Consumer's "Bill of Rights" from Clinton Administration
Late in March, 1997 the President announced his appointments to the 32-member Advisory Commission on Consumer Protection and Quality in the Health Care Industry. Members of the commission range from representatives of the American Medical Association (AMA), the American Federation of State, County and Municipal Employees (AFSCME), the Service Employees International Union (SEIU), the American Nurses Association (ANA) to the CEOs of larger, for-profit firms. There is significant representation from health plans. Executive Director Ron Pollack of Families USA, a grassroots health care advocacy group out of Washington DC, was also appointed to the commission.
The group is co-chaired by the secretaries of Labor (Alexis M. Herman) and Health and Human Services (Donna E. Shalala). The commission was charged with creating a "Consumer Bill of Rights" by March 1988.
At the first meeting of the committee on May 13, members heard sharply conflicting opinions on whether more government regulation was needed in health care. Proposing strong legally enforceable rights, Cathy Hurwit of Citizen Action argued, "We don't believe you can have a voluntary Bill of Rights. We don't believe you can rely on the market to enforce those rights. Just as restaurants are not allowed to operate if they are not up to code, you should be setting a code, and all health care plans should have to meet those standards."
While several panelists echoed these sentiments, others argued against regulation. "Wise purchasing decisions by employers, not regulatory micromanagement, will produce the greatest benefits," Helen Draling, manager of health programs for Xerox Corp. testified.
Now the document requested by President Clinton has been finished. According to a press release from the Department of Health and Human Services dated November 20, 1997, there are three goals for this "Bill of Rights": "to strengthen consumer confidence that the health care system is fair and responsive to consumer needs; to affirm the importance of a strong relationship between patients and their health care providers; and to reaffirm the critical role consumers play in safeguarding their own health." The substance of the document consists of the following points, with the explanations of all points taken directly from the HHS press release:
The main question of course is - what does it mean? The rights enumerated here have some effect in the federal Medicare and Medicaid programs, where the executive can declare the rules according to which the programs must operate. For private health insurance plans, these "rights" without the force of law are just wishes or talking points, not actual enforceable rights. And that last point, which is no kind of consumer's right at all, simply should not be a part of this list - yet there it is. .
Commission member Philip Nudelman, chairman and president of Kaiser/Group Health, Inc. Said, "I think we've successfully avoided stating what the true rights should be." In a letter to the co-chairs of the commission (HHS Secretary Shalala and Labor Secretary Herman), Nudelman said that the commission should declare "fundamental rights...even if we cannot fully implement them today." He then went onto say that the most important would be the right of access to quality health care regardless of ability to pay. In the event, the commission did not mention this right.
In the Medicare and Medicaid programs, the Clinton administration has determined that "gag clauses" prohibiting doctors from telling their patients about treatments not approved by the insuring agency are against federal law. Medicare and Medicaid beneficiaries are entitled to their doctors' unfettered medical opinions. However, the first listed right for all health care consumers has been carefully worded so as not to spell this out, and in fact the commission does not try to prohibit "gag clauses."
Medicare and Medicaid rules prevent the income of a physician from being at "substantial risk" through financial incentives to the physician to limit the number and type of medical procedures he makes available to his patients. In terms of patient's rights, this would be the right to coverage for any medically necessary or useful procedure. While the commission's list includes a right to some kind of information, a right to "be a partner", and a right to "speedy complaint resolution", somehow the right to actually get quality health care, even if that is what you and your employer have paid for, has been left out.
In short, according to this list, you should have a right to the sizzle, but not to the steak. This Bill of Rights has gone so far down the road of compromise with insurance companies and managed-care plans that the "health care consumers" who are supposed to be reassured will find it to be weak and disappointing.
Commissioner Ronald Pollack of Families USA, a consumer advocacy group, said that, aside from a right to appeal a health care decision to some authority outside the insuring agency, this bill of rights as now written would do little to lower the barriers that private health insurance plans erect between patients and treatment. He added: "What if the [original] Bill of Rights didn't include the freedoms of speech and religion? You'd say something was missing. That's the analogy here."
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Article updated November 23.
Last revised January 31, 1998