While we glow about how the Department of Managed Health Care’s regulations on timely access to care were returned to them yesterday — without approval — by the Office of Administrative Law, we also want to take the opportunity to talk about the obscure process in state government called rulemaking.
I’ll strongly note here that the OAL’s refusal to finalize DMHC’s proposed Timely Access regulations had nothing to do with how miserable the regulations actually were. Office of Administration Law merely dinged DMHC because they did not follow the proper waiting periods and rules — (hey, we’ll take our wins where we can get them). This is an importnat point as we embark on another year of rulemaking for Timely Access to Health Care standards.
First, I want to point everyone to the Office of Administrative Law’s handy dandy lay person’s guide on How to Participate in the rulemaking process.
Secondly, some context. Here’s how the Timely Access regulations came to be:
- January 1, 2003: AB2179 (Cohn) takes effect, having passed in 2002, requiring the state to adopt regulations to ensure that enrollees have “timely access to needed health care services.” (Timely access means reasonable waiting times for appointments with physicians, quick and timely care when a patient is sick or needs services, etc. )
- January 1, 2004: The date by which DMHC was supposed to have adopted regulations.
- July 9, 2004: DMHC begins writing regulations, but withdraws them in April 2005 because of feared “unintended consequences” and restarts discussions with various parties, including insurers, providers and consumers on how to craft the rules.
- January 11, 2007: DMHC reopens the rulemaking process with Office of Administrative Law on this date; the department has 365 days from this date to complete the regultions.
- March 5, 2007: DMHC holds its first public hearing on its first set of proposed regulations. The 14-page regulations (among many other things) spells 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 spcialty care: 72 hours; Routine specialty care: 14 days).
- July 15, 2007: DMHC releases second version of regulations. As in the March version, this draft also contains time-elapsed standards.
- September 18, 2007: DMHC holds second public hearing on a revision of the proposed regulations and accepts comments.
- December 10, 2007: DMHC’s third version of these rules completely strips out all specificity. Gone are state standards requiring that a patient who needs urgent care be able to see a primary care physician within 24 hours. Instead, the new rules allows health plans to define, for themselves, what constitutes “timely access.” This stripped-down draft shrinks from 28 pages to 7 pages. The Department gives interested parties 15 days to submit comments — from Dec. 10 – 26. (Note: It’s this final 15 days where DMHC gets into trouble).
- January 11, 2008: DMHC submits final regulations for approval with Office of Administrative Law. (The Office of Administrative Law has 30 days to approve the regulations — which it refused to do yesterday.)
Health Access, the sponsors of of AB2179, and consumer advocates have many substantive reasons to scream and howl about the latest draft of the regulations. We believe the state flouted the law, intended to get consumers proper health care when they need it (not weeks and months later). In doing so, we believe they lacked the “statutory authority” to do what they did. We also believe that the Department was deliberately vague and unclear, allowing insurers to willy nilly make up their own rules.
But what hung the DMHC was its “belief” that the differences between the second and third versions were not substantial (though, anyone who is not color blind looking at all the red in the “track changes” function could see otherwise.) The Department gave the public only 15 days to comment on the rules — clearly not enough time for “major changes,” which require 45 days. But the full 45 days would have meant that the Department blow its January 11 deadline.
What OAL inadvertently did this week was provide consumer advocates time to make the regulations right. That means we’ll have another year to fight at the Department level (again) to ensure patients get care when they need it. In the meantime, Health Access will continue to keep advocates abreast of movements on Timely Access and post relevant documents. (We’ll post letters, correspondence from the past year soon).