January 15, 2016

How Would Passage of the Act to Protect the Privacy of Health Care Decisions Affect Private Insurance Contracts?


First, entering into a contract with an insurance company for provision of health care is a health care decision.  Once the terms of the contract are settled, the contract, having been entered into voluntarily, would limit decisions to the extent the contract limits decisions.  Here are some examples:

A person who signs up for health care with an HMO (a subscriber), would not lose his or her right to use health care providers outside of the HMO and pay them cash, just as can happen now.  A subscriber could use any provider within the HMO and the terms of payment by the HMO would govern. If there is a co-pay, the subscriber would have to pay it. In other words, when someone subscribes to an HMO for health care, the terms of the subscriber’s contract would govern health care usage within the HMO.

Likewise, a person who signs up with a PPO would receive care under the terms of his PPO contract. Again, co-pays and  deductibles would not change. There would still be in-network and out of network payments and policies regarding payments.

A person who receives medical care through a traditional health care insurance plan, now called “Point of Service” plan, would be able to receive treatment from any health care provider of his choice provided the health care provider is licensed to provide such treatment.

So how would passage of the Act to Protect the Privacy of Healthcare Decisions affect private health insurance contracts?

The patient’s decision to seek a particular treatment from a particular provider would be the patient’s, not the insurance company’s. Hence, it would prevent insurance companies from refusing to cover services on the basis of “medical necessity” (which currently is defined solely by the insurance company, not by the patient or the patient’s doctors) which is very common now.  What is medically necessary would be determined by the patient with the advice of his or her health care provider(s), not by the insurance company. Thus, insurance companies could not deny care based upon some “guideline” (which currently, patients have no access to prior to buying the insurance).  Since the patient is in the best position to determine if a treatment works by having it,  any treatment the patient finds beneficial would have to be paid under the terms of the contract.  Nor would an insurance company be able to deny treatment based on some published “standard of care” used by the insurance company.  Many “standard of care” documents are published by medical interest groups with a vested interest in promoting a particular treatment. Take for instance the 2013 guideline from the American College of Cardiology and the American Heart Association for prescribing statin drugs which recommends statin drugs for over three quarters of the adult population over 45 who do NOT have cardiovasclar disease, without regard for the increase in diabetes, fatigue, malaise, male impotence, and muscle disease, that would result if the guidelines were actually followed.  The first defense against such “guidelines” is the patient being able to choose other treatments for lowering the risk of heart disease and stroke, such as nutritional advice, meditation, acupuncture, biofeedback for stress reduction, and exercise therapy. All of these treatments are more effective than statins.

Any limitations of medical care offered by an insurance company would have to be spelled out in plain English as services not covered.  For instance, an insurance company could offer an insurance contract that states it does not pay for services for sex change operations, organ transplants, dental care, refractive lenses, or treatment of a particular disease or diseases.  But it could not offer a contract that says it will only pay for care of a disease or condition if provided by only one type of provider if more than one type of provider offers treatment for that disease or condition. For instance, it could not state it would pay for treatment of back pain only if it is provided by a medical doctor or physical therapist.  It could not state that it does not cover spinal manipulation by chiropractors but allow it by osteopaths.  If it offers payment for a treatment, it has to offer payment to any health care professional licensed to offer that treatment. Who the patient chooses to receive that treatment from would be up to the patient. The patient could go in network, taking advantage of in network benefits, or out of network.  An insurance company offering payment for spinal manipulation could not restrict its network to only chiropractors or only osteopaths to offer that treatment.

A company could not restrict the drug formulary for treatment of a disease to only certain drugs and not others that are recognized by the patient’s physician(s) as being effective for that disease.  It could require generic equivalents over brand names since the drug in both cases is the same. But it could not require prescription of favored brands (Favored for instance because the insurance company is a holder of that brand’s stock.) It could limit its payment for any drug to a set amount per dose, which then could be calculated for an entire prescription.  Then patients could ask their doctors if the more expensive drug is really so much more effective that it is worth the higher cost that the patient would have to pay.

An insurance company could not state it covers chiropractic or acupuncture, and then limit payments under the plan to certain medical conditions unless a) all other treatments for those conditions were subject to the same limitations, and b) those limitations are spelled out in the offering in plain understandable English. A reference to “see our website for limitations” is not sufficient to inform a patient who has not yet bought the insurance.  To provide sufficient information to inform a purchaser about what limitations exist the information must come with the offer and not be buried in fine print. Nor can the document be so long that no reasonable person would be expected to read it in its entirety.  To be informative to a person without any training in the health care arts and sciences, a health insurance offering or contract spelling out its limitations should be able to be read and understood by a person with a high school education within half an hour of reading.  In other words, such an offering, typed in single spaced one column per page with one inch margins and 12 point times roman script should be no longer than twenty 8.5 x 11 inch pages. Any interpretation of the Act must protect the prospective purchaser from unclarity in the contract or confusion regarding any limitations to the purchasers’ subsequent decisions or treatment options.  Any unclarity must be interpreted in favor of protecting patients’s rights to make their own informed decisions to the fullest and broadest extent possible.

Nor could insurance companies restrict its network of providers to only providers that follow its “guidelines’. Restricting what the physician is allowed to do in order to participate in network would be a back door approach aimed solely at limiting a patient’s right to make his or her own health care decisions privately with the advice of the caregivers she or he has chosen, i.e. without interference from an insurance company whose vested interest is in its profits, not the patient.

More importantly, nurses and people with no medical education, currently called “adjusters” would have no role in overriding decisions of a patients doctor.  Neither nurses nor laymen have sufficient knowledge override a doctor’s decisions. Allowing these people to override doctors’ decisions puts patients at risk.  Moreover, none of these “utilization reviewers” ever have any contact with the patient so they cannot possibly be in a position to judge what is best for the patient.

Who do you want to control your health care decisions, you, or insurance companies and pharmaceutical companies?


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