In 1997, Texas and Missouri passed laws that make health plans directly liable for medical malpractice. The Missouri law repeals a state statute that said HMOs do not themselves practice medicine. The Texas law, by contrast, allows health plan beneficiaries to sue if the health plan does not exercise a degree of care that a 'health plan of ordinary prudence" would use, or for harm caused to enrollees by treatment decisions made by health plan employees, agents or representatives. Sixteen other legislatures considered plan liability during the 1997 session.
The new crop of state health plan liability bills will be "all over the map" in terms of how they implement the concept of plan malpractice liability, BCBSA State Services Research Director Susan Laudicina predicted at a Feb, 12 press conference.
Even if states decide to institute health plan malpractice liability, most covered individuals would not be able to take advantage of the change, because the majority of the healthy insurance market is exempt from state liability claims, under ERISA. Removing the ERISA liability "loophole" is a key component of several bills in Congress, including the 'Patient Access to Responsible Care Act." sponsored by Republicans Rep. Charlie Norwood (Ga.) and Sen. Alfonse D'Amato (N.Y.) and the upcoming Democratic consensus bill; ERISA liability is also the subject of advertising campaigns by the Health Benefits Coalition and the PARCA alliance.
Proposals to require mandatory external grievance review procedures for health plans are likely to be considered this year in California, the District of Columbia, Delaware, Florida, Georgia, Hawaii, Maryland, Mississippi, New Hampshire, North Dakota, New York, Oklahoma, Pennsylvania, Vermont and Washington, BCBSA predicted.
In 1997, nine states enacted external grievance review legislation. In Florida, New Jersey, North Carolina, and Tennessee, the decision of an external review panel is advisory, not binding. In Ohio, only appeals involving experimental treatments can be sent to an outside panel. In Connecticut and Missouri, the state of Department of Insurance appoints an appeals panel to hear denied claims. Arizona and Texas also passed grievance bills.
Managed care quality standard bills are expected to be considered in 16 states, the BCBSA study found: California, Delaware, Florida, Hawaii, Iowa, Idaho, Illinois, Indiana, Kentucky, Maryland, North Dakota, Oklahoma, Pennsylvania, South Carolina, Tennessee and Washington.
BCBSA pointed to "self-referral bills" as attempts by medical providers to preserve their business interest in the face of managed care utilization controls. In 1997, nine states (Arkansas, Delaware, Idaho, Minnesota, Missouri, Montana, Nevada, Rhode Island and Texas) passed bills requiring direct access to OB/GYNs; Florida passed a direct access bill for dermatologists, Georgia and South Carolina passed a direct access bill for eye care providers and legislation in New Mexico preserves direct access to acupuncturists.
"It looks like certain provider groups who may feel restricted by managed care are responding accordingly, "BCBSA's Laudicina said "An assortment" of self-referral bills are expected for 1998: in California, Colorado, Florida, Illinois, Indiana, Maine, Missouri, Mississippi, Nebraska, Oklahoma, Pennsylvania, South Carolina, Tennessee, Vermont and Washington.
Laudicina said she senses that the momentum of managed care reform legislation is slowing on the state level. For example, she noted, 30 states passed maternity minimum length of stay bills in 1996, while 14 states passed mandatory mastectomy stay bills in 1997. "State legislatures are beginning to think twice about doing the politically correct thing, "Laudicina said. In addition, Laudicina pointed to "mandate evaluation laws "operating in 10 states, which automatically refer proposed new mandates to study committees before they can be considered by the legislatures, as further slowing the trends towards clinical mandates. "The enthusiasm for 'legislating by body part' appears to have subsided somewhat in 1997" the BCBSA report concludes. Children's health will be a top state priority, the National Conference of State Legislatures reported "More that one quarter of the states have or plan to have programs up and running by the end of March," NCSL said. "This is remarkable progress considering that federal rules and regulations are not even written and most state legislatures just came back into session in January." "Debate will continue on gag clauses, direct access to providers and 'drive-through' care, while three fairly new managed care issues -- emergency care, HMO liability and grievance procedures -- will be considered in many states," NCSL's 1998 legislative forecast predicts. Mental illness parity bills are also expected to be prominent in statehouses this year, BCBSA says.
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