The following article appeared in various formats in the Helena Independent Record and the Billings Gazette.
State has faith that good faith rule is justified
By ERICA CURLESS
Gazette State Bureau
HELENA - The Racicot administration disobeyed orders of an interim legislative committee Friday by enacting the "good faith" managed-care rule that opponents fear will prevent many Montanans from accessing affordable health insurance.
The state Department of Public Health and Human Services said it had no choice but to enact the rule that allows a health network to still offer its plan in communities even if no providers agree to participate. This move goes directly against a vote last week by an interim legislative committee that wants to re-examine the controversial rule.
Just one week before the "good faith" rule was scheduled to take effect, the Legislature's eight-member Children, Families, Health and Human Services Committee unanimously voted to oppose the provision. The committee delivered a letter to the department, directing it to stall the rule's implementation until lawmakers can review its merits.
But Russ Cater, chief legal counsel for the state Department of Public Health and Human Services, said the committee acted too late to stop the department from enacting the rule Friday.
"My position is we really don't have a choice," Cater said.
Committee Chairwoman Sen. Mignon Waterman, D-Helena, said there is obviously a conflict about how Montana enacts rules that have been approved by individual agencies.
"It's a difference of opinion," Waterman said.
And now it's up to the committee to challenge the state's actions. Lawyers for both the department and the committee advise that lawmakers can either file a legal complaint in district court or that the committee can drop its opposition.
Waterman said she hopes it doesn't get to that stage, but that the committee is gathering information on the rule and will discuss it at its Nov. 19 meeting. There will be no public hearing at that time, Waterman said.
Cater, meanwhile, said the committee's possible actions will be "either a political whipping boy or a legal complaint."
The rule has sparked controversy because nobody has a clear definition of "good faith." The provision allows the department to determine whether a managed-care company has made a "good faith" effort to negotiate a contract with providers, such as a hospital or a pharmacy, within a 30 mile radius of that particular community. That means it's possible a health network could offer a plan to consumers even though no local doctors or hospitals are participating.
Opponents argue this could force patients to travel farther for health care services or allow a health network to reimburse patients for a smaller amount of their bill.
But insurance companies such as Blue Cross Blue Shield of Montana argue the exemption rule is needed to stop hospitals that refuse to participate in managed-care from preventing affordable health plans from entering many Montana communities.
Legislative attorneys say this rule controversy uncovers a larger question about the checks and balances between the Legislature and the executive branch.
The legislature is in charge of supervising the enactment of the laws it passes, while the state departments have the responsibility to write rules governing those laws. Both sides agree the laws governing these powers are foggy.
Waterman said it's her intent to work with the department to clarify the role of each branch.
"We will clarify the process," Waterman said. "We
need to know when we have the power to suspend a rule."
Updated: Saturday, October 2, 1999
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