4 MR. GOTTFRIED: And we think we now
5 have the connection with the Attorney General. We're
6 connected to his office. They're getting him to the
7 phone, I think.
8 Okay. Is this Mr. Blumenthal?
9 HONORABLE RICHARD BLUMENTHAL, ATTORNEY
10 GENERAL, STATE OF CONNECTICUT: Yes. My name is
11 Richard Blumenthal; I'm the Attorney General of
12 Connecticut. And I'm here with Tom Ryan, who is an
13 Assistant Attorney General in my office.
14 MR. GOTTFRIED: Okay.
15 MR. BLUMENTHAL: And I'm very pleased
16 to be with you today. I'm sorry I can't join you in
18 MR. GOTTFRIED: Okay. I'm Richard
19 Gottfried. I chair the Health Committee in the New
20 York State Assembly. And we have the practice of
21 swearing in all of our witnesses before they testify.
22 I don't know what the protocol is on doing that by
23 phone, but we'll try it anyway.
24 RICHARD BLUMENTHAL; Sworn
25 MR. GOTTFRIED: Okay. Very good.
1 Thank you very much.
2 MR. BLUMENTHAL: And, once again, I
3 thank you for having me in this way and being so
4 flexible. I have some experience in the area that
5 you're covering in your hearing. And I know that you
6 are probably running a bit late, so I'm going to be
7 brief in describing what we've done here in
8 Connecticut regarding Lyme disease, and particularly
9 the legislative mandates that we've adopted regarding
10 insurance coverage.
11 I should say that in October of 1998, I
12 created a health care advocacy unit in my office to
13 address a burgeoning number of consumer complaints
14 about health insurance and particularly managed care.
15 At the time we created that unit, Lyme disease
16 complaints accounted for about 20 percent of all the
17 complaints that we were receiving, and I was really
18 quite alarmed by that percentage. I directed the
19 unit to investigate the potential reasons for those
20 high levels of Lyme disease complaints, and what we
21 found is -- very bluntly, is that there were a series
22 of disturbing practices and trends within the
23 insurance and medical community regarding this
24 disease. Most alarming, what we found was a pattern
25 of insurer denials of coverage following the single
1 day -- the single 30-day course of antibiotic
2 treatment, even in the cases where positive blood
3 tests indicated continuing infection. And I must
4 say, all of Connecticut's health insurers seem to
5 share this restrictive standard of coverage which, as
6 you might imagine, was financially beneficial to
8 So, as we received more and more of the
9 Lyme-related complaints, the underlying medical
10 dispute over diagnosis and treatment emerged as well.
11 And I was at first struck by the polarizing nature of
12 this dispute - you may have encountered it in your
13 own experience - and came to understand that it
14 really had a chilling effect on the normal discourse
15 and debate that is so important, in fact, fundamental
16 to medical progress.
17 I had a hearing in February of 1999, a
18 formal hearing such as you are now having, a day-long
19 hearing, invited all of the medical and insurance
20 experts in the state, along with patients, activists.
21 It was really quite an educational experience for me.
22 Did it with our Insurance Commissioner, and I think
23 it was instructive for him as well. And that
24 transcript, although it's now somewhat out of date,
25 is available in case you're interested.
1 And I would just briefly say that I was
2 struck by three basic points of agreement among the
3 participants. Even though they differed, there was
4 agreement on three basic points.
5 The first was that Lyme disease is an
6 illness that is treatable with antibiotics in its
7 initial phase - in fact, easily treatable in the
8 initial phase - but may require more extensive
9 antibiotic treatment if it is allowed to reach a
10 later stage of infection.
11 The second point, that Lyme disease in
12 its advanced stages can affect a wide variety of the
13 body's essential systems, its essential organ
14 systems, including the circulatory and the central
15 nervous system.
16 And the third point on which there
17 seemed to be consensus was that Lyme disease required
18 a clinical diagnosis, because there's no absolute
19 test that can be used for diagnostic purposes. And I
20 might say on the third point there was also agreement
21 that Lyme disease is capable of defying basic
22 neurological testing and that, as a consequence, the
23 CDC, the Center for Disease Control, doesn't consider
24 the application of its own conservative reporting
25 standards to be authoritative, because they rely on
1 blood testing and so they don't regard it as a proper
2 basis necessarily for clinical diagnosis.
3 Now, one of the participating medical
4 directors indicated at the hearing that his company
5 did, in fact, apply these conservative CDC standards
6 in its review of request for coverage of IV
7 antibiotic therapies. I was alarmed by the fact that
8 this insurer was applying standards that the CDC
9 itself said were not appropriate for that purpose.
10 And I was also alarmed that the testimony made it
11 clear that the insurance companies were consistently
12 overriding the diagnoses and prescriptions of
13 treating physicians, despite the fact that a
14 third-party medical necessity determination required
15 deference be given to the opinion of the treating
16 physician. And I might say, as a matter of personal
17 philosophy, the basic approach I've taken to all of
18 these potential mandates, all of the issues involved
19 in managed care, really is that these decisions
20 should be made by the treating physician and the
21 patient without the intrusion or interference of
22 third-parties, so to speak.
23 So, at any rate, to come to the
24 conclusion, this hearing really crystallized for me
25 the need for action in the form of legislation to
1 reverse the insurance company behavior, the denial of
2 coverage where it seemed to be appropriate as judged
3 by the treating physician. And we drew up the
4 legislation to require coverage for treatment of Lyme
5 disease and to make the opinion of the treating
6 physician controlling in questions involving medical
7 necessity of recommended treatment.
8 Our original language was modified in
9 the legislative process, but I really think that the
10 final enactment has made enormous progress and meant
11 enormous benefits for consumers and patients. It's
12 codified, as you may know, at 38-A 429(h) and Section
13 38-A 15(h) of our Connecticut general statute.
14 Basically, it requires coverage for not less than 30
15 days of intravenous antibiotic therapy, 60 days of
16 oral antibiotic therapy, or both; and requires
17 coverage for additional care, if recommended by a
18 physician board certified in neurology, infectious
19 disease or rheumatology. So, it's a pretty simple
20 provision, but it has made an enormous difference in
21 coverage here in Connecticut.
22 Just to give you one sort of anecdotal
23 piece of evidence, I mentioned earlier that the
24 caseload of our Health Advocacy Unit was about 20
25 percent Lyme disease related when we started; it's
1 now down to about one percent. We're doing more
2 cases, but now only a fraction of them concern Lyme
3 because the coverage has improved so enormously. And
4 I might say that of that one percent, a majority of
5 complaints have involved self-funded health care
6 plans which, as you know, are subject to federal law,
7 ERISA, and that's beyond the reach of our state
8 insurance law; and the remaining recent complaints
9 involve state-regulated insurance policies, which
10 have in our experience been resolved fairly quickly
11 and easily without the need to resort to protracted
12 and futile health plan appeals.
13 So, I think that Connecticut has
14 effectively reduced insurance coverage issues
15 relating to Lyme. I understand that it cannot
16 eliminate the medical controversy underlying
17 divisions over diagnosis and treatment of Lyme
18 disease. I think there are future developments that
19 may address the medical controversy. The first is
20 the development of resolve within the medical
21 community, encouraged and supported by state and
22 federal organizations, to open the channels of
23 communication among and between physicians who are
24 experienced in treating Lyme, along with research
25 scientists; and the other is the development of an
1 accurate and dispositive test for Lyme disease. If
2 we had such a test, it would eliminate a lot of the
3 controversy about whether infections have occurred
4 and whether it persists beyond the course of
6 But in the meantime, I think
7 Connecticut's legislative approach to addressing the
8 imposition of health insurers' arbitrary and
9 restrictive coverage caps in the treatment of Lyme
10 disease has been effective. And I have great respect
11 for members of the medical community who have stood
12 up and spoken out in favor of their patients to help
13 us in extending this kind of coverage. They've added
14 to the debate and they've improved the process. And
15 I think that we need to be careful in the way that we
16 resolve complaints about doctors who may favor a more
17 aggressive treatment protocol for Lyme disease,
18 especially in the absence of a scientific consensus.
19 Because I certainly remain very, very justifiably
20 humbled about my own ability to say what's right or
21 wrong in the field of medical treatment, which comes
22 back to the point that I made earlier: That these
23 are decisions that should be made by the physician
24 and patient, not by some third-party who intrudes in
25 that decision.
1 So, that's pretty much our experience,
2 and I hope it's helpful.
3 MR. GOTTFRIED: Okay. Thank you very
4 much. I have a couple of questions, and I think some
5 of my colleagues may have some questions.
6 MR. BLUMENTHAL: Sure.
7 MR. GOTTFRIED: First, just a couple of
8 paper things. It would be very helpful if your
9 office could send us copies of the Connecticut
10 legislation that you talked about --
11 MR. BLUMENTHAL: I'll do that. Sure.
12 MR. GOTTFRIED: -- as well as -- you
13 mentioned a transcript of your 1999 hearing. And I
14 don't know if there was a report on the hearing, or
15 just a transcript, but if you can send us --.
16 MR. BLUMENTHAL: We would be happy to
17 provide comments -- we would be happy to provide
18 copies to you.
19 MR. GOTTFRIED: Okay. Thank you.
20 My other question is: What is the
21 situation in Connecticut with physician discipline
22 cases relating to Lyme treatment? Is that going on?
23 Do you have an opinion on what is happening there?
24 MR. BLUMENTHAL: I would say, at the
25 risk of being over simplistic, we have virtually no
1 cases of physician discipline involving Lyme
3 MR. GOTTFRIED: Okay. Has that
4 changed? Was there a period when there was some of
5 that going on?
6 MR. BLUMENTHAL: There was a time when
7 this issue within the medical, I think, prompted
8 threats. That may be too strong a word. But there
9 were claims on the part of some doctors and they were
10 claims made informally. For example, they would say
11 off the record to me, in conversation, or to others,
12 and I would hear it secondhand, that this doctor or
13 that doctor was overly aggressive, that he or she was
14 providing improper treatment. In fact, one doctor
15 was investigated, as I recall, and was ultimately
17 And I think, by the way, the
18 legislation that we past really reduced the level of
19 contentiousness on this issue. It sort of removed
20 the fire point or the point of friction, and I don't
21 think we've had serious claims -- any serious claims
22 since the legislation has been passed.
23 MR. GOTTFRIED: That's very
24 interesting. When did this legislation become law?
25 MR. BLUMENTHAL: Let me see if I can
1 remember exactly.
2 MR. GOTTFRIED: Roughly?
3 MR. BLUMENTHAL: We had the hearing in
4 '98, and it was passed in January of 2000. January
6 MR. GOTTFRIED: Okay. Thank you.
7 Do any of my colleagues have questions?
8 MS. O'CONNELL: Just one question.
9 This is Assemblywoman Maureen O'Connell. I have a
10 question with regard to the legislation limiting the
11 treatment to that of a neurologist, infectious
12 disease specialist or rheumatologist. Would there be
13 any reason to limit -- would there be any prohibition
14 on expanding that to include practitioners who may be
15 now the experts in treatment of Lyme disease but not
16 necessarily engage in the active practice of, you
17 know, epidemiology or neurology? Do you have any
18 opinion on that?
19 MR. BLUMENTHAL: I can give you an
20 opinion. My opinion is that -- and I say this with
21 all due respect to a legislature of a fellow -- a
22 sister state, so to speak: You can do whatever you
23 want so long as the physician or the practitioner is
24 certified in a particular area. We happened to
25 choose these areas because they seem to related to
1 the particular disease. But I think if science has
2 advanced beyond the point that it was then and there
3 are now specialties that would be appropriate, you
4 certainly could write them into the legislation.
5 MR. GOTTFRIED: This is Mr. Gottfried.
6 Let me interject. As I understood your description
7 of the law, the board certification question comes in
8 only at the point where the physician's recommended
9 treatment is being given sort of an automatic
10 override of the insurance company's judgment --
11 MR. BLUMENTHAL: Well, I --.
12 MR. GOTTFRIED: -- is that correct?
13 MR. BLUMENTHAL: I went through it
14 pretty quickly, so let me go back through it again.
15 I think you have it basically right.
16 The law requires coverage for not less
17 than 30 days, IV therapy, or 60 days of oral
18 antibiotic therapy, or both. It required coverage
19 for additional care if it's recommended by a board
20 certified neurologist, infectious disease specialist
21 or rheumatologist. So, in other words, if you're a
22 patient, you go to your doctor, he or she says you
23 need more than the 30 days or the 60 days, if the
24 insurance company says, fine, we'll cover it, then
25 there is no need to go to one of these specialists.
1 If there is some disagreement - which, by the way,
2 there has been in diminishing numbers in our
3 experience - then you can go to a board certified
4 neurologist, infectious disease specialist or
5 rheumatologist. And if that doctor recommends it,
6 then the insurance company has to go along with it.
7 Is that clear? I'm sorry if I'm
8 confusing you.
9 MR. GOTTFRIED: No, I think that's
10 clear. Yeah. Thank you.
11 Other questions?
12 MS. MAYERSOHN: Yes, I have a question.
13 Assemblywoman Mayersohn.
14 I'm just curious, because there seems
15 to have been some concern expressed that the
16 insurance companies are fearful that they're going to
17 go bankrupt. Did that happen, in fact, in
18 Connecticut? Have insurance companies moved out of
19 the state or gone bankrupt or whatever?
20 MR. BLUMENTHAL: Well, the insurance
21 companies and HMOs, as you well know, have their
22 financial problems, but they -- certainly none have
23 gone bankrupt. In fact, some of them are doing quite
24 a bit better than they were -- you know, this area is
25 a very complex and challenging one. But some of
1 those that were most enlightened in their reaction
2 are doing better. Anthem decided, in fact -- I'm
3 glad you raised this point. Anthem decided recently
4 that it would no longer require any prior
5 authorization for IV therapy. In other words, it
6 took its experience with Lyme disease where it
7 extended the coverage and made that a general
8 practice regarding IV therapy, so that we no longer
9 have as part of utilization review the requirements
10 for prior authorization in Anthem's dealings with
12 Or to put it a different way, a lot of
13 what the critics of managed care have been saying,
14 namely, that it costs more to do the bureaucratic
15 second-guessing and oversight, actually has proved
16 true, I think, for some of the -- some of their --
17 some of the managed care organizations. And as a
18 matter of its own economic decisions, Anthem decided
19 that it would no longer do prior authorization review
20 for any IV therapy, including Lyme.
21 So, in a way, I think we have -- we've
22 done something. We've persuaded Anthem and some of
23 the other insurers to do something good for
24 themselves. That's kind of a long-winded and awkward
25 answer, but I think --
1 MS. MAYERSOHN: It's a great answer.
2 MR. BLUMENTHAL: -- that the basic
3 point is that eliminating some of the bureaucratic
4 second-guessing, some of the structure - that has its
5 own expense - may be good for the insurers and the
6 managed care organizations in the long run.
7 MS. MAYERSOHN: Thank you. I have just
8 one other question.
9 When you first had your hearing and
10 sort of presented what you were trying to do, was
11 there any interference by any -- what were your
12 obstacles? Because this is what we're looking ahead
13 to. Were the insurance companies a factor? Did they
14 try to oppose what you were trying to accomplish?
15 Was the medical -- the OPMC involved? I wonder if
16 you could sort of give us some help in that
18 MR. BLUMENTHAL: Well, the obstacles
19 were really, number one, for us, understanding the
20 science when the scientists themselves were mystified
21 and baffled by many of the cases they saw. I mean,
22 as you well know, Lyme is -- can be exceedingly
23 difficult to diagnose. There is no absolutely
24 fool-proof diagnosis, and so simply understanding the
25 disease was an obstacle for a layman like myself.
1 And then, I think, gathering all the
2 information -- because at that point there was much
3 more anecdotal information than there was actual
4 statistical information. Back in 1998, the
5 consciousness of Lyme disease and the credibility of
6 people who were concerned about it was less than it
7 is now. So, there were people who were dismissed as
8 sort of crackpots or extremists because they saw --
9 because they referred to Lyme as an epidemic, which
10 we came to see it as really being, at least in
11 Connecticut -- certain parts of Connecticut, it is a
12 very, very common disease and desperately
14 So, I think that there were those
15 obstacles, and then there were some opponents. The
16 medical -- some of the medical community opposed more
17 extended coverage, but mostly it was the insurers and
18 the HMOs who felt economically threatened by a
19 potential mandate on this disease and, as a matter of
20 general principle, felt that there should be no
21 mandates that required coverage of certain kinds of
22 treatments or procedures. And they have adopted that
23 stance generally, whether it's -- regarding the
24 drive-through deliveries or mammographies or -- I
25 mean, you're -- as members of this committee, I'm
1 sure you're familiar with the arguments that are made
2 by the insurers.
3 MS. MAYERSOHN: Thank you.
4 DR. MILLER: Hi. This is Assemblyman
5 Joel Miller. Let me just congratulate you. At this
6 point, we can give you an honorary M.D. degree. You
7 seem to understand this disease more than most of the
8 physicians in New York state.
9 MR. GOTTFRIED: You should understand,
10 Dr. Miller is a dentist, so giving out M.D. degrees
11 doesn't mean that much to him.
12 DR. MILLER: Getting back to the points
13 that Maureen O'Connell was making about the
14 difference specialists. You see that in spite of the
15 fact that we share a common border, we don't share
16 the same view of Lyme disease. The one
17 rheumatologist that I knew well sent me a letter
18 saying he could never support me again because I was
19 supporting the - quote, unquote - Lyme doctors. The
20 infectious disease specialist in our area, who is
21 also a friend of mine, told me I would rue the day
22 that I supported the Lyme disease doctors. And so
23 that's two of the specialists that we have to knock
24 off the list.
25 But it's certainly -- and the other
1 point, of course, is that, you know, sometimes you
2 have people fighting their own best interests. It
3 has to be a lot less expensive to treat a disease as
4 early as possible to prevent it from getting as bad
5 as it can. And so, in spite of themselves, the
6 insurance companies and HMOs would probably be better
7 off if they agreed to treat this disease when it was
8 most easily treated, rather than wait for the end
9 line of this disease, which is incredibly expensive,
10 not to mention the costs that you incur if you have
11 to put people who could be productive into nursing
12 homes because you failed to provide any treatment for
13 them at all.
14 So, I applaud you in Connecticut. You
15 can get a job here any time you want.
16 MR. BLUMENTHAL: I appreciate those
17 remarks, and I think you said it much better than I
18 did, which is -- you made the point much more
19 eloquently, certainly, than I did, which is that, you
20 know, in a sense, good medicine and humane treatment
21 of patients and consumers often can be good business
22 for these HMOs and insurers. And I've often joked,
23 although we -- as you may know, we have actually sued
24 four of our HMOs in federal court -- that I would
25 drag them kicking and screaming into greater
1 profitability. Because I do think that - you put it
2 quite well - often, by treating early or adopting
3 preventative medical care, in the long run there's
4 less expense.
5 So, I think that our law is
6 well-balanced. It provides for some checks against
7 some of the potential abuses that the insurers are so
8 fearful of having, but at the same it provides
9 fairness and really, again, preserves the essential
10 relationship of the physician and patient.
11 MR. GOTTFRIED: Okay. Thank you very
12 much. I think that's all the questions we have. On
13 behalf of the Committee, I want to thank you very
14 much for your superb testimony and for being with us
15 today, even if just electronically.
16 MR. BLUMENTHAL: Well, I hope you'll
17 give me a rain check on appearing before you. I'd
18 love to have the opportunity to meet you, and we hope
19 to cooperate and help you in any way that we can.
20 MR. GOTTFRIED: Very good. Thank you
21 very much. Bye.
22 Okay. Our next witness is Dr. Alan
23 Muney, who is the Chief Medical Officer of Oxford
24 Health Plans.