Despite House GOP rhetoric that there is broad agreement on the underlying patient protections, the House GOP bill fails to include many key protections that address current problems consumers are facing with their HMOs. There are also numerous flaws in some of the legislation’s basic so-called protections. Given the claims that the House GOP bill protects patients, it is noteworthy that the bill falls short in so many critical areas.

• Omits key patient protections. The House GOP bill omits critical patient protections, including:

	limits on the use of financial incentives that can encourage doctors to deny or limit care;
	protections for doctors and nurses who advocate on behalf of their patients or report quality concerns;
	assurances that patients can choose their physicians from the plan’s roster;
	prohibition on plans from denying coverage for benefits by wrongly calling FDA-approved therapies "experimental" or "investigational";
	protections for fair initial review of claims;
	protections for breast cancer patients who need a mastectomy; and
	protections for patients needing a second opinion on a cancer diagnosis.

• Weakens and waters-down other key patient protections. Other provisions that purport to help patients fail to provide these needed protections:

Access to ob-gyn care: Women still denied in many cases. The House GOP bill provides direct access for annual exams and prenatal/perinatal care only. Women would still be forced to go through a gatekeeper for pre-authorization for other routine and non-routine ob-gyn care.

	Access to Specialty Care: Numerous flaws undermine alleged "right." The House GOP bill offers little or no protection for persons with disabilities or children in need of pediatric specialty care. First, there is no requirement that patients receive timely access to specialists, only timely "coverage." Second, there is no requirement that specialists be accessible (e.g., able to see the patient). Third, the bill reiterates the HMO’s continued ability to establish measures (including, presumably, gatekeeper procedures) to control costs, thus potentially undermining entire provision. Fourth, the bill fails to guarantee access to out-of-network physicians and facilities if the network fails to have appropriate specialist in-network; the plan makes the determination on whether or not out-of-network specialty care is needed. This is no different than the discretion that plans currently have to refer patients to non-network providers for care. Furthermore, the definition of "specialist" does not require pediatric expertise, in the case of a patient who is a child, and does not include specialty care facilities, e.g., children’s hospitals or comprehensive cancer centers. Finally, the bill includes a narrow definition for "ongoing special condition," which is required in order to allow a specialist to act as a care coordinator, that would disadvantage patients with disabilities and children with birth defects – patients for whom this provision is vitally important.
	Continuity of care: Shortchanges patients with chronic illnesses and conditions. Under the House GOP bill, access to a general 90 day transition period for patients with chronic conditions is severely restricted due to an excessively narrow definition of who qualifies for care (those with "serious and complex conditions"). This excludes most patients in need of this transition period. The bill also fails to include "medical manifestations" of terminal illness, thereby restricting coverage during the transitional period for dying patients, and it fails to allow transitional coverage for previously scheduled non-elective surgery. The requirement for a patient to be undergoing an "active" course of treatment at the time of a contract change or termination invites disputes and undermines patient access to all transitional periods allegedly allowed under this section.
	Access to prescription drugs: A hollow promise. The House GOP bill fails to provide patients with access to medically necessary non-formulary drugs with no additional cost-sharing when a formulary drug is ineffective. The "clarification" of plans’ continued ability to exclude specific drugs renders medical necessity determination that a specific drug is needed moot. The House GOP failure to provide cost-sharing protections makes this "right" meaningless.
	Coverage for clinical trials: Excludes critically ill patients from life-saving care. The House GOP bill only allows individuals with cancer access to FDA-approved trials. This excludes coverage for countless trials for patients with severe mental illness, Alzheimer’s, Parkinson’s, cystic fibrosis, and many other conditions for which cutting edge clinical research offers hope for improved quality of life or a cure. The broad exclusion of certain costs (e.g., "procedures") raises questions on the effect of requirement
	Provision of information: Leaves patients in the dark. The House GOP bill conspicuously excludes requirements that HMOs provide notice of specific benefit exclusions, leading to confusion regarding whether certain benefits are covered under the plan. The bill also does not require the plan to give notice of material changes until they take effect, which could leave patients undergoing care in a precarious situation.
	Emergency care: A lesser standard for neonatal care. The House GOP bill includes language that requires a "prudent health professional standard" (rather than a prudent layperson standard) for neonatal emergency care. This means that care for neonates could be denied even if a prudent layperson thinks it is reasonable to bring the child in for treatment.
	Point-of-Service (POS): Excludes small business employees. The House GOP bill does not provide POS protection for employees in small businesses (under 25 employees).

 THE DEVIL IS IN THE DETAILS (PART 2):
HOUSE GOP BILL SCOPE PROVISIONS PROVIDE LESSER PROTECTION TO PATIENTS THAN GANSKE-DINGELL-NORWOOD-BERRY

Loopholes prevent all consumers from getting a strong federal floor of protections.
Under current law, group health plans (fully-insured and self-insured) and issuers are required to comply with federal health care standards. Insurers also are required to comply with state insurance laws. With the exception of self-insured ERISA plans, federal laws set a national minimum floor and states may provide supplemental protections.

Ganske-Dingell-Norwood-Berry maintains current practice. Federal law would provide a floor of patient protections. State laws that are substantially compliant would continue to apply. Only provisions of a state law that prevent application of a federal protection would be preempted. States could provide additional protections to their citizens. Current ERISA preemption rules would continue to apply to self-insured employer plans (states could not regulate such plans).

A vast array of federal laws apply to this standard, including consumer protection, environmental, and labor laws.

The House GOP bill would undermine this longstanding principle, by weakening the ability of the Secretary to ensure that a minimum floor of protections exists for all Americans. Under this bill, all a state would have to do is certify that its state laws are "substantially similar" to a provision of federal law and the state law would supplant the federal protections.

While the Secretary of Health and Human Services could challenge the state certification, the burden of proof is stacked against the Secretary: he would have to prove to a court that there was not any "reasonable basis" for the state’s certification. The Secretary would have very little ability to do anything but agree with the state’s certification, unless he was willing to be tied up in court for years. As the standard is written, states could have some provisions that are significantly less protective than the federal law or in conflict with the federal law, but if "as a whole" the law was equivalent, the Secretary would have to wrangle for years in court to ensure the stronger federal protections applied. The House GOP bill provides ample legal rights to states to avoid complying with a strong federal floor, but does not provide basic legal rights to injured patients.

House GOP bill eliminates states’ ability to be more protective of consumers in the appeals process. While bill proponents claim deference to states, the House GOP bill preempts all state internal and external appeals laws that currently apply to insured group plans. Right now, 32 states plus the District of Columbia already have external review programs in place that issuers which offer coverage to ERISA plans must obey. The House GOP bill defers to states on patient protections and the legal ability to challenge the federal floor, but eliminates their ability to protect patients in the appeals process.

Leaves millions of Americans unprotected. The House GOP bill does not apply these patient protections to the millions of Americans in self-insured state and local governmental plans.

Effective dates leave patients unprotected. The House GOP bill would not make the protections in the bill effective for ERISA plans until a year and a half after the Secretary issued final regulations. This process could take years.

"Severability clause" is likely to leave patients with no legal remedies whatsoever. The House GOP bill includes a clause that eliminates all of the remedies if any provision of the "remedies" section is deemed to be unconstitutional. It is likely that a court would find it unconstitutional to condition access to court on the ruling of a medical review panel that has no due process protections.