State Level Activity
As of July 2000, Washington became the fourth state to recently pass legislation giving consumers the right to sue their insurance companies for damages, specifically HMOs. Under the new Patients' Bill of Rights law, Washingtonians may hold HMOs legally liable for treatment decisions in several different scenarios involving serious health problems and disabilities. The law takes effect with new or renewed health plan policies after June 30, 2001. The other three states with this legislation already in place are California, Georgia and Texas.

On the National Front
At the same time that a trend seems to be developing at the state level, a national Patients' Bill of Rights has been passed by the United States House of Representatives (H.R. 2990) and a completely separate bill (S. 1344) with significantly different language and protections has been passed by the United States Senate.

In a move to remedy this situation of dual bills, the House and Senate developed a Joint House-Senate Committee that is currently developing a bipartisan bill. The idea is that both the House and Senate will support, sign and deliver the joint bill to the President's desk in a well-publicized signing ceremony.
 
Tentative Agreement on Major Point Reached
On April 13, 2000, just before adjourning for an Easter recess, the Committee reached tentative agreement on a major piece of the bill -- an outside appeals process. Under the proposed legislation, patients who are denied care by their HMO for covered services can appeal decisions to a qualified, external independent review panel.

This panel, which would be hired by the managed care or health care insurance company, must meet specific government standards. The panel would first decide whether or not the patient dispute in question is eligible for the appeals process; if so the panel would then send the appeal to medical experts for review.

Although the final wording has not yet been completely nailed down, the members of the Joint Committee have agreed in principal on the process. As reported in an Associated Press article on April 14, 2000, one of the most crucial aspects of the agreement is brought to light: "…lawmakers have agreed that review panels are not bound by what the health panel has defined as "medically necessary" treatments. They are free to make an independent assessment of patients' cases based on scientific studies and clinical evidence."

Patients' Right to Sue Under Discussion
Still to be determined is whether patients will be given the right to sue if they are not satisfied with the final outcome of an appeal. Also undecided is how many people in the United States will be affected by this legislation. Will the legislation protect all Americans with all types of insurance -- including employer self-insured plans, HMOs only, or all Americans who have any form of managed care? These remain key points to be ironed out.

The original House bill advocates the patients' right to sue and broadly protects the public while the Senate bill does not include the right to sue and restricts protection to a significantly smaller group.

Major Concern to Insurers
Insurance companies, all managed care organizations and HMOs specifically must carefully follow this legislative activity. Other organizations are already communicating with legislators. The American Medical Association and 40 additional related organizations generally support a national patients' rights bill and have said so publicly. The Self Insurance Institute of America has already sent a letter to the Joint Committee, opposing several provisions that may be included in the final version of the bill.

If all Americans with any type of health care coverage are to be included in the legislation, this will have a tremendous impact on the way managed care is able to conduct business. Even if the legislation includes the appeals process but not the right to sue, it will have a significant impact on companies providing any type of managed health care coverage.

Review of Current Policies and Procedures
It would be prudent for managed care organizations, insurance companies and HMOs to carefully examine both their treatment-approval procedures and their internal appeals process to ensure that they are fair and equitable to subscribers. This will provide the best protection regardless of the final form this Joint Committee legislation takes.

Action Steps to Follow
Another key measure for organizations is communicating with senators and representatives in regions where business is conducted. Company concerns, thoughts and needs must be stated clearly. And certainly, members of the Joint Committee (listed below) should receive similar correspondence. This must be considered an urgent task since the Committee had hoped to complete the wording of the legislation before their Easter recess, as reported by several different news sources. The legislation seems destined to be finalized soon.

Political Agendas
It's no secret that President Clinton has been extremely concerned and vocal about health care. Issues such as the importance of having health insurance available to all Americans, protection of patients' rights and getting health care costs under control have commanded a great deal of attention.

This health care agenda has been struggled with during both of the president's terms in Office. It seems clear that at least one major health care issue must be resolved before Clinton completes his final term.

Cost Issues
The one stumbling block in the current legislation that no one seems to be addressing yet is who will pay for this? If the patient's right to sue becomes part of the bill that is signed into law, won't the increased costs be passed on to employers and, ultimately, consumers? Who is going to pay for this in the end? Until the Joint Committee, the Administration and the American public grapple with that side of the equation, legislation such as this will further drive up the cost of health care.

Notes
Gangloff, Jennifer M., "Washington Patients Can Now Sue Their HMOs for Damages," www.insure.com.
Groom Law Group, "Articles & Briefs -- Health Care Issues," www.groom.com.
Gullo, Karen, "Deal Reached on Health Appeals," Associated Press (April 14, 2000).
National Patient Advocate Foundation, www.npaf.org.

Patients' Bill of Rights Conferees (as listed by the American Medical Association at www.ama-assn.org): Arizona: John Shadegg (R); Arkansas: Marion Berry (D), Sen. Tim Hutchinson (R); California: Pete Stark (D), Bill Thomas (R), Henry Waxman (D); Connecticut: Sen. Chris Dodd (D), Nancy Johnson (R); Florida: Michael Bilirakis (R), Porter Goss (R), Joe Scarborough (R); Indiana: Dan Burton (R); Iowa: Sen. Tom Harkin (D); Kentucky: Ernie Fletcher, MD (R); Louisiana: Jim McCrery (R); Maryland: Sen. Barbara Mikulski (D); Massachusetts: Sen. Ted Kennedy (D); Michigan: John Dingell (D); Missouri: William Clay (D), Jim Talent (R); New Hampshire: Sen. Judd Gregg (R); New Jersey: Robert Andrews (D), Frank Pallone, Jr. (D); New York: Charles Rangel (D); Ohio: John Boehner (R); Oklahoma: Sen. Don Nickles (R) (Chairman); Tennessee: Sen. Bill Frist, MD (R); Texas: Bill Archer (R), Sen. Phil Gramm (R); Vermont: Sen. Jim Jeffords (R); Virginia: Thomas Bliley (R); West Virginia: Sen. John Rockefeller (D); Wyoming: Sen. Mike Enzi (R).

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