The entire Patient Protection legislative process has been plagued by sloppy vocabulary, which could cause devastating damage to the health coverage of American workers and their families. The sloppiness (or probably unfamiliarity) of vocabulary continues, and both Republicans & Democrats seem fixated on passing "something" purely as a political expediency to portray themselves as supporters of "patients".
The first goofs should be obvious. Everyone knows that the intent of Patient Protection legislation is to regulate and pressure HMOs. HMOs are a hybrid combining both the medical provider and payment/risk function. So, yes, their medical decisions do have an impact on their bottom line. However, that's very different from the vast majority of American employers, who sponsor self-funded trusts which pay for medical costs, usually after the medical service has been received. The employer's plan does not make medical decisions.
Various federal laws require the sponsoring employers to carefully monitor that only allowable benefits for allowable people be paid by the trust fund. For example, when Congress several years ago disallowed vanity cosmetic surgery as an allowable tax-deductible health benefit, employers removed vanity cosmetic surgery from the plan coverage (since employer plan coverage is a tax-deductible benefit). Did Congress make a "medical decision" or a "decision" to deny benefits? Did the employer or plan? Similarly, Medicare does not offer drug coverage. When Medicare refuses to pay a patient's drug bill, has the President or every Congressman made a "medical decision" or a "decision to deny benefits"?
So, legislation designed for HMOs is like a square peg in a round hole when applied to non-HMO plans. However, sloppy vocabulary has dragged in everyone. HMOs use the term "plan" to describe their menu of benefits. So, that's one meaning of the word "plan". However, "plan" also has a very different carefully-defined legal meaning in ERISA. The Patient Protection legislation carelessly refers to and includes any and everything called a "plan". That's like writing a law intended for "cars" on roads, but having it also apply to cable "cars" on ski-lifts nd railroad "cars". If the legislation intends and is designed for HMOsÉ.then say what you mean not sloppy language about "plans". Use only the word HMO in the legislation!
"Managed care" is another ignorant use of vocabulary. Patient Protection sloppy legislation uses "managed care" and HMO as the same thing. Yes, HMOs are one type of "managed care", but the term "managed care" also includes dozens of wonderful patient-friendly services & discounts. For example, patients forgetting or failing to take their medications on time and for the full doctor-prescribed period is a serious problem. There are firms & services which phone or visit patients to remind them. That's "managed care". The most common non-HMO "managed care" are discounts for using Preferred Provider Organizations (PPOs). It is a discount the doctors or hospitals offer....much as airlines offer frequent flyer miles discounts to encourage more people to use that airline. (Adding even more vocabulary confusion, PPOs also sometimes call themselves "plans".) So, all the Patient Protection legislation would carelessly apply requirements & penalties designed for HMOs onto very different kinds of functions...all because of sloppy use of the term "managed care". If Congress means HMOÉthen specifically say HMO, not other terms.
The word "decisions" is a growing ever-goofier vocabulary quagmire. Recognizing the harmful misguided overly-inclusive effect of sloppy use of words like "plan" and "managed care", some supporters of Patient Protection tried to avoid the crisis that would come (employers terminating health coverage rather than risk the unintentional harm & liability from sloppy legislation).
To help correct vocabulary mistakes, there have been various attempts to exempt employers and plans. Most of these last-ditch repairs have shown an ignorance of the other laws employers and non-HMO plans must obey. Most of the "exemptions" have said that employers who don't make various kinds of "decisions" would be exempt from liability. That's a silly & worthless non-exemption. First of all, other federal laws require employers to make decisions on the operation of the plan, and hold employers responsible even if the employer tries to duck making decisions. So, like it or not, employers need to make "decisions",...so the unintended penalties will come crashing down.
A misguided attempt to solve the employer liability for "decisions" creates conflict with even more laws. ERISA and most employment laws hold the employer responsible. Patient Protection would creat a whole new artificial status known as "designated decision maker". Never mind that "designated decision maker" is precisely contrary to the entire focus of employer responsibility in ERISA, and thus doesn't really exempt employers form anything. It also assumes that someone would volunteer to be sued anytime for decisions which the "designated decision maker" was not empowered to make. It make sno sense, no matter which way you look at it. It is another example of people who don't know better grabbing at straws for a superficial appearance of a fix.
The "decision" mess has been made worse as Congress flails to get out of the vocabulary problems it has created. For example, there is talk of two separate kinds of "decisions" which would be prosecuted in two different kinds of court. "Medically reviewable" decisions by the "plan"...and denials that do NOT involve medically-reviewable decisions. Yet another attempt to dig out of the mess they've made is designate a cap on punitive damages for both types of court...such as $5 million. (Since $5 million would bankrupt most businesses, read that to mean a death sentence for the jobs & coverage of all those workers.)
Though all these "exemptions" sound nice on the surface in order to entice more Congressmen to vote for what is basically flawed sloppy language, stop to think how useless they are. Go back to the top of this letter and ask yourself how many ways someone could be sued for the simple examples given. Is an employer's denial of vanity cosmetic surgery (because Congress removed it as a tax-deductible benefit, but did not say it was bad medicine) a "medically reviewable" or "non-medically reviewable" decision??? You'd probably get sued either way, and maybe both ways. That's no help at all. It wastes money on lawsuits instead of devoting that money to health care.
There is also the quagmire of the role of state patient protection laws. It ignores the reality of demography. A government statistic a few years ago pointed out that 80% of employers' plans have employees or dependents from more than one state. Considering that most major cities draw workers from surrounding states, plus dependents, retirees, branch offices, etc. it makes perfect sense (not to mention many federal mandates such as COBRA, QMCSO, QDRO, etc. which can insert people form some distant state into your plan. So, an employer in Washington D.C., for example, might have to follow different rules for employees from Virginia, D.C., Maryland, and from the growing number of COBRA, QMSCO, QDRO, etc. people from distant states in your plan. That is a huge increase in wasted administrative cost in health coverage, and a dramatic increase in legal liability expense trying to follow different rules in different states.
The sad irony is that everyone involved in Patient Protection legislation has good intentions. However, the current whole effort is so flawed with sloppy vocabulary that the effort needs to go back to square one and craft careful legislation. The new improved legislation should also combine the newest patient protections needed...medical errors. Studies have shown that there are huge numbers of deaths and injuries from poor medical decisions made by doctors and nurses. That's the most directly needed patient protection. The legislation as presently written would actually remove some of the safety checks now in place for medical goofs.
The intentions of the proponents of this legislation may have good intentions, but this is truly a case of the road to hell being paved with good intentions. It needs to be done more carefully. As doctors say, "Do no harm." The question is whether ignorance will win over knowledge.