Stealth approach to destroying patients' rights

I dislike blogging about LATimes articles, mainly because of their archiving policy, but this one on patients' rights raises eyebrows. I hadn't realized Bush had campaigned in 2000 as an advocate of patients' rights.

Par for the course, he has reversed his position on this.

But President Bush, it seems, has changed his mind. The Texas law he championed is now before the U.S. Supreme Court, and this week the administration will ask that the justices strike it down. More broadly, the administration will ask the court to abandon a body of recent precedents that expose the managed-care industry in many states to negligence suits for withholding of coverage and care. Legal accountability for denying coverage, it contends, could prevent the creation of "innovative health plans."

At the center of the dispute is a 30-year-old federal law, the Employee Retirement Income Security Act, or ERISA, enacted to safeguard workers' fringe benefits. Because the vast majority of Americans younger than 65 obtain their health insurance through the workplace, the law applies to nearly all private medical coverage.

The consequence of going to the Supreme Court: protect health plans if they deny health care.

What's at stake in managed care's bid to regain its immunity? For one thing, there is the risk of a return to cost control on the sly, through the promise of all "medically necessary" care but the provision of less without fear of legal consequences. Legal accountability pushes health-insurance plans toward honesty about how they go about saying no to treatment requests. This, in turn, forces patients and physicians to confront hard choices between rising costs and the sacrifice of clinical benefits.

For health plans, cost control on the sly is an unhappy long-term proposition. Exposure of gaps between what plans promise and what they deliver is inevitable, as the consumer backlash against managed care in the late 1990s showed. That protest gained strength despite the industry's malpractice immunity. Press coverage, legislative hearings, political speeches and even movies and TV spotlighted (and caricatured) stingy HMO bureaucrats. Americans responded by abandoning managed care ? or, more commonly, pushing their employers to do so.

And the approach again is characterized by stealth.

Were Bush to propose publicly that Congress immunize HMOs from suits for withholding care, there would surely be a firestorm of public anger. But his administration is on the verge of achieving the same result from the Supreme Court, almost without notice, veiled by the arcane language of the law.