The California Patient's Guide
  Your Health Care Rights and Remedies
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Chapter I.
Your Rights to Continuous Care, Second Opinions, Referrals and Information

SUMMARY OF YOUR RIGHTS
  • You have the right to receive uninterrupted care from your doctor and HMO and to be referred to other health care providers when necessary.
  • You have the right to receive a second opinion when you or your doctor request one.
  • You have the right to receive an authorization from your health plan for referral to a specialist within 3 days.
  • You have the right to have your doctor freely discuss your medical treatment options and care with you, without interference or restrictions by your health plan.


WHAT DUTIES DO MY DOCTOR AND HMO HAVE TO ENSURE THAT I WILL RECEIVE CONTINUED CARE?

Patient/Physician Relationship1
 
   
As a general rule, a patient/physician relationship is established between you and a physician when the initial history and physical examination is conducted. Depending on the circumstances, however, the relationship may exist even earlier - such as when a physician agrees by telephone to see you, when you enter the physician's examining room, or when a referral physician gives you an appointment for a consultation.


A capitation payment is a lump sum paid to physicians for each patient they treat, regardless of how much care is needed.
 
 
The establishment of a patient/physician relationship creates many duties for your doctor to make sure you get the treatment you need.

Your enrollment in a managed care plan, before you have selected your particular physicians, does not establish a patient/physician relationship. However, once you have chosen a doctor or your doctor begins receiving a capitation payment from your plan, then a patient/physician relationship may be established.

Generally speaking, once a patient/physician relationship is established, your doctor has an ongoing responsibility to you until the relationship is terminated. This obligation includes providing "coverage" for you when he or she is ill, on vacation, or treating other patients, etc. Such coverage is typically provided by other doctors who agree to be available to provide care in your doctor's absence.

How Can I End the Patient/Physician Relationship?
You can end the patient/physician relationship by explicitly telling your doctor that you no longer want to be treated by him or her.

Can My Doctor End the Patient/Physician Relationship?
Yes. The patient/physician relationship can be terminated by your doctor when he or she gives you notice and a reasonable opportunity to find substitute care.

A doctor can decide whether he or she will provide services to any particular person. However, there are both legal and ethical constraints on a doctor's discretion. A doctor is not free to refuse a patient merely because a patient is a member of certain groups. It is illegal and unethical to refuse to treat a patient because of the patient's sex, race, color, religion, ancestry, national origin, or physical disability.

In addition, a doctor's ability to terminate you as a patient may also be limited by a contract between your doctor and your health care plan or hospital, which requires the doctor to see all patients.

 
   
A physician has an obligation to notify you of the termination of the patient/physician relationship and allow you a reasonable time to locate another physician.



Continuity of care is receiving health care services without inappropriate disruption, even if your provider or plan changes.
 
 
What are my rights to continue treatment with a doctor whose contract with my health care plan is terminated?
Your health care plan must notify you 30 days in advance when your primary care physician is terminated by the plan and provide you with instructions for choosing a new primary care physician. 2 If you are undergoing treatment for a serious illness or pregnancy, your plan must arrange for your doctor to continue your treatment. 3 Your plan must provide you with information, in any plan evidence of coverage or disclosure form issued after 1999 and upon your request, as to how you may request continuity of care.4

If you have an acute or serious chronic condition, your plan must provide you with services from the terminated doctor for up to 90 days, or however long is necessary to provide for the safe transfer to another doctor as determined by your plan in consultation with your doctor.5 For pregnancies, the plan shall provide you with health care service from your terminated doctor until all services related to delivery are completed, or for a longer period if needed to ensure safe transfer to another doctor.6

Your health plan may require your doctor to agree to the same terms and conditions regarding payment if you continue to see that doctor after the contract has been terminated. In this case, you will still be responsible for all the same co-payments, deductibles or other costs while you are under the care of the terminated doctor.7

If your doctor does not agree to the same contract terms while providing you continued care, your health plan will not be obligated to pay for your doctor's services after the contract is terminated. You may have to pay for the costs out of your own pocket.8

What are my rights to continued coverage by my current doctor when I join a new health plan?
Health care plans are required to provide you with continuity of care and referral to other providers when appropriate.9 Group health care plans must have a written policy on file with the Department of Managed Health Care describing how the health plan will help new enrollees receive continued care for an acute condition from a doctor who is outside of the plan's participating providers.10 The written policy must explain how the plan reviews requests to continue services with your current doctor and must take into account the effects that a change of doctor would have on your treatment for an acute condition.11 Your plan must provide notice of the policy to you at enrollment and a copy of the written policy upon your request, once you are enrolled in the plan.12


WHAT ARE MY RIGHTS TO OBTAIN A SECOND OPINION?

When you or your doctor request a second opinion, your health care plan must quickly provide or authorize a second opinion by a qualified health care professional.13

 
   
A "qualified health care professional" is a primary care physician or a specialist who has the training and expertise related to the condition for which you are requesting a second opinion.14
 
 
Your plan must require the second opinion health care professional to provide you and your initial doctor with a consultation report, including any recommended tests or procedures.15

Who can provide a second opinion?
If you are requesting a second opinion about care you are receiving from your primary physician, the second opinion must be provided by a qualified health care professional of your choice within the same physician organization.16

If you are requesting a second opinion from a specialist, then you must be provided a second opinion by any doctor of the same or equivalent specialty whom you choose from within your plan's network of doctors. You will have to pay for additional medical opinions from outside the original physician organization if not approved by your plan.17

If there is no doctor within your plan's network that meets the qualified health care professional standard, then the plan must authorize a second opinion from someone with the appropriate qualifications from outside of the plan's network, taking into account your ability to travel to the provider.18

In what situations will my plan authorize a second opinion?
Your plan should provide or authorize a second opinion if:
  • you have questions about the reasonableness or necessity of a recommended surgical procedure;
  • you have questions about a diagnosis or plan of care for a condition that threatens loss of life, limb, or bodily function, or a serious chronic condition;
  • a diagnosis is in doubt due to conflicting test results, your treating doctor is unable to diagnose your condition, or the clinical indications are complex, unclear, or confusing;
  • the treatment plan in progress is not improving your condition;
  • you attempted to follow a plan of care and have serious concerns about the diagnosis or plan of care. 19

    These are not the only reasons to get a second opinion, however, and your plan may authorize a second opinion for reasons other than those mentioned above.

    What is the timeline for my plan authorizing a second opinion?
    Generally, a second opinion must be authorized or provided upon request in an "expeditious" or speedy manner -- in certain circumstances, within 72 hours.20
     
       
    When your condition is life threatening or you are faced with a potential loss of limb or other major bodily function, your health plan must provide you with a second opinion within 72 hours after your request when possible.
     
     

    Plans are required to file their timelines for responding to requests for second opinions involving emergency needs, urgent care, and other requests with the Department of Managed Care. These timelines must be made available to the public upon request.21

    If your health care plan approves your request for a second opinion, you are only responsible for the costs of applicable copayments for similar referrals.22

    What happens if my plan denies my request for a second opinion?
    If your health plan denies your request for a second opinion, it must notify you in writing of the reasons for the denial and inform you of the right to file a grievance with the plan.23


    HOW LONG CAN MY PLAN TAKE TO AUTHORIZE MY REFERRAL TO A SPECIALIST?

    When you require a referral to a specialist or specialty care center, your health plan must decide whether or not to authorize the referral within 3 business days of the date when you or your primary care physician made the request and submitted all necessary information and medical records. Once your health plan decides to authorize the referral, the company must make the referral within 4 business days of when the proposed treatment plan is submitted to the plan medical director.24


    CAN MY HMO RESTRICT WHAT MY DOCTOR TELLS ME ABOUT MY CONDITION OR TREATMENT OPTIONS?

    No. Health care plans cannot impose so-called "gag-orders" on their doctors that restrict their ability to freely discuss your medical treatment options and care with you. The intent of the Legislature in passing this law was "to guarantee that a physician and surgeon or other licensed health care provider can communicate freely with, and act as advocate for, his or her patient."25

    Your health plan cannot interfere with the ability of a physician, surgeon, or other licensed health care provider to communicate with you regarding your health care. This includes, but is not limited to, discussions of your treatment options, alternative plans, or other coverage arrangements.26 While your doctor should discuss all your treatment options with you, your health plan is not required to pay for those treatments discussed which are not covered benefits, as provided in your health plan or insurance contract.27


    Can HMOs PROVIDE FINANCIAL INCENTIVES TO DOCTORS TO NOT PROVIDE CERTAIN TREATMENT OR CARE TO THEIR PATIENTS?

    No. It is illegal for your health plan to provide any "incentive plans" that make direct payments to doctors as an incentive to deny, reduce, limit or delay specific, medically necessary, and appropriate services to you.28

    It is legal, however, for health plans to have incentive plans that involve general payments not tied to specific medical conditions involving specific enrollees or groups of enrollees with similar medical conditions.29 Capitation payments, for example, are legal (as defined above).


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    FOOTNOTES
    1. All sections regarding the Patient/Physician Relationship are adapted from California Medical Association's California Physician's Legal Handbook (1999) Vol. 3.
    2. Cal. Health and Safety Code section 1373.65(a).
    3. Cal. Health and Safety Code section 1373.96(a); see also Cal. Insurance Code section for similar requirements for disability insurers.
    4. Cal. Health and Safety Code section 1373.96(e).
    5. Cal. Health and Safety Code section 1373.96 (b).
    6. Cal. Health and Safety Code section 1373.96(b).
    7. Cal. Health and Safety Code section 1373.96(f).
    8. Cal. Health and Safety Code section 1373.96(c).
    9. Cal. Health and Safety Code section 1367(d).
    10. Cal. Health and Safety Code section 1373.95(a); see also Insurance Code section 10133.55 for similar requirements for disability insurers.
    11. Cal. Health and Safety Code section 1373.95(b).
    12. Cal. Health and Safety Code section 1373.95(a).
    13. Cal. Health and Safety Code section 1383.15(a); see also Cal. Insurance Code section 10123.68 for similar requirements for disability insurers. Plans that offer health care services through preferred provider networks do not have to comply with Health and Safety Code section 1383.15 if, subject to all other terms and conditions of the contract, access to and coverage for second opinions is not limited. (Cal. Health and Safety Code section 1383.15 (k))
    14. Cal. Health and Safety Code section 1383.15(b).
    15. Cal. Health and Safety Code section 1383.15(h).
    16. Cal. Health and Safety Code section 1383.15(e).
    17. Cal. Health and Safety Code section 1383.15(f) and see also section 1383.15(j).
    18. Cal. Health and Safety Code section 1383.15(g).
    19. Cal. Health and Safety Code section 1383.15(a).
    20. Cal. Health and Safety Code section 1383.15(c).
    21. Cal. Health and Safety Code section 1383.15(c).
    22. Cal. Health and Safety Code section 1383.15(d).
    23. Cal. Health and Safety Code section 1383.15(i).
    24. Cal. Health & Safety Code §1374.16.
    25. Cal. Business and Professions Code section 2056.1(a).
    26. Cal. Business and Professions Code section 2056.1(b).
    27. Cal. Business and Professions Code section 2056.1(c).
    28. Cal. Health and Safety Code section 1348.6(a).
    29. Cal. Health and Safety Code section 1348.6(b).