Patients may get right to sue HMOs in Washington state
A Patients’ Bill of Rights that would make Wash ing ton the fourth state to give residents the right to sue a health plan appeared likely to become law as State Health Watch went to press.
Ensuring health plan enrol l - ees receive quality health care designed to maintain and im prove their health is an explicit legislative goal, according to both House and Senate versions of the idea. Further, both bills promise enrollees:
1. improved access to information regarding their health plans;
2. sufficient and timely access to appropriate health care services and choice among health care providers;
3. assurance that health care decisions are made by appropriate medical personnel;
4. access to a quick and impartial process for appealing plan decisions;
5. protection from unnecessary invasions of health care privacy;
6. assurances that personal health care information will be used only as necessary to obtain and pay for health care or to improve the quality of care.
Washington’s commitment to what some legislators there are calling the "Year of the Patient" stands in contrast to a lower profile for managed care reform and patient rights legislation last year in many states, according to a report by the National Confer ence of State Legislatures (NCSL). "Perhaps because so many states have already enacted patient protection reforms," NCSL says, "the managed care industry largely escaped the limelight in 1999."
One exception was Massachu setts, where Gov. Argeo Celluci challenged lawmakers to make passage of a patients’ bill of rights their first order of business. Michigan Gov. John Engler asked his state legislature to strengthen a 1997 patient bill of rights but did not include the right to sue in his proposals. And Vermont Gov. Howard Dean emphatically said his state’s lawmakers should not enact a law that would permit patients to sue their health plans.
Rep. Tom Campbell (R-Olympia), primary sponsor of the House version of Wash ington state’s bill, says the condition allowing patients to sue their insurance carrier was "a take-the-bill-home" provision. "I would not have pursued this legislation without that part."
A difference in approaches to the right to sue led to passage of different bills in each chamber, he said, but the difference has been resolved in favor of Mr. Campbell’s approach.
"The Senate had a three-prong liability test that made a person go through an external review with a favorable result before he or she could sue. We thought that presumed too much good faith on the part of the carrier. We believe patients should still be able to go to court if they go through the process and a mistake has been made. We don’t think we’ve set up a bonanza for the attorneys. We’ve learned from our experience, from testimony at our hearings, and from criticism of earlier versions of the bill," Mr. Campbell says.
Under the House bill, patients can sue if they have suffered substantial harm and have exercised the opportunity the bill provides to seek an independent review of the health care treatment decision being questioned.
Giving power back to consumer
In addition to the right to sue, the Patients’ Bill of Rights will:
• protect a patient’s privacy by preventing health plans from releasing personal, confidential information unless authorized by the patient;
• require carriers to fully disclose plan information including, but not limited to, benefits, cost, limitations, and appeal processes;
• create a grievance process within a health plan to address complaints;
• create an outside, independent appeal process to resolve disputes.
"There’s a lot of good in this bill," Mr. Campbell says. "We’re really going to protect the people in our state. This is about fairness, about patients and their rights. This bill gives the power of health care decisions back to the consumer and ensures coverage is there when people need it."
Such legislation is needed because of the dramatic changes that have occurred in the nation’s health care industry over the last few years, Mr. Campbell says. "A long time ago, doctors made health care decisions and, if those decisions harmed patients, those doctors could — and still can — be sued. Now, as the market has changed, and insurance companies and HMOs are making the health care decisions doctors used to make, the responsibility for wrong decisions also needs to change. When the decision making shifts from the physician to the carrier, the liability should shift also. That’s what this bill does."
The legislator says that those who believe giving patients the right to sue will increase health care costs are overlooking the experience in Texas, where costs have gone down in the three years that patients there have had the right to sue carriers. "The ability to sue will provide a sentinel effect’ by holding carriers more accountable," he says.
State Insurance Commissioner Deborah Senn, who has been a health activist while in office, praised the House for standing up for health insurance consumers when they passed the bill of rights. "This legislation is good news for every consumer, and it sends a reassuring message to any patient who has had to fight to get health care from a managed care plan," she says. She noted that a similar bill had failed in the House last year and that this year’s version had been supported by grass-roots organizations, health care providers, and others. Thirty-five citizen groups and other organizations joined Consumers for Quality Health Care, a coalition that backed the bill this year.
Mr. Campbell says HMOs in the state "reluctantly" worked with legislators on the bills after realizing their outright opposition was not going to prevail. "I don’t think they get the real message that they have caused this problem for themselves. The legislature doesn’t trust them; the people don’t trust them."
Contact Mr. Campbell at (360) 786-7912.
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