See, for example, Families USA Foundation, HMO Consumers at Risk; States to the Rescue (Washington, D.C.: Families USA Foundation, July 1996); Miller, T.E., “Managed Care Regulation: In the Laboratory of the States,” JAMA, 278 (1997): 1102–09; Hellinger, F.J., “The Expanding Scope of State Legislation,” JAMA, 276 (1996): 1055–60; Bodenheimer, T., “The HMO Backlash-Righteous or Reactionary?,” N. Engl. J. Med., 335 (1996): 1601–04; and Sage, W.M., “Health Law 2000: The Legal System and the Changing Health Care Market,” Health Affairs, 15, no. 3 (1996): 9–27.Google Scholar

See Annas, G.J., “Patients Rights in Managed Care Exit, Voice and Choice,” N. Engl. J. Med., 337 (1997): 210–15; and Rodwin, M.A., “Consumer Protection and Managed Care: Issues, Reform Proposals and Tradeoffs,” Houston Law Review, 32 (1996): 1319–81.Google Scholar

See, for example, Patient Access to Responsible Care Act of 1997, H.R. 1415, 105th Cong. (1997); and Health Insurance Bill of Rights Act of 1997, H.R. 820, 105th Cong. (1997).Google Scholar

See National Advisory Commission on Consumer Protection and Quality in the Health Care Industry, Quality First: Better Health Care for All Americans (Washington, D.C.: National Advisory Commission on Consumer Protection and Quality, Nov. 1997).Google Scholar

See Grijalva v. Shalala, 946 F. Supp. 747 (Ariz. 1996), aff'd, Grijalva v. Shalala, No. 97–15877 (9th Cir. Aug. 12, 1998).Google Scholar

For a summary of state legislation on grievance and appeal procedures and other issues in response to managed care, see Families USA Foundation, supra note 1.Google Scholar

See National Advisory Commission on Consumer Protection and Quality, supra note 4; and Medicare Rights Center, Medicare Appeals and Grievances: Strategies for System Simplification and Informed Consumer Decision Making (New York: Medicare Rights Center, 1996).Google Scholar

See 42 C.F.R. §§ 417.101–.126 (1993); and Furrow, B.R., Health Law: Cases, Materials and Problems (St. Paul: West, 3rd ed., 1995).Google Scholar

See 42 C.F.R. §§ 417.600–.638 (1997). For a detailed description of the appeal procedures, see Medicare Rights Center, supra note 6.Google Scholar

See 42 C.F.R. §§ 417.608–.609, .618 (1993).Google Scholar

See 42 U.S.C. § 1851 et seq. (1997).Google Scholar

See Grijalva, 946 F. Supp. 747, aff'd, Grijalva, No. 97–15877; and Medicare Rights Center, supra note 6. Significantly, studies of arbitration practices by health maintenance organizations (HMOs), for example, have highlighted a similar gap. In Engalla v. Kaiser Medical Group, Inc., 938 P.2d 903 (Cal. 1997), the court found extensive delays and lack of compliance with the terms of the arbitration agreement between enrollees and the plan. See also Ralph, E. Boller, E. Rolph, J.E., “Arbitration Agreements in Health Care: Myths and Reality,” Law and Contemporary Problems, 60 (1997): At 153–83.CrossRefGoogle Scholar

Among other deficiencies, the report found that 66 percent of HMOs distributed information about appeal and grievance rights that was either incorrect or incomplete. See Office of Inspector General, U.S. Department of Health and Human Services, Medicare HMO Appeal and Grievance Processes (Washington, D.C.: Department of Health and Human Services, 1996).Google Scholar

See id. Responding to findings in the Inspector General's report, the Health Care Financing Administration (HCFA) implemented an initiative in 1997 to standardize and improve the notice of appeal rights in marketing and enrollment materials and to institute new data-reporting requirements for plan-level reconsiderations. HCFA made no commitment on other recommendations by the Inspector General, including the need for more active monitoring of the notices sent to beneficiaries and compliance with the time-frames for an initial denial and reconsideration. A national consumer rights organization reached similar conclusions in a report observing that many beneficiaries in both fee-for-service and managed care do not know how to exercise their appeal rights or cannot persevere in the lengthy appeal process. See Medicare Rights Center, supra note 7. The report found delays as long as three or four years from the filing of a complaint to resolution of the claim.Google Scholar

Grijalva, 946 F. Supp. at 758.Google Scholar

See id. at 759.Google Scholar

See id.Google Scholar

Id. at 760.Google Scholar

See id.Google Scholar

Id. at 760. For an excellent analysis of Grijalva, see Annas, supra note 2.Google Scholar

See 62 Fed. Reg. 23368–23376 (Apr. 30, 1997) (to be codified at 42 C.F.R. §§ 417.600–.620). See also Rockelli, L.M. Medicare, , “Ninth Circuit Agrees With Lower Court, HCFA Must Ensure Denial-of-Care Appeals,” Health Care Policy Report (BNA), 6, no. 33 (1998): 1317–18.Google Scholar

This aspect of the revised regulations has faced sharp criticism from consumer advocates. In particular, advocates have criticized the fact that requests by physicians can trigger an automatic right to expedited review while enrollee requests will be honored at the discretion of the HMO. Advocates also challenged HCFA's failure to continue services during the appeal process or to provide notice and appeal for a reduction of service. This latter issue has apparently eluded resolution, in part, because of the thorny problem of defining the “reduction” in service that would trigger the bundle of appeal rights granted by the regulations. See Medicare, , “More Than a Dozen Consumer Health Groups File Amici Brief in HMO Appeals Case,” Managed Care Reporter (BNA), 3, no. 37 (1997): 879–80.Google Scholar

See Grijalva, No. 97–15877.Google Scholar

See Dallek, G. Jimenez, C. Schwartz, M., Consumer Protections in State HMO Laws: Analysis and Recommendations (Los Angeles: Center for Health Care Rights, 1995); Stayn, S.J., “Securing Access to Care in Health Maintenance Organizations: Toward a Uniform Model of Grievance and Appeal Procedures,” Columbia Law Review, 94 (1994): 1674–719; and Furrow, , supra note 8.Google Scholar

See Families USA Foundation, supra note 1.Google Scholar

See id.Google Scholar

Although some states require disclosure of only the most basic information about grievance and appeal rights, others such as New York mandate extensive disclosure of all procedures and aspects of the appeal process. New York requires plans to provide the following information: A description of utilization review policies and procedures used by the health maintenance organization, including: The circumstances under which utilization review will be undertaken; the toll-free telephone number of the utilization review decisions; the right to reconsideration; the right to an appeal, including the expedited and standard appeals processes and the timeframes for such appeals; the right to designate a representative; a notice that all denials of claims will be made by qualified clinical personnel and that all notices of denials will include information about the basis of the decision; and further appeal rights, if any. N.Y. Pub. Health Law § 4408 (McKinney 1996).Google Scholar

See Families USA Foundation, supra note 1.Google Scholar

See, for example, N.J. Admin. Code tit. 8, § 38–8.1 (1997) (requiring that utilization management determinations be based on written clinical criteria and protocols developed with the involvement of practicing physicians and other licensed health care providers within the HMO network); R.I. Gen. Laws § 23–17.12–3 (1996) (mandating that review agents use written medically acceptable screening criteria established and periodically evaluated and updated “with appropriate consultation with Rhode Island licensed physicians, including practicing physicians, and other health care providers”); and Va. Code Ann. § 38.2–5402 (Michie 1996) (requiring health plans to establish standards and criteria for utilization review with “input from physician advisors representing major areas of specialty and certified by the boards of the various American medical specialties.”).Google Scholar

See Families USA Foundation, supra note 1.Google Scholar

See N.Y. Pub. Health Law § 4901 (McKinney 1996); and N.J. Admin. Code tit. 8, § 38–8.3 (1997).Google Scholar

See Schlesinger, M.J. Gray, B.H. Perreira, K.M., “Medical Professionalism Under Managed Care: The Pros and Cons of Utilization Review,” Health Affairs, 16, no. 1 (1997): 106–24.CrossRefGoogle Scholar

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See Families USA Foundation, supra note 1.Google Scholar

See id. See, for example, R.I. Gen. Laws § 23.17.12–9(a) (1996) (notice of prospective determination must be mailed or otherwise communicated to the provider of record and to the patient within one business day of receiving all information needed to complete the review.).Google Scholar

Time-frames for the initial review in some state laws are triggered by the request or filing of a complaint, while in others the time period begins to run when the health plan or utilization review agent has received all necessary information. In the latter states, time-frames for initial reviews and appeals may be significantly longer. See Families USA Foundation, supra note 1.Google Scholar

Several states, including Maine and Rhode Island, currently collect and disseminate this information. See Me. Rev. Stat. Ann. tit. 24-A, § 4302(2) (1996); and R.I. Gen. Laws § 23–17.13.2 (1996).Google Scholar

See Ariz. Rev. Stat. Ann. §§ 20-2531-2538 (West 1997); Cal. Health & Safety Code § 1370 (West 1998); Conn. Gen. Stat. § 38a-226c-d (1997); Fla. Stat. Ann. §§ 641–511, 408.7056 (West 1998); Mich. Comp. Laws Ann. §§ 333.21013–.21088 (West 1998); Minn. Stat. Ann. § 62M.11 (West 1997); Mo. Ann. Stat. § 376.1387 (West 1997); N.J. Admin. Code tit. 26, § 2S(1–18) (1996); N.M. Stat. Ann. § 59A-46-11 (Michie 1997); Ohio Rev. Code Ann. § 1753.24 (Baldwin-Banks 1998); R.I. Gen. Laws § 23-17-12-10 (1997); Tenn. Code Ann. § 56-32-210 (1998); Tex. Ins. Code Ann. §§ 20A.12A, 21.58A, 21.58C (West 1997); and Vt. Stat. Ann. tit. 8, § 4089A (1997).Google Scholar

See Cal. Health & Safety Code § 1370.4 (West 1998); and Cal. Ins. Code § 10145.3 (West 1996). The origins of California's law account for its narrow focus—a high profile lawsuit involving access to experimental treatment served as a catalyst for external review legislation. In December 1993, a jury awarded $79 million to a woman with breast cancer who had been denied authorization for a bone marrow transplant. See Fox v. Healthnet of California, No. 219692 (Cal. App. Dep't Super. Ct., Dec. 1993). The case softened political opposition to external review on the part of health plans; indeed, several large health plans supported the legislation, along with a broad coalition of professional and consumer organizations.Google Scholar

See Ohio Rev. Code Ann. § 1753.24 (Baldwin-Banks 1998); Vt. Stat. Ann. tit. 8, § 4089A (1997); and Vt. H.B. 163, 64th Biannual Sess. (1998).Google Scholar

See Purdam, T.S., “Panel Seeks HMO Overseer for California, a Bellweather,” New York Times, Jan. 6, 1998, at Al; and Ohio H.B. 685, 122d Gen. Assembly (1997).Google Scholar

See R.I. Gen. Laws § 23–17.12 (1994).CrossRefGoogle Scholar

See Conn. H.B. 6883, § 20(c), 1997 Leg. Sess. (1997).Google Scholar

See Cal. Health & Safety Code § 1370.4(b) (West 1997).Google Scholar

Some states have adopted review mechanisms that provide some independence, but fall short of true external review. For example, in North Carolina, the only statutory provision on “external” review states that a second-level grievance panel convened by the insurer shall “comprise persons who were not previously involved in any matter giving rise to the second level grievance, are not employees of the insurer or HMO and do not have a financial interest in the outcome of the review.” N.C. Gen. Stat. § 58-50-62(f)(2) (1998).Google Scholar

See Cal. Health & Safety Code § 1370.4(b)(8) (West 1998).Google Scholar

See Oberg, C.N., “Appropriate and Necessary Healthcare: New Language for a New Era,” American Journal of Managed Care, 3 (1997): 423–27. Judicial decisions about benefit coverage are also marked by wide variation, reflecting in part attention to the equities of the case and the severity of the patient's medical condition. See Sage, W.M., “Judicial Opinions Involving Health Insurance Coverage: Trompe L'Oeil or Window as the World,” Indiana Law Review, 31 (1998): 49–73.Google Scholar

External review was adopted first by regulation for HMOs in New Jersey in January 1997, and then extended to all managed care plans by legislation enacted six months later. See 1997 N.J. Law 51:192(12); and N.J. Admin. Code tit. 8, § 38-8-7 (1997).Google Scholar

See Coopers, Lybrand, , Estimated Cost Effect of Provisions of Consumer Protection Proposals by the President's Advisory Commission and the Patient Access to Responsible Care Act (Menlo Park: Kaiser Family Foundation, Apr. 1998).Google Scholar

See Johnson, L. DeBlois, A., “Managed Care Complaints and Regulation” (unpublished) (available from authors at the Rhode Island Department of Health, Providence, R.I.).Google Scholar

Interview with Linda Johnson, Chief, Office of Managed Care Regulation, Rhode Island Department of Health (May 19, 1997).Google Scholar

See, for example, N.Y. Pub. Health Law § 4904 (McKinney 1996); and N.J. Admin. Code tit. 8, § 38–84 (1997).Google Scholar

See N.Y. Pub. Health Law § 4903.Google Scholar

See Miller, , supra note 1.Google Scholar

See id. See also Kaplan, D.S., Recent Developments, “Managed Care: Gag Clauses and Doctor-Patient Communication: State Responses,” Journal of Law, Medicine & Ethics, 25 (1997): 213–18.Google Scholar

See Me. Rev. Stat. Ann. tit. 24-A, § 4303(3) (West 1996). Colorado's law affirmatively requires plans to include provisions in provider-plan contracts that preclude termination for assisting enrollees in the reconsideration process, among other actions. See Colo. Rev. Stat. § 10-16-121(1) (1996). This affirmative statement provides the basis for a breach of contract action by physicians in the event of any retaliation by the plan. For detailed discussion of state policies and remedies accorded by these policies, see Kaplan, , id.Google Scholar

See General Accounting Office, Managed Care: Explicit Gag Clauses Not Found in HMO Contract, But Physician Concerns Remain (Washington, D.C.: U.S. General Accounting Office, 1997).Google Scholar

See, for example, Me. Rev. Stat. Ann. tit. 24-A, § 4303 (West 1996); and R.I. Gen. Laws § 23–17.13–3(10) (1996). Court decisions in several states have also barred termination without cause. See, for example, Potvin v. Metropolitan Life Insurance Co., 63 Cal. Rptr. 2d 202 (Ct. App. 1997), cert. granted, 941 P.2d 1121 (Cal. 1998); Ambrosino v. Metropolitan Life Insurance Co., 899 F. Supp. 438 (N.D. Cal. 1995); and Delta Dental Plan v. Banasky, 27 Cal. App. 4th 1598 (1994).Google Scholar

See Bindman, A.B., “Selection and Exclusion of Primary Care Physicians by Managed Care Organizations,” JAMA, 279 (1998): 675–79. This study of denials and terminations of physicians by managed care plans suggests that plans contract selectively with physicians to exclude physicians who provide a disproportionate amount of care to the uninsured and to non-white patients.Google Scholar

See Glassman, P.A. Model, K.E. Hernandez, A.B., “Defining and Implementing Medical Necessity in Washington State and Oregon,” Inquiry, 34 (1997): 143–54.Google Scholar

See Hall, M.A., “Informed Consent to Rationing Decisions,” Milbank Quarterly, 71 (1993): At 654.Google Scholar

The judicial ruling in Wickline v. State of California, 192 Cal. App. 3d 1630 (Ct. App. 1986), underscored physicians' potential liability if they fail to advocate for needed treatment in the face of a denial by the health plan. In Wickline, the plaintiff's insurer denied authorization for an extended hospital stay following major surgery, resulting in the loss of the plaintiff's leg due to infection. The court noted that physicians who comply without protest to limitations imposed by a third-party payer may bear legal responsibility for the outcome.Google Scholar

See General Accounting Office, supra note 57.Google Scholar

See Rodwin, , supra note 2; and Annas, , supra note 2.Google Scholar

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Testifying before Congress in response to federal legislation that would eliminate preemption for liability of state law causes of action for personal injury under the Employee Retirement Income Security Act (ERISA), Karen Ignagni, president of the American Association of Health Plans (AAHP), advocated grievance and appeal policies as the appropriate response to public concerns about access. See Testimony before Subcomm. on Health and Environment of the House of Representatives Comm. on Commerce, 105th Cong. (Oct. 28, 1997) (statement of Ignagni, Karen, “Statement on H.R. 1415, the Patient Access to Responsible Care Act of 1997, and H.R. 820, the Health Insurance Bill of Rights Act of 1997”). In particular, AAHP expressed support for expeditious, accessible processes for resolving disputes. Reversing previous opposition to external review widely voiced by managed care plans in debates at the state and national levels, Ignagni said that external review processes, “if designed properly, may provide a further assurance to patients that the decisions made about their health care coverage are fair and being made based on scientific evidence and best practices.” Id. at 12. She further explained that AAHP is assessing the benefits and problems associated with external review, including questions about how the quality of the reviews can be assured.Google Scholar

See Dauer, E.A. Marcus, L.J., “Adapting Mediation to Link Resolution of Medical Malpractice Disputes with Health Care Quality Improvement,” Law and Contemporary Problems, 60 (1997): 185–218.Google Scholar

See S. 386, 105th Cong. (1997).Google Scholar

See Plan Regulation, “Texas Gov. Bush Signs Legislation Expanding Consumer Protections,” Managed Care Reporter (BNA), 3, no. 27 (1997): 633.Google Scholar

In March 1998, leading congressional Democrats introduced managed care legislation that included a provision permitting employees with employer-sponsored coverage to sue for malpractice. See H.R. 1415, 105th Cong. (1997). Significantly, the legislation was amended in June 1998 to link the availability of external review with the provisions on health plan liability. As revised, health plans would not be liable for the denial of treatment if the plan's decision was approved through an external review process. See id.Google Scholar

See H.R. 820, subpt. 4, 105th Cong. (1997); S. 2330, 105th Cong. (1998); and H.R. 4250, 105th Cong. (1998).Google Scholar

See, for example, S. 2416, 105th Cong. (1998).Google Scholar

A discussion of ERISA preemption and its potential impact on grievance and appeal rights is outside the scope of this article. For articles analyzing evolving law on ERISA, see Jordan, K.A., “Travelers Insurance: New Support for the Argument to Restrain ERISA Preemption,” Yale Journal of Regulation, 13 (1996): 1–67; Mariner, W.K., “State Regulation of Managed Care and the Employee Retirement Security Act,” N. Engl. J. Med., 335 (1996): 1986–90; and Chirba-Martin, M.A. Brennan, T.A., “The Critical Role of ERISA in State Health Reform,” Health Affairs, 13, no. 2 (1994): 143–56.Google Scholar

See 29 C.F.R. § 2560.502–1 et seq. (1997).Google Scholar

Statement by David Abernathy, Remarks at Meeting “Health Insurance Plan, Medicare+ Choice,” New York City (June 19, 1998) (on file with author).Google Scholar

For example, in New York State, pending legislation would create a state-wide consumer assistance office and fund local organizations to analyze data on the appeal process and to assess how well the appeal procedures are working. The same legislation would establish an ombuds program to assist enrollees. See Managed Care Consumer Assistance Act of 1997, N.Y. A.B. 7770, 220th Leg. (1997).Google Scholar

See National Advisory Commission on Consumer Protection and Quality, supra note 4, at 95.Google Scholar