Patient Protections |
Ganske-Dingell
H.R. 526 |
McCain-Edwards
S. 1052 as passed |
House GOP Bill
H.R. 2315 |
Ensures
unbiased selection of external review entity |
Yes. |
Yes. McCain
amendment strengthened protections to ensure no bias in review. |
Unclear. The
bill includes language similar to Ganske-Dingell, but clearly states the plan or issuer
will pick the reviewer. Does not empower the Secretary or the state to audit decisions to
ensure fairness. |
Requirements to
access external review |
Up to 180 days
to file for appeal, filing fee of up to $25. Allows review to proceed even if individual
can’t submit the fee. |
Same as
Ganske-Dingell. |
Up to 90 days
to file, filing fee of $50, claim must be for more than $100, or physician must certify in
writing significant risk to patient. Does not include protection that review starts even
if patient can’t submit fee on time. |
Standard for
determination ensures external reviewers make medical decisions based on sound medical
practice considering the patient’s individual medical decision. |
Yes. Allows
medical reviewers to consider all relevant and reliable medical evidence, as well as
expert opinion, and other findings, in light of the patient’s individual medical
circumstances to make a determination on the case. Does
not bind the reviewer to only “expert consensus” or “scientific/clinical
evidence” which does not exist, particularly for children or the disabled. Allows
reviewers the flexibility to modify a decision so patients can get appropriate care
quickly. |
Yes. Amendments
by McCain and Gramm clarified that reviewer cannot authorize benefits that are not covered
under the plan. Reid amendment clarified types of medical expertise needed to review
appeals decisions. |
No. Reviewer
only must base decision on the patient’s condition and scientific evidence. In areas
where such scientific studies have not or may not ever be done, it would be virtually
impossible to challenge a plan’s
decision (even if the HMO’s decision itself wasn’t based in science); the HMO
would always win. Reviewers can modify plan’s decision, leaving patients in an
endless loop of appeals to get the right care. In making determination, reviewer may be
bound by the plan’s policies, undermining the independence of the review. Does not allow for appeal of denials based on
terms that are substantially equivalent to “medically necessary” so clever HMO
lawyers could keep people out of review by denying care using different terms (i.e.,
reasonable and necessary). |
Ensures
decisions are made as quickly as patient’s medical condition requires. |
Yes. |
Yes. |
No. Problems
similar to Breaux-Frist: no protections to have case reviewed according to medical
exigencies and no protections against plan terminating treatment before patient can
appeal. |
Holds the plan
accountable for medical decisions that cause injury or death. |
Yes. Decisions
involving medical judgment that result in injury or death heard in state court. |
Yes. Bond amendment limits the application of the
liability provisions if the GAO finds that the number of uninsured has increased more than
one million as a result of the liability provisions. |
No. Similar problems to Breaux-Frist: narrow and
inadequate federal remedy displaces state law; federal remedy only available in limited
circumstances where the reviewer decided in the patient’s favor. Cause of action is
only against the designated decision-maker. Ability of designated decision-maker to
“allocate responsibility” along with lack of protections to ensure ultimate
accountability leaves loopholes that would leave consumers with no remedy. |
Holds the plan
accountable for violations of rights and duties that cause injury or death (not involving
medical judgment). |
Yes. Provides remedy in ERISA (federal court) for
non-medical-related plan actions that injure or kill. |
Snowe amendment
exempts self-insured, self-administered plans from liability under the bill for the
performance of non-medical duties or violations of the plan’s requirements. Snowe amendment also removed all federal liability
for injuries caused by a failure to comply with the terms and conditions of a plan. |
Limited cause
of action under ERISA, non-economic damages capped at $500,000. |
Preserves
existing right for legal accountability in state courts. |
Yes. Preserves
current law cases against plans for direct, vicarious, and corporate liability and quality
of care. |
Yes. |
No. Replaces existing state law accountability for
injuries that are “based on or otherwise relate to” a health plan’s
administration of benefits with a narrow and inadequate federal remedy. Further constraints on state law accountability,
providing that injured patients can only get redress in cases where the external reviewer
has sided in their favor and the plan has failed to comply. |
Protects
employers |
Yes. Employers
not liable unless they directly participate in decision that causes injury or death.
Clarifies that actions like choosing a health plan or choosing which benefits to cover are
not “direct participation.” |
Yes, includes
“direct participation” protection for employers but Snowe amendment also added
additional protections for employers allowing them to transfer all liability to a
designated decision-maker who shall assume all liability. Exempts self-insured,
self-administered employer plans from all federal liability.
Protects
individual members of employer plan boards from individual liability. |
Allows
employers to designate a party to assume their liability, but loopholes could leave no
party liable at all. No protection against
designated decision-maker asserting decision was made by another party to escape
liability. Ability to allocate responsibility to different designated decisionmakers
create complex legal web that will obfuscate ability to locate any responsible party. |
Exhaustion
required |
Yes, unless
patient is already killed or irreparably harmed and thus the appeals process could provide
no relief. Either party can still request review. |
Yes. Thompson
amendment further raised the bar for exhaustion by requiring exhaustion unless patient is
seeking injunctive relief, requiring the court to admit as evidence and consider any
external review decision. |
Patient must
not only exhaust all administrative remedies but also have affirmative review decision in
order to proceed to court. |
Restrictions on
damages, attorneys’ fees |
Does not
disturb state laws relating to awards. All state law limits continue to apply. No punitive damages in federal court, $5 million
civil penalty for egregious action. |
Thompson
amendment added clarification that any cause of action shall be governed by the law
(including choice of law rules) of the state in which the plaintiff resides. Warner
amendment limiting attorneys’ fees also included. |
Similar to
Breaux-Frist. Caps awards for damages in federal courts at $500,000 and includes joint and
several liability restrictions. |
Class Actions |
Preserves all
existing legal class action and RICO rights. Limits
class actions based on the new rights granted under the bill. |
DeWine
amendment prospectively limits class action litigation to one plan or plan sponsor. |
Prospectively
and retrospectively bans class actions across health plans and prospectively and
retrospectively bans RICO suits. |
Access to
nearest emergency room in an emergency according to prudent layperson standard |
Yes. Follows Medicare guidelines for maintenance and
post-stabilization care. |
Yes. |
No. Lesser
protections for neo-natal care. |
Point of
Service Option |
Yes. |
Yes. |
Would not
protect individuals working for small businesses. |
Direct Access
to Ob-gyn care |
Yes. |
Yes. |
No. Requires
ob-gyn to seek prior authorization, except for routine care, which includes annual,
prenatal, and perinatal care. Protections do not apply if patient is permitted to choose
an ob-gyn as her primary care provider, but fails to do so. |
Direct Access
to Pediatricians |
Yes. |
Yes. |
Yes. |
Access to
specialty care |
Yes. |
Yes. |
No. Only
requires timely “coverage” of such care. Plan determines whether a specialist is
available for you, and controls whether patient gets out of network care if network care
is inadequate. Omits those with
“potentially disabling” conditions and narrow definition would exclude many
needy patients from having a specialist coordinate care. No assurance that pediatric
specialists would be available or that patients would have access to specialty care
facilities (e.g., children’s hospitals, cancer centers). No standing referral requirement. |
Continuity of
Care |
Yes. |
Yes. |
No. Omits those
with “potentially disabling” conditions and uses limited definition of
“serious and complex condition” which would exclude many patients in need of a
transition period. Creates strict deadline
for transitional period, with no flexibility in cases where reasonable follow-up care
needed. |
Bans gag
clauses |
Yes. |
Yes. |
Unclear whether
it protects patients against gag clauses in subcontracts.
|
Access to
needed drugs |
Yes. |
Yes. |
No. Fails to
protect patients from additional cost sharing for medically necessary off-formulary drugs. |
Access to
clinical trials |
Yes. |
Yes. Reid
amendment made technical changes to ensure access to National Cancer Institute trials. |
Access to FDA
approved trials limited only to cancer patients; excludes patients with other serious
diseases (e.g., Alzheimer’s, Parkinson’s). |
Prohibits
payments to encourage doctors to deny care |
Yes |
Yes. |
No. Plans can
offer doctors bonuses for limiting number of referrals and tests they recommend. Bill only includes a study on the matter. |
Protects
healthcare providers who advocate for patients or report quality of care problems.
|
Yes |
Yes. |
No. Plans are
not prohibited from retaliating against health care providers who challenge the
plan’s health care decisions or report quality problems. |
Breast cancer
treatment |
Yes. Inpatient coverage as determined medically
necessary by the treating physician. Requires notification of rights and allows for second
opinion. |
Yes. |
No. |
Prompt payment
of providers |
Yes. |
Yes. |
No. |
Non-discrimination
of providers based on licensure |
Yes. |
Yes. |
Yes. |
Provides
patients with access to information about health plan |
Yes. Plans must
also provide 30 days advance notice of changes in benefits. |
Hutchinson
amendment added requirement that individuals be provided information on disenrollment. |
Yes, but does
not require plan do disclose excluded benefits. Plans are not required to provide any
advance notice of a reduction in benefits. Plans are not required to disclose any
information about physician compensation that the plan deems to be “proprietary
payment methodology.” Plans permitted to disseminate information electronically
unless the individual opts out, regardless of whether individual has access to computer. |
Genetic
information |
No. |
Ensign
amendment provides some protections against genetic discrimination by health plans. |
No. |
Protection for
infants who are born alive |
No. |
Santorum
amendment defined clarified existing law that a child is any individual birthed that has a
heart beat or movement at the moment it is birthed. |
No. |
Ombudsman
program for consumer assistance |
No. |
Yes, Reid
amendment included a provision establishing an ombudsman program for consumer assistance
with health insurance questions. |
No. |
Creates a floor
of strong protections |
Yes. |
Yes. Breaux
amendment clarified the treatment of state laws that are “substantially
compliant” with the federal floor, and requires the Secretary give deference to state
interpretations of their own laws and whether the state law complies with the federal
standards. States may enter into agreements with the Secretary to enforce the requirements
of the bill. |
No. Preempts
state external and internal appeals rules that currently apply to issuers offering
coverage for group plans. “Reasonable basis” and “substantial
equivalent” standard, coupled with deference to states in court, makes it difficult
for the Secretary to disapprove state certification, even if the protections are meager.
Could result in regulatory confusion with the federal government enforcing state
provisions. |
Protects all
Americans with private health insurance |
Yes. |
Yes. |
No. Does not
protect state and local government workers.
|
Application to
federal health programs |
Applies to
FEHBP. Similar protections were extended to Medicare, Medicaid, FEHBP, DOD, and VA by the
Clinton Administration. |
Nickles
amendment applied protections to federal health programs.
|
No. |
Incentives for
group purchasing pools |
Yes. Incentives
to allow formation of group purchasing arrangements that provide high quality coverage for
employers through grant programs and allowing donations by foundations to establish such
groups. |
No. |
No. Allows
creation of Association Health Plans (AHPs) that undermine state patient protection laws
and cherry-pick healthy individuals. |
Medical Savings
Accounts |
Limited
expansion of MSAs: increases the number of individuals who may purchase these policies to
1 million. |
No. |
Yes. Full
expansion of Archer MSAs. Allows additional individuals to purchase these policies, raises
the amount that can be contributed, reduces the deductible. |
Tax incentives
for purchase of insurance |
Tax credit to
small employers who offer coverage for the first time to workers through group purchasing
arrangements. Also speeds up the 1005
deductibility of health insurance costs for self-employed. |
No. |
No. |
