After a hard, high-profile fight, the 106th Congress went home without passing patients' rights legislation. But the end result, say many advocates, is not that the issue is dead, but how far it has progressed toward passage of a law to give patients a range of new powers for dealing with health-insurance companies.
"The most amazing thing is how far we have come in building a consensus on patients' rights in Congress," says Marilyn Richmond, JD, assistant executive director, government relations in APA's Practice Directorate.
As the leader for patients' rights in the U.S. House of Representatives, Rep. Charlie Norwood (RGa.) noted that all of this year's congressional and presidential candidates supported some kind of a Patient's Bill of Rights or right to sue an HMO.
"Compare that with two years ago when Senators were saying that the best patients' rights bill would be no bill," Norwood says. "This isn't the end of the game; it's first and goal on the one-yard line."
This month will see the renewal of legislation and negotiations, and it's likely that the same major disagreements that stalled passage last fall will continue to be the focus of tough talks this session. Among them is a discussion of how strong a right patients should have to sue insurance companies for denying or delaying care. In June, Senate Republicans went on record as supporting a limited right to sue. The provisions that they supported, however, were not nearly as strong as those in the House-passed bill.
Another sticking point is the issue of how many people the legislation will cover. Most provisions in Senate legislative packages would cover only an estimated 56 million people who are in employment-based insurance plans that the employer "self-insures" and that do not fall under state regulation. The House plan would cover everyone with private health insurance, about 163 million people, according to congressional Democrats.
Nevertheless, Washington observers are impressed by the list of provisions that have already been fought out and have a strong chance of being part of a patients' rights bill passed at some point. And among those consensus areas are a number that APA advocated particularly hard for. For example:
Mental injuries: Earlier versions of the legislation would have permitted only patients who had experienced "substantial harm" to sue their insurance companies. But "substantial harm," as defined in the legislation, included only physical injuries, not mental harm. Thanks to work from APA and others, there's strong agreement in the House that the definition will include mental injury, and there are indications that the Senate Republican leadership may concede on this point.
Professions on review panels: Earlier versions of the Senate bill would have permitted only physicians to participate in making medical necessity decisions on external review panels that would be set up to review disputes on medical necessity of care. Again, after much advocacy, the current Senate bill and informal agreement in the House make it appear the legislation will allow participation by other health-care professionals--including psychologists.
Right of access: There's also general consensus that patients generally would be guaranteed the right of access to providers outside their main managed-care plan, even if at additional costs to themselves.
Congress has also reached agreement on other important issues. For instance, plans will be mandated to give patients information on such topics as benefits, access to non-network providers, emergency coverage and rules for prior authorization for care. Health plans would be prohibited from requiring a person to get prior authorization for care when a "prudent layperson" would perceive there is an emergency. Insurance plans would also be required to have processes for internal and external review when care is denied or delayed.
In the meantime, beyond Congress, other political forces are at work to give patients and providers more leverage with health insurance. Ten states have passed some version of legislation to allow patients to sue managed-care companies for negligence related to care, and more state laws are expected to follow suit this year.
Although battles over managed care are far from finished, various political processes at work make it seem that the playing field will be different in the coming years.