External Review Gives Patients Recourse

Almost a year ago, a constituent contacted my office with a very serious problem. Her husband had been found to have cancer, and the prospects for recovery were not encouraging.

My constituent and her husband were aware of a cancer treatment at UCLA that was showing great promise in treating his disease but their health maintenance organization was unwilling to cover the treatment. Instead, all the HMO was prepared to offer was palliative care, that is, care that takes the pain away while you await the end.

In the HMO’s view, the treatment was not medically necessary, a conclusion far more easy to reach when you are not the one dying. We immediately contacted the HMO, urging them to cover the cancer treatment. And through our efforts, and in particular the persistence and determination of Patty Rhee of my staff, we were able to convince the HMO.

Now, a year later, the cancer is in remission and my constituent and her husband both feel they have a new lease on life.

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The frightening fact is that most constituents are not aware that they can seek assistance from their representative in circumstances like these. If we received calls in just a fraction of these cases around my district of 800,000 people, our office would be inundated.

Because of situations like this one, I introduced legislation this year to establish an independent external review process. State Senate bill 189 and Assembly bill 55, authored jointly with Assemblywoman Carole Migden (D-San Francisco), set up a swift and fair process for appealing HMO denials of care to an independent third party. This appeal--at no cost to the patient--will allow patients denied care recommended by their physician the opportunity to get an impartial review of the HMO’s determination within 30 days or less.

The reviewers are chosen by consumer advocates and the HMOs. It is designed to be an honest review, not a stacked deck. If the independent reviewer finds the treatment is medically necessary, the HMO must provide it or pay significant daily fines until it complies.

Before this legislation, patients like my constituent had little recourse when denied care they believed might have saved their health or life. They could appeal within the HMO, in a process that may be heavily stacked against them, or they could go outside the plan and pay for the treatment entirely on their own.

Given the high cost of medical care--and the fact that people buy insurance for just these contingencies--going outside the plan when treatment is needed is simply not economically feasible.

SB 189 and AB 55 are key components of what has been called the patients’ bill of rights. Indeed, when Gov. Gray Davis signed the legislation in Los Angeles, he described the external independent review measure as among the crown jewels of the package. The governor established a working group on managed care reform and invited business and legislative leaders to work with him on prioritizing and analyzing the impacts of potential reforms.

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As the chair of the state Senate Judiciary Committee, I was invited to join the governor’s working group with an eye to identifying those reforms that would have the greatest impact on the quality of patient care and the least impact on premiums. Independent external review fell squarely within those requirements.

Although we made significant strides toward improving the quality of care with California’s patients’ bill of rights, the fight to improve managed care is far from over. A strongly bipartisan package of patients’ rights was recently thwarted on the federal level by the managed care industry and its advocates in Congress. And although this defeat may have greater impacts on those states that have not passed their own reforms, the effect on California could be enormous.

Some federal courts have decided that a provision of federal employee pension law may preempt any state efforts to provide patient rights, such as recently passed in California. If this interpretation is upheld, many of the important reforms passed here at home could be struck down. A key component of the federal legislation would have expressly provided that states like California are not precluded from adopting greater protections for their patients.

Plainly, the fight for better patient care is far from over. As long as HMOs continue to make patient care decisions rather than their patients and physicians (although at least one major plan has recently decided to end that practice), there will be a continued need for vigilance and reform.