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APA finds serious flaws in the Republican patient protection legislation that passed the House last month.
APA's director of government relations, Jay Cutler, commented to Psychiatric News, "While the House bill certainly includes provisions we welcome such as a ban on gag clauses and a point-of-service option, it also poses some major problems for psychiatrists and their patients. On balance, there are too few truly meaningful patient protections and too many extraneous provisions."
Critically lacking is an amendment to the Employee Retirement Income Security Act (ERISA) so individuals can sue health plans that fail to provide medically necessary treatment determined by a physician caring for the patient, a provision included in the Democrat bill. Moreover, the proposed legislation doesn't ban physician-incentive clauses by managed care companies that link compensation to the denial or limitation of medically necessary services.
APA is also concerned that a "point-of-service" provision allowing patients to seek care outside the provider network has too many loopholes. For example, insurers that can demonstrate using prospective or retrospective data that the premium cost of a point-of-service plan is at least 1 percent higher than a closed network plan, will be exempt from complying with this provision.
A provision that "would undercut hard-won mental illness coverage laws by psychiatrists and patients," said Cutler, exempts insurers who form "HealthMarts" and employer purchasers from complying with state-mandated benefit laws under an ERISA loophole.
Cutler continued, "While the bill pays lip-service to the point-of-service option, there are so many loopholes that it's hard to see how any patient would ever get point-of-service care."
The House bill also fails to provide significant privacy protections that would ensure the confidentiality of the doctor-patient relationship. "While there is a limited exception to a broad patient consent provision in the bill for mental health records maintained by mental health professionals, subject to state law, we don't think this is nearly sufficient to protect psychiatric records. In fact, a patient's most private medical records maintained by hospitals, HMOs, and insurers can be released without the patient's consent to any health care provider or health plan that requests it who in turn can make subsequent releases to non-health organizations."
The bill would also preempt most state confidentiality laws, which may have stronger privacy protections, according to Cutler in a July 22 letter to members of the House.
He also was dismayed that the House legislation bypassed the usual subcommittee and committee mark-up process and was brought to the House floor without an opportunity for amendments.
"The real patient protection bill-if any-will have to be written in conference with the Senate," he said.
The Senate bill is narrower in scope than the House bill but also fails to amend ERISA or ban physician incentive clauses. At press time, the Senate had adjourned for its August recess without voting on the bill.
APA has found certain provisions in the bill problematic such as limiting the right of patients to obtain external appeals to services valued at $1,000 or higher. This threshold would exclude many diagnostic procedures and relatively low-cost services including psychotherapy.
The point-of-service option has a loophole that excludes participants who are offered a choice between two closed networks, if the networks differ significantly regarding participating providers.
Cutler urged APA members and patient groups to meet in person with their senators and representatives while they are at home during the August break. "DGR is helping to facilitate these meetings, which remind elected officials that APA advocates for patients by distributing Action Alerts and Fact Sheets to our key contacts and also posting them on APA's Web site."
Click here for a comparison of the patient-protection bills in the House and Senate.