The House Committee on Energy and Commerce Democrats

COMPARISON CHART
(Prepared by the House Ways and Means Committee Staff)

ISSUE	HR 358, PBOR	HR 2723, NORWOOD/DINGELL CONSENSUS BILL	HR 2824, COBURN/SHADEGG BILL	HR 2926 , BOEHNER BILL
SCOPE	Covers all ERISA plans, insured plans, and individual plans.	Same	Same	Covers all ERISA plans (both self and fully insured). The emergency care provisions may extend to the individual market, but none of the rest of the provisions apply to that sector. The point-of-service provision does not apply to self-insured plans or the individual market. The new civil monetary penalties only apply to ERISA plans.
UR	Plans must have a written policy. UR administered by appropriately qualified health care professionals. Plans must have a sample of adverse decisions peer reviewed for appropriateness. Prohibits contingent compensation. 3 business days for initial determination, 1 business day for ongoing care, 30 calendar days for retrospective review. All deadlines are based on the receipt of all "reasonably necessary" information.	Must have a written policy. Review conducted by qualified health care professionals. Prohibits contingent compensation. 14 days for initial determination, one 14 day extension is available under defined circumstances, ongoing care decided before the benefit is terminated or reduced, there is an expedited determination within 72 hours. Retrospective review must be completed within 30 days after collection of the necessary information, but in no case more than 60 days from the date of filing the claim. All deadlines are based on the receipt of the request.	UR program must be administered by "appropriate physician specialists." Prohibits contingent competition. ................ Same as HR 2723, except that the timeframe for an expedited determination is 48 hours.	If the case involves medical necessity or a decision about whether care is experimental, it must be conducted by a physician. Initial decisions must be made within 30 days (or such timeline as the Secretary shall prescribe) of the receipt of all necessary information to make a determination of coverage. In the case of an "accelerated need decision," the timeline is 3 days (or such timeline as may be prescribed by the Secretary). These timelines are not based on the medical exigencies of the case.
INTERNAL APPEALS	Plan must establish an internal appeals process that allows patients to appeal to a health care professional not involved in the initial determination. 30 calendar days for decision with a 10 business day extension possible under defined circumstances. There is a 72 hour maximum timeframe for expedited decisions.Decision of whether a case is expedited is based on physician certification. Deadlines are based on the receipt of information. ........... All decisions must be made in accordance with the medical exigencies of the case. Failure to meet timelines results in case being eligible for external review.	Plans must allow patients at least 180 days to make such an appeal. If the decision involves medical judgement, it must be made by a physician. ........................... 14 days for internal appeal with a 14 day extension possible under defined circumstances. Expedited process limited to 72 hours maximum. Decision of whether a case is expedited based on a treating physician certification or the plan or issuer. Deadlines are based on the receipt of the request. ................... Same. ............................../........... Same.	Same as HR 2723. .................... Same as HR 2723, but the timeframe for expedited determination is 48 hours. ............ Same as HR 2723. Same. Same.	Enrollee must challenge the decision in writing within 90 days after receipt of the notice of the initial decision. The internal review must then be completed within 30 days (or such timeline as the Secretary shall prescribe). ..... Deadlines are based on the time at which the appropriate fiduciary is in possession of all necessary information to make a determination on the case. Decision timeframes are not bound by medical exigencies of the case. Same, but plan can delay indefinitely by asking for more information.
EXTERNAL APPEALS	Enrollee may file an appeal if the case involves a claim which meets a significant financial threshold or if the enrollee's life or health is jeopardized. ...... Rules for external appeal entity structure are controlled by DOL for ERISA plans and states for insured plans (with HHS as back up). No provision. ........................ Review is fair and de novo. Appeal is binding on the plan. Appeal must be completed in 60 days or 72 hours maximum based on the medical exigencies of the case for expedited appeals. No provision. No provision.	External appealable decisions are those based on questions of medical necessity or experimental treatment or in cases where coverage of a particular benefit is based on medical judgement. ..................... Same. Plans are allowed to charge a filing fee not to exceed $25, which can be refundable if the patient wins the appeal. There is also an exception for people who are indigent. Same. Same. .......................................... External appeal timeline is 21 days after the date of the request for appeal, or 72 hours for expedited appeals based on medical exigencies of case. Private accrediting organizations can approve the external appeal entities based on a decision by the state or the appropriate Secretary. No provision.	External appealable decisions must meet a $100 threshold and the denial must be for one of the following three reasons: medical necessity, that a treatment is experimental, or where coverage of a particular benefit is based on medical judgement. Same. Same as HR 2723, but there is no exception for people who are indigent. Same. .......................................... Same. .......................................... 21 day time frame, except in expedited cases it is 48 hours. ...... Same as HR 2723, except it allows the external appeal entity to elect to be certified by the private accrediting organizations. ALTERNATIVE TO APPEALS: Permits plans and enrollees to voluntarily enter into alternative dispute procedures in lieu of the entire appeals procedure. Timelines must be in accordance with the medical exigencies of the case.	nrollee must challenge the internal decision in writing within 30 days of the review decision. The case must involve a question of medical necessity or experimental treatment or an "independent contract expert" (probably a lawyer) must find that the case requires the evaluation of medical facts by a health professional. Plans may choose among multiple methods for selecting experts. DOL establishes standards, but does not certify entities. Plans are allowed to charge a fee which is the greater of: the lesser of $100 or 10% of the cost of medical care, or $25. There is an exception for Medicaid and CHIP enrollees. ................................ Reviewers are bound by plan definitions of "medically necessary" and "experimental." Enrollees have no right to submit evidence. Same. ..................................... The case is first reviewed by an "independent contract expert" to discover if it requires an evaluation of the medical facts or evidence by a health professional. If it is determined that it does not, the internal decision of the plan stands. This must be completed within 25 days (or such timeline as the Secretary may prescribe). If it does need such evaluation, the case moves to a reconsideration which is conducted by one or more medical experts and must be completed within those 25 days or 3 days of the receipt of all reasonably required information if it is an accelerated need review. No requirement for private accreditation, but it is an option. Similar to HR 2824, but, there are no prescribed timelines in this process.
GRIEVANCE SYSTEM	Plan must have an internal system to resolve grievances from patients and providers. (These are non-medical problems with the plan)	Same	Same, except that grievances must be resolved in 60 days.	No provision.
MEDICAL NECESSITY	Plans must follow a standardized definition of medical necessity that assures patients that decisions are made "consistent with generally accepted principles of medical practice."	No provision.	No provision.	No provision.
CIVIL MONETARY PENALTIES	No provision. No provision. No provision.	Private Right of Action: If a health plan does not follow the decision of the external appeal entity, the plan is liable to pay the patient a civil monetary penalty up to $1000 a day from the date of the determination until the benefit is provided and to pay the plaintiff's reasonable attorney's fees. Secretarial Authority: The Secretary can also issue additional civil monetary penalties ( the lesser of $500,000 or 25% of the aggregate value of the benefits not provided) against a plan or person in the plan for any pattern of practice of repeated violations of external review requirements or refusal to authorize benefits approved by external appeal entities. .,........ These civil monetary penalties apply to all covered individuals.	Same as HR 2723. No provision. These civil monetary penalties apply to all covered individuals.	Private Right of Action: Same as HR 2723 except that an additional fine of $5000 a day that can be levied by the courts if it is found "by clear and convincing evidence" that the action was willful and in bad faith. Secretarial Authority: The secretary can also issue additional civil monetary penalties (the lesser of 5% of the value of benefits denied or $100,000) against a plan or person in the plan for any pattern of practice shown by "clear and convincing evidence" of repeated violations of the bill, repeated violations of external review requirements, or refusal to authorize benefits approved by external appeal entities. These civil monetary penalties only apply to ERISA plans.
POS OPTION	All health plans must offer a POS option unless a person has a choice of two or more plans.	A POS option must be available to everyone. So, if patients are only offered one closed panel health plan, the plan must offer a POS option.	Same as HR 2723.	All HMOs who offer closed panel networks, must make available to group health plans an option that provides coverage of non-network providers. If the group health plan chooses not to make this option available to its enrollees, the HMO must then offer a supplemental policy in the individual insurance market that enrollees can purchase that covers the exact same benefits as the base policy, but allows them to obtain services from providers not within the network. This requirement is not applicable if the employer offers a source of coverage that is not through a closed panel or if the coverage is offered through a HealthMart, nor do they apply if the health insurance issuer covers less than 25,000 lives. There are additional exceptions that a state can grant which further limit the requirement to offer such an option. In addition, if an HMO can substantiate that the new POS option would increase premiums by more than 1%, they do not have to meet this requirement.
CHOICE OF PROVIDER	Patients can pick their own primary care provider within the plan. Patients can choose their own specialists as well, unless the plan informs patients of limits on that choice in advance.	Same as HR 358.	Same for primary care providers. However, unlike the other bills, the plan cannot limit access to specialists within the plan in any instance.	No provision.
EMERGENCY CARE	No prior authorization. Coverage based on prudent layperson standard, no extra charges for out-of-network care, requires coverage of maintenance and post-stabilization care following Medicare's rules.	Same.	Same basic provisions, but also requires coverage of ambulance services based on a prudent layperson standard. Also bases coverage of emergencies for newborns on a prudent medical professional standard.	Same as HR 2824 except that there is no requirement for coverage of post-stabilization services.
SPECIALITY CARE	Access to out-of-network specialists is required at no extra cost if there is no appropriate in network specialist. Specialist may serve as primary care provider to coordinate care for patient's ongoing special condition. Patients can get a standing referral to specialist if they have an ongoing special condition.	Same. Same. Same.	Same. Same. Same.	For group health plans, if an enrollee is requesting access to a specialist, the initial coverage decision must be within 3 days as in the accelerated need exception. No provision. No provision.
OB-GYN CARE	Women can choose an ob-gyn as their primary care providers. Women can obtain routine ob-gyn care "from a participating health care professional who specializes in obstetrics and gynecology" without prior authorization or referral.	No provision. Same.	No provision. Women can obtain routine ob-gyn care only from physicians. The physician could be a family doctor. The physician is not necessarily a specialist in ob-gyn care.	No provision. Women can obtain gynecological and obstetric care services from a participating health care professional licensed, accredited or certified under State law to provide ob-gyn services.
PEDIATRICIANS	Pediatrician can be selected as the primary care provider for a child.	Same.	Same.	Similar to HR 358.
CONTINUITY OF CARE	Continuity of care with provider for enrollees undergoing a course of treatment for up to 90 days when provider is no longer in network or the enrollee's plan is terminated. Special protections for enrollees who are pregnant, institutionalized, or terminally ill. Provider must agree to terms and not have quality/fraud problems.	Continuity of care for enrollees with an ongoing special condition for up to 90 days, except for enrollees awaiting surgery or organ transplant until discharge, pregnant women through postpartum care and the terminally ill until the end of life.	Same as HR 2723.	Continuity of care for enrollees scheduled to undergo surgery (including organ transplantation), undergoing treatment for pregnancy or terminally ill. These timelines extend until the patient is discharged after surgery, until the completion of postpartum care for the pregnancy, and for the remainder of an individual's life in the case of terminal illness (only for care related to that terminal illness). If a provider agrees to accept continued care for a patient they must do so for all such eligible patients.
ACCESS TO PRESCRIPTION DRUGS	Requires the participation of plan physicians and pharmacists in the development of any drug formulary. Disclosure of the use of such a formulary and advance notice of any chances. Exceptions from the formulary are allowed when medically indicated. Plan may not deny coverage of FDA-approved drug or device on basis that it is investigational Plan must have a program to monitor proper prescribing and use of drugs to protect enrollees from adverse drug reactions.	Same. No provision. No provision.	No provision. Same as HR 358. No provision.	No provision. Same as HR 358. No provision.
NETWORK ADEQUACY	Plan must include a sufficient number, distribution, and variety of qualified participating providers.	No provision.	Establishes a panel to develop standards to ensure network adequacy that must produce recommendations within two years. Any such recommendations would need to be enacted into law through the regular legislative process in order to become effective.	No provision.
CLINICAL TRIALS	Access to approved clinical trials for qualified individuals with serious or life-threatening illnesses that have no known effective treatment. Insurer must cover costs of routine care furnished in connection with approved clinical trial.	Same.	No provision.	Access to approved cancer clinical trials for qualified individuals with cancer. The insurer must cover the costs of routine care furnished in connection with the approved cancer clinical trial. The Secretary will also complete a study of this provision.
PATIENT INFORMATION	Plans must disclose information to all enrollees as specified (either up front or upon request) in a standard format. Potential enrollees may access this information upon request.	Similar.	Similar, but does not include information on: physician compensation, physician credentialing, non-english needs, medical loss ratios. It adds CTP & DRG codes.	Similar in content to HR 358, but only requires information to be disclosed as often as current ERISA laws require (once every 5 years).
ANTI-GAG	Protection against gag clauses.	Same.	Protection against gag clauses, with a loophole for "moral or religious grounds" that could "gag" freedom to communicate regarding family planning services.	Same as HR 2824.
PROVIDER ANTI-DISCRIMINATION	Health plans shall not discriminate against a provider with respect to participation or indemnification based solely on licensure or certification.	Same.	Same, with an additional provision that plans cannot prohibit a family practice physician with "appropriate expertise" from providing pediatric or obstetrical care.	No provision.
PROHIBITION OF IMPROPER INCENTIVE ARRANGEMENTS	Protection against improper incentive arrangements with physicians based on current Medicare rules.	Same.	Same.	No provision (except for payment of reviewers).
PROMPT PAYMENT	No provision.	Health plans must meet criteria established for prompt payment for covered benefits for patients consistent with Medicare standards.	Same as HR 2723.	No provision.
PROTECTIONS FOR PATIENT ADVOCACY	Protections for providers who advocate on behalf of their patients or who report quality of care problems.	Same as HR 358.	No provision.	No provision.
STATE PREEMPTION	Creates a federal floor for standards so that states can enact stronger protections or additional protections that don't interfere with implementation of this act.	Same.	Same, except that the definition of state leaves out Puerto Rico, the Virgin Islands, American Samoa, and Guam.	No change from current HIPAA law.
PLAN LIABILITY	Enrollee may access courts directly at any time without exhausting administrative remedies. Allows the injured party (or their estate) to hold an insurance company liable in state court for personal injury or wrongful death resulting from the insurance company, or plan's, action. Employers and plan sponsors are not liable unless the employer exercised discretionary authority to make a decision regarding the claim that results in injury or wrongful death. State law would apply regarding liability damages. No federal limitation on punitive damages	Similar to HR 358 with the following exceptions: If a case goes through external appeal and the plan abides by the external review entity's decision, the plan is not liable for punitive damages. The employer protections are more clearly defined than in HR 358.	Patient has access to Federal -- not state -- courts. Patient must go through internal and external appeals before any access to the courts is possible. ....................... In order for a patient to access the courts, a plan must fail to exercise "ordinary care" in making the incorrect determination regarding the particular item or service or fail to meet timeframes and that failure must have been the cause of personal injury or wrongful death. Employers must have "direct participation" in order to ever be found liable and that direct participation must be both alleged by the plaintiff and demonstrated to the court. Plan can contract with an external appeal entity to determine whether an applicable personal injury has occurred and whether the cause of the injury was the plan's. If the external appeal entity finds for the plan, the patient has no access to the courts. Non-economic damages are limited to the greater of $250,000 or 2 times economic losses. Punitive damages are prohibited except in instances where a plan fails to follow the advice of an external appeal entity and the patient proves by "clear and convincing evidence" that the conduct was "conscious, flagrant indifference" to the rights or safety of others and was the cause of the particular harm. These punitive damages are then limited to the greater of 2 times economic loss or $250,000 with a further small business limitation. The court does have the ability to grant greater punitive damages awards in cases of extreme egregious conduct. Binding arbitration (without defined deadlines) can be used if the individual chooses that route as an alternative to court or to internal or external review.	No provision.
PAPERWORK SIMPLIFICATION	No provision.	Establishes a panel to develop a standardized form for payment of claims. They would develop the form within two years and it would be used within five years of enactment.	Same as HR 2723.	No provision.
FFS EXCLUSION FROM CONSUMER PROTECTION PROVISIONS.	No provision.	Fee-for-service plans are not required to meet the consumer protection provisions of the legislation (sections 111-117)	Same as HR 2723. There may be an error because it doesn't include the network adequacy provision as being exempted from FFS.	No provision.
QUALITY ASSURANCE	Plans must have an internal quality assurance program and must collect and report standardized data on quality and outcomes.	No provision.	No provision.	No provision.
HEALTH CARE QUALITY ADVISORY BOARD	Establishes a board to provide information to Congress and the Administration relating to quality monitoring and improvement and to identify and disseminate measures of health care quality.	No provision.	No provision.	Establishes a Commission to study external review, information disclosure, patient satisfaction measures, and claims processing.
CONFIDENTIAL-ITY	Plans must have procedures in place for the protection of individually identifiable information, maintain records in a timely manner and assure access by individuals to their records.	No provision.	No patient protections. Instead, the bill protects providers from disclosing information relating to a serious adverse patient event in any state or federal administrative or civil proceeding.	No patient protections. Same as HR 2824.
HEALTH INSURANCE OMBUDSMAN	Ombudsmen would be established at the state level and would assist consumers in choosing health plans and assist and counsel enrollees with respect to grievances and appeals.	No provision.	No provision.	No provision.
BREAST CANCER TREATMENT	Plans may not restrict inpatient benefits to less than 48 hours following a mastectomy or 24 hours following a lymph node dissection, or require prior authorization for such hospitalization unless the attending physician and the patient agree otherwise.	No provision.	No provision.	No provision.
MEDICARE COMPETITIVE PRIICING DEMONSTRATION PROGRAM	No provision.	No provision.	Prohibits implementation of the demonstration program in Kansas City, KS/MO or AZ. Places a moratorium on the demonstration in any state until January 1, 2001. Requires an HHS study to Congress by June 30, 2000 explaining the different approaches possible for implementing the demonstration.	No provision.
ASSOCIATION HEALTH PLANS	No provision.	No provision.	No provision.	Allows associations to offer health insurance and to bypass a number of state laws relating to mandated benefits, solvency, and insurance regulation in favor of new federal regulation. In order to be a self-insured plan, there must be 1000 covered lives. Solvency standards would be developed by a new federal working group within 90 days of passage of the law. There would be a $5000 filing fee with the Secretary to cover costs of regulating these new entities.
HEALTH MARTS	No provision.	No provision.	No provision.	Individuals and small businesses (2-50 employees) could join into pools to purchase health insurance and bypass state mandated benefits. Any state law that precluded the health mart's existence would be preempted. HealthMarts would be regulated by HHS.
COMMUNITY HEALTH ORGANIZATIONS	No provision.	No provision.	No provision.	Would allow community health centers to sell health insurance without a state license to do so. In order to qualify, the community health organization would be required to receive a waiver from the federal government. The decision about granting a waiver must be made in 60 days and is available when state actions preclude licensure at the state level. It is good for 36 months. Centers would have to meet solvency requirements established by the Secretary. By December 2002, the Secretary would report to Congress about whether the program should continue.
INDIVIDUAL TAX DEDUCTIONS	No provision.	No provision.	No provision.	Individuals and families who pay more than 50% of their health insurance premiums would be able to deduct those costs on their federal taxes starting at a 25% deduction in 2002 and increasing to 100% by 2007. Premiums for long-term care insurance would be similarly deductible.
REFUNDABLE TAX CREDIT	No provision.	No provision.	No provision.	A refundable tax credit of up to $1000 for the individual, $1000 for a spouse, and $500 for each dependent -- with a limit of two dependents. An individual may apply to the Secretary for an advance payment of health insurance credit. Advance payments are made directly to the health care provider.
CAFETERIA PLANS AND FLEXIBLE SPENDING ARRANGEMENTS	No provision.	No provision.	No provision.	Would allow the annual carryover of unused funds of up to $500.
MEDICAL MALPRACTICE	No provision.	No provision.	No provision.	New federal malpractice laws for health care liability would preempt any state laws that provided for higher caps at the time of passage. State laws that provide lower caps would remain in place. $250,000 limit on non-economic damages. After passage, if a state passed a higher cap, it would be allowed to be enforced. The statute of limitations would be two years after an injury was discovered, but no later than five years after the injury occurred. Punitive damages are limited to the greater of $250,000 or 2 times the non-economic damages. Prohibits joint liability. Allows bifurcation of trial at either party's request. Punitive damages are prohibited in certain cases involving drugs or devices that had obtained FDA approval. Would prohibit a requirement for lump sum payment for awards over $50,000 -- the payer would have to be allowed the option of periodic payments over time. Also enacts limits on attorney's contingency fees.
MEDICAL SAVING ACCOUNTS	No provision.	No provision.	No provision.	Repeals the limitation on the number of MSAs and allows all employers to offer them. Increases the contribution level to be equal to the full deductible. Allows both employers and employees to contribute. Reduces the deductible under the catastrophic plan to $1000 for an individual and $2000 for a family.

Prepared by the Committee on Energy and Commerce
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