Patient Bill of Rights 2001.Building on last year's efforts by the 106th Congress, which saw the Norwood-Dingell bill pass the House of Representatives but get stalled in the Senate, Senators John McCain For McCain's grandfather and father, see John S. McCain, Sr. and John S. McCain, Jr., respectively John Sidney McCain III (born August 29, 1936 in Panama Canal Zone) is an American politician, war veteran, and currently the Republican Senior U.S. Senator from Arizona. (R-AZ) and Edward Kennedy (D-MA), joined a bipartisan group from both houses of Congress to introduce the Bipartisan Patient Protection Act of 2001. [1] This Act represents the latest attempt in Congress to address concerns about managed care problems that effect quality and access to care for individuals with private health insurance. The current proposal represents a growing consensus around a central set of issues. It also represents a compromise position on tort reform that many in Congress can accept, but is in conflict with the position of the new administration. Prior legislation passed the House of Representatives last year but was stopped in the Senate by a filibuster filibuster, term used to designate obstructionist tactics in legislative assemblies. It has particular reference to the U.S. Senate, where the tradition of unlimited debate is very strong. It was not until 1917 that the Senate provided for cloture (i.e. over the tort reform issue. In addition, last year's Senate proposal was significantly different from that in the House. It remains to be seen what the final outcome of this debate will be. Protecting states' rights states' rights, in U.S. history, doctrine based on the Tenth Amendment to the Constitution, which states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. A central component of the Patient Protection Act is to preserve the right of states to maintain or develop their own strong patient protections. This has been an important issue for states since many already have laws that address patient protections and some have indicated they intend to do so. In some cases, they are more stringent than laws that could be passed on a national level and the states would prefer that their laws be preserved. The Patient Protection Act of 2001 allows each Governor to evaluate and certify that their laws meet or exceed the federal standard. The state would then petition the Secretary of the U.S. Department of Health and Human Services Noun 1. Department of Health and Human Services - the United States federal department that administers all federal programs dealing with health and welfare; created in 1979 Health and Human Services, HHS to evaluate their request. The Secretary has 90 days to approve or reject the petition. Tort reform The Employee Retirement Income Security Act The Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.A. § 1001 et seq. (1974), is a federal law that sets minimum standards for most voluntarily established Pension and health plans in private industry to provide protection for individuals enrolled in these plans. (ERISA See Employee Retirement Income Security Act. ERISA See Employee Retirement Income Security Act (ERISA). ) exempts self-insured plans from state regulation since they are regulated by federal law. Under ERISA, patients' ability to sue their managed care provider is limited by federal law. While an individual can sue their health plan under ERISA, recovery is limited to the denied benefit. Many advocates and legislators believe that individuals should be able to sue all health plans, including those covered under ERISA, for damages as well, especially when death or injury has occurred. The debate has been over the degree to which this will be allowed, whether state or federal caps for damages should prevail, and whether employers that self-insure would be at risk for lawsuits. The Patient Protection Act allows individuals to sue their health plan while limiting damages and prohibiting the individual from suing the employer, unless the it was directly involved in making a medical decision. This was a major sticking point sticking point n. A point, issue, or situation that causes or is likely to cause an impasse. Noun 1. sticking point - a point at which an impasse arises in progress toward an agreement or a goal in prior debate and is an important compromise designed to get the support of the business community. The proposal provides a federal cause of action for negligent plan administration that results in injury or death. It also caps the damages for cases tried in federal court at $5 million and bans punitive and exemplary damages exemplary damages n. often called punitive damages, these are damages requested and/or awarded in a lawsuit when the defendant's willful acts were malicious, violent, oppressive, fraudulent, wanton, or grossly reckless. at the federal level. The Act attempts to address employer concerns for a national standard for contract interpretations. The proposal does allow suits at the state level for medical decisions that result in injury or death. The states' limit on damages would be honored for medical malpractice Improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other health care professional. suits. Thirty-three states have limits on damage awards. The Act defines a uniform process for handling disputes. Disputes would first go through an internal and, if necessary, an external appeal process for adverse claim decisions before they go to court. It sets timeframes and criteria for these reviews and requires the external appeals to be done by independent experts using current scientific knowledge. The decision of the external reviewer would be binding on the health plan. Ensuring access to care Ensuring access to needed providers and special care is an important component of the bill. Providing direct access to obstetricians/gynecologists, specialists, and pediatricians should ensure direct access to providers that historically have a clearly defined role in delivering care to a particular population. By providing access to clinical trials and non-formulary drugs, patients have access to cutting-edge technologies and therapies. The proposal also attempts to ensure continuity of care for those with chronic medical conditions See carpal tunnel syndrome, computer vision syndrome, dry eyes and deep vein thrombosis. . Gate keeping is the cornerstone of managed care, however, ensuring timely access to emergency care continues to be a challenge since many serious conditions often present clinically the same as urgent or non-urgent conditions. The "prudent layperson lay·per·son n. A layman or a laywoman. Noun 1. layperson - someone who is not a clergyman or a professional person layman, secular " standard for patients presenting to hospital emergency departments without prior authorization prior authorization, n See predetermination. prior authorization Health insurance A cost containment measure that provides full payment of health benefits only if the hospitalization or medical treatment has been has been proposed to address this concern. This standard, which is in place in several states, permits a patient to seek emergency care without a referral for signs and symptoms that a "prudent layperson" would perceive as an emergency--for example, a 45-year-old with exertional abdominal or chest pain, a hand laceration laceration /lac·er·a·tion/ (las?er-a´shun) 1. the act of tearing. 2. a torn, ragged, mangled wound. lac·er·a·tion n. 1. A jagged wound or cut. 2. from a sharp knife, or acute onset of shortness of breath Shortness of Breath Definition Shortness of breath, or dyspnea, is a feeling of difficult or labored breathing that is out of proportion to the patient's level of physical activity. . The proposal enhances patient access to information by prohibiting managed care plans from keeping physicians from telling patients about all of their options for care. The so-called gag clause has been cited by some as a technique used by managed care companies to limit access to care. A 1997 Government Accounting Office (GAO) study, however, failed to identify any managed care company that had an explicit "gag" policy prohibiting physicians from giving their patients all of their clinical options. The GAO did find contract provisions in some managed care plans that gave financial incentives to physicians, which many people believe encourages physicians to limit care. [2] A different view A recent survey by the Henry J. Kaiser Henry John Kaiser (May 9, 1882—August 24, 1967) was an American industrialist who became known as the father of modern American shipbuilding. Early life Beginning as a cashier in a dry-goods shop in Utica, New York, Kaiser moved many times as he pursued the Family Foundation showed that "71 percent of Republicans and 81 percent of Democrats favored patients' rights The legal interests of persons who submit to medical treatment. For many years, common medical practice meant that physicians made decisions for their patients. This paternalistic view has gradually been supplanted by one promoting patient autonomy, whereby patients and legislation that includes the right to sue their health plan." [3] Support drops to around 30 percent for both groups if the right to sue results in insurance companies refusing to offer health coverage. But only ten lawsuits have been filed since the 1997 Texas law went into effect, which argues against these laws increasing legal action. [4] President Bush announced at a recent convention of cardiologists that he supports a more limited right to sue and would prefer to have all suits occur in federal court instead of state court. He laid out a series of five principles that are important in any patient protection legislation: 1. Everyone must be covered. 2. Important rights include: the right to get emergency treatment; the right to see a specialist; direct access to obstetricians/gynecologists and pediatricians; and access to clinical trials when standard treatment is not effective. 3. The right to a fair and immediate binding review of claim decisions. 4. A meaningful review for patients that have been harmed. 5. Affordable health coverage that is not increased by frivolous litigation. [5] These principles are being put in legislation sponsored by Senators Bill Frist (R-TN), John Breaux (D-LA), and James Jeffords (R-VT). Their proposal requires that all suits be tried in federal court. It would also allow states to opt out of any patient protection if they: could prove that these protections already exist, have a low HMO HMO health maintenance organization. HMO n. A corporation that is financed by insurance premiums and has member physicians and professional staff who provide curative and preventive medicine within certain financial, enrollment, or would increase health premiums by 2 percent or more. The bill would not allow any punitive damages Monetary compensation awarded to an injured party that goes beyond that which is necessary to compensate the individual for losses and that is intended to punish the wrongdoer. and would cap non-economic damages at $500,000. Conclusion Ensuring patients access to needed health services health services Managed care The benefits covered under a health contract remains a top priority of Congress this year. A legislated "patient bill of rights" is likely to occur if Congress can resolve their differences with the Administration on tort reform. This would benefit more than 161 million Americans with private health coverage. Georges Benjamin, MD, FACP FACP Fellow of the American College of Physicians. FACP abbr. 1. Fellow of the American College of Physicians 2. Fellow of the American College of Prosthodontists , is the Secretary of the Department of Health and Mental Hygiene mental hygiene, the science of promoting mental health and preventing mental illness through the application of psychiatry and psychology. A more commonly used term today is mental health. in Baltimore, Maryland. Note The stated views are those of the author and do not represent those of the State of Maryland or the Department of Health and Mental Hygiene. References (1.) www.senate.gov/[sim]mccain/pborsum.htm (2.) "Managed Care; Explicit Gag clauses Not Found in HMO Contracts, But Physician Concerns Remain," GAO/HEHS-97-175, August 1997. (3.) Post Election Survey Finds Health Issues Rank High for voters, But Consensus on Solution will be Hard to Reach, News Release: The Henry J. Kaiser Family Foundation, January 25, 2001. (4.) Members Unveil Patients' Bill of Rights With Federal Limits on court Damages, Daily Report for Executives, Bureau of National Affairs BNA (The Bureau of National Affairs, Inc.) is a Washington, D.C.-based publisher of news and information on legislation, regulations, and court decisions for professionals in business and government. It is the oldest wholly employee-owned company in the United States. , Regulation, Law & Economics, Health Care, No. 26, February 7, 2001. (5.) President George W. Bush, Speech to the American College of Cardiology The American College of Cardiology (ACC) is a nonprofit medical association established in 1949 to educate, research and influence health care public policy. The president for the 2006–2007 year is Steven E. Nissen. [1] The organization has 39 chapters in the U.S. , March 21, 2001. KEY CONCEPTS * Tort Reform * Prudent Layperson Standard prudent layperson standard Emergency medicine A standard for determining the need to visit the ER, which defines an emergency as a condition that a prudent lay person, 'who possesses an average knowledge of health and medicine.' expects, may result in 1. for Emergency Care * Managed Care (HMO) Reform * Bipartisan Patient Protection Act of 2001 * Employee Retirement Income Security Act (ERISA) * External and Internal Appeals Process Breaking gridlock Gridlock A government, business or institution's inability to function at a normal level due either to complex or conflicting procedures within the administrative framework or to impending change in the business. on managed care reform, a bipartisan coalition in Congress introduced the newest version of a patient bill of rights. Unlike last year's ill-fated Norwood-Dingell bill, the Bipartisan Patient Protection Act of 2001 has strong bipartisan support; concern remains, however, on the provisions that allow patients to sue their managed care plan. The debate now focuses on the type of liability reform that Congress and the White House can agree on. If they are able to agree, a patient bill of rights may soon become law. Bipartisan Patient Protection Act of 2001 Clinical Access * Direct Access to Specialists * Access to Pediatricians & Ob/Gyn * Access to Emergency Care * Access to Non-formulary Drugs * Continuity of Care Guarantees * Access to Clinical Trials Information * Access to Plan Information * Prohibits Gag Rules Appeals and Grievance Process * Timely Internal Review * Timely and Binding Expert External Review Accountability * Federal Right of Action * Provides Caps on Civil Monetary Penalties * Prohibits Punitive Damages in Most Situations * Preserves State's Rights when Equal or Greater than Federal Law Employer Protections * Defines Legal Protections for Employers * Maintains National Uniformity for Plan Administration and Benefits |
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