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Nearly two years ago, the President announced he would establish a
non-partisan Quality Commission to make recommendations on how best to
assure patient protections and quality health care. When he appointed this
Commission, he directed that it develop a patients' bill of rights as its
first order of business. Since last November, the President has been
calling on the Congress to pass a strong, enforceable patients' bill of
rights. It was not until last week that the Republican Leadership finally
introduced long-overdue legislation on this issue.
The Administration believes that the Republican Leadership's introduction
of H.R. 4250 clearly demonstrates that there is broad-based consensus on
the need for Federal legislation to ensure that Americans have patient
protections. The President is committed to working with the Congress to
pass an enforceable patients' bill of rights this year.
Unfortunately, H.R. 4250 is seriously flawed legislation. It covers too few
people, it provides too few patient protections, and it contains
unnecessary and irrelevant provisions that undermine the chances for a
bipartisan agreement on a patients' bill of rights. As such, the
Administration strongly opposes H.R. 4250, as currently drafted, and the
President's senior advisors would recommend that he veto this bill if it
were presented to him by the Congress.
First, H.R. 4250 does not apply to the individual insurance market and
therefore millions of Americans would not be assured these patient
protections. The President has repeatedly stated that every health plan
should have to provide its enrollees with a patients' bill of rights.
Second, this legislation does not provide many critical provisions that are
necessary to assure high quality care. The following protections are
either absent from this legislation or are insufficient:
- Access to specialists. H.R. 4250 does not assure persons
with chronic or serious conditions direct access to specialists.
Moreover, there is no requirement that a plan cover a specialist that
is not in the network if the network does not have sufficient
providers to treat the condition. As such, patients would not be
assured access to needed specialists to treat, for example, cancer or
heart conditions.
- Continuity of care protections. H.R. 4250 does not include
a requirement that a patient's care will not abruptly change if their
provider is unexpectedly dropped from a health plan or if their
employer changes health plans. This provision is essential for
patients -- such as pregnant women or the chronically ill -- whose
care will be seriously undermined by an abrupt change.
- Financial incentives for doctors. This legislation does
not contain sufficient provisions that prevent patients from being put
at risk through unknown destructive financial incentives to limit
patient care.
- Emergency room services. The emergency room services
provision is insufficient, as it does not prohibit plans from limiting
access to an emergency room that is outside the plan's network.
Moreover, it does not address coverage of post-stabilization care,
which puts patients at risk for huge costs for needed treatment that a
doctor believes should take place in the facility in which they were
initially admitted.
- Gag Rules. H.R. 4250 only prohibits gags on physicians in
direct contract with a plan. The majority of doctors, however,
contract with plans through medical groups, third party
administrators, or other arrangements. Therefore, there are no
prohibitions of gag rules for most contracts.
- External appeals. We are extremely concerned that the
external appeals in H.R. 4250 are only advisory -- not binding. The
right to an appeal is meaningless if health plans can disregard these
decisions. Moreover, patients would be required to pay a fee to
participate in an appeals process, up to $100. Consumers should be
able to address serious grievances without having to pay. In addition,
the plan would be allowed to develop its own definition of medical
necessity making it extremely difficult for an enrollee to prevail on
appeal.
- Insufficient enforcement provision. The enforcement
mechanism in this legislation is insufficient as it gives little or no
recourse to patients who are injured or who die because of a health
plan's actions. The proposed $250 per day penalties are wholly
insufficient for patients who suffer serious harm or even death
because of a wrongful action by a health plan.
Third, H.R. 4250 contains provisions that have nothing to do with patients'
rights and only serve to reduce the likelihood that an acceptable agreement
can be reached on this important issue. Recognizing our concerns with
these provisions, the Congress agreed as recently as last year to keep them
off bipartisan legislation -- specifically, the Balanced Budget Act of
1997. These provisions include:
- Caps on medical malpractice awards and limits on malpractice
actions. While the Administration has consistently supported
medical malpractice reforms, it opposes federally imposed caps on
punitive and non-economic damages in medical malpractice cases.
- Expansion of Medical Savings Accounts (MSAs). H.R. 4250
would subvert the MSA demonstration project enacted in the Health
Insurance Portability and Accountability Act of 1996. Under H.R.
4250, the MSA tax break may accrue only to the healthiest and
wealthiest individuals and attract them out of the general health
insurance market, potentially raising premiums for all other people.
There is no evidence that the claimed cost containment benefit of MSAs
outweighs the cost of providing a tax break primarily for healthy and
higher-income individuals.
- Association Health Plans (AHPs). H.R. 4250 would create a
new insurance option for small groups and individuals that would
exempt them from many existing State safeguards in such areas as
solvency, marketing, underwriting, rating practices, benefits, and
consumer protections. Under current law, States regulate the small
group and individual markets, thereby helping to make coverage
affordable. H.R. 4250 would permit AHPs to discriminate by
cherry-picking healthier groups and individuals. Those remaining in
the State's insurance pool would face higher premiums, leading to
higher levels of uninsurance and undermining the stability of the
State insurance pool.
For these reasons, the President agrees with provider organizations, such
as the American Medical Association and the American Nurses Association,
and virtually every major consumer organization that H.R. 4250 is
insufficient and does not provide patients with the protections they need
and deserve. While we have serious concerns with H.R. 4250, the President
remains committed to passing a strong, enforceable and bipartisan patients'
bill of rights this year. The bipartisan substitute legislation offered by
Mr. Dingell and Dr. Ganske covers all health plans, contains strong
enforceable patient protections, and has no "poison pill" provisions that
have nothing to do with these patient protections. As such, the President
would sign H.R. 3605 into law. It is the President's hope that Republicans
and Democrats can work across party lines to put progress ahead of
partisanship and pass legislation that provides Americans with the
patients' protections they need and deserve.
Pay-As-You-Go Scoring
H.R. 4250 would affect both direct spending and receipts; therefore, it is
subject to the pay-as-you-go requirement of the Omnibus Budget
Reconciliation Act of 1990. OMB's preliminary scoring estimate of the bill
is under development.
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