The House GOP Bill – The Wrong Prescription for
Protecting Patients

GOP Leaders who introduced the GOP bill claim it is just as protective for patients as the bipartisan Ganske-Dingell-Norwood-Berry bill. Unfortunately, that claim is false. Their bill fails to provide critical patient protections and leaves loopholes in others. In some cases, the GOP bill would leave patients worse off than they are today.

The GOP bill fails to protect the patient-doctor relationship. The GOP bill leaves out critical protections that restore trust in the patient-doctor relationship. The bill fails to ensure that doctors can communicate freely with their patients without fear of retaliation by the HMO. The bill also fails to protect against HMOs using improper incentive arrangements to force doctors to limit medically appropriate care.

The GOP bill fails to adequately protect the most vulnerable patients. The GOP bill has numerous flaws in the access to specialty care, continuity of care, and clinical trials provisions which prevent disabled and chronically ill patients from accessing needed care or treatment. The bill also fails to protect patients who have a medical need for non-formulary drugs from excessive additional cost-sharing.

The external review process in the GOP bill is stacked against the patient. First, the bill creates unfriendly barriers to review in terms of how the process operates, which can delay rapid access to review. Second, there is no requirement that decisions be made according to the medical exigencies of the patient’s case, which can delay decisions on care. Third, the GOP bill does not ensure that reviewers can make independent decisions that are not deferential to the HMO. Finally, the reviewer can only uphold or reverse, but not modify, the HMO’s decision – thus, if the plan was partially right, and the treating doctor was partially right, the expert reviewer couldn’t recommend the appropriate middle ground. The patient would have to go back through the appeals process all over again.

The GOP bill would give HMO’s free rein to deny care. The standard of review used by the external review process requires the reviewer to make its decision on only the patient’s records and scientific evidence. This requirement ignores the fact that in medical care today – particularly for children and the disabled – there is a paucity of "evidence" because research and clinical trials have yet to be conducted. The burden is on the patient or the reviewer to find "scientific evidence" to prove the HMO wrong – an impossibility in most cases.

The GOP bill takes away existing legal rights and strikes down current state laws. The GOP bill moves all medical injury cases against HMO’s to federal court, essentially reversing the Supreme Court’s decision in Pegram, reversing the evolution of case law favoring patients. The bill also preempts laws in states that have already acted to affirmatively give patients legal recourse in these areas, including Texas, Georgia, Arizona, and California.

The GOP bill "remedy" is so narrow and loophole-riddled that it renders it meaningless. The so-called "employer protection" designated decision-maker provision is nothing more than a shell game to protect HMO’s from liability. The provision would result in more lawsuits and legal wrangling, not less, as it would be impossible to ever sort out liability. Patients would have to obtain a favorable external review before they could get redress for an injury, despite a review process which stacked against them from the start. The narrow federal remedy caps damages for the most vulnerable, leaving them without the ability to hold plans fully accountable for injuries.

The Bipartisan Ganske-Dingell-Norwood-Berry Bill (H.R. 2563) is the Only Bill That Truly Protects Patients

The Ganske-Dingell-Norwood-Berry bill ensures that doctors, not insurance company bureaucrats, make medical decisions. The bill provides access to a fair, independent external appeals process where patients can have a medical expert review their individual case, unfettered by HMO influence. The bill also ensures that doctors can make medical decisions without interference of HMO incentive arrangements and ensures that doctors can report quality or patient care concerns without fear of retaliation by the HMO.

The Ganske-Dingell-Norwood-Berry bill ensures needed patient protections, without loopholes. Unlike the GOP bill, the Ganske-Dingell-Norwood-Berry bill does not short-change the disabled or chronically ill in guaranteeing access to specialists and continuity of care. The bill ensures that women can access their ob-gyn without health plan interference, and guarantees all individuals access to a broad range of lifesaving clinical trials.

The Ganske-Dingell-Norwood-Berry bill ensures that HMO’s are held accountable like any other American business. HMO’s should not have special protection from lawsuits like foreign diplomats. The Ganske-Dingell-Norwood-Berry bill ensures that HMO’s are not give special treatment when they make medical decisions that cause injury or death. The bill provides a real remedy that is not riddled with special exemptions, barriers, hoops, and loopholes. The bill preserves existing state laws, like those in Texas or Arizona, which allow injured patients to hold their HMO’s accountable for negligent medical practice.

The Ganske-Dingell-Norwood-Berry bill is truly bipartisan in both the House and Senate. The Ganske-Dingell-Norwood-Berry bill has broad bipartisan support in both chambers. Additionally, the bill has the support of hundreds of patient and provider groups, including the American Medical Association and the American Nurses Association.