GOVERNMENT RELATIONS ACTION ALERT

Quick House Contacts Needed in Support of the Patients’ Bill of Rights!

July 24, 2001

The ISSUE AT HAND:

The House of Representatives is expected to begin debate the week of July 23rd on either H.R. 2563, the Bipartisan Patient Protection Act of 2001, (the House companion piece to S. 1052, the Bill recently passed by the Senate in which NASW supports) or the competing Republican alternative, H.R. 2315, the Patients' Bill of Rights Act of 2001 also known as the Fletcher bill!

ACTION NEEDED

Call, email, fax, or write your Congressman and urge him/her to:

• Support H.R. 2563, known as the Ganske-Dingell Bill as the Bill is sponsored by Representatives Greg Ganske (R-IA) and John Dingell (D-MI);
• Oppose any weakening amendments; and
• Defeat H.R. 2315, known as the Fletcher Bill, as it is sponsored by Representative Ernie Fletcher (R-KY).
• To be most effective, contacts should be made as soon as possible.

Take Action Now on NASW's Congress Web!

If you would like to send a letter, the House of Representatives mailing addresses and phone numbers may be obtained for all Representatives at the following link to the House website:

http://www.house.gov/house/MemberWWW.html.

All Members of Congress may also be reached through the Capitol Switchboard, 202-225-3121. Once connected to your Representative’s office, ask for the staff person who handles the Patients’ Bill of Rights.

FAX numbers may be obtained from each individual House office via its website or via telephone.

Thank you for your prompt and enthusiastic attention to this matter, as not only is this legislation a vital issue for all health care providers, but also for all Americans.

BACKGROUND

Bill Summary

The Ganske-Dingell legislation, H.R. 2563, if enacted, will accomplish the following:

• Protect all Americans Applicable to every American enrolled in group, individual, church, state government, and local government health plans- roughly 190 million people. No one is left without rights because the state they live in has weaker protections. States are permitted to develop stronger patient protections over and above those contained in the bill.
• Ensure a swift internal review process and a fair and independent external appeals process Outlines reasonable criteria and time frames for initial claims review and internal appeals procedures. Creates a timely and independent external review process which provides individuals with a fair and unbiased decision. The review process can be expedited in the event of a medical emergency. Neither party can select the external review entity and nor can the parties involved unilaterally delay the review process by withholding needed information. Reviewers are free to make an independent determination about whether care is needed and are not bound by plan decisions or policies. Patients have legal recourse if the managed care plan does not comply with the decision of the external review entity. However, a reviewer cannot authorize benefits not covered by the plan in question.
• Protect employers against liability Employers cannot be held responsible for the actions of managed care companies, unless the employer actively participated in the decision to deny a health care service to a patient. It ensures that only those few companies (less than 5 percent nationwide) that act as health care insurers and directly participate in the decision to deny a health care benefit to a patient accept legal responsibility. A company has the ability to transfer all responsibility to a designated decisionmaker who will then assume all liability. Self-insured, self-administered plans employer plans from all federal liability. Members of employer plan boards are protected from individual liability.
• Institute plan accountability Allows patients to hold their managed care plan accountable when plan decisions to withhold or limit care result in injury or death. This bipartisan compromise allows patients to seek redress in court for any wrong that causes an injury. The liability compromise in Ganske-Dingell stems from recent Supreme Court decisions as well as concerns voiced by employers on the importance of federal uniformity when administering health plans. It tracks the Supreme Court decision in Pegram vs. Herdrich, which stated that cases concerning medical judgment should be heard in state court, but ensures that employers and insurers can uniformly administer their plans across the country by putting those cases concerning administrative decisions in federal court. Self-insured, self-administered plans are exempted from liability for the performance of non-medical duties or violations of the plan's requirements. Plans are not subject to federal liability for injuries caused by a failure to comply with the terms and conditions of a plan.
• Require exhaustion of appeals Patients must exhaust internal and external appeals before going to court. The sole exception is when death or irreparable injury has already occurred. Even in that case, either party can request that the appeals process continue; the results of the process are admissible in court. Unless a patient is seeking injunctive relief, all appeals must be exhausted and the court must admit as evidence and consider any external review decision.
• Ban provider discrimination Ensures that any health care provider who renders services in accordance with their state license/certification is protected from discrimination by insurers with regard to plan participation or indemnification. This provision is critical for social workers, as many plans deny claims for clinical social work.
• Cap Attorneys' Fees Contingency fees are limited to one-third of damages awarded.
• Guarantee access to necessary specialists Allows patients access to non-participating providers if the plan's network is insufficient for the enrollee's needs. Under these limited circumstances the plan must provide this access at no greater cost than if the benefit were obtained from participating providers. This provision ensures access while maintaining the integrity of health plan networks. Patients with life-threatening, degenerative, and disabling conditions are permitted to receive standing referrals to specialists, so their primary care provider does not have to continue to authorize every individual specialty care visit. Plans are also required to allow such patients to designate a specialist as their primary care provider if desired
• Provide unfettered access to emergency room care Patients may receive critical emergency room care from any emergency department, in or out of the plan's network and without prior authorization under the "prudent layperson" standard. If a patient believes he or she needs immediate medical attention, he or she can go to any emergency room without worrying about excessive co-pays and are guaranteed a smooth transition between emergency care and follow-up treatment provided by the plan.
• Ensure that women can easily access OB-GYN services, without unnecessary barriers Women are given the opportunity to choose an OB-GYN as their primary care provider. It also allows women to obtain routine OB-GYN care from a participating OB-GYN without prior authorization or referral.
• Ensure that children can access the specialty care they need, without unnecessary barriers This bipartisan compromise ensures that pediatricians can be selected as primary care physicians for children.
• Ensure access to prescription drugs Plans must provide for exceptions from the formulary when medically indicated. This protection is critical for individuals who may have allergies to certain medicines or may have tried the formulary drug without any success. Formulary restrictions must be disclosed to enrollees and providers on request. Physicians and pharmacists must participate in formulary development.
• Ensure access to clinical trials Plans must cover routine costs (those costs of treatment that would normally be covered by the plan) of participation in certain clinical trials, including those run by the National Cancer Institute, if the patient has a life-threatening or serious illness for which no standard treatment is effective and participation in the trial offers meaningful potential for significant clinical benefit.
• Ensure continuity of care This bipartisan compromise legislation protects all patients who are in the middle of a course of treatment for a chronic or disabling condition, ensuring that they can keep their doctor even if they are forced to change plans or their doctor is dropped from their plan's network. It requires a transitional period in which they will continue to receive care from the treating provider.
• Ensure full disclosure Patients need to know about their health plan rules before they seek care. The detailed disclosure requirements that are part of this bipartisan compromise to assure patients understand their rights include: plan benefits, limitations and exclusions; disenrollment; how out-of-network services are covered; how to select and obtain referrals to providers; emergency medical care coverage and definitions; prior authorization rules; and grievance and appeals procedures.
• Provide anti-gag rule protections Health plans cannot preclude doctors and nurses from discussing all treatment options with their patients.
• Limit improper incentive arrangements Ensures that doctors will not face excessive financial incentives limiting necessary care.
• Ensure protections for patient advocacy. This legislation protects health care providers from the threat of retaliation or firing when they advocate on behalf of their patients or report quality issues to the appropriate.

The Fletcher bill, H.R. 2315, is fundamentally flawed as it:

• Has a poor external review process;
• Does not protect health care providers who advocate on behalf of patients;
• Does not permit accelerated decisionmaking in times of immediate life-threatening need;
• Does not hold plans accountable in the event of injury or death as a result of a plan's actions;
• Does not preserve one's right to pursue legal action in state court;
• Does not permit unfettered access to emergency room care according to the "prudent layperson' standard;
• Does not allow for direct access to specialty care, including OB/GYN and pediatric specialists;
• Does not ensure continuity of care;
• Enacts barriers to access for some prescription drugs;
• Does not provide for prompt payment for providers; and
• Protections in the bill do not apply to state and local government workers.

FEEDBACK/QUESTIONS:

Francesca Fierro O’Reilly
Government Relations & Political Action
National Association of Social Workers
750 First Street, NE, Suite 700
Washington, DC 20002
Ph: 800-638-8799, ext. 336 or 202-336-8336
Fax: 202-336-8311
Email: fforeilly@naswdc.org

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