PATIENTS BILL OF RIGHTS LEGISLATION

SIDE BY SIDE

Abbreviated Summary Comparisons of

S. 1344 and H.R. 2990

As enacted by their respective Houses

Provision	S. 1344 as Passed by the Senate	H.R. 2990 as Passed by the House
Right to Sue	After external review, gives right to sue for reimbursement of benefits and legal costs, if plan or insurance issuer does not pay reimbursements determined to be required by an independent external reviewer (see "External Review" below)	Amends ERISA to provide that ERISA does not preempt state law causes of action in state court for personal injury or death in connection with insurance or medical or administrative services from a group health plan; employers and other plan sponsors are not subject to suit unless the suit is based on the employer's discretionary denial of benefits covered by the plan. Punitive damages will not be permitted if the employer undertook external review of its decision. Permits nonclass action suits under ERISA for violation of the UR and access to care provisions, limited to payment for services or benefits not provided and, at the court's discretion, to fees.
Scope of the Law	Generally, the Senate bill applies only to employer plans.	Generally, the House bill covers both employer plans and insured plans.
Access to Specific Services
Access to Emergency Care	If the plan covers emergencies, plan must pay and no preauthorization required for emergency examinations or ambulance service if a prudent person would deem the situation to be an emergency; if the plan covers services necessary to stabilize person, the plan must pay for such treatment without preauthorization, if the provider contacts the plan and the plan does not respond within 1 hour; does not apply to fully insured group health plans	Similar provision, but does not exclude fully insured group plans.
Access to Specialists	Requires plans other than fully insured group plans to: Give females direct access to OB/GYNs, if not the primary care physician Give children direct access to pediatricians, if not the primary care physician Provide timely access to primary and specialty services through network or outside contract professionals	Requires plans to give access to specialists and to permit designation of OB/GYNs and pediatricians as the primary care physician. Individuals with special ongoing conditions can have their specialist act as the "gatekeeper" for treatment.
Continuity of Care	Requires group health plan, other than fully insured group health plans, to notify participants of coverage or provider terminations or changes on a timely basis and, on notice by participant of need to continue care, provide such transitional care for 90 days from change or through pregnancy and post partum for those in 2^nd trimester, death of terminal patient or end of institutionalization	Requires group health plan to notify participants of coverage or provider terminations or changes on a timely basis and, on notice by participant of need to continue care, to provide such transitional care for 90 days from change. For women pregnant at the time of the termination, care can continue through pregnancy and postpartum and, for a terminal patient, care can continue until the death of terminal patient.
Point of Service Option	Requires group health plan, other than fully insured group health plans and self-insured plans with 2 to 50 employees, to offer POS option unless POS coverage not available or accessible; plans may impose higher cost, but employers are not required to pay such costs	Similar provision, but no exemption for small plans and insured plans.
Prescription Drugs	Requires group health plans, other than fully insured group health plan, that cover prescription drugs limited to their formularies, to ensure that physicians and druggists participate in the development of the formulary; and requires plan coverage for medically necessary non-formulary alternatives	Similar provision, but would also apply to insured health plans.
Access to Clinical Trials	Requires group health plans, other than fully insured group health plans, to pay for routine costs of cancer clinical trials, excluding costs of tests primarily to further trials	Requires plans to pay for routine costs of clinical trials for any life threatening illness for which no standard treatment is effective, excluding costs of tests primarily to further trials
Mental Health	Prohibits group health plans, other than fully insured group health plans, from discouraging or prohibiting participants from self-paying for behavioral health care once the plan stops paying or from terminating providers who accept such payments	No similar provision
Regulation of Health Care Providers
Information Disclosure	Requires group health plans and insurers covering or offering group health plans to provide comparative information on services covered, cost-sharing, network restrictions, PCP selection, access to OB/GYN and pediatricians, UR, compensation information, etc.	Extensive information disclosure (but no requirement for comparative data); UR must be conducted based on written clinical review criteria; preauthorizations cannot be subject to UR based on revised standards
Utilization Review	Every employee plan using UR must provide adequate written review of denial and offer full and fair review of denials; plan must make eligibility and copayment determinations, and notify participants and health care providers of decision and respond to oral or written requests from the participants or providers	UR must be conducted by qualified health professionals, who are reasonably available to discuss determinations
UR Timing and Notice	Prior authorization review nonemergency period limited to 30 days and notice to participant within 2 days; emergency limited to 72 hours to review and provide notice to participant	Similar provisions but time period is 14 days for nonemergencies
Grievance Procedure	Group health plans and insurance issuers must have written grievance procedures for complaints other than coverage complaints; determination nonappealable; coverage complaints are defined as a determination of whether services are covered or reimbursable under the contract	Similar provision, with the records of grievances and their resolution to be maintained for at least 3 years
Internal Review	Plans conducting UR must give participants up to 180 days to appeal denial; review of coverage denial must be conducted by one not directly involved in the denial who has appropriate expertise; denials based on medical necessity must be conducted by physician, with age appropriate expertise who was not involved in initial denial; same time limits and notice including explanations and procedures for external review; failure to timely respond treated as denial	Review of coverage denial must be conducted by one not directly involved in denial who has appropriate expertise; for ordinary events, 14 days to respond after receiving complete information, but in no event more than 28 days; 72 hours for emergency reviews; failure to timely respond treated as denial
External Review	Must have procedures for "Qualified External Appeals Entity" (QEAE) to review after participant has completed internal review and denial if (1) medical necessity and the service is financially significant or the patient's life or health is at risk or (2) services are experimental or investigatory; failure to timely respond treated as denial; QEAE must be licensed or credentialed by the state and selected within 5 days; QEAE selects "independent external reviewers" licensed or credentialed by state with experience in same specialty; list of requirements for the IER to take into account; decision within 72 hours if expedited; 30 working days, if normal. IER determination binding on plan. Plan can request IER without completing internal review.	Similar process except no "independent external reviewer" is named (although reviewers are required to be "independent"); time period is 21 days after appeal request; 72 hours for expedited review.
Gag Rule	Prohibits group health plans, other than fully insured group health plans, from restricting or inhibiting communications with patient regarding treatment or status of disease	Similar provision
Provider Nondiscrimination	Prohibits group health plan, other than fully insured group health plan, from discriminating against provider based on provider's license/certification; does not require plan to offer "any willing provider" and does not restrict plan from imposing quality controls	Similar provision
Quality Assurance and Research	Establishes Agency for Healthcare Research and Quality under the PHS and Advisory Council for Health Care Research and Quality; Agency to conduct data gathering on quality of health care	No similar provision.
New Health Care Providers	No provisions	Would create ERISA-regulated Association Health plans sponsored by trade and professional associations, state-regulated Healthmarts selling to small employers, and Community Health Organizations
Genetic Discrimination	Amends ERISA, IRC and PHSA to forbid discrimination in premiums and enrollment based on genetic information	No provision
Physician Incentives	No provision.	Health plan or insurer incentive plans for physician are prohibited unless they meet the Medicare standards
Patient Advocacy	No provision	Plans and insurers would be prohibited from retaliation against anyone participating in a utilization review or grievance review process; plans and insurers would be prohibited from retaliating against any health care professional disclosing information in good faith regarding care, conditions or services for participants; good faith requires following internal procedures for reporting such information
Women's Health and Cancer Rights	Length of hospital stays in connection with breast cancer are to be determine only by the attending doctor and the patient; second opinions must be covered	No provision
Tax Provisions
Tax Breaks for Health Insurance	Full deduction for self-employed's health insurance	Full deduction for self-employed's health insurance; deduction for individuals not in employer plans
MSAs	MSAs would be available to all	Similar provision
Cafeteria Plans	Would allow carryovers of unused funds from cafeteria plans, flexible spending accounts	No provision
Long Term Care	Includes LTC in cafeteria plans, flexible spending accounts; 100% deductions for LTC insurance, if not provided by employer	Deduction for individuals not in employer plans
Revenue Raising Provisions	Several non-health care "pay for" tax law changes	None
Revenue Effects	After offsets from revenue raisers, tax loss of $29,843 billion from 2000 to 2009 primarily due to MSAs and LTC deductions; Joint Committee on Taxation estimate November 2, 1999	Revenue loss of $48,610 billion from 2000 to 2009, primarily due to deduction for health insurance and LTC; no offseting tax increase provisions; Joint Committee on Taxation estimate November 2, 1999
Miscellaneous
Paperwork Simplification	No similar provision.	Establishes a panel to devise a uniform Explanation of Benefits for third party payers within 2 years

Members from the House and Senate will meet in "Conference" to resolve the differences between the two bills and craft one version, "the Conference Report," that must be approved by the House and the Senate. If both houses approve the Conference Report, it is sent to the president for signature. Technically, the conferees cannot put new material in the bill, but it does happen from time to time. The first conference meeting is scheduled for February 28.
This is subject to change.

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