Patients’ Bill of Rights Remains on Congressional Agenda

FORT LAUDERDALE, Fla—Before talking about the various “patients’ bill of rights” legislation before the US Congress, Harry D. Holmes, PhD, played the theme from the movie Back to the Future. “That’s what it seems like in managed care reform, since all of these bills were filed last year and here they are again, both in the House and the Senate.”

In his presentation at the Fourth Annual Conference of the National Comprehensive Cancer Network (NCCN), Dr. Holmes, associate vice president of government relations, M.D. Anderson Cancer Center, outlined the major issues covered in the proposed legislation.

First, all of the bills would provide access to emergency care, either in or out of the managed care network, without preauthorization. Most of the proposed bills use the “prudent layperson” standard for defining an emergency. “In other words, you don’t need a physician’s decision or evaluation; if a prudent layperson believes it’s an emergency, then it’s an emergency,” he said, adding that severe pain is included in this definition.

Most of the proposed bills have some clinical trials coverage. “Some of them require authorization, some don’t; some allow for an appeal to an external panel if internal authorization is denied,” he said.

Some of the proposed bills have patient confidentiality sections, regarding not only the patient’s medical record but also genetic testing. The controversy here is that some members of Congress think that there should be no access to a patient’s medical records, a proposal opposed by many clinical researchers.

Dr. Holmes noted that most of the bills would improve the patient’s right to internal and external appeals when coverage is denied. “There would be a specific time frame for coverage decisions, and the time frame is short in the case of urgent or emergency care,” he said.

In most of the bills, cancer patients would fall under the emergency care provision for an expedited appeal process, since expedited refers to situations in which a delay of treatment would seriously jeopardize the patient’s health. “Most of the bills use 72 hours for the conclusion of that expedited appeal. That’s rocket speed if you’re familiar with the standard 30 days with a 45-day review after that,” he said.

Major differences among the various bills will require compromise for passage. For example, one stumbling block is ERISA (Employment Retirement Income Security Act), passed in 1974, which took away the ability of the states to regulate certain types of plans, including most self-insured plans. Some of the bills seek to restore this power to the states.

Another major difference concerns a cap on liability. “The Democrats do not want to see a cap on liability; Republicans, for the most part, favor a cap on liability,” he said. A possible compromise would be to put a cap on damages by plaintiffs’ attorneys. Other controversial provisions in some bills that Dr. Holmes predicts will eventually be dropped or modified include the creation of insurance purchasing co-ops and the expansion of medical savings accounts.

Finally, enforcement of most of the bills is by civil penalties. “The civil penalties are capped,” he said, “but these bills do have some teeth in them.”

Dr. Holmes’ “best guess” is that a centrist bipartisan bill will pass. “There’s only a six-vote margin in the House so it has to be bipartisan. The health care leaders in the Senate are centrists, and the Speaker of the House is a compromiser, so I think the chances are good that we’ll see a bill this year, if we can work past the liability issues.”