Thursday, September 02, 1999
Insurers win in legal opinion
Doctors' rulings for HMOs are immune from discipline
BY MICHAEL HAWTHORNE
Enquirer Columbus Bureau
COLUMBUS — Doctors aren't practicing medicine when they decide which treatments an HMO should cover, according to a legal opinion by state Attorney General Betty Montgomery.
Even though Ohio law requires physicians, not accountants or corporate managers, to review appeals, Ms. Montgomery said they can't be disciplined by the state medical board for bad decisions.
The ruling is another victory for insurance companies in the smoldering battle over managed health care. Earlier this year, the Republican-controlled General Assembly killed a proposal that would have given patients an explicit right to sue their HMOs for denying coverage.
Ms. Montgomery said lawmakers could change state law and allow the medical board to discipline HMO reviewers. But if the debate on the lawsuit proposal is any guide, that isn't likely to happen.
“Ohio law provides that actions taken by a health-insuring corporation are not considered to constitute the practice of medicine,” Ms. Montgomery wrote in a 17-page advisory opinion sought by the medical board.
Critics said the ruling benefits insurance companies at the expense of patients. It also left officials at the medical board scratching their heads about what to do with dozens of complaints against doctors employed by HMOs to review coverage decisions.
Tim Maglione, a lobbyist for the Ohio State Medical Association, said the attorney general's opinion puts patients and their physicians at a disadvantage when seeking to overturn an HMO's denial of cover age for medical treatments.
“If this isn't medicine, you might as well allow an HMO's accountant to do the review,” Mr. Maglione said.
“The problem is there is no way to hold these people accountable for their decisions.”
HMOs and other managed-care plans were created to curb large increases in the cost of health care. Insurance companies that operate the plans contend the reviews are business decisions that have nothing to do with the types of treatments recommended by physicians.
“A medical director's judgment is for the sole purpose of determining coverage and benefits related to a treatment or service under a benefit contract between the HIC (health insuring corporation) and the enrollee,” said Jady Johnson, president and CEO of the Ohio Association of Health Plans, a trade group.
“A health plan's denial of coverage does not prohibit a physician from providing the treatment.”
The question, though, is: Who pays for the treatment? Doctors generally don't provide their services for free. And most patients can't afford to pay for hospital stays, tests and medical treatments out of their own pockets.
Republican Gov. Bob Taft promised during last fall's campaign to give patients the right to sue their HMOs when denied coverage. GOP legislative leaders killed the idea soon after he took office, replacing it with a bill that sets up panels of independent medical experts to review denials.
Business and insurance interests that successfully led efforts to torpedo the lawsuit provision contributed four times as much as proponents did to GOP legislative leaders between 1994 and 1998, according to a computer-assisted analysis of campaign contributions by The Cincinnati Enquirer.
The leaders said their decision to block Mr. Taft's proposal was based on their philosophical opposition to liability lawsuits, not contributions to their campaign funds.
Tom Dilling, the medical board's legislative liaison, noted the panel asked for the attorney general's opinion before the new HMO law took effect. But he said it likely would be extended to cover the independent reviewers.
“This could rekindle the debate about liability,” Mr. Maglione said. “If these doctors aren't accountable to the medical board, and patients can't sue their HMOs, what other course of action does a physician or patient have? I can see light bulbs popping up in a lot of legislators' heads about this.”
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