An ''unholy alliance'' between the trial bar and the medical industry is threatening to seriously damage the Employee Retirement Income Security Act, says an insurance industry leader.
He said a strong debate on patients rights is likely in the legislature for the upcoming year.On the other side of the argument, a source demanded that health plans take responsibility for their actions and stop ''hiding behind the Erisa shield.''
Erisa, the legislation that most significantly affects self-funded plans, was signed into law in 1974. It has helped many employers provide affordable health coverage by exempting self-funded plans from offering the state-mandated benefits that fully insured plans must offer.
Members of the Council of Insurance Agents and Brokers have a big stake in the outcome, said Joel Wood, senior vice president of the Washington-based CIAB.
The council represents the largest insurance intermediaries in the world and its members see employee benefits as their largest growing business segment by far.
''Patients' rights legislation can be enacted without ripping the guts out of Erisa,'' Mr. Wood said, calling the Patients' Bill of Rights, a measured sponsored by Sen. Tom Daschle, D-S.D., an ''unholy alliance between the medical community and the trial bar.''
The CIAB backs a House bill, sponsored by Rep. Harris Fawell, R-Ill., that is supported by employers and the health plan community. It would establish standards for access to emergency care; require direct access to obstetricians, gynecologists and pediatricians; and ban clauses that prohibit health care professionals from suggesting treatment that may not be covered by the health plan.
In addition, it would require that plans inform participants about covered benefits, limitations, exclusions and restrictions on coverage, participant financial obligations and dispute resolution; establish internal and external review requirements; and provide participant remedies when plans fail to comply.
Opponents of the House bill - primarily consumers, the medical community and the trial bar - are concerned with the lack of a provision permitting lawsuits against health plans for the delay or denial of care or coverage. They view the right to sue for punitive damages as the only effective means of holding health plans accountable for their decisions.
Currently, under Erisa plans, exposure to damages from lawsuits is limited to actual, not punitive, damages.
''There have to be changes to Erisa,'' argued David Hebert, chairman of the Patient Access To Responsible Care Alliance (PARCA) and director of federal government affairs for the American Association of Nurse Anesthetists.
''Health plans can deny care to patients, causing death,'' he said, ''while providers continue to hide behind the Erisa shield. These health plans should step up to the plate and take responsibility.''
Since PARCA's original legislation has little chance of passing, Mr. Hebert said his group has moved its support behind the Patients' Bill of Rights.
The Daschle bill includes several provisions designed to protect consumers in managed care plans and other forms of health coverage.
Meanwhile, a provision in the House bill would actually expand Erisa to include even smaller employers by allowing them to pool together under trade and professional associations.
Trial lawyers, the CIAB's Mr. Wood said, are eager to access ''deep pockets and open up liability to health plans for anything that goes wrong.''
''That's a red herring, used to distract people,'' Mr. Hebert countered. He argued that under the House bill, the burden for paying for the injuries and illnesses not covered by these health plans will fall to the government.
''Down the road, we're going to let private business shirk their responsibilities and let the government shoulder the responsibility,'' he said. ''Shifting the burden to the government is not what we should do.''
The health plans operating responsibly won't have to worry about the lawsuit provision, Mr. Hebert said, and those who aren't will have to shape up.
Referring to the CIAB's official position, Mr. Wood noted that the organization ''is not opposed to efforts to make plans more accountable. We are concerned that 'patient rights' legislation might make employers less likely to offer private health insurance products, and could perversely raise the cost of health insurance, undermining the goal of reducing costs and providing access.''
Mr. Wood said the affordable health care provided through Erisa has led to the most ''radically reduced rate of growth in health care spending in 30 years. The market has provided solutions to the health care industry's problems.''