Patients need a real bill of rights from U.S.
Published 9:00 pm Friday, August 3, 2001
By Robert A. Crittenden, Barbara Barron Flye and Sean P. Corry
The 21st century is here and we’re still quibbling over whether managed care insurance companies should be accountable if reasonable treatment is delayed or denied, resulting in injuries or death. The answer is simple. If we are going to move in a direction that is meaningful for families and individuals, we must have federal legislation — a patients’ bill of rights — that puts patients first, not HMOs and other managed care insurers. It is imperative that patients be able to hold their managed care companies truly accountable when healthcare is inappropriately delayed and denied. Thankfully, state legislators here in Washington state heard the cry from consumers and providers and passed a strong Patients’ Bill of Rights, despite vigorous opposition from the insurance industry. It took effect July 2, 2001.
But many families in our state won’t benefit from our state Patients’ Bill of Rights due to a federal law called ERISA, which prevents states from regulating any employer-sponsored plans. And, if President Bush and the insurance and HMO industry have their way in Congress, patients will find themselves without sufficient remedies, even with the passage of a so-called "patients bill of rights."
Imagine this: Your child is diagnosed with leukemia. During the course of his chemotherapy treatment, you meet another parent whose child is also undergoing the same treatment for the same disease. The oncologist recommends both children have autologous bone marrow transplants to save their lives.
The other child has individual coverage. The insurer initially denies treatment, but it is a state-regulated plan. That means that under state law, that parent has access to the court system and can hold her insurance company fully responsible if an inappropriate delay causes her child’s injury or death. Fortunately, a quick decision is made because the state’s Patient Bill of Rights requires an expedited appeal process that is fair and open. The insurer decides to pay for the transplant.
But you have coverage through your employer and your health plan also refuses to authorize the transplant. Despite repeated requests for approval, the process followed by your employer’s plan is slow. By the time you get approval — if you do — it may be too late.
If these delays cause your child’s death, you have almost no legal remedy. Your private sector, employer-sponsored health plan is not subject to the state’s Patient Bill of Rights. A federal law called ERISA (the Employee Retirement Income Security Act) says that employer-sponsored plans cannot be sued for your child’s death, even if they are grossly negligent. Under ERISA, you have no legal remedy other than for the cost of the benefit/treatment that was denied or delayed. ERISA does not allow for "non-economic" loss, such as the death of a child. ERISA means you have little redress for a disaster. ERISA means accountability is not available for all families. This is simply unfair.
Action must be taken on a national level. For the last few years, Congress has been working hard on meaningful legislation that would protect individuals and families through a federal Patients’ Bill of Rights. The time has come for Congress to pass, and for the president to sign, a real bill that clearly demonstrates that it puts patients — not managed care plans — first.
Unfortunately for patients in this country, President Bush engaged in a power play around patients’ rights that essentially gutted a once-strong bill. The legislation passed by the U.S. House of Representatives on Thursday included three amendments that the insurance industry wanted and President Bush lobbied for. Although a right to sue is included in the bill, it severely limits awards and the standards required to bring a lawsuit are so burdensome that virtually no one will be able to use it. It even puts in jeopardy our state right to sue. Moreover, if you are covered under an association health plan, for example through your business association, the amended version of the bill denies you protections you now have through Washington state law.
The patient’s rights debate is far from over. In June the Senate passed a version that included strong protections for consumers. With the passage of the much weaker House bill, Congress will now appoint conferees to negotiate the differences between the two bills, before sending it to the president.
It’s time to support the strong and effective federal legislation passed by the U.S. Senate and make health care insurance fair for all families.
Robert A. Crittenden, M.D., M.P.H. President, Washington Academy of Family Physicians 206-731-6770 docbob@u.washington.edu
Barbara Barron Flye Executive Director Washington Citizen Action 206-389-0050, Ext.109 barb@wacitizenaction.org
Sean P. Corry Vice President Sprague, Israel, Giles, Inc. 206-623-7035 scorry@sig-ins.com
