РефератыИностранный языкWhWho Wins Witherisa Essay Research Paper David

Who Wins Witherisa Essay Research Paper David

Who Wins Witherisa Essay, Research Paper


David pham


#63540197


Writing 39C


Proposal Paper


3 June 1999


Who Wins With ERISA?


The system of managed care began in the United States in the early 1900s, in an effort ?to provide coordinated health care in a cost-effective way?(Amer. Assoc. of Retired Persons). Until recently,? managed care has emerged from the shadows to become the dominant form of health insurance and delivery,? succeeding the older fee-for-service program (Zelman and Berenson 2). Today, about 160 million Americans are enrolled in some kind of managed care plan. Managed care ?has made health care more affordable andmore accessible for Americans. But sometimes cost


cutting can lead to lower standards? (Clinton 1).


Because managed care plans provide medical care to


their members at a fixed rate, there is a substantial


limit to the medical care each member can receive.


Under this system of prepayment, managed care


organizations (MCOs) can profit off every dollar of


revenue that is not directly spent on patient care.


This produces the problem of incentives, or


temptations for MCOs not to provide sufficient medical


care to their members, all too often resulting in


tragedy (Fox, et al. 56). This problem explicitly


impacts the estimated 125 million Americans who


receive health insurance through MCOs that are


provided by their employers. A federal law known as


the Employment Retirement Income Security Act of 1974


(ERISA) governs these self-insured plans. Under the


Employment Retirement Income Security Act,


ERISA-regulated MCOs are not legally held accountable


for their actions. Until Congress passes The


Patients? Bill of Rights, MCOs will continually and


wrongfully deny patients from quality care.


Health costs have continually risen over the last


decade. The average-income American family now spends


an estimated $5,000 per year on health care alone, an


amount that more than doubled from 1988-1996


(Maciejewski). In an effort to relieve working


Americans from this burden, Congress devised a federal


tax law that would enable employees to obtain tax


benefits for health insurance through their employers.


Today, the vast majority of insured Americans acquire


their health insurance through the workplace. ERISA


governs the employer-based health system to protect


employees from the potential abuses from their health


plans (Amer. Psych. Assc.). Although both the tax


code and ERISA were concocted to help and protect


employees, they play an indirect role in shaping the


inefficiencies that envelop the employer-based system


of health care. Subsequently, regulations imposed by


managed care organizations (MCO) on physicians also


contribute to the inefficiency.


Under today?s tax code, Americans can receive a


discount on health insurance, granted that they attain


it through an employer. The reason for this stems


from a single provision of the Internal Revenue Code,


?which excludes employer premiums from the employee?s


taxable income? (Goodman). This means that health


benefits provided by insurers are exempted from an


individual?s earnings, treating them as if they were


expendable to the actual income. This tax alleviation


?can reduce the cost of health insurance by 30 percent


or more for an average-income family? (Goodman). By


calculation, ?an extra dollar of earnings can be used


to buy a dollar?s worth of health insurance as an


alternative to 70 cents of take-home pay? (Goodman).


In contrast, individuals who purchase their own health


insurance receive no tax benefits; therefore, most


employees choose to join their employer-based health


plan coverage.


Many employers want to ensure that their workers have


good access to health care so that they are more


likely to stay healthy. Despite having to provide


health insurance for their employees, employers also


have to worry about the competition in the market.


Because of this added obstacle, ?employers will strive


to push their employees into the least expensive


insurance program in order to cut costs and remain


competitive? (Gervais). Employers tend to favor


managed care organizations because of their


cost-cutting strategies. Doctor Robert P. Gervais,


member and Board of Director of Physicians Who Care,


explains MCOs? cost-cutting approach: ??managed care


instruments promise to rein in medical costs by paying


doctors, hospitals, and nurses more money to do less


for patients?When fewer health care services are


provided, health care costs should go down. It is


clear that patients lose under a managed care system?


(Gervais). Employees are also usually limited to the


choice of one health plan?that which their employer


chooses to provide (The Center for Patient Advocacy).


This is unfair to employees because they cannot shop


around to find a health plan that would best suit


their needs.


The whole medical system becomes inefficient. The


tax code neglects that individual choice is ruled out


in the employer-based health system. How could


quality care be insured in the health care system if


individual choice does not exist? Furthermore, the


tax code fabricates health care as an invisible


benefit, ?seemingly free to employees? because costs


are directly deducted from their paycheck


(Maciejewski). As a resulting effect, employees


become less cost-conscious, overpaying for unnecessary


coverage and services ?that could have been purchased


more efficiently out of pocket or might not have been


purchased at all? (Goodman).


In sum thus far, Congress has inadvertently placed


the health of working Americans in the hands of their


employers, which in turn is overseen by the physicians


of the managed care plan. Because of strict


regulations and policies imposed by managed care plans


on their physicians, they represent yet another factor


in the inefficient system of managed care. Physicians


are attracted to Managed care plans under the premise


that they would be guaranteed an abundant number of


patients. Once enrolling, physicians are prompted to


sign a contract. Provisions or ?gag clauses? in


physician contracts prevent them ?from giving patients


information about treatment options that may not be


covered by their health plans? (Cooper). This is a


clear violation of the informed consent requirement


that Congress has dictated as law. Moreover, gag


clauses may also limit physicians from referring


patients to specialists outside their health plans.


Some managed care organizations and insurance


companies retaliate against doctors who send their


patients to specialists too many times, or too soon,


or order expensive tests that the doctor feel is


necessary but the MCO does not. They retaliate by


firing doctors who do not follow their rules even if


their rules may be dangerous to patients.


The pre-determined budget or utilization target that


MCOs establish and their physician payment system


affix more problems. The system of capitation that


physicians are paid accordingly to, provides


physicians a fixed amount, not per service, but per


enrollee on a monthly basis. Because physicians are


given a utilization target that limits how much they


could spend on patient care, they can be put in a


financially insecure situation. If the utilization


target is surpassed, the physician must pay for the


extra services himself. Therefore, instead physicians


are tempted to provide less service to their patients.


Providing fewer services can be detrimental to


patients but can be rewarding for physicians. Bonuses


are given to physicians from the unspent fund when


services of their patients? are lower than the


utilization target. The expressed concern that MCO


policies and regulations have in interfering with the


doctor-patient relationship is keenly expressed by Dr.


Bruce Rushbaum, who practices internal medicine: ?The


plans have swung so far against what is good for the


patient and what is fair for the physician that it has


impacted most negatively on the quality of health care


in this country? (Bierbauer).


If physicians are making negligent decisions that are


jeopardizing the health care of patients, why don?t


they file a claim for damages against their physician


or their health plan? Congress has passed patient


protection acts that would allow patients to be


compensated for damages caused to them, however, this


does not apply to everyone. Those patients that are


enrolled in employer-based health plans, governed by


the Employment Retirement Income Security Act, don?t


have the same protections. ERISA, which was ratified


by Congress in 1974, was ?intended to protect


employees from potential abuses by their benefits


plans. However, with the evolution of the health care


system from a fee-for-service to a managed care


system, ERISA has evolved into a shield of immunity


that protects MCOs from potential liability for their


negligent denial of health benefits (Amer. Pysch.


Assoc.).


The main reason for ERISA?s failure is its ?preemption


clause?. This loophole requires that ?federal law


override state laws relating to employee pension and


benefits plans. When applied to managed care health


plans, the clause creates an incentive to deny care


because it removes (?preempts?) state law protections


for patients, while federal law offers them virtually


no effective remedy? (Hoffman and Hiepler A19). This


unfortunately puts workers and their families much at


risk. In a Louisiana case, Corcoran v. United


Healthcare, Inc., 965 F .2d_1321 (5th Cir. 1992),


Florence Corcoran was insured through her employer


which administered United Healthcare as the


utilization reviewing agency. Mrs. Corcoran was


deemed to have a high-risk pregnancy because of her


history wit

h pregnancy-related problems. Taking this


into careful consideration, ?her doctors recommended


hospitalization so that the fetus could be monitored


as the due date approached, and another obstetrician


(who was used for a second opinion) concurred?


(Pollack). Despite her doctor?s request, United


Healthcare insistently denied the hospitalization, but


appointed an in-home nurse to attend Mrs. Corcoran ten


hours a day. While the nurse was off duty, the fetus


developed complications and died. Mrs. Corcoran and


her husband brought their litigation to court,


alleging that the MCO?s decision not to provide her


with the hospitalization caused the death of their


unborn child. Despite the obvious injustice, the


courts ruefully ruled in favor of the MCO because of


the ERISA preemption clause. Sadly, but true enough,


the haplessness of this situation can be best put in


the words of Bob Herbert of the New York Times,


?Insurance companies are not in the business of curing


people, they are in the business of making money.


They will use any excuse to deny payment of what they


perceive as more expensive therapy? (qtd. in Zelman


and Berenson 106).


Under ERISA, patients are entitled to equitable


relief. This means that a patient can recover the


value of the denied service, which sometimes comes far


too late. However, ERISA restricts patients from


obtaining monetary damages or ?compensation to make


him or her whole from the benefit denial, even in an


event of loss of life because of the health plan?s


improper denial? (Pollack). The Corcoran family only


received in compensation, the value of the denied


hospitalization, an insignificant amount compared to


the life that was lost.


The Patients? Bill of Rights, supported by the


American Medical Association and the American Nurses


Association to name a few, would ensure an end to


MCOs? wrongful conduct. Should Congress enact this


bill, the Patients? Bill of Rights would provide


patients an independent authority where they can


appeal their managed care plan?s decisions. Patients


would also have the right to hold health plans


accountable when things go wrong. Another important


aspect of the bill is that it would allow patients to


get emergency services when the patient thinks he or


she needs them. Had this bill been approved in


previous legislative reforms, Troy Benoit would still


be walking today. In Benoit v. WW. Grainger, Inc. et


al., No. 98-1315, 1998 U.S. Dist. LEXIS 16988, 7 (E.D.


La. Oct. 21, 1998), Mr. Benoit?s health insurer,


Aetna, refused to provide the emergency services he


needed. After sustaining serious neck and spinal


injuries from a motorcycle accident, hospital


physicians urgently recommended that he have surgery


immediately. Aetna formally refused to fund the


procedure, but eventually certified it. Despite the


reversed decision, Mr. Benoit was left paralyzed with


little or no chances of ever walking again (Amer.


Psych. Assoc.).


It is evident that the tax code unintentionally limits


the choice of health plans that employees can choose


from, sometimes being limited to only one choice.


Employees are wrongfully compelled to join a health


plan that is not in their best of interests.


Regulations imposed on physicians also add to


inadequate health care. The failure of the intended


role of ERISA, to protect employees, predominantly


adds to the inefficiency of the managed care system.


The working American, thus, is truly a victim of a


non-ending cycle of negligence and irrationality


embedded in the lawmaking by Congress.


Yet opponents in Congress and the managed care


industry, especially self-insured employers, have


reasons to believe that expanded liability will force


insurers and employers to pay for unnecessary health


care, encouraging employers to drop health coverage.


Also, the Patients? Bill of Rights will increase


health plan costs, which would ultimately increase the


number of the country?s uninsured.


The managed care industry fears that the Patients?


Bill of Rights would have a reverse effect. The


opponents of legislative reform argue that expanded


liability on ERISA-regulate MCOs (mainly the


employer-based system) would force insurers and


employers to ?practice ?defensive utilization


review??paying for unnecessary or inappropriate health


care to reduce their risk of even more costly


litigation? (Arg. Against Liability). Patients would


have the incentive of taking advantage of health care


services causing an unbalance in the health care


budget. If managed care legislation passes, it would


further more encourage employers to drop health


coverage. If employers were to be discouraged from


providing health insurance, this would force insurance


companies to downsize their networks and eventually


consumers would ?have substantially less choice among


available types of coverage? (Arg. Against Liability).


Another point that opponents of the Patients? Bill of


Rights want to clarify, is the effect that managed


care reform will have on the costs of health


insurance. Because the health system is so


competitive, insurers ?cannot afford to absorb the


increased cost of expanded liability? (Arg. Against


Liability). These costs would be passed on to


employers, who also cannot afford to absorb the costs.


Unfortunately, these costs are eventually passed on


to employees, ?either directly or indirectly lowering


their pay or decreasing the amount of benefits they


receive? (Hoffman 17). Moreover, expanded liability


could escalate the costs of health care. Increased


costs of health plan coverage would have a chilling


effect in increasing the number of uninsured


Americans. This negative aspect of managed care


reform is supported by the general counsel of the Self


Insurance Institute of America, Brian Davenport, who


also practices law in Franklin, Indiana: “If you


substantially increase the cost of providing the


benefits, I think there?s a strong possibility that


you will substantially increase the number of people


without benefits? (Hoffman 17).


The supporters of the managed care industry and the


employer-based health care system have brought into


perspective, rational arguments. Despite their


contrasting viewpoints, they fail to realize that


employers are not the ones making the medical


decisions, managed care plans are. Managed care


reform protects employers from liability when they are


not involved in the medical decision that results in


harm. The principle that we should be held


accountable for our own actions is universally


accepted. The bottom line is that managed care plans


should be held accountable, just as everyone else is.


Congress can improve ERISA by explicitly removing the


?preemption clause? that currently limits states?


abilities to establish accountability for wrongful


denials of MCOs? to their patients. If ratified, the


Patients? Bill of Rights would amend the loophole in


ERISA. Congress should do its part to protect the


welfare of those Americans that are affected by


ERISA-regulated MCOs. Three of the top managed care


organizations in the industry, including Kaiser


Permanente, are calling for legally enforced


standards. Clearly, ?when respected leaders of an


industry are calling for standards to be placed upon


themselves, it is a sure sign that Congress should


act? (Managed Care Reform: Fact vs. Fiction).


Works Cited


Clinton, Bill. ?The President?s Radio Address.?


Weekly Compilation of Presidential


Documents. 10 August 1998: 1556.


?ERISA Managed Care Organizations Should Be Held


Accountable for Decisions that


Harm Patients.? 1 February 1998.


*http://www.apa.org/practice/erisa.html*


(21 April 1999).


Fox, Peter D., et al., eds. Determinents of HMO


Success. Office of Health Maintenance


Organizations. January 1998: 56.


Hoffman, Ronald F. and Mark O. Hiepler. ?An Easy Out


for Managed Care.? The


Washington Post. 4 April 1998: A19.


?Managed Care Reform Legislation: Fact vs. Fiction.?


1 January 1999.


*http://www.patientadvocacy.org/main/managed


care/mcrl_fvf.html*


(21 April 1999).


?Managed Care: What Consumers Need to Know.? 3 August


1998.


*http:www.aarp.org/monthly/managedcare/home.html* (21


April 1999).


Pollack, Ron. ?Current Problems with the Federal


Employment Retirement Income


Security Act of 1974.? 14 May 1998.


*http://www.familiesusa.org/erisa2.htm*


(21 April 1999).


Zelman, Walter A. and Robert A. Berenson. The Managed


Care Blues and How to Cure


Them. Washington D.C.: Georgetown Press, 1998.


__________________________________________________


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Clinton, Bill. “The President’s Radio Address.” Weekly Compilation of Presidential Documents. 10 August 1998: 1556.


“ERISA Managed Care Organizations Should Be Held Accountable for Decisions that


Harm Patients.” 1 February 1998.


(21 April 1999).


Fox, Peter D., et al., eds. Determinents of HMO Success. Office of Health Maintenance Organizations. January 1998: 56.


Hoffman, Ronald F. and Mark O. Hiepler. “An Easy Out for Managed Care.” The


Washington Post. 4 April 1998: A19.”Managed Care Reform Legislation: Fact vs. Fiction.” 1 January 1999. http://www.patientadvocacy.org/main/managed care/mcrl_fvf.html


(21 April 1999).


“Managed Care: What Consumers Need to Know.” 3 August 1998.


(21 April 1999).


Pollack, Ron. “Current Problems with the Federal Employment Retirement Income


Security Act of 1974.” 14 May1998.


(21 April 1999).


Zelman, Walter A. and Robert A. Berenson. The Managed Care Blues and How to Cure Them. Washington D.C.: Georgetown Press, 1998.

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