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The following article appeared in various formats in the Helena Independent Record and the Billings Gazette.
Lawmakers unanimously recommend stalling enactment.
By ERICA CURLESS
IR State Bureau

An interim legislative committee has no faith in a "good faith" effort rule that will govern managed-care in Montana, so member unanimously voted Thursday to stall its enactment.

At issue is the definition of a "good faith" effort. The rule, recently approved by the state, would allow a health network to still offer its plan to insurance consumers, even if it fails to negotiate a contract with local providers such as a hospital. As long as the managed-care company makes a "good faith" effort, it can still offer the plan in that community even though no local providers are participating, says the rule written by the state Department of Public Health and Human Services.

The eight-member Children, Families, Health and Human Services Committee called Chairwoman Sen. Mignon Waterman, D-Helena, and voted to oppose the rule after the Allied Citizens for Healthcare Equity and Rep. Bruce Simon, R-Billings, complained.
The remaining provisions in the Managed-Care Adequacy and Quality Control Act, which the 1997 Legislature passed, will take effect Oct. 1.

However, the "good faith" rule is put on hold. The committee will discuss the controversial rule at its Nov. 19 meeting.

The health department's chief lawyer wasn't available for comment Thursday, but some department officials said the legislative committee filed its complaint too late after the state adopted the rule. But the secretary of state's office, which publishes the rules, said since the rule didn't take effect until Oct. 1, the committee's action is valid.

Nancy Ellery, state Health Policy and Services Division administrator, said she's unsure why there's so much concern over the rule.

"The implication is that the department would approve a network without providers," Ellery said. "There's no way. We have some responsibilities to assure a network is adequate."

But opponents, such as state Auditor Mark O'Keefe, said the definition of "good faith" is unclear and Montanans may be forced to travel farther for medical services or health networks may be allowed to reimburse payments for a smaller amount of their bill.

WHEN THE COMMITTEE meets in November, a majority of members will take a formal vote objecting to the "good faith" rule. Five members must vote against the rule to officially delay its effective date. If the vote fails, the rule will take effect in March.
If the vote passes, the rule won't take effect until the adjournment of the 2001 Legislative session, giving lawmakers the opportunity to amend it. The department also has six months to change the rule to satisfy the committee.

But John MacMaster, an attorney in the state Legislative Services Division, said this process of stopping the rule may be unconstitutional because the committee doesn't legally have the authority to prevent the department from adopting rules mandated by the Legislature.

HE SAID supreme courts in three or four states have thrown out similar laws because a single legislative committee, not the full legislature, was forcing a department to either change the rules or do without. MacMaster said only a full legislative body has that authority.

That means it's possible the department could take the state to court, he said.
Ellery said she couldn't comment on the legality of the committee's action.

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