March 30, 2000
By ROBERT PEAR
WASHINGTON, March 29 -- Congressional negotiators said today that they had made progress toward agreement on an appeals process for patients wrongly denied care by health maintenance organizations, a major unresolved issue in legislation to define patients' rights.
House members and senators from both parties said they had agreed, in principle, that all H.M.O. patients should be able to appeal the denial of benefits to an independent panel of medical experts. Republican and Democratic staff members have been discussing the details of such appeal procedures for the last five days.
Lawmakers have already agreed on a few other issues, including a requirement for H.M.O.'s to cover emergency care in any situation where a "prudent lay person" would consider it necessary.
Members of both parties see the appeal procedures as one of the most important provisions of a bill defining patients' rights. The House and the Senate passed different versions of the legislation last year, and negotiators from the two chambers said they were making slow but steady progress toward a compromise.
The negotiators said they wanted to agree on appeal procedures before they moved on to the more contentious question of whether patients would have a new federal right to sue H.M.O.'s for injuries caused by the delay or denial of care. Lawmakers said they assumed that there would be some new right to sue; President Clinton insists that patients should have such a right. But Republicans hope that strong, effective appeal procedures will reduce the number of people who feel compelled to sue. In most cases, they say, the appeals process will work much faster than the courts.
David Schnittger, a spokesman for Representative John A. Boehner, Republican of Ohio, said, "Many Republicans see a strong external review system, in which independent doctors resolve claims disputes, as the most effective patient protection we can devise."
Senator Edward M. Kennedy, Democrat of Massachusetts, said that he and other members of the conference committee had made "important progress" toward an agreement on appeals, but that he wished the conferees would move faster.
Gayle Osterberg, a spokeswoman for Senator Don Nickles, the Oklahoma Republican who is chairman of the conference committee, said: "We are getting close to a consensus on appeals. We are taking time to be sure it's done right."
Lawmakers generally agree that doctors who rule on a patient's appeal should be independent of the H.M.O., and should be bound by the terms of any insurance contract that provides health benefits to the patient. But Democrats, some Republicans and consumer advocates insist that the H.M.O.'s definition of "medical necessity" should not be binding on the people who decide a patient's appeal. In other words, the members of the appeals panel would exercise their own judgment about whether a particular service was medically necessary.
Such seemingly technical questions can be vital to patients. Representative Greg Ganske, an Iowa Republican who is a surgeon, said H.M.O.'s sometimes "manipulate the term 'medically necessary' to avoid covering costly procedures."
For example, Dr. Ganske said, H.M.O.'s often refuse to pay for surgery on children to correct cleft lip and cleft palate, contending that such procedures are a form of cosmetic surgery and are therefore not covered by the insurance policy. But Dr. Ganske said that in many cases the surgery was not a cosmetic procedure, because without it children could not eat or speak properly.
Under the compromise legislation, lawmakers said, if a health plan promised to cover 30 days of hospital care for people with a mental illness, the appeals board could not order coverage for a 31st day. But Democrats want to make sure that patients have an independent way of determining whether the H.M.O. is right in saying that a particular service is limited or excluded under the terms of a contract.
Insurers often refuse to pay for experimental treatments. Democrats and some Republicans like Representative Charlie Norwood of Georgia say patients must be able to challenge an H.M.O.'s decision about what is experimental.
Congressional aides said that an unusual and interesting dynamic had developed in negotiations on the patient's bill of rights.
Often, they said, Senate Republicans pull aside Democrats from the House and the Senate, hoping to make deals, and House Republicans are excluded from the discussions.
Mr. Nickles, the assistant Republican leader of the Senate, has made clear that he wants to wrap up an agreement before the discussions are embroiled in the politics of election campaigns.
Some lawmakers and Congressional aides said Mr. Nickles had excluded House Republicans from some discussions as part of a strategy to speed the negotiations. Other participants said it was difficult to deal with the House Republicans as a group because they did not have a uniform stance on the legislation. By contrast, the Senate Republican negotiators present a united front, and Democrats from the two chambers agree among themselves.
In October, when the House passed its version of the legislation, 68
House Republicans rebelled against their party leadership and joined more
than 200 Democrats in passing a bill supported by President Clinton.