One of the first high-profile decisions for the new state Department of Managed Health Care is whether to release more information about arbitration cases between patients and their health plans.
The arbitration files within the department, at least for now, likely aren’t very exciting. The vast majority of them are boilerplate malpractice cases brought against providers in a single health plan, Kaiser Permanente. Kaiser is virtually alone among health plans in how it handles its malpractice cases through arbitration, not the courts. Only a handful of arbitration cases center on a different kind of dispute, whether a treatment is actually covered by the benefits package. Most plans have clauses that require arbitration to resolve disputes over coverage questions.
The Foundation for Taxpayer and Consumer Rights, the lawyer-friendly group led by Harvey Rosenfield, is behind the request to obtain more records on arbitration cases. While it is likely that the group is more interested in lawsuits and made-for-media anecdotes than in working with health plans to improve the actual quality of care, that is beside the point. There is an underlying principle here: Information relating to arbitrations and civil lawsuits should be made public based on similar standards.
It would be against the public interest to allow a rogue health plan to seal the records of settlements that show a pattern of denying benefits that are clearly covered. This fundamental public interest in disclosure is why the state Judicial Council has made it more difficult to hush plaintiffs in civil lawsuits who settle their cases. The same should be true for arbitrations.
It appears that the Managed Care Department will duck this issue by pointing, we think correctly, to existing law that seems to restrict what the department can now release. This would move the debate to the Capitol, where legislators can change the law. Some change is appropriate, but lawmakers must navigate carefully and keep their eye on sound health policy, not politics.
This issue can’t be separated from the privacy of medical information. It is possible, even likely, that Californians who value privacy may prefer to take a dispute to private arbitration rather than a public courtroom. The Legislature must keep this in mind as it balances this right to privacy with the public value of disclosure. It should either craft the details with this objective or delegate the job to the Managed Care Department. This information is one piece, perhaps a small one, of a broader puzzle that can reveal to regulators, purchasers and consumers the quality of their health plans.