House GOP Appeals Process Protects HMO’s, Not Patients

The authors of the House GOP bill claim that their bill protects patients and provides access to a fair, independent external appeals process. If this is so, why did the authors of the bill make changes to the appeals process of the Ganske-Dingell-Norwood-Berry appeals language to set up barriers to accessing appeals and to make it difficult to get a fair review?

Here are some examples of differences between the House GOP bill and the Ganske-Dingell-Norwood-Berry bill that make it more difficult for patients to get a fair, independent, rapid medical review:

• The Ganske-Dingell-Norwood-Berry bill requires that decisions are made in accordance with the medical exigencies of the patient’s case. This means that the plan has to act quickly when needed. The House GOP bill omits this requirement.

• The Ganske-Dingell-Norwood-Berry bill requires that patients have a right to appeal to an external reviewer before the plan terminates care. This ensures that patients that are undergoing critical treatment do not have care cut off before they get an independent medical review of the case. The House GOP bill omits this requirement.

• The Ganske-Dingell-Norwood-Berry bill requires plans to provide notice of a denial of care in a manner calculated to be understood by the average person (i.e., in plain English). This is also a current law requirement under ERISA. The House GOP bill does not. It only requires the plan to tell the person how they can get a plain English explanation if they want one.

• The Ganske-Dingell-Norwood-Berry bill requires the plan to send the patient’s files on to review as soon as the request is filed. The House GOP bill does not require the patient’s case to be sent to the reviewer with the appeal request, which could result in a time-consuming delay in a decision on urgently needed care.

• The Ganske-Dingell-Norwood-Berry bill allows an oral request to set the review process in motion. Under the House GOP bill, the patient can make an oral request, but the plan does not have to act on it until it is followed by a request in writing.

• The Ganske-Dingell-Norwood-Berry bill allows reviewers to uphold, reverse, or modify the plan’s decision. This allows the reviewers to consider all relevant evidence in light of the patient’s medical condition and use their expertise to make a recommendation to get the patient the needed care quickly. The House GOP bill only allows the reviewer to uphold or reverse (not modify) the plan’s decision. This could leave patients in an endless loop of appeals trying to get the right care. For example, if a doctor recommends 10 days of hospital care and the plan denies all hospital care, the reviewer could only give the patient 10 days or no days -- even if the right amount of care would be 5 days.

• The Ganske-Dingell-Norwood-Berry bill requires the reviewer to make determinations with no deference to the decisions made by the plan or issuer. The House GOP bill only requires no deference to a determination made in the internal/prior authorization process. This gives favorable treatment to HMO decisions and helps stack the process further against the patient.

• The Ganske-Dingell-Norwood-Berry bill allows the reviewer to consider denials based on "medical necessity and appropriateness or substantially equivalent terms." This ensures that HMO’s can’t hedge their contracts and use different definitions, and craftily preclude patients from review. The House GOP bill omits this protection, allowing HMO’s to game the review process.

• The Ganske-Dingell-Norwood-Berry bill requires the reviewer to consider the patient’s medical condition, scientific evidence, and also expert opinion and other clinical evidence in making a determination about a patient’s care. The House GOP bill requires the reviewer to base the decision on scientific evidence and the patient’s condition. This would exclude a vast array of medical knowledge and evidence from the review process make it impossible to overturn the plan in instances where there is a paucity of scientific evidence, but a large amount of clinical practice – for example in the case of treatment for children.

• The Ganske-Dingell-Norwood-Berry bill requires a $25 filing fee, but allows the appeal to proceed if the patient can’t pay or can’t pay promptly. The House GOP bill requires the filing fee be submitted prior to the case being forwarded. The Ganske-Dingell-Norwood-Berry bill allows the reviewers to consider additional documentation or evidence submitted by the plan or patient. The House GOP bill omits such a provision.

While some of these differences may seem minor, they add up to bias the review process against the patient. Imagine being a seriously ill patient and trying to navigate your way through an unfriendly process, jumping over hurdle after hurdle, to get critical care. The appeals process in the House GOP bill is yet another example of the House GOP preference to help insurance companies and not patients. The effect of the changes made by the House GOP bill to the Ganske-Dingell-Norwood-Berry external appeals language, some subtle and some not, raise serious questions about the true extent of the commitment of the bill’s authors to protect patients.