You may have heard about a fracas in Helena that involves two of the three branches of state government- the legislative and the executive branch. At issue is a law that was passed by the legislature and the rules that are supposed to implement that statute. The executive branch writes the rules. Specifically, the Agency in charge is the Department of Public Health and Human Services, DPHHS for short. By law, all proposed rules are the subject to public comment. And comment, the public did, loud and long.
More than twenty rules were proposed by DPHHS to put the ground rules in place to ensure that Montanans who were placed in managed care organizations for their health insurance would be guaranteed that the carrier would provide a network of providers that would serve our very rural population. OF those twenty or so rules, more than a dozen were the subject of criticism. The main controversy centered on Rules IX and X. Rule IX dictated how far Montanans would have to travel to find a doctor in the network that could treat them. Rule X granted exemption from Rule IX. It's essence was that if a company had made a "good Faith effort" to sign up a doctor or a hospital in any given area, it was just the same as if they had indeed SIGNED up a provider. Just the same for them maybe, but not for the patient who has to travel further, oftentimes driving right by his family physician in order to get the care they need, The Department will decide who is acting in 'good faith".
Allied Citizens for Healthcare Equity testified in opposition to Rule X of the Network Adequacy for Quality Assurance rules. While ACHE deemed many of the proposed rules as either impractical or unworkable, Rule X is viewed as especially egregious.
ACHE's testimony at the hearing focused not on the specifics of Rule X (it had plenty of articulate critics already), but on the overreaching by the Executive branch by DPHHS. As an individual who has been active in the legislative process both from the vantage point of legislator and now lobbyist, I have witnessed many instances of good legislation thwarted by intrusive or excessive rulemaking.
These rules present such an example. I was present during the 1997 session when the bill that these rules purport to implement was passed. The entire discussion focused on protecting patients from any perils that impending penetration by managed care entities might generate.
At no time in the debate on the bill did the legislature decide that any government agency was to interpret what constitutes 'good faith' negotiations between providers and insurance carriers. The statement by the DPHHS spokesman that 'everyone knows what good faith means' does not offer much comfort to veteran agency watchers. In Rule X (2) good faith could be construed to mean that if two providers were offered the same compensation and one became a participating provider while the other did not, the patients in the latter's area would not receive the same level of benefits as the patients in the first area. In many cases this is tantamount to forcing patients in one area to bypass their local provider for another, more distant one.
Interestingly, the CEO of the state's largest carrier stated that 'Health care is a local issue. Even within a state it is local, what Billings needs is different than what Hamilton needs.' (Helena Independent Record, September 23, 1999). According to Rule X, aggressively supported by that same carrier, that opinion is negated.
ACHE agrees with the CEO's published statement that healthcare is both local and personal.
How deep will DPHHS personnel dig to determine if a provider
is acting in good faith? What sort of records will he require
to decide if that provider can afford to absorb the discounts
that a carrier may offer? How many questions are too many? What
information will a hospital or physician have to divulge to the
government? How much compensation is too much? DPHHS is already
on record saying that some physicians are overpaid relative to
their fellow physicians. By what authority do they reach that
conclusion?
Make no mistake, when there is a collision between providers and
carriers, it is that patient who pays the price. That is the Montanan
that the Network Adequacy and Quality Assurance Act intended to
protect. They are left vulnerable under Rule X as written.
ACHE will work to find some workable solution to problem posed by Rule X. If such plan develops, ACHE will share its findings with the Children, Families and Human Services Committee. If no practical solution emerges, ACHE respectfully asks that the Committee request the Department to repeal Rule X outright.
If you agree that it is not government's role to define 'good
faith' between contracting parties, if you agree that as far as
health care goes for Montana's rural citizens, 'close enough for
government work' is just flat not good enough, call Allied Citizens
for Healthcare Equity at 406 442 6629 for a list of Committee
members and other actions you can take to make sure that all Montanans
have access to quality healthcare. Or check out our website www.ache-montana.com.