The health management organization (HMO) operated by Central Texas’ leading health-care services provider recently had a date in district court with the Texas Health Care Information Council (THCIC), an agency that measures the performance of HMOs and hospitals on behalf of consumers, employers, and health-care professionals. Represented by the state Attorney General’s Office, the THCIC accuses Seton Health Plan Inc. of twice failing to report data used by the agency to produce its consumer’s guides on HMOs.
Agency rules require commercial HMOs with 5,000 or more members to provide info generated by the Health Employer Data Information Set (HEDIS) standardized performance measures. Your HMO Quality Check-Up, the THCIC’s 2001 consumer’s guide to HMOs (available at www.thcic.state. tx.us), measured a subset of 26 Central Texas HMOs’ HEDIS results, including provider turnover, patient screenings for cervical and breast cancer, and customers’ own ratings. According to THCIC Executive Director Jim Loyd, many HMOs comply with HEDIS because employers now demand such information before signing contracts. “In some cases, we’re asking for data HMOs might otherwise collect anyway.”
Seton was the only HMO in the state that didn’t report its 1999 and 2000 HEDIS data to the agency, Loyd says. It is part of the Seton Healthcare Network — the region’s largest community service organization, and managers of Children’s Hospital of Austin, Brackenridge Hospital, and many other health facilities in the region. The TexCare Partnership, a children’s health care program serving kids ineligible for Medicaid, lists Seton as the only participating HMO in Travis, Hays, Bastrop, and Williamson counties. When the THCIC failed to receive Seton’s data, Loyd says, “I did correspond with them.” To his recollection, Seton never explained any extenuating circumstances preventing them from complying with THCIC requirements.
The AG’s office was already weighing Seton’s failure to supply its 1999 HEDIS results, Loyd says. Then the agency’s June 15 deadline for reporting 2000 data passed. Seton’s 1999 and 2000 information is now outdated, but the THCIC wants to ensure future compliance. In its post-hearing brief, the AG’s office contends that sections of the government code entitle the THCIC to injunctive relief. If this argument prevails in district court, the state can force Seton to hand over information for future THCIC reports. “You can’t have laws that are unenforceable,” Loyd said.
But in a Nov. 29 letter addressed to the court, Seton counsel Attorney John Schwartz writes, “the Legislature did not intend for injunctive relief to be available as a remedy for alleged violations of the statute.” A victory for the THCIC, he continues, would mean that each time a state statute is violated, a court may order an injunction preventing future violations, “even in the absence of specific legislative authority.” Furthermore, Seton has been unable to find “a single appellate decision” that authorizes the THCIC’s request for injunctive relief, which can only be sought when violations cause irreparable harm, or when the state “lacks an adequate remedy at law.” Schwartz acknowledges the AG’s assertion that failure to supply info to the THCIC makes Seton liable for a civil penalty of between $1,000 and $10,000, but writes, “There is no mention of injunctive relief.”
Yet the letter still fails to explain why Seton refused to hand over its HEDIS data to the THCIC. (Schwartz could not be reached for comment.) By opting to pay a relatively light penalty, says Consumers Union Senior Policy Analyst Lisa McGiffert, Seton openly acknowledges that it has violated the law. A Seton victory could lead other HMOs (or hospitals, which also must report to the THCIC) to follow suit, which could gut the THCIC’s efforts and possibly affect other state regulatory agencies. “Regulated entities could simply sidestep laws by merely paying a fine,” McGiffert said.
Before the Legislature created the THCIC in 1995, both Consumers Union and the Texas Association of Business and Chambers of Commerce (TABCC) had lobbied for greater access to performance data from health-care providers. By the time the Lege acted, more than 40 states had programs to collect such information, some for more than 10 years. “One difficulty we have,” Loyd said, “is that because Texas is such a large state with so many HMOs and hospitals, it’s taken us a long time to get our hands wrapped around this.” Some HMOs have told him it costs well over $100,000 and many labor-intensive hours to collect the required data. But Lara Laneri Keel, a governmental affairs manager at the TABCC, believes the effort is worth the trouble. “We don’t think even today there’s enough information out there about health care providers,” she said. The TABCC and Consumers Union recently paired up again to co-author a letter to the THCIC encouraging the agency to release additional data on Texas hospitals, especially since many large employers run their own health plans directly through those hospitals. Loyd says the information will be released soon.
When choosing health care coverage, Loyd says, “You certainly can’t depend on glossy advertisements because everyone’s going to say, ‘pick me.'” Hence the National Committee for Quality Assurance developed HEDIS. Founded a decade ago by employers and the managed-care industry’s main trade association, the NCQA also accredits HMO plans and uses its Quality Compass to compare state and regional HMOs with other HMOs nationwide. Based on the HEDIS data, the THCIC reports, Central Texas HMOs usually scored a bit better than the state average but never exceeded the national average.
In the event Seton wins in district court, the state will likely appeal. Meanwhile, Seton’s secrecy prevents many Central Texans — including low-income parents — from knowing whether their HMO suits their needs. As Loyd says, “I might want to opt out or enter, but in either case I’m missing the information that helps me make an informed choice.”
This article appears in December 14 • 2001.