U.S. Senate Approves Patients Bill of Rights
June 29, 2001

Washington, DC – The U.S. Senate today approved the Patients Bill of Rights legislation on a vote of 59 to 36.

The following is Senator Feinstein’s statement in support of the legislation:

“Passage of this legislation means we can offer health care protections to all 190 million Americans in private health plans. It’s that simple.

The comprehensive Patients’ Bill of Rights will make HMOs accountable to patients and ensure less interference with medical decision making. The bill also ensures greater access to emergency rooms, specialists, and clinical trials. Patients are also better able to go to the emergency room closest to their home in the event of a medical emergency.

Each day, 10,000 physicians see patients harmed because a health plan has refused services. Patients and doctors feel that getting quality care is a constant battle. It is time for this to stop. And the time is now.

I want to read to you a heart-wrenching letter I received from a California mother who has had difficultly getting her health plan to approve medically necessary services for her disabled daughter.

I believe this letter really highlights the humane reasons why a strong Patients’ Bill of Rights is necessary. This mother writes:

“My daughter is a total-care patient. She was in a terrible car accident approximately 14 years ago and sustained brain stem injuries and is a quadriplegic. I chose to keep her at home. Her licensed care coverage is to be 24-hour care. In the past two years, her insurance company has unilaterally cut back on her nursing care to 5.5 hours a day.

This is one of many unilateral decisions the insurance provider has made regarding her care --disregarding her doctor’s and other medical providers’ assessments.

I, as her mother and conservator, who is not trained in medical practices or care, am expected to cover the remainder of the 18.5 hours a day. This has caused me to quit my job, file bankruptcy, and most importantly, it has seriously affected my health.

I am a senior citizen and am not supposed to lift, however, because of the practices of the insurance company, I have no choice. I cannot tell you when I last had a full night’s sleep in the past several years.

The insurance company not only cut back on her nursing care, they stopped approving her therapy which included physical, speech, and occupational.

I received a letter from her current insurance carrier stating that she was considered to be a normal employee and in August of 2001 all the aforementioned items would be stopped.

This is not based on my daughter’s current doctor’s orders nor her needs. This is not based on an assessment from an independent medical establishment or by an experienced, licensed nurse that was selected by the insurance company for a complete assessment which supported the necessity of 24-hour nursing care.

This decision is being made unilaterally by the insurance company officials. Is this what insurance companies can do to critically ill patients without any accountability or liability on their part?”

This letter highlights the importance of giving doctors the power to make medical decisions about coverage and care rather than the “green eye shade” of the insurance companies.

I strongly believe that doctors should be making the medical decisions. This bill includes several provisions to help physicians determine what is medically necessary and to prevent insurance plans from defining medical necessity.

These provisions are necessary because doctor after doctor have told me their “horror stories” of how plans try to arm twist, coerce, countermand, interfere with and even deny treatments that they have determined medically necessary and appropriate.

The bill prohibits plans from punishing providers for advising patients about their options for medical treatment.

The bill also establishes, as the standard for review, that decisions should be made based on the medical condition of the patient and valid, relevant scientific evidence and clinical evidence and expert opinion.

It also requires internal and external reviews of appeals of medical necessity to be made by physicians with expertise in the area of medicine being appealed.

It requires reviewers in the independent review process to be a physician or health care professional who is licensed and “typically treats the condition, makes the diagnosis, or provides the type of treatment under review.”

On prescription drugs, the bill requires plans to make exceptions to restrictive drug formularies for medical necessity, if prescribed by the treating physician.

It is my hope that these provisions will give doctors and other providers the legal underpinnings they need to make the professional medical judgments they are trained to make in their effort to give patients the best care possible.

With regard to the issue of liability, I believe this bill offers a responsible approach.

Today, patients have few opportunities for recourse against the health plans that harm them. This is wrong. This bill gets rid of a health plan’s special privileges. A health plan would bear responsibility only if it makes a medical decision and the patient dies or is harmed as a result.

Doctors and other health practitioners are already held accountable for their mistakes under State law. If a “green eye-shade” overrules a doctor’s medical judgement and harms a patient, the plan too should be held responsible. At the same time, this bill protects employers. If an employer does not make medical decisions, the employer can’t be held liable. It is that simple. This bill does not overturn or preempt existing state liability laws. It specifically exempts doctors and hospitals from new causes of action.

In States like California that have strong patient protections there has not been an explosion of lawsuits. In fact, since the inception of California’s right-to-sue law in January 2001 and the unlimited damage it provides for, there has not been a single lawsuit filed.

Instead, HMOs appear to be deferring more to patients’ requests for treatment, according to the first data to emerge from the State’s HMO regulator.

California has the longest history in managed care and the highest number of insured people in HMOs nationwide. Over 70 percent of Californians are enrolled in either a commercial HMO or a preferred provider organization (PPO). Approximately 20 million non-elderly Californians have access to health insurance through their job or privately purchase coverage. So for California, these protections are critical.

Due in part to the high penetration of managed care, California’s health care system is on the verge of collapse. Resources are stretched to the limit and patients, as a result, are not getting the services they need. For example, California’s capitation rate, the rate paid to doctors for treatment, is one of the lowest in the nation. The average capitation rate in California reached its peak in 1993 at $45 per month. Last year, the rate dropped to $29 (PriceWaterhouse Coopers). These low reimbursement rates undoubtedly impact quality of care and access to services.

Many California hospitals and other health care providers have been forced to limit hours of operation and discontinue services. The burden to provide care is put on those that have remained open, and many of these facilities are now facing financial problems of their own. I know that California’s health care system is not unlike other systems across the country. Patients should not be the one’s made to suffer at the hands of a failing health care system.

People pay monthly premiums. They expect their health insurance to be there when they need it. That is what insurance is. It insures against loss from an unforeseen illness or injury. But with HMOs today, the certainty of good health care is being seriously eroded. Many people feel that every time they need care, it is a tremendous hassle.

The bottom line is that people feel they have to fight to get the quality care they have paid for. Americans are tired of jumping through hoops to get good care. They should not have to fight for their health care. They pay for it out of their monthly paycheck. It should be there for them when they need it.