The California Patient's Guide
  Your Health Care Rights and Remedies
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How do I get copies of my medical records? What should I do if my health plan denies coverage for a particular treatment? How do I file a grievance against my health care plan? And, when can I sue my HMO? Can my health care plan exclude coverage for my pre-existing condition? If I don't have insurance, what are my rights to receive emergency medical treatment? What health care programs are available to me if I cannot afford private insurance?

These are just some of the important questions that you will find answered in "The California Patient's Guide: Your Health Care Rights and Remedies."
"My most disturbing observation throughout this entire experience was how common it was for people to refuse to connect, to relate to other people on a common level. So, every time I have communicated with a person with a [regulatory agency] or the health care industry, I have tried to reach that person on a personal level. I don't know if it helped. I can't help but to believe that it did. Regardless, I will continue to try. I do that in my mother's memory."
-Terry Preston

Terry Preston's mother died a tragic and avoidable death of a ruptured abdominal aortic aneurysm following delayed treatment at a California HMO hospital. Preston was ultimately able to hold the HMO accountable for her mother's death through a state regulator. Her persistent efforts resulted in a precedent-setting $1 million penalty awarded in an enforcement action against the HMO.

It is because of the persistence of Terry Preston, and others like her, that many of the rights and remedies described in this guide were enacted. While it is hoped that many of these new laws will prevent tragedies as endured by the Preston family from occurring, her story and recommendations remain highly relevant for patients and their loved ones who may find themselves in similar circumstances:

1. Don't let delays by your HMO wear you down. If you believe you're right and the cause is a worthy one, don't give up.

2. People need support, especially when grieving the injury or loss of a loved one. Keep looking for support until you find it. Taking on a large HMO and the State was a daunting experience, especially without an attorney to do the work for me. Self-doubt and pure exhaustion were common. Contact the patient advocate organizations as listed throughout this guide for help and motivation.

3. Contact the media. If they don't understand the significance of your story, do all within your power to convince them of its potential impact on their readers or viewers.

4. Try to connect with all those you encounter and believe that deep inside, most people have the desire to do what is right. Sometimes they just need encouragement.

5. Don't give up.

Organization of the Guide

The first 8 chapters of this guide discuss your major health care rights and remedies. Each of these areas is discussed in a question and answer format. Chapter 9 provides information about government sponsored health care coverage options. The appendices provide other useful information for obtaining quality health care.

Many of the rights and remedies described in this guide apply specifically to your relationship to Health Maintenance Organizations (HMOs) and other managed care companies. Your rights and remedies in relation to health care providers in general, such as doctors and hospitals, apply regardless of what kind of health care plan you have.

The term "managed care" refers to a number of different types of health care plans that all combine the functions of payment and delivery of health care services to patients, such as HMOs and "preferred provider organizations" (PPOs). The terms "health care plan," "health plan," and "HMO" are used interchangeably throughout the guide to refer generally to any of a number of managed care plans that are regulated by California's Department of Managed Health Care. If your health care is provided through a PPO, other than a Blue Cross or Blue Shield PPO, your rights may vary somewhat from those described in this guide. You should contact the California Department of Insurance for more specific information concerning your rights in relation to your PPO.

References to specific California and federal statutes, regulations and cases have been included in footnotes at the end of each section. When corresponding with a health plan, it always helps to cite to the relevant law.

Key definitions are highlighted within each section and terms appearing in boldface type are included in the Glossary at the end of the guide.

At the end of each section, you will find a list of "Other Resources" where you can go for additional information about a particular issue.

Sources of Your Health Care Coverage and the Relationship to Your Rights

The source of your health coverage determines what legal rights you have in relationship to your health plan. However, your rights in relationship to doctors, hospitals and other care-givers are not affected by the source of your health coverage. The chart below helps to summarize coverage sources and the rights associated with them. If you are not sure what coverage source applies to you, ask your employer or health plan.
If Your Health Care Coverage is...    Your Rights & Remedies are determined by...

Through private employer that contracts with an HMO or managed care company, but employer's health plan is not "self-funded" -- it does not finance services from the employer's own funds rather than HMO or insurer's.    State laws regulating managed care companies and insurance apply. A new state HMO "right to sue" law can be used when HMOs interfere with the quality of care. The federal Employee Retirement Income Security Act or "ERISA" may limit your ability to sue for damages in some instances when the HMO claims it is not responsible under the language of its contract with you for a specific benefit (a "coverage dispute.")

Through "self-funded" employer - typically a large employer that finances treatment from its own funds and contracts with a health plan to administer the employer plan. (If you are not sure whether your employer has "self-funded" health plan, ask your plan administrator, or your employer's Human Resources Director or other person in charge of employee benefits.)    State laws do not apply to health plan. Federal ERISA law applies because "self-funded" plans can never be considered insurance companies for the purposes of being regulated by the state. Legal recovery is limited to what you paid out-of-pocket for the treatment. Doctors, nurses and hospitals are still subject to state regulation.

Through Medicare or Medicaid.    State laws apply to health plans. Federal Medicare and Medicaid laws apply as well. Federal ERISA law never does. State "right to sue" laws can be used to recover damages.

Through your own funds.    State laws apply. Federal ERISA law never does. State "right to sue" laws can be used to recover damages.

Through church employer.    State laws apply. Federal ERISA law never does. State "right to sue" laws can be used to recover damages.

Through state government. (i.e., you are employed by a state agency that provides your health benefits.)    State laws apply. State "right to sue" laws can be used to recover damages.

Through federal government. (i.e., you are employed by a federal agency that provides your health benefits.)    Most state laws do not apply. Federal ERISA law never applies. The Federal Employee Health Benefits Act (FEHBA) applies and has procedures to assist you in receiving benefits that are different from state law.