104th
Congress: Democratic Perspectives 103rd-107th
Congress Committee Activity During a lengthy hearing on May 30, 1996, we heard from several witnesses who outlined the ways in which some health plans have attempted to interfere in medical communications between patients and their health care providers. Testimony came from doctors who were threatened with retaliatory actions for telling their patients information that the health plan did not want them to know. We also heard from two widowers who learned too late critical information about their wives' health care.
We have grave concerns that some--but certainly not all--health plans are attempting to interfere in the doctor-patient relationship. The trust between a patient and his or her health care provider is at the core of the medical profession and is central to the notion of informed consent. To make intelligent decisions about their health care, consumers must be informed of all of their treatment options--not just those that plan wants them to know about or is willing to pay for.
At the same time, we recognize that the health care market is undergoing rapid and often unpredictable changes. Managed care represents an important component of the market and its advocates believe that active case management can help promote good health and thereby result in lower overall health care expenditures. Such networks cannot thrive, however, if they are unable to monitor and prevent unnecessary utilization of services and to engage in active management of the care of enrollees.
Based on the testimony at the hearing as well as other reports, we agree that legislation is needed to prevent outside interference in communications between patients and their health care providers. At the same time, there was some disagreement as to whether the original text of H.R. 2976 would pose unacceptable burdens on health insurers.
In an effort to find a compromise that would address the very real concerns of consumer groups and health care providers without undermining the health care markets, we worked diligently to find a compromise that would meet these two important, but somewhat conflicting goals.
Shortly before the Health and Environment Subcommittee met to consider the legislation, we drafted a substitute that made a number of important changes to the base text. While we do not believe the substitute is perfect (some of us would like to see a stronger bill, others think it may unduly restrict legitimate activities of health insurers), it represents a true compromise which is a delicate balance of competing ideas and philosophies.
The substitute was ordered reported to the Full Committee by a 22-0 vote and was approved by voice vote by the Full Commerce Committee a month later.
We think it is appropriate to discuss the major changes to H.R. 2976 made by the substitute and the reasons for them:
1. First and foremost, the substitute is more narrowly focussed on protecting provider-patient communications. The base bill would have also placed restrictions on the ability of health plans to regulate communications between providers and the plan and between providers and state and federal regulators. Significant questions were raised about possible unintended consequences of these provisions, and the substitute deletes them and focusses on protecting the ability of patients to freely communicate with their health care providers.
2. The original bill contained a long definition of what is included as a protected medical communication. While we agree on what this should mean, there was some concern about the wisdom of placing that definition in legislative language. Instead, the substitute expressly states that a `medical communication' means a communication made by a health care provider with a patient of the provider (or the guardian or legal representative of such patient) with respect to the patient's physical or mental condition or treatment options.'
During the Subcommittee mark-up, Congressman Burr and Congressman Ganske had an exchange in which they discussed how broadly this term should be interpreted. The key elements of that discussion are as follows:
Mr. Ganske: * * * it is my intention that the substitute would cover any tests, consultations, and treatment options; any risks or benefits associated with them; and any variation in quality among health care providers and any institutions providing such services. Medical communications also covers general descriptions of the standard used by plans to decide whether to authorize health care services; the process used by the plan to make those decisions; and a general description of financial incentives or disincentives provided by such an entity that may be based on service utilization.
Mr. Burr: I am concerned about the ability of plans to safeguard proprietary data. While I do understand the desire to provide patients with access to information on utilization review procedures and financial incentives, I would not support a provision that forced plans to permit the disclosure of specific fee schedules.
Mr. Ganske: A patient has a right to know the general way his policy works [and I] would be pleased to work with you and with Chairman Bliley to craft report language consistent with that need and also with the ability of plans to compete in the marketplace.
We believe that this reading of the substitute is appropriate. We met with several experts who were concerned that the original bill would result in the disclosure of confidential information and other trade secrets of health plans. We recognize that the health care market is very competitive and that plans have a legitimate interest in protecting proprietary data such as payment schedules.
But that does not mean that plans should be able to prevent providers from discussing the general nature of plan operations with their patients. The subject of provider compensation most squarely presents this issue. Health plans are paying their providers in new and innovative ways. Some pay a straight salary. Others pay a form of fee schedule, which pays providers for each service delivered. Some plans capitate their providers, meaning that they are paid a flat fee per patient but may be personally financially liable for a certain amount of care provided. Many plans use other, more innovative, payment systems which tie a provider's pay to some performance measurements--generally in the form of bonuses and withholds.
We do believe that patients ought to have access to descriptive information about the way in which their provider is paid. The testimony from David Ching demonstrates the importance of this information. His wife complained of severe abdominal pain and rectal bleeding. Her doctor repeatedly refused her requests for additional tests and referrals to specialists. After a delay of several months, she was finally referred to a specialists who diagnosed her with the colon cancer that had recently perforated her bowel wall and resulted in her early death.
What Joyce and David Ching did not know is that her doctor had a financial interest in providing her with less health care. He was paid $27 per month to care for her, and was personally responsible for the first $10,000 of care provided. After her first visit and a barium enema, Joyce Ching had cost her doctor his entire annual capitation. Further tests and referrals would effectively come out of his pocket. David Ching testified that had he known about that compensation arrangement, he definitely would have sought a second opinion for his wife out of his own pocket.
It is important to note that the compromise approved by the Committee would not require plans to allow discussions of the specific dollar amounts of financial arrangements. But Joyce Ching's case points out the very real dangers created when patients do not have complete access to information about their health care needs.
While we believe that providers should be able to fully inform patients as to their physical or mental condition and treatment options, the utilization review procedures established by health plans, and the general manner in which providers are compensated, we also believe that health plans should be able to establish utilization review procedures as well as quality guidelines, and that plans are not required to allow discussions of the specific dollar amounts of financial arrangements.
While we believe that patients can make informed decisions without knowing the specific dollar amounts involved in these payment arrangements, knowing the general manner in which their provider is compensated could be important. Accordingly, we do not believe health plans should be able to prevent providers from describing the general nature of these arrangements and how they could create incentives or disincentives for the delivery of additional care. For example, a provider could tell a patient, `I receive a flat fee per month from the plan and I can also qualify for certain bonuses if the amount of care I provide during the year falls below a certain level' or `Because of my compensation arrangement with the plan, my salary decreases if I refer patients to too many specialists.' Plans wishing to restrict the disclosure of specific dollar amounts in these arrangements should be able to do so, but the type of general information described above should not be considered to be proprietary data or a trade secret.
3. The original bill listed a series of `adverse actions' that health plans would be prohibited from taking. This placed the focus on whether the plan took any action against the provider, not whether patients had access to all the information they need. To keep the focus on preventing restrictions on medical communications, the substitute deleted the list of `adverse actions.' Plans that attempt to prohibit or restrict free communications between providers and patients--whether in written policies or expressed orally--would be in violation of the law, even if they have taken no retaliatory actions.
For example, a plan could not tell providers not to discuss the possibility of bone marrow transplants with patients and threaten to terminate the contracts of those who disobey. The action of making the attempt to restrict the medical communication would be a violation of law, regardless of whether the plan actually took any action against non-complying providers. The substitute keeps the focus on whether the health plan is trying to place a prohibition or restriction on medical communications, not how the plan attempts to enforce those restrictions.
4. The substitute limited the civil money penalties that can be levied against health plans found in violation of the plan. The substitute retained the fine of up to $25,000 per violation but deleted a provision to create a $100,000 fine for repeated violations. Both the base text and the substitute declare restrictions on medical communications to be `null and void.'
5. The substitute includes a provision that makes clear that providers may not use the protections in this bill solely for the purpose of steering patients into a competing health plan which pays them better. During the Subcommittee hearing, some witnesses expressed the concern that health care providers will use this legislation as a shield to encourage patients to join health plans which provide them a higher reimbursement. To prevent this, the substitute allows health plans to restrict a medical communication that `recommends one health plan over another plan if the sole purpose of the communication is to secure financial gain for the health care provider.'
6. The substitute moves the bill's effective date back from 30 days to 90 days after enactment. This was done in response to concerns that 30 days was not enough time for health plans to amend hundreds of contracts and policy bulletins.
The amended effective date provision also makes clear that the enforcement provisions do not apply to medical communications made before that date. The base text could have been interpreted to create liability for restrictions on medical communications made before the date of enactment. The substitute clarifies this point.
7. We recognize that restrictions on medical communications could take several forms. While public attention has focussed on `gag rules' in plan contracts, restrictions also appear in health plan policy bulletins and letters and have been orally conveyed to providers.
We are concerned that the standard of proof be high enough to ensure that health plans are not subjected to numerous claims of oral gags that degenerate into `he said-she said' arguments. The standard of proof for oral communications should be high enough to provide health plans with some degree of assurance that they will not be found to have violated the bill every time a provider makes an unsupported claim without any support or corroboration.
To address this issue, the substitute requires that allegations of a single instance of an oral restriction on communications be proved by a `preponderance of the evidence.' This is a higher standard than the `substantial evidence' test and is designed to permit the Secretary of Health and Human Services to more easily weed out baseless allegations.
Greg Ganske.
Richard Burr.
John D. Dingell.
Ed Markey.
Charlie Norwood.
Henry A. Waxman.
104th
Congress: Democratic Perspectives
103rd-107th
Congress Committee Activity