Patient Bill of Rights

By Lee Fisher

The Patient Bill of Rights will allow more choice to choose your own doctor, holds HMOs responsible for negligent decisions to delay or deny health care and places increase emphasis on quality.

Across Ohio and across America, the family doctor is being replaced by the managed care administrator.

Until the mid-1980s, the vast majority of Americans obtained their health insurance on a traditional fee-for-service basis. By 1996, more than 160 million Americans - about 57 percent of the U.S. population - obtained health coverage through some form of managed care. Since 1987 the percentage of Americans with employer-provided health care that had managed care rose from 13% to 75%.

And an increasing number of families don't like it.

Eighty percent of consumers say that insurance plans often compromise the quality of care to save money. Stories abound of care that was wrongfully denied, of patients who have suffered or died as a result of negligence, and of families that have been hurt because a managed care organization refused to provide the medical care recommended by the treating physician.

There is a deeply-rooted sentiment in our state and in our nation, that health care decisions are being made by managed care organizations and insurance companies instead of by patients and doctors. That's why ninety percent of Americans believe that patients need additional protections from these health plans that put cost before quality.

Lee Fisher and Michael Coleman have listened to and have lived this experience. Lee Fisher and Michael Coleman believe that patients and doctors -- not administrators -- should make patient treatment decisions. Managed care can be a powerful and legitimate tool for reducing health costs, but it will never be an acceptable option for consumers unless we work to guarantee all patients that they will receive the kind of care they need and expect.

Patients have serious concerns and complaints about the care they receive from managed care organizations. All too often, decisions to deny care are made without sufficient accountability, and, in most cases, without an independent avenue for reviewing and/or overturning the managed care organization's decision. Patients' choice of doctor, particularly when they are seriously or chronically ill, has also been compromised by managed care. And the increasingly complicated and competitive managed care marketplace makes it more difficult than ever for patients to make informed, intelligent decisions about their own health.

That's why Lee Fisher and Michael Coleman will fight for an Ohio Patients' Bill-of-Rights to ensure that every Ohioan has the following protections under managed care:

1. Right to Choose Your Doctor or Specialist.

A strong and trusting patient-doctor relationship is an essential element of quality care. Managed care has weakened this longstanding and vital bond because all too often, the patient can't pick the doctor, and the doctor can't pick the patient. In fact, 42 million Americans are currently in managed care plans that require them to use participating physicians. Managed care organizations should honor the patient's choice, especially where a patient is willing to pay more for greater choice, or where the additional choice will not cost extra.

A. Expanding Patients' Choice of Doctors Through Point-of-Service Options. Some managed care organizations, but not all, offer their customers a Point-of -Service (POS) option. A POS option allows the patient to go outside the managed care organization's network of providers. The POS option typically will cover treatment from any provider the customer chooses, as long as the patient pays a percentage of the fees, which generally range from 20% to 50%.

The POS option gives consumers a greater choice of physician and better access to specialists, while maintaining many of the cost containment features of a managed care organization. Because nearly half of all employers, and most small and mid-size employers, do not give their workers a choice of health care coverage, a POS requirement would give employees who now have access only to restrictive plans important additional choices. Lee Fisher will expand access to provider choice by:

• Requiring A POS Option: Lee Fisher will require managed care organizations to offer Point of Service (POS) options to all groups and individuals.

• Requiring Reasonable Fees Based On Real Costs: Lee Fisher will require that the extra fees required of the patient be based on the actual additional cost to the health plan. Where there is no additional cost incurred by the health insurer, the POS option will be without charge.

B. Right To Designate Specialist As Primary Provider: Many patients have conditions that require them to regularly consult with a specialist other than their general physician. Yet some plans require patients to "jump through one more hoop" by returning to their general physician before receiving a referral to a different specialist.

• Requiring Option Of Direct Referrals from Specialists: Lee Fisher will require managed care organizations to develop policies to allow patients to designate a specialist with whom they consult regularly to also serve as their medical care gatekeeper for the purpose of making appropriate referrals.

C. Access to Qualified Specialists for Women's Health Services. A woman's overall health is often related to her reproductive health. Further, the intimate problems that may require the services of an ob/gyn make the right to choose an ob/gyn specialist an important measure of quality care for women. The managed care organization "gatekeeper" approach, in which a patient must obtain a referral from her primary care physician each time she sees a specialist, including an ob/gyn, can be inconvenient and inefficient for women who wish to have regular and direct access to their ob/gyn.

• Requiring Direct Access For Women: Lee Fisher will ensure that women can choose a qualified reproductive specialist as her primary care provider -- such as an obstetrician/gynecologist - and to permit self-referrals where appropriate. If the ob/gyn or other specialist is not designated as the primary care physician, the managed care organization would be required to allow direct self-referral to an ob/gyn for an annual exam, maternity care, and treatment for acute gynecological conditions in most instances.

D. Access to Specialists Outside the Network. Patients with complex, serious and unique medical conditions are often unable to locate specialists with expertise in treating their condition within the managed care plan network. This means that the patient must accept treatment from network providers that may not be qualified to serve their unique needs.

• Lee Fisher will require that managed care organizations develop procedures for exceptional referrals to specialists outside the network in cases where there is no doctor in the network with sufficient expertise to treat the patient.

• Lee Fisher will require that patients be permitted to continue with their current patient-doctor relationship (even if the current doctor is not a member of the new plan) for specified periods of time appropriate to their continuing conditions.

In reviewing whether a certain test or treatment is necessary, managed care organizations are making "medical decisions" that directly affect the care and well-being of the patient. Since these decisions are "medical," they should be based on medicine -- by licensed and qualified health care professionals. Lee Fisher will guarantee:

• Insurance Companies Should Not Practice Medicine. Lee Fisher will require that medical directors for managed care plans doing business in the state be licensed to practice medicine.

• Informed Decisions by Informed Doctors. Ohio law requires that "qualified providers" oversee the process for reviewing the medical necessity of treatment, but we must do more to ensure that denials of care are made based on informed and intelligent medical decisions. Lee Fisher will require that the ultimate decision by a managed care plan to deny care be made by a licensed health care professional certified in the specialty in question, based on full review of the patient's medical records, and, in cases of life threatening conditions, actual examination of the patient.

We must put patients before profits. Lee Fisher will protect patients by making managed care organizations accountable and by holding them responsible for their decisions.

• Accountability For Inadequate Care: Lee Fisher will fight for a law similar to Texas' to protect Ohioans by requiring managed care organizations to exercise adequate care when making decisions to approve or deny health care tests and treatments, and to hold them civilly responsible if they do not exercise adequate care and negligently cause harm to a patient. It is time we held managed care organizations accountable for the harm they cause from improper denials of care.

The companies argue that they do not deny care or directly provide the care, but merely make a coverage determination of what they should pay for under the particular health plan.

But if a bureaucrat from a managed care organization makes a decision to deny a claim for services, and that decision is negligent and results in harm to the patient, fundamental fairness requires that the managed care plan be legally responsible, just as a doctor would be if he made the same decision. The same is true if a managed care organization exercises influence or control -- either as an employer or through contractual restrictions -- over a doctor's decision regarding patient care. A denial of coverage can mean a denial of care.

The costs of negligence are astronomical. Negligent medical decision-making can threaten patients' lives or jeopardize their health. It can also be very expensive. A Harvard School of Public Health study found that the health care system wastes $60 billion annually to care for injuries attributable to undeterred medical negligence.

Yet the price of accountability is minimal. In Texas, legislators recently passed legislation permitting managed care organizations to be held responsible for failure to exercise adequate care. A study by Milliman and Robertson (December 1997) has projected an average premium increase of only 34 cents per month.

For 34 cents a month, we can protect Ohioans and avoid unnecessary injuries. That's a small price to pay to give Ohioans the right to reasonable care and accountability from managed care organizations.

4. Right to a Timely and Impartial Appeal.

In Ohio today, unless you have a terminal illness and want an experimental treatment, the only place you can appeal a managed care organization's decision to deny care is the managed care organization itself.

Ohioans shouldn't have to appeal a decision to deny care by appealing to the very same organization that already denied them. And in urgent cases, they shouldn't have to wait until their condition worsens.

Currently, Ohio law only provides an independent appeal process in certain cases involving the terminally ill. It's outrageous that Ohioans are literally dying for an appeal. Ohio is lagging behind the rest of the nation.

At least twelve states now provide an independent appeal procedure so patients can have an impartial judgment on whether a denial of care is appropriate. Many more states are seriously considering such a protection. Lee Fisher will guarantee that Ohioans have a:

• Right To An Independent Appeal With An Independent Arbitrator: Lee Fisher will expand eligibility for patients to appeal denials of care to include appeals of any non-elective procedure recommended by their physician but denied by their managed care organization. The decisions will be based upon appropriate pre-determined guidelines and will be binding on health insurers. Appeals will use the current system enacted by HB 361. By using the existing independent appeals process, the Fisher Patients' Bill of Rights guarantees appeal rights without any new bureaucracy.

• Right To A Timely Appeal: Similar to federal proposals, urgent cases must be responded to within 72 hours, and within 60 days for all other cases.

Ohioans should have the right to control their own decisions about health care. But without accurate information and without knowledge of secret agreements, patients can't make good choices. An informed health care consumer will make better, healthier choices. It's time to guarantee every patient's Right to Know.

Today's increasingly complicated and competitive health care market place makes it difficult for consumers to make decisions about their health care coverage options. Once in a health plan, consumers can be faced with a dizzying array of health plan rules and policies regarding covered services, referrals for specialists, and review of "medically necessary" services. Lee Fisher is committed to giving the information and the assistance to guide patients through this complex process, and giving them the information -- and the power -- to make the most of their rights.

Lee Fisher and Michael Coleman will:

• Require Right To Know In Plain Language Of Referral Policies: Ohio will provide that written policies and procedures regarding a managed care organization's process for authorizing referrals for unique medical needs be made available to patients in plain language.

• Require Right To Know Of Payment Methods: Managed care organizations and providers will be required to disclose payment methods for providers, including incentives and disincentives to reduce or deny care, so that patients can be fully informed when choosing a managed care organization and in weighing the advice and decision-making of the provider.

• Require Right To Know In Plain Language Of Denial Policies: Managed care organizations must provide written disclosure, in plain language, of criteria used to deny care.

• Require Right To Know Of Timely Notification of Denials of Care or Termination: Lee Fisher will require that patients be notified directly within 72 hours of a decision to deny them care. A written notification must be mailed within five days. Furthermore, managed care organizations must notify enrollees prior to a termination or limitation of health care services.

The rights provided for consumers will only be effective if patients and enrollees are aware of their rights and know how to exercise them. That's why Lee Fisher will:

• Establish a Patient Advocate in the Ohio Department of Health to aid managed care patients in knowing and enforcing their rights.

• Create A Toll-Free Consumer Hotline: The Patient Advocate will establish a toll free consumer hotline so families can seek advice, register complaints regarding managed care organization actions, and obtain information on managed care plans; provide consumer education and training to help patients make informed choices of health plans, understand their rights under Ohio law and pursue consumer complaints and grievances.

• Create Managed Care Report Cards: The Patient Advocate will develop and coordinate Managed Care Report Cards to enable patients to make better decisions about choosing a health care plan.

It isn't enough just to pass a law to protect patients' rights. That law has to be enforced. A recent study in New York determined that managed care organizations were disregarding the requirements of a new state managed care bill of rights law as much as 83% of the time.

As Attorney General, Lee Fisher established a proven record of protecting consumers. As Governor, Lee Fisher will vigorously enforce the rights of Ohio patients, so that managed care organizations abide by the law and Ohioans get the care they deserve.

It's time for managed care to live up to its promise of delivering quality care at a reasonable price. Lee Fisher and Michael Coleman care about the rights of Ohioans and giving them more choice and opportunities to control their lives - especially their own health. That's why they will fight for an Ohio Patients' Bill Of Rights -- because Ohioans have a right to health care by doctors, not insurance companies.