An Ohio labor union is working to take the controversial issue of HMO liability out of state lawmakers' hands and put it on the November ballot for voters to decide.
If the American Federation of Labor and Congress of Industrial Organizations succeeds, Ohioans would be the first to vote on whether patients should have the right to sue their HMOs for malpractice. Because state and federal laws have traditionally shielded health insurers from lawsuits, consumers who are faced with coverage denials have had few options but to appeal to their HMOs' internal review panels.
In each of the five states that has an HMO liability law on its books, the measure was enacted by the Legislature, not through a public vote.
By taking the matter directly to the citizens, the labor union hopes to sidestep Ohio's Republican-controlled General Assembly, which has repeatedly scuttled the provision, said Kent Darr, spokesman for the state chapter of the AFL-CIO.
"We consider the right to sue an important issue that has been neglected by the Legislature," Darr said. "And if the Legislature won't do the people's business, then we think someone has to take it to the people and let them decide for themselves."
HMO liability has been a political hornet's nest in Ohio since 1998, when current Republican Gov. Bob Taft made campaign promises to support the provision but later failed to deliver.
The liability provision was stripped in the 11th hour from the healthcare reform bill the state Legislature passed last year. Patients can request an independent external review when their HMOs refuse to pay for treatments or medications recommended by their physicians. That law goes into effect May 1.
The AFL-CIO is drafting the final language of the initiative and plans to begin circulating petitions in early May. It will need the signatures of almost 335,500 registered voters to get the proposed amendment to the Ohio constitution on the Nov. 7 ballot. The deadline for filing the proposal with state Secretary J. Kenneth Blackwell is Aug. 9.
The Ohio AFL-CIO has more than 800,000 members, so getting enough signatures shouldn't be a problem, Darr said. He said he expects many Democrats and other organizations to rally in support of the measure, too.
"This is a public issue, not just a union issue," he said.
Union surveys show that more than 80% of Ohio residents favor the right to sue their HMOs, Darr added. Roughly 3 million Ohioans are enrolled in HMOs.
Both the Ohio Association of Health Plans and the Ohio Hospital Association said they would oppose the ballot issue.
"Having lawyers arguing in court won't promote the public's welfare," said OAHP President Kelly McGivern. "Putting coverage disputes into the tort system would cost everyone money, extend the time it takes to reach a decision and tax an already overburdened judicial system."
Health plans and businesses lobbied hard against the liability provision last year. Insurers argued that premiums would climb anywhere from 4% to 12% if they were forced to shoulder the cost of defending themselves in court.
And employers worried about being named in lawsuits over decisions made about their workers' healthcare coverage.
"The General Assembly enacted a very reasonable alternative (to litigation) last year, and we ought to give it a chance to work," said OHA spokeswoman Michele Egan.
External review, which lets patients appeal coverage denials to an impartial panel of medical experts, is being touted as a faster and more efficient alternative to the courts. Thirty-three states, the District of Columbia and the federal Medicare program have already adopted the process. A number of other states have similar provisions in the pipeline (April 17, p. 66).
But the Ohio State Medical Association argues that HMOs, which are increasingly calling the medical shots, should be held just as accountable for their decisions as physicians, who are subject to malpractice suits.
"We haven't seen the (ballot initiative's) final language yet, but the concept is something we wholeheartedly support," said Carol Mullinax, the association's director of public affairs.
So far, Arizona, California, Georgia, Texas and Washington are the only states that allow patients to sue their HMOs. But several other states are expected to pass similar bills in the coming year, said Molly Stauffer, spokeswoman for the National Conference of State Legislatures.
Until recently, consumers who suspected their HMOs of unfairly skimping on coverage had little recourse. Even now, the Employee Retirement Income Security Act of 1974 prohibits members of employer-sponsored health plans--roughly 160 million Americans--from suing their HMOs in state courts or collecting damages in federal suits.
As part of its efforts to reconcile House and Senate patient-protection bills, Congress is now heatedly debating whether to amend ERISA so that patients can sue their managed-care plans and recoup more than the cost of the service that was originally denied.