The McKennedy Plan: the Patients' Bill of Goods

by Jane Orient, M.D.

6/24/2001

In 1973, Senator Kennedy was the doting father of a very ugly baby: the HMO Act. He said, "HMOs have proven themselves again and again to be effective and efficient mechanisms for delivering health care of the highest quality." When it turned 20, Senator Kennedy wanted his offspring to take over American medicine. The Clinton Health Security Act would have forced all Americans into managed care.

That act supposedly died, but Senator Kennedy managed a reincarnation and christened it the Health Insurance Portability and Accountability Act (HIPAA). Because of this baby, all Americans' medical records will soon be available to the government-in the guise of privacy protection and administrative simplification.

Now that Americans are complaining about his progeny, the politically savvy Senator seems willing to disown it, saying: "It is time to end the abuses of managed care that victimize thousands of patients each day." Teamed up with A Republican, John McCain, Kennedy is pushing for the Bipartisan Patient Protection Act, or "Patients' Bill of Rights." But what we�re really being sold is a bill of goods.

Everybody who supports this bill should be required to read it, all 176 pages. It is plain that the bill applies not just to managed care, but to all health insurers, including the competitors of Senator Kennedy's baby.

There are about 100 pages describing the bureaucratic process: hoops for patients, loopholes for Plans. How many days can the Plan delay? What paperwork has to be filled out? Who gets to sit on the review panels? Not your doctor, but at some point some doctor, licensed somewhere in the U.S. What counts as scientific evidence? A cookbook concocted by a certified expert committee. What your doctor says won't do.

Patients might be able to collect an award of up to 25% of wrongfully denied benefits-if they can prove a pattern of such denials. How do you do that? Erin Brokovich or an expensive investigation can possibly track it down. And you can collect attorney's fees-if you ever get to court, and if you win.

The bill promises "access to care"-which might go beyond what is already required by law. Patients may get to see the specialist they want-if he is available and if he is willing to work for what the plan pays or allows him to charge. Women would be permitted direct access to gynecological or obstetrical care. However, they wouldn't necessarily see their doctor. In fact, the caregiver might not be a doctor at all.

The bill imposes a heavy new obligation on any company that wants to offer insurance, not just HMOs. Paying the bills promptly won't be enough. The company will have to assure "timely" and "accessible" service-of every type that the plan covers. If there is no way for somebody in remote Wyoming to get to a specialized surgical center, does that mean insurance can't cover the bills from such a center in New York?

For prescription drugs and other items, the bill also requires that "if" coverage is offered, "then" many requirements apply. That could be a very big "if." Senator Kennedy might force your insurer to cancel some of your benefits.

The bill prohibits certain incentives to deny care. But it specifically permits capitation, the crack cocaine of medicine. "Providers" get paid by the head, so the more care they give, the less money they make. This is the mother of all incentives to withhold care and avoid difficult patients.

The Plan will be forbidden to retaliate against physicians who don't go along with the program-for being uncooperative. But other laws already make it easy to dump (and ruin) physicians, with impunity, on trumped-up "patient care" issues.

Some injured patients (or their heirs) may actually win the lawsuit lottery-if the Plan's clever lawyers fail to find enough loopholes, and the patient clears all of the hoops successfully, and is still alive.

The results of this bill will be higher insurance costs, more uninsured people, and fewer insurance options. If he really cared about patients' rights, Senator Kennedy would stop opposing tax reforms that would unleash the competition such as medical savings accounts. Patients in charge of their medical care-instead of begging or fighting like dogs for the scraps falling from the bureaucrats' and lawyers' table-that is the outcome Kennedy wants to avoid at all costs.

With the ruse of grounding his delinquent child, Kennedy is paving the way for expanded managed care-run by government, rather than insurance, bureaucrats.