Thursday, March 3, 2011

Who is running the misinformation campaign on S.B.1274?

Two questions need to be answered: who is running the misinformation campaign on S.B.1274 and what's everyone's problem with Rafael Del Castillo.

I've known Rafael and Arlene for the past year and a half or so. I personally know eight families, including my own, whose children's lives have been bettered. Nobody ever has to pay anything up front because if Rafael wins, the insurance company pays his fees.

Rafael is the only attorney in Hawaii exclusively devoted to defending people's right to a local independent review when their insurance company denies treatment. For the past ten years, he has been winning his clients the medical treatments and services their doctors say they need, but the insurance company refuses to authorize. From chemotherapy to home nursing services, if it's denied by the insurer, Rafael appeals the decision to the state insurance commission. If the insurance commission decides the treatment is medically necessary, the insurer loses, pays Rafael, and you get the life-giving treatment or service you need. So if the insurance review is done away with, the only lawyer in the state who will be shut down will be Rafael.

There are obvious reasons why UnitedHealth and Evercare, not to mention HMSA and a few other companies, might not like having Rafael around. I'm sure they feel they are spending too much money on his bills.

Now, the little publicized fact is that Rafael ran for state office last fall. He got more than 22,000 votes. Nevertheless, the fact he was even running was fairly well ignored by the media.

And the media continues to do so. Why would Chad Blair write an article today on all the folks who could potentially be affected by Akaka's announced resignation and leave out somebody who actually got 22,000 votes?

At 5:00 pm today, Beth Ann's Town Square on Hawaii Public Radio will be covering the campaign against S.B. 1274. The most knowledgeable person on it has not be contacted. Senator Josh Green will be available to answer the public's questions about the bill.

Below is a letter that Del Castillo sent today to HPR that counters the terrible mis-information campaign that is being launched in favor of S.B. 1274.

Dear Beth Ann,
Someone forwarded me the information that you will be having Senator Green on the Town Square today to talk about the repeal of Hawaii’s external review law. I am happy to learn that the topic is being discussed as I have been on the radio twice on Kauai on this topic and will be again next Tuesday. I have also had town hall meetings about the repeal.

Having been lead counsel for all but two or three of the consumers who have requested external review under our present law during the past ten years, I consider myself one of the most knowledgeable persons in the State on this topic. I interrupted work on a letter to Steve Larsen, Director of the Center for Consumer Information and Insurance Oversight at DHHS, which has the assignment under the health care reform act (Patient Protection and Affordable Care Act) to review each state’s external review law and decide whether it meets all of the 16 minimum consumer protections in the interim federal regulations.

After July 1, 2011, health insurance issuers will be required by the CCIIO to comply with the federal external review law in any state in which the CCIIO determines the law does not meet those minimum protections, effectively preempting the state law until it is brought into compliance. This is apparently not a well-understood concept in Hawaii. (CCIIO staff explained to me that this passive preemption is due to the fact that the PPACA is part of HIPAA (Health Insurance Portability and Accountability Act).)

In any event, on February 17, Prof. Richard Miller and I had a lengthy conversation with the CCIIO staff about our situation, and we were invited to submit a letter to Mr. Larsen explaining why we believe that Hawaii law meets all of the 16 consumer protections (with one minor exception that requires a technical correction). The one element that will be in question is whether the federal minimum requiring that consumer complaints be sent to an independent review organization (IRO) is met by Hawaii’s hearing process before a local panel of three persons, including a physician, plan administrator from a competing plan, and a DCCA lawyer. We believe that is superior to an IRO and has proven to be so, but a minor amendment to our existing law could offer consumers a choice of going to an IRO or a hearing.

One major negative of the repeal is the loss of consumer advocacy. Acting Insurance Commissioner Gordon Ito did not apply for a federal grant to fund an independent consumer advocacy agency in Hawaii, so unlike other states that did receive some of the $30 million appropriated for that activity, Hawaii will lose all of its existing advocacy our law provides through its private attorney general section (the legislature knew in 1998 the State could not provide effective enforcement of the law, so it incorporated a provision requiring the Commissioner to award attorneys’ fees and costs to consumers who have external review hearings).

Another major negative of the repeal is the fact that 264,000 persons now covered by Medicaid will lose the right to external review. This is a major impetus of the repeal because UnitedHealthcare and Wellcare, the contractors for the 40,000 aged, blind, and disabled don’t want their “management” of the enrollees’ care challenged.

The legislators have been told that the repeal will allow the population in commercial employee plans (ERISA) to have the State review process. I questioned the CCIIO staff on that issue and the information the legislature is getting is apparently not correct. Based on what the CCIIO staff told Prof. Miller and me, ERISA plans will fall within whatever external review law Hawaii has on the books if the health coverage is purchased from HMSA or Kaiser or UHA or what have you. That has not been the case but is now going forward. Therefore, the inclusion of ERISA plans is NOT a justification for the repeal.

I would be happy to call into the show to answer questions or discuss these points further. Right now, I will go back to my letter to Steve Larsen at the CCIIO so that we can get what we really need to do, if anything, about Hawaii’s external review law from the horse’s mouth.

Rafael del Castillo

I already mentioned I'm one of the families blessed by knowing Rafael. My daughter is alive today, and so are five other children, because of Rafael's tireless work on their behalf, and his professional expertise with the insurance commission.

Castillo has also issued the following alert for anyone interesting in calling in to Beth Ann's show this afternoon.

There are a number of cases pending before the Insurance Division (at least 8). All the Insurance Commissioner has to do is delay them until after July 1 if our law is repealed.

1. What will happen to those cases if they are not heard before July 1? Will the consumers have to re-file under the new law?

2. What about the work that their attorneys’ and experts have done on those cases? Will the Commissioner be able to award their fees and costs?

3. How are people going to get help with their cases after our law is repealed? Hawaii has no consumer advocate and Acting Commissioner Gordon Ito did not apply for one of the federal grants to fund an independent consumer advocate like the Hawaii Coalition for Health.

There are MedQUEST consumers who are reporting that the new hearing officer at the Insurance Division is telling them they should not file their case in the Insurance Division because they will lose; that the Insurance Division is just going to go with what the plan tells them about the case because they will not have information.

4. Isn’t the new Acting Insurance Commissioner supposed to be a consumer advocate like his predecessors? Is he working to help us or the health insurers? Why would he try to get rid of consumer advocates?

The show’s website at invites calls: “Your phone calls are always welcome at 941-3689; toll free from the neighbor islands at 1-877-941-3689”
Please forward this information to help us continue the opposition to SB 1274

There is an online petition if you want to have your voice heard in opposition to S.B. 1275. You can find it at:

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I'm the mom of a child with disabilities. Hannah's first neurologist said she might never develop beyond the level of a 2 month old infant, and there wasn't anything I could do about it. The brain damage was just too severe. Nine years later, she walks, uses a touchscreen computer and I've just been shown she can learn to construct sentences and do simple math with the right piece of technology. Along the way, I discovered I needed to teach myself what Hannah's rights to services really were. Learning about early intervention services led to reading about IDEA and then to EPSDT. I've been waiting for the Obama administration to realize the power and potential of EPSDT for the medical rights - including the right to stay at home with their families - of children with disabilities. The health reform people talk about long term care, and the disability people talk about education and employment, but nobody is talking about EPSDT. So I am.