Patients' Bill of Rights

Expands rights of enrollees in managed care plans including:
emergency care by any provider without prior authorization;
access to out-of-network providers; choice of specialist as
primary care provider; standing referrals; direct access to
OB/GYN specialists; continuity of care; nonformulary medications;
prohibition of gag clauses and restrictive financial incentives;
creation of health care rights ombudsman; prohibit ban on
clinical trial participation; and right to sue for denial of
THE SENATE                              S.B. NO.           787
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  Chapter 432E, Hawaii Revised Statutes, is
 2 amended by adding twelve new sections to be appropriately
 3 designated and to read as follows:
 4      "432E-A  Emergency services; coverage.  (a)  Each enrollee
 5 in a managed care plan shall have the right to obtain emergency
 6 services, as defined in this chapter, including health care items
 7 and services furnished in the emergency department of a hospital
 8 and ancillary services routinely available to the emergency
 9 department.  A managed care plan shall cover emergency services
10 furnished to an enrollee:
11      (1)  Whether or not the provider furnishing the emergency
12           services is a participating provider or not; and
13      (2)  Without regard to prior authorization.
14      (b)  Each managed care plan shall cover these emergency
15 services only if the enrollee has symptoms of sufficient severity
16 that a layperson could reasonably expect, in the absence of
17 medical treatment, to result in placing the enrollee's health or
18 condition in serious jeopardy, serious impairment of bodily
19 functions, serious dysfunction of any bodily organ or part, or
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 1 death.
 2      432E-B  Access to out-of-network provider; when.  When a
 3 managed care plan's network of participating providers is
 4 inadequate, the managed care plan shall cover services that are
 5 furnished by a nonparticipating provider obtained by the
 6 enrollee.  The plan may impose on the enrollee reasonable
 7 deductibles and reasonable copayments subject to a reasonable
 8 annual limit on total annual out-of-pocket expenses for the
 9 services of these nonparticipating providers.  These deductibles,
10 copayments, and annual limit of expenses shall be subject to the
11 commissioner's approval.
12      432E-C  Choice of physician with a particular medical
13 specialty as primary care provider; when.  In managed care plans
14 that require or provide for an enrollee to designate a primary
15 care provider to act as a gatekeeper and to coordinate the
16 enrollee's care, an enrollee who has a serious illness or
17 disability and who requires medically or clinically necessary
18 specialist treatment, shall have the right to choose as the
19 enrollee's primary care provider, a participating provider who is
20 a physician with a particular medical specialty.
21      432E-D  Standing referrals to participating provider
22 specialists.  A managed care plan that requires or provides for
23 an enrollee to designate a primary care provider to act as a
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 1 gatekeeper and to coordinate the enrollee's care, shall give each
 2 enrollee who has a serious illness or disability and who requires
 3 ongoing medically or clinically necessary specialist treatment,
 4 standing referrals to a participating provider with a particular
 5 medical specialty without the need for the enrollee to obtain
 6 additional prior authorization from the primary care provider.
 7 In plans that do not require or provide for this designation, the
 8 plan shall give the same standing specialist referrals to the
 9 enrollee without the need for the enrollee to obtain additional
10 prior authorization from the plan.
11      432E-E  Direct access by women to obstetric and
12 gynecological care.  Each female enrollee in a managed care plan
13 that requires or provides for an enrollee to designate a primary
14 care provider to act as a gatekeeper and to coordinate the
15 enrollee's care, shall have the right to choose a participating
16 provider physician who specializes in obstetrics or gynecology as
17 the enrollee's primary care provider.  In plans that do not
18 require or provide for this designation, each female enrollee
19 shall have the right to direct access to a participating provider
20 physician who specializes in obstetrics or gynecology without the
21 need for the enrollee to obtain additional prior authorization
22 from the plan.
23      432E-F  Continuity of care; seriously ill or pregnant
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 1 enrollees.  If a contract between a managed care plan and a
 2 participating provider is terminated (other than by the plan for
 3 failure to meet applicable quality standards or for fraud), the
 4 plan shall permit an enrollee who has a serious illness or
 5 disability, or who is pregnant, and who is undergoing a course of
 6 treatment from the provider at the time of the termination, to
 7 continue the course of treatment with the provider for a
 8 transitional period of:
 9      (1)             months, in the case of a seriously ill or
10           disabled enrollee; and
11      (2)             months, in the case of a pregnant enrollee.
12 The plan shall also notify the enrollee of the provider's
13 termination.
14      432E-G  Nonformulary prescription medications.  Each
15 managed care plan shall develop and adopt a procedure by which an
16 enrollee may obtain, through the plan, prescription medications
17 that are not in the plan's formulary.  The plan may impose on the
18 enrollee a reasonable copayment, subject to the commissioner's
19 approval, for these nonformulary prescription medications.
20      432E-H  Prohibition on gag clauses.  (a)  No provision of
21 any contract or agreement, or the operation of any contract or
22 agreement, between a managed care plan and a participating
23 provider, shall prohibit or restrict the participating provider
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 1 from discussing with and disclosing to the patient:
 2      (1)  The patient's health status, medical care, or legal
 3           treatment options;
 4      (2)  Any utilization review requirements that may affect
 5           treatment options for the patient; or
 6      (3)  Any financial incentives that may affect the treatment
 7           of the patient.
 8      (b)  Any contract provision or agreement that contains such
 9 a prohibitive or restrictive clause as described in subsection
10 (a) shall be null and void.
11      432E-I  Prohibition on financial incentives to limit care.
12 No managed care plan shall offer any financial incentives,
13 directly or indirectly, to health care professionals, whether
14 participating providers or not, as an inducement to deny, reduce,
15 or limit medically necessary services provided to an enrollee.
16      432E-J  Ombudsman for health care rights; qualifications;
17 duties.  (a)  There is created an office of the ombudsman for
18 health care rights in the department of commerce and consumer
19 affairs which shall be headed by a single executive to be known
20 as the health care rights ombudsman who shall be appointed by the
21 director for a term of four years.  The position of health care
22 rights ombudsman shall be exempt from the civil service laws
23 pursuant to paragraph (17) of section 76-16.  The director may
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 1 remove or suspend for cause the health care rights ombudsman
 2 after due notice and public hearing.
 3      (b)  The person appointed as the health care rights
 4 ombudsman shall be experienced in:
 5      (1)  Dealing with consumers of health care, health care
 6           providers, and managed care plans as defined in this
 7           chapter; and
 8      (2)  Have experience in:
 9           (A)  Arbitration and negotiation;
10           (B)  Interpretation of laws and rules;
11           (C)  Investigation;
12           (D)  Recordkeeping;
13           (E)  Report writing;
14           (F)  Public speaking; and
15           (G)  Management.
16 All employees of the office shall be hired by the health care
17 rights ombudsman and shall serve at the health care rights
18 ombudsman's pleasure.  In determining the salary of each
19 employee, the health care rights ombudsman shall consult with the
20 department of human resources development and shall follow as
21 closely as possible the recommendations of the department of
22 human resources development.  The health care rights ombudsman
23 and full-time staff shall be entitled to participate in all state
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 1 employee benefit plans.
 2      (c)  In addition to the powers granted in subsection (d),
 3 the duties of the health care rights ombudsman shall include:
 4      (1)  Advocating for patients' rights with regard to health
 5           care under this chapter; and
 6      (2)  Assisting consumers of health care under this chapter
 7           by:
 8           (A)  Investigating and resolving complaints and
 9                disputes among consumers of health care,
10                participating providers, and managed care plans;
11                and
12           (B)  Disseminating information relating to patient
13                rights and responsibilities to consumers of health
14                care and interested parties.
15      (d)  Subject to the privileges which witnesses have in the
16 courts of this State, the health care rights ombudsman shall have
17 the power to:
18      (1)  Compel at a specified time and place, by a subpoena,
19           the appearance and sworn testimony of any person who
20           the health care rights ombudsman reasonably believes
21           may be able to give information relating to a matter
22           under investigation; and
23      (2)  Compel any person to produce documents, papers, or
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 1           objects which the health care rights ombudsman
 2           reasonably believes may relate to a matter under
 3           investigation.
 4      The health care rights ombudsman may bring suit in an
 5 appropriate state court to enforce these powers.
 6      (e)  In an investigation, the health care rights ombudsman
 7 may make inquiries and obtain information as necessary, enter
 8 without notice to inspect the premises of a participating
 9 provider or a managed care provider, and hold private hearings.
10 The health care rights ombudsman shall maintain secrecy in
11 respect to all matters and the identities of the complainants or
12 witnesses coming before the health care rights ombudsman except
13 so far as disclosures may be necessary to enable the carrying out
14 of the health care rights ombudsman's duties and to support the
15 health care rights ombudsman's recommendations.
16      (f)  The health care rights ombudsman shall report any
17 opinions and recommendations to the commissioner and the parties
18 to the complaint.
19      (g)  The health care rights ombudsman shall submit to the
20 commissioner an annual report discussing the health care rights
21 ombudsman's activities under this chapter.
22      (h)  No proceeding or decision of the health care rights
23 ombudsman may be reviewed in any court, unless it contravenes the
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 1 provisions of this chapter.  The health care rights ombudsman has
 2 the same immunities from civil and criminal liability as a judge
 3 of this State.  The health care rights ombudsman and the staff
 4 shall not testify in any court with respect to matters coming to
 5 their attention in the exercise or purported exercise of their
 6 official duties except as may be necessary to enforce the
 7 provisions of this chapter.
 8      (i)  A person who wilfully hinders the lawful actions of the
 9 health care rights ombudsman or staff, or wilfully refuses to
10 comply with their lawful demands, shall be fined not more than
11 $1,000.
12      432E-K  Participation in clinical trials; ban by managed
13 care plans prohibited.  No managed care plan shall prohibit its
14 enrollees from participating in any clinical trials.
15      432E-L  Denial of care; written criteria and examination;
16 enrollees' right to sue.  (a)  An enrollee in a managed care plan
17 may be denied care only if:
18      (1)  The managed care plan has established written criteria
19           for denying payment of care and for assuring quality of
20           care, which criteria shall comply with the following:
21           (A)  Be determined by physicians, registered nurses, or
22                other appropriately licensed health professionals,
23                acting within their existing scope of practice and
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 1                actively providing direct care to patients;
 2           (B)  Use sound clinical principles and processes;
 3           (C)  Be updated at least annually; and
 4           (D)  Be publicly available and be distributed to
 5                enrollees; and
 6      (2)  The primary care provider, employee, or contractor who
 7           authorizes denial of care on behalf of the managed care
 8           plan:
 9           (A)  Is an appropriately licensed health care
10                professional with the education, training, and
11                relevant expertise that is appropriate for
12                evaluating the specific clinical issues involved
13                in the denial;
14           (B)  Has physically examined the enrollee in a timely
15                manner; and
16           (C)  Communicates the denial and any reasons for it in
17                a timely manner in writing to the enrollee and to
18                the caregiver whose recommendation for care is
19                being denied.
20      (b)  A managed care plan that does not fully comply with the
21 requirements of subsection (a) in denying care to an enrollee
22 shall be deemed to have improperly denied care to an enrollee.
23 An enrollee who has been improperly denied care under this
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 1 section by a managed care plan shall have the right to sue the
 2 plan."
 3      SECTION 2.  Section 432E-3, Hawaii Revised Statutes, is
 4 amended to read as follows:
 5      "[[]432E-3[]]  Access to services.  A managed care plan
 6 shall demonstrate to the commissioner upon request that its plan:
 7      (1)  Makes benefits available and accessible to each
 8           enrollee electing the managed care plan in the defined
 9           service area with reasonable promptness and in a manner
10           which promotes continuity in the provision of health
11           care services;
12      (2)  Provides access to sufficient numbers and types of
13           providers to ensure that all covered services will be
14           accessible without unreasonable delay;
15      (3)  When medically necessary, provides health care services
16           twenty-four hours a day, seven days a week;
17      (4)  Provides a reasonable choice of qualified providers of
18           women's health services such as gynecologists,
19           obstetricians, certified nurse-midwives, and advanced
20           practice nurses to provide preventive and routine
21           women's health care services[;] in accordance with
22           section 432E-   ; and
23      (5)  Provides payment or reimbursement for emergency
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 1           services[.] in accordance with section 432E-   ."
 2      SECTION 3.  In codifying the new sections added by section 1
 3 of this Act, the revisor of statutes shall substitute appropriate
 4 section numbers for the letters used in the new sections
 5 designated in this Act.
 6      SECTION 4.  Statutory material to be repealed is bracketed.
 7 New statutory material is underscored.
 8      SECTION 5.  This Act shall take effect upon its approval.
10                              INTRODUCED BY:______________________