After two years of delay and denial, the Senate is finally considering the Patients' Bill of Rights. This week's debate on the measure follows a series of flip-flops by the Republican leadership on efforts to end the abuses by HMOs and managed care plans.
Republicans dismissed our Patients' Bill of Rights as unnecessary when we first introduced it in 1997. After being overwhelmed by the public's demand for action, they countered with a Republican Patients' Bill of Rights. Unfortunately for reform, their proposal is a minimalist bill that only the insurance industry could love.
Our bill is straightforward and covers all 161 million Americans with private insurance. Inexplicably, the Republican bill leaves out 113 million Americans, extending even its limited coverage to only 30 percent of Americans with private insurance -- those in self-funded employer plans, typically offered only by large employers who choose to pay medical bills for employees directly rather than buying coverage from an insurance company.
Those left out are Americans who buy their insurance on their own, work for their state or local government, or are employed by a company that purchases insurance. Under the GOP approach, almost everyone enrolled in an HMO would be left unprotected, because HMOs are almost never part of self-funded arrangements.
For a Patients' Bill of Rights to live up to the name, it must guarantee that doctors and health care professionals, not insurance industry accountants, are allowed to make health decisions. Our plan prevents insurers from arbitrarily interfering with the decisions of physicians on issues such as treatment on an inpatient vs. outpatient basis and the length of a hospital stay. We establish a definition of "medical necessity" so that HMOs cannot overrule doctors and defy accepted practices of medicine. The Republican bill extends no such protections, and instead codifies the unacceptable practice of allowing HMOs, not doctors, to define what is medically necessary.
The financial interest of HMOs collides with the best interest of patients most frequently when an emergency occurs. As a cost-saving tactic, HMOs often require patients to get permission before receiving emergency care. In many cases, if such "preauthorization" is not granted, the HMO denies payment after care has been provided. Our plan provides the same protection to privately insured Americans that Congress has granted under Medicare. The Republican proposal narrows that standard significantly, and would penalize many patients for going to the closest emergency room.
Another major problem with the Republican bill is the failure to protect a patient's right to see a specialist. For a patient with cancer or another serious condition, timely access to a specialist can be a matter of life or death. The Republican proposal states that "beneficiaries have access to specialty care," but establishes no standards for access to such care, and no guarantee that such care will be timely or available if needed. Our plan ensures timely access and also guarantees that, when appropriate, patients will be allowed to see a qualified specialist outside the insurance plan without financial penalties.
Giving patients the right to a fair appeal when care is denied is another critical failure of the Republicans' proposal. Their appeals process is riddled with loopholes and is heavily tilted in favor of insurance companies. It severely limits which decisions can be appealed; it even allows HMOs to decide whether a decision qualifies for an appeal, and allows HMOs to select the review organization that will judge the case.
Our plan creates an honest process for patients to appeal most decisions to a truly independent review board. HMO decisions denying emergency care or treatment by specialists are appealable under our plan, but not under the Republican plan.
Other major defects in the Republican proposal include its failure to give patients access to clinical trials when standard treatments are ineffective; its refusal to give patients a reasonable transition period to find a new doctor when employers switch plans or a doctor is dropped by a health plan; its failure to ban gag rules, pay incentives and other cynical conditions imposed by HMOs on doctors to discourage needed but costly care; and its preservation of the immunity under current law that prevents patients and their families from holding unscrupulous plans accountable in a court of law. Nothing is more likely to persuade an HMO to do the right thing than the knowledge it will be held accountable if it doesn't.
The Senate will pass a Patients' Bill of Rights this week. The American people deserve a genuine bill that lives up to the name, not a phony bill of wrongs.
Tom Daschle, a Democrat from South Dakota, is the Senate minority leader. Edward M. Kennedy is a Democratic senator from Massachusetts.