The DMHC Oversight Hearing…

HEALTH ACCESS UPDATE
Friday, March 28th, 2008


SENATE PANEL QUESTIONS HMO REGULATOR
* Lawmakers question Department of Managed Healthcare’s oversight of health insurers
* Inquiry into regulations for timely access, discount plans, rescissions, language access and mental health parity
* Sen. Kuehl sees “pattern” of siding with industry against consumers
* Laws passed more than five years ago still not implemented


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SACRAMENTO–At a special hearing of the Senate Health Committee on Thursday, Department of Managed Health Care Director Cindy Ehnes was questioned for over nearly seven hours about her department’s handling of five separate regulations and whether it had met its charge as a consumer protection agency in implementing and enforcing laws to help patients. “This hearing is meant to provide a level of oversight to ensure that legislation that is passed gets implemented in a way that is consistent with the way it was intended,’’ said Sen. Sheila Kuehl, chair of the Senate Health Committee.

At issue were three laws, passed in the late 1990s and earlier this decade, which still have not been put into practice: Timely access to health care, access to health care that is both culturally and linguistically sensitive and mental health parity. Additionally, Ehnes was interrogated about the Department’s rationale for regulations regarding retroactive cancellations of health policies and so-called “discount health cards”.

For more detailed information on all these issues, you can visit the Health Access website and blog. As well, the Senator posted a detailed agenda and background papers on her website, at:
www.sen.ca.gov/kuehl

TIMELY ACCESS TO CARE

Background: First on the list was the issue of timely access to care, which were intended to prescribe specific time-elapsed standards for how long it should take patients to get into to see a physicians. The law was passed in 2002, and after many years of hiccups, regulations were on the path to implementation in 2007. The regulations spelled out exactly how quickly patients should be able to get in to see a doctor in certain situations. (I.E. Urgent primary care needs: 24 hours; Routine primary care needs: 10 days; Urgent specialty care: 72 hours; Routine specialty care: 14 days)

But in December, the Department yanked that version, stripped out all specific requirements, and left it up to health plans to determine their own standards, as had been the practice in the years before the law was passed. Health Access California and Western Center for Law and Poverty testified that the law did not meet the legislature’s intent in having the Department set clear, prescriptive standards. Last month, the Office of Administrative Law rejected the regulations, saying the department had not allowed enough time for public comment given the dramatic changes in the regulations. To read Health Access’ writings on this, click here.
The difference between the August and December versions of the regulations was so stark that Sen. Sam Aanestad, R-Grass Valley, asked, “It looks like the department just punted. What was the amazing turnabout?’’

Department’s take: Ehnes said she felt that the August regulations – 26 pages – were too complicated and would force plans to micromanage physicians they contract with. She said the department focused on the clinical triage via phone, where patients could call in and get a professional to tell them what they needed to do. Health Access’ Beth Capell later said this telephonic triage was available during limited times — weekdays during work hours.

Legislative comment: “Regulations are supposed to go further than the statute. Sometimes they are going to be very complicated. I would encourage a little more complication,’’ Kuehl said. She urged that the Department set prescriptive, time-elapsed standards when developing new regulations in the new year. Aanestad indicated he thought the Department was “almost there” with previous version of the regulations that had set standards.

DISCOUNT HEALTH CARDS

Background: Discount health cards aren’t health plans, but cards that consumers pay a monthly premium, for access to a list of physicians that will purportedly provide them discounts. The problem is, often, physicians don’t know they’ve been put on a list, and consumers don’t know what the base price off which they receive a discount, making the discounts meaningless. These plans are often marketed toward lower-income or limited-English consumers who believe they are actually buying health coverage, and these plans rely on this confusion to thrive.

The plans have been deemed illegal by the state Attorney General; but there has been confusion about if they should be allowed or licensed and regulated, and even what agency should do the regulating. The DMHC has started a process of developing regulations to license these discount cards, working with the industry. Health Access testified that while the value of these products was questionable, any regulations must at a minimum ensure real discounts to a real network of providers with real notice of what consumers are and are not getting for their money.

Department’s take: The department has investigated 53 discount health plans and ordered cease and desist orders against 7. Ehnes said developing regulations and licensing such products was not meant to be an endorsement, but to try to better understand the products.

Legislative comment: Kuehl asked the department, as it continued its work, to strongly consider whether these products offer any real economic value to consumers.

RESCISSIONS

Background: In the past couple of years, the startling practice of retroactive cancellation of policies by insurers has arrested the public’s attention. Consumers, who have been paying monthly premiums and believed they are insured, receive high-dollar treatments for cancer, heart disease and the like. These expensive treatments often trigger insurance companies to review the enrollees’ initial application and rescind policies, claiming enrollees did not properly disclose pre-existing health conditions. Policies are cancelled, retroactively, as if consumers were never insured. Consumers are then sometimes left with thousands –if not hundreds of thousands of dollars — in debt for treatments they believed were covered. The courts have determined this practice is illegal unless consumers willfully misrepresent their health status.

Department’s take: Ehnes said the DMHC has been aggressive in investigating plan behavior since the practice came to light. The department, along with the Department of Insurance are developing regulations so that plans do not have the ability to rescind without reason and that consumers can’t misinterpret applications.

Legislative comment: Kuehl’s primary concern was how consumers could obtain coverage after they’ve been cancelled. These cancellations occur on the individual market where consumers are often denied coverage due to pre-existing conditions. Once consumers’ coverage is cancelled, it would be impossible for them to obtain coverage through any carrier.Aanestad believed the department was not properly protecting consumers and making that the focus. “The first priority is to reinstate coverage for consumers. The second priority is to make headlines and change the industry, but it doesn’t sound like that’s really happening.’’

CULTURAL AND LINGUISTIC ACCESS

Background: In 2003, the legislature passed a law, SB853(Escutia), that required health plans to ensure that the consumers who did not speak English as a first language had proper medical interpretation services. Up until then, consumers brought in their children to translate, did not get care, or got the wrong care because they were unable to communicate with their doctors. This is particularly important in California where 55 percent of the population reports not speaking English well. The California Pan-Ethnic Health Network, Latino Issues Forum, and other groups were concerned that the notice about these new rights were left to the industry to determine, without consumer input. Plans have complained it is costing them millions to translate materials.

Department’s take: Ehnes said she was committed to this issue and was attempting to evaluate all aspects, including whether the regulations go beyond the law and whether it will cost too much.

Legislative comment: Kuehl said when the legislature passes something, that’s the rule. “We don’t care what it costs everybody. Cost is important…but that’s not the top consideration. …We really mean it about providing real access to language minorities,’’ said Kuehl, who was also critical about the department’s process in listening to all stakeholders and allowing enough time to comment on regulations. “Please push the envelope on this one, because I know you want to.’’

MENTAL HEALTH PARITY

In 1999, the Legislature passed mental health parity, providing consumers with access to mental health benefits equal to coverage in other health services. But to this day, consumers are still finding it difficult to obtain mental health services they need on the same level as other health services. Timely access to providers remains a problem as well as plans’ treatment and financial obligation toward mental health. The Senators urged the department to be more aggressive about following up on surveys and studies that found consumers lacking access to mental health.

PARTING NOTES

Ehnes said the department would continue to work on these – along with other issues – under the department’s jurisdiction. Kuehl reiterated that the hearing was intended to ensure that laws were actually implemented and not allowed to wither once passed. She also continued to encourage the department to have more open and collaborative process.

For more information, contact Elizabeth Abbott, director of administrative advocacy at Health Access California, at eabbott@health-access.org. Interested organizations can also contact the author of this report, Hanh Kim Quach, policy coordinator at Health Access, at hquach@health-access.org.

Health Access California promotes quality, affordable health care for all Californians.

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