it’s not a fatal case of deja vu.

You may feel you've somehow slipped back to 1993's oh-so-enjoyable health care debate, but you haven't. This is a new, improved health care debate.
      Last time around, the issue was President Clinton's proposal for a large-scale national system, an idea that was brought crashing to the ground with the help of commercials featuring the fictional Harry and Louise agonizing over big government taking over their medical care.
      If Harry and Louise are like many Americans, since then they've probably been forced into an HMO by their employers and are wondering whether they'll get the care they need in a serious health emergency.
      Such fears have prompted Congress to respond with several different bills offering "patients' rights" to give people more leverage with their health plans. As happened in 1993, much of the talk about these bills has been focused on the political horse race — whether Republicans or Democrats will get more election-year mileage out of consumers' fears of being eaten alive by a greedy HMO. There hasn't been much discussion of what it will mean to you. So here's a simplified version of some of the major issues involved.

      The whole point of an HMO is to keep you from getting expensive health care you don't really need, whether that's an unnecessary brain scan or a superfluous visit to a specialist that your family doctor could have taken care of. But the overwhelming power of health plans to decide whether patients get access to those services makes many people nervous. So there are several ways Congress is thinking about curbing that control:

bulletAllowing women to see their gynecologists or obstetricians without having to get permission first. Anyone who's suffered her umpteenth yeast infection and had to wait days to get a referral knows how useful this can be. In fact, many women use their ob-gyns as their main doctors. Both Republicans and Democrats agree that giving women this freedom is a good idea.
bulletAllowing people to use their best judgment about whether they need to go to the emergency room. This became an issue after many HMOs refused to pay for a visit to the ER for someone whose chest pains turned out to be indigestion rather than a heart attack. Most lawmakers agree that a "prudent layperson" standard is reasonable.
bulletGiving patients unlimited access to specialists. Now this proposal is a bit more controversial. While many HMOs have dropped the "gatekeeper" approach because it's unpopular with consumers, the industry still feels it needs the freedom to use a doctor who can evaluate whether a patient really needs extra care.

      Many of the HMO horror stories that scare consumers the most are about appealing a health plan's decisions. The most frightening tales involve a seriously ill person needing care soon, bureaucrats denying a particular specialist or procedure, and the patient dying before the coverage issue can be resolved.
      What's particularly upsetting to many consumers is that the whole appeals process goes on within the health plan, with no outside review. While a few pioneering HMOs allow their members to go to an outside mediator if they have an appeal, most don't. That's why Congress is considering mandating such outside appeals.

      Both the Democrat and Republican plans include proposals along these lines, guaranteeing rapid review of an appeal if a member's life is in danger.

The Right to Sue
      This is a fun issue. The federal law that oversees employment benefits includes an interesting twist: People who get health insurance through an employer can't sue their HMO for denying care that results in their being hurt or dying. That wasn't the original intent of the law, which was written long ago, but that's how it's turned out in today's managed marketplace.
      Consumer activists have been pushing for amendments to the law, known as ERISA, to allow people to sue their HMOs in these situations. Their argument is that health plans shouldn't be shielded from responsibility for their actions.
      But the other side argues that giving people this right would cost the industry untold millions of dollars, losses that would be passed back to consumers in the form of higher insurance rates.

      Also, HMOs argue that when they deny a particular benefit, such as a bone marrow transplant for a cancer patient, they are simply carrying out the insurance plan that the employer bought, not making a medical decision that would be subject to malpractice-type standards.
      This proposal will probably be the most hotly debated and difficult for its proponents to get through Congress.
      There are many more important provisions in the patients' rights debate. If you want to keep a close eye on the proceedings, try the Families USA Web site, Families USA.


Legislation Return
Legislation Return