Outcries over managed care spur action

By Rebecca A. Clay

A recent poll by GOP pollster Frank Luntz found that 86 percent of Americans say they would be more likely to vote for a member of Congress who supports legislation that would protect consumers enrolled in managed-care plans.

As a result of this broad populist appeal, Congress is focusing on two proposals:

? In late June, a Republican task force appointed by Speaker Newt Gingrich (R-Ga.) and led by Rep. Dennis Hastert (R-Ill.) unveiled a patient-protection proposal that superseded the APA-backed bill called the Patient Access to Responsible Care Act (PARCA).

? Democrats led by Sen. Minority Leader Tom Daschle (D-S.D.) and Rep. John D. Dingell (D-Mich.) had already introduced a bill of their own that some have dubbed 'PARCA Plus.'

An election-year issue

The states are leading the way in patient-protection legislation (see article, page 29). But even comprehensive state laws aren?t enough, thanks to the 1974 Employee Retirement Income Security Act (ERISA). Because ERISA exempts self-insured health plans from state regulation, the 125 million Americans covered under such plans can?t benefit from the patient-protection measures their state legislators enact.

'State legislators can probably protect only half of their citizens,'says APA?s Peter Newbould, director of congressional affairs. 'Only Congress can protect the other half.'

Bowing to these demands for patient protection but reluctant to increase government regulation, Gingrich assigned more than a dozen House members?including PARCA sponsor Rep. Charles Norwood, Jr., (R-Ga.)?the task of coming up with an alternative to the bipartisan PARCA and the Democrats? proposal. When the Republican plan was unveiled, Norwood announced that he would support his party?s proposal. According to Doug Walter, JD, legislative counsel on the directorate?s government relations staff, Norwood was placed in a difficult political position. Had he battled the House leadership by publicly favoring his PARCA bill over the task force proposal, Norwood likely would have jeopardized future chances for promoting his legislative agenda in a Republican-controlled Congress, Walter says.

Like PARCA and the Democrats? bill, the Republican proposal would ban so-called gag rules that forbid providers from telling patients about expensive treatment options their health plan doesn?t cover, improve appeals procedures and require health plans to reimburse patients for emergency care that a 'prudent layperson'would deem necessary.

It?s a major step for Republicans to include these regulatory measures, says Newbould. But the task force proposal lacks some of the consumer protections in PARCA, including closing the ERISA loophole to enable enrollees in self-insured health plans to hold managed-care organizations legally accountable for negligent actions and decisions. Norwood has expressed his unwavering support for this provision and his intention to seek future legislative opportunities to fix the ERISA problem.

A closer look at the Republican proposal reveals some provisions that look more like anticonsumer measures than patient protections, Newbould says. For example, the proposal caps the amount of money patients can win in malpractice suits. And it includes a medical records provision that could undo years of progress at the state level. Designed to create a federal privacy standard and ease the data-processing industry?s ability to accumulate data, the provision would pre-empt all state mental health privacy laws. The result could be a decrease in the number of people willing to seek treatment, warns Newbould.

Even worse, Newbould predicts that the Republican proposal would actually expand the number of unprotected consumers. A provision that would allow small businesses and self-employed people to band together to purchase health insurance sounds good, says Newbould, but would have the effect of putting even more people into unregulated ERISA plans.

'This provision takes the train the opposite direction from where we want it to go,'he says. 'It?s an example of things that the Republicans loaded into their package that stand to make the bill so controversial it will fail while allowing them to look like they?re doing something.'

APA?s support

That would leave the Daschle-Dingell bill, which APA backs. The bill shares many of PARCA?s protections and goes farther, says Newbould. The bill would provide funding for state offices that could help consumers choose health plans and understand their rights.

The bill aims to give all managed-care enrollees comprehensive consumer protection. For example, the bill would forbid plans from censoring health-care providers? communication with patients, denying emergency care under the prudent layperson standard and delaying access to care by offering an inadequate number of providers. The bill would also give consumers a way to fight back, by requiring a neutral third-party appeals board and allowing consumers the right to sue their plans for harm resulting from treatment denials. APA officials see this as a critical component of any significant reform.

The bill has 190 co-sponsors, in-cluding 10 Republicans. To turn up the pressure, the Democrats plan to attach the bill as an amendment to an unrelated bill this summer.

APA and psychologists all over the country are already working to support the Democrats? bill and pressure the Republicans into including more patient-protection measures in theirs. With calls, letters and face-to-face meetings, they?re stressing the importance of provisions like health-plan accountability.

Rebecca A. Clay is a writer in Washington, D.C.