Road to Faster HMO Care Proves a Rocky One

Six years after the California Legislature passed a law requiring the state to adopt regulations to ensure HMO patients have timely access to needed medical services, consumers are still waiting.

There are no requirements that spell out how soon your primary care doctor must schedule an appointment for an urgent health care matter or refer you to a specialist if necessary.

Assembly Bill 2179 was approved by the Legislature and signed by Gov. Gray Davis in 2002 after a woman died of an aneurysm in a hospital waiting room while pleading to see a doctor. The Legislature required the state to set standards by 2004.

Two weeks ago, the state Office of Administrative Law rejected draft regulations because the state Department of Managed Health Care did not provide enough time for public comment after the proposal was markedly altered.

Now, regulators are back to square one — with another four months to come up with the next proposal.

"It’s ironic the time it’s taken to develop clear standards to timely access to care," said Anthony Wright, executive director of Health Access, a consumer advocacy coalition that sponsored the legislation.

Advocates who advise consumers on health issues say long waits for doctor appointments are among the most common complaints they receive.

Requiring that patients be able to see a physician within certain time limits has been a goal of advocates since passage of the landmark Knox-Keene Act in 1975.

But Chris Ohman, chief executive officer of the California Association of Health Plans, said the saga illustrates that "it’s a lot easier to pass laws than to implement them. A lot of important details have to be worked out in regulations."

After stakeholders contested a handful of timely-access proposals, the state Department of Managed Health Care finally released draft regulations last summer.

The rules would have entitled patients to see a primary care physician for urgent care within 24 hours, get an appointment for routine care within eight business days, and be referred to a specialist for urgent care within 72 hours.

The department also outlined procedures for measuring performance and tracking compliance as well as potential enforcement mechanisms.

In December, after HMOs and doctors groups objected to the proposal, the department scrapped the rules and allowed each plan to decide what counts as timely access. Health plans, advocates and doctors disagree on whether AB 2179 gives HMOs the authority to do so.

Ohman maintains that AB 2179 does not stipulate who should write the regulations.

But Wright contends that allowing health plans to set their owns standards violates the intent of the law. "If you’re allowing the industry to set (its) own regulations, that’s not a concept that includes consumer input," he said.

Armand Feliciano, director of regulatory affairs for the 35,000-physician California Medical Association, said the state is "basically telling (HMOs) to ‘regulate yourself.’ "

Cindy Ehnes, director of the Department of Managed Health Care, was unavailable for comment. But the department issued the following statement:

"With the disapproval of the timely access regulations, we will take the opportunity to re-examine the concerns of all stakeholders and determine the best approach going forward."

Before the proposed regulations were rejected, Health Access and the Western Center on Law and Poverty were preparing to file suit challenging the authority of HMOs to set the standards.

Elizabeth Landsberg, an attorney for the Western Center on Law and Poverty, told the Senate Rules Committee last month there seems to be a trend by the Department of Managed Health Care of "deferring to the industry they are charged with regulating."

"To turn over regulations and allow plans to decide what’s timely seems an obvious violation," Landsberg said during a confirmation hearing for Dale Bonner, who as secretary of the Business, Transportation and Housing Agency has oversight over the department.

The Senate Health Committee, chaired by Sen. Sheila Kuehl, D-Santa Monica, is scheduled to hold a hearing on the issue later this month.

In a Feb. 21 letter to Ehnes, Kuehl said the law "unambiguously states that the (Department of Managed Health Care) must demonstrate the appropriateness of the standard."

But the proposed regulations, Kuehl said, "simply require the plans, themselves, to demonstrate the appropriateness of their individual standards."

"Since under these proposed regulations, each plan may establish its own standards, it will not be possible for consumers to make reasonable comparison," Kuehl wrote.

The Office of Administrative Law rejected the proposed rules because the department allowed only 15 days for public comment — including Christmas week — instead of the required 45 days.

AB 2179 was carried by Assemblywoman Rebecca Cohn, D-Saratoga, who has been out of office since 2006. Ohman said among the reasons the department has not enacted the bill is the "extraordinary number of laws" passed in recent years regulating health care providers.

"The Department of Managed Health Care has only so much bandwidth," said Ohman, who maintains that AB 2179 has been caught in a bottleneck of legislation.

Like other consumers, Ohman said, he dislikes having to wait for doctor appointments, "but government shouldn’t be putting stopwatches on doctors."

"We don’t want to shortchange the care patients receive," he said. "The issue is, we need more doctors, particularly more primary care doctors."

Feliciano said doctors, who often are at odds with HMOs, say the plans also need to provide enough physicians in their networks to ensure that patients have timely access.

"There’s nothing in (AB 2179) that allows the state to hand off those duties to the entities it’s regulating," he said. "That’s ridiculous."

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