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Letters to the 107th Congress

June 19, 2001

Dear Senator:

Since sending you our letter of June 15, 2001, regarding "Patients' Bill of Rights" legislation currently pending in the Senate, including S. 872 (sponsored by Sens. McCain, Edwards, and Kennedy) and S. 889 (sponsored by Sens. Frist, Breaux, and Jeffords), we have been provided a copy of the revised McCain-Edwards-Kennedy bill, S. 1052. In addition, we have had the opportunity in recent days to meet with a number of Senate staffers in order to discuss the provisions of "Patients' Bill of Rights" legislation. In light of the new bill and of issues raised and discussed in our meetings, we would like to take this opportunity to expand upon the views that we expressed in our June 15 letter. Please note, however that the comments we made in our June 15, 2001 letter regarding S. 872 also apply to the newly-introduced legislation, S. 1052. For your convenience, a copy of our June 15 letter is attached.

We have been asked whether the American Bar Association prefers the process for selecting external review entities contained in S. 1052 or the process contained in S. 889. The ABA believes that the selection method outlined in S. 1052 will better protect patients by reducing the potential conflicts of interest that may arise between the review entities and the health plans.

Section 104(h) of S. 1052 contains numerous safeguards designed to guarantee the independence of the external review entities and hence the impartiality of the review process itself. One of the most important safeguards in the bill is the provision found in Section 104(h)(1) that provides that neither the health plan nor the patient will have the power to actually select the external review entity in individual cases. By contrast, Section 131 of S. 889 would give the health plan the exclusive power to select the external review entity that will hear and decide the patient's claim. In order to maintain the true independence of the external review entities, the ABA believes that both the patient and the health plan-not the health plan alone-should select the review entity. Otherwise, the review panels should be selected by a neutral party, such as by the Secretary of Health and Human Services, the Secretary of Labor, or individual States, as provided in Section 104(h)(1) of S. 1052. For these reasons, we believe that the procedures for the selection of external review entities contained in S. 1052 are clearly preferable to those found in S. 889.

We have also been asked whether the American Bar Association prefers the procedures for expedited external review contained in S. 1052 or the procedures contained in S. 889. The ABA believes that S. 1052 provides greater procedural protections than S. 889 for patients with medical emergencies who are seeking expedited external reviews of their claims.

Under Section 104(e) of S. 1052, the independent medical reviewers generally must decide emergency appeals of medical benefit claims "in accordance with the medical exigencies of the case and as soon as possible, but in no case later than 72 hours" after the external review is requested. Section 131 of S. 889, on the other hand, would give the independent medical reviewers up to 72 hours to decide emergency appeals, irrespective of whether the medical exigencies of the case called for a faster decision. The ABA believes that external review proceedings should occur within a reasonable time, and without undue delay. For truly acute emergencies-such as when the life, health, or future function of the patient is at stake-such decisions should be rendered as soon as possible, certainly in less than 72 hours. For these reasons, the ABA believes that the expedited external review timelines contained in S. 1052 would protect patients' interests better than those contained in S. 889.

By creating an effective system of internal and external review, Congress can help patients to receive the care to which they are entitled under their health care policy. While both Senate bills would establish internal and external review procedures as a means of resolving coverage disputes, S. 1052 would create a far more meaningful external review system, with greater procedural protections, than would S. 889. Therefore, we urge you to support the external review provisions contained in S. 1052.

The ABA was also asked for its views regarding certain roadblocks to accessing the courts that are contained in S. 889 but not in S. 1052. These roadblocks include requiring the injured patient to prevail in the external review process and requiring the patient to prove causation in that process before the patient can bring a cause of action in the courts. The ABA believes that both of these roadblocks contained in S. 889 are undesirable. The decision of an external review panel should be subject to judicial review in the courts. In addition, proof of causation is traditionally proven in the courts and not in an external review process.

We are happy to provide you with this supplement to the ABA's June 15 letter and would be pleased to answer any questions you may have about the ABA's position on this complex and important legislation.

Sincerely,

Robert D. Evans
Director, Governmental Affairs Office

Enclosure

107th Congress Letters Home

AMERICAN BAR ASSOCIATION
Governmental Affairs Office
740 Fifteenth Street, NW
Washington, DC 20005
ph: 202-662-1760
fx: 202-662-1762

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