Washington Insight

Patients' rights:
The never-ending story

By Julie Rovner, Contributing Editor

Last year at this time, Congress was "this close" to passing a patients' bill of rights. In October, 1999, the House had approved a sweeping measure that would have guaranteed patients a long list of powers over their health plans, including the right to seek reimbursed care in the nearest emergency department, to see specialists outside the plan if the plan did not have one signed up and, for women, to see an OB/Gyn without a referral. The Senate had passed a similar bill three months earlier, and it was one of President Clinton's top legislative priorities. A House/Senate conference committee only needed to work out what appeared to be small differences.

But those differences weren't so small, particularly on two big issues known in the corridors of power as "scope" and "liability."

Scope refers to the range of people who would get guaranteed rights. The House bill would have reached all 161 million Americans with private health insurance, while the Senate would have extended its core protection only to the 55 million or so Americans in self-insured plans.

Liability is Congress-speak for how to enforce those new rights. The House and Senate bills both envisioned internal and external appeals processes to settle health plan/patient disputes over care. But the House bill (with President Clinton's strong support) would have gone a step further, allowing patients to sue their health plans for damages in federal court if denial of care resulted in injury or death.

Both sides pointed fingers at their counterparts over the failure to resolve the differences. Senate Republicans said backers of the House measure (mostly Democrats) wanted a campaign issue, not a bill. Backers of the House version said Senate Republicans wanted only a fake bill to placate their insurance industry and employer campaign contributors. Both sides agreed that it would be different this year. And it is, but not the way most people think.

President Bush, under whose watch Texas became one of the first states in the nation to allow patients to sue their health plans, said repeatedly during the campaign that he supported a patients' bill of rights. The election took four Senate seats away from the GOP, including several incumbents who had been privately urging Senate GOP leaders to let them vote for the House patients' rights legislation. Nevertheless, counting the Republicans who supported the Democrats' bill in 1999, there are now at least 53 votes for that measure.

The momentum appeared to accelerate Feb. 6, when the newly influential Sen. John McCain (R-Ariz.), announced he had found common ground for House and Senate backers of the broader bill. Among the compromises in the new bill, known as the "Bipartisan Patient Protection Act of 2001," is a bifurcation of liability, with cases involving medical decisions sent to state courts and contract disputes sent to federal court. A federal damage cap of $5 million would be imposed, and state damage caps would apply. On the scope issue, the new bill would create a federal "floor" of guarantees, but would allow states to retain laws that are certified to be at least as strong as the federal measure.

Done deal, right? Wrong. A day later, President Bush rained on the bipartisan parade by issuing a page-long list of "principles" that he would like to see in a patients' rights bill. In the accompanying letter to House and Senate leaders, he pointedly wrote that "I do not believe any bill currently before the Congress meets all of these principles." At issue, still, are scope and liability.

On liability, it is clear that Bush is much closer to Senate Republicans than to Senate Democrats and the large bipartisan House majority. That's not surprising, and for more than partisan reasons. Bush did not actually sign Texas' landmark law: He allowed it to become law without his signature after it became clear a veto would be overridden. Unlike the Senate-passed bill, Bush would allow patients to sue, but only in federal court, where damage awards tend to be smaller, and stipulated that those damages be "subject to reasonable caps." While the document did not define "reasonable," White House Press Secretary Ari Fleischer said the number would be nowhere near $5 million and probably closer to the $750,000 allowed by the Texas law.

On scope, it remains unclear, as it was during the campaign, exactly where the President stands. On the one hand, the document released by the White House avers that "a federal patients' bill of rights should ensure that every person enrolled in a health plan enjoys strong patient protections." But then again, "because many states have passed patient protection laws that are appropriate for their states, deference should be given to these state laws and to the traditional authority of states to regulate health insurance."

What does that mean? It could mean Bush supports the McCain compromise, allowing states to certify that their laws are at least as strong as the federal law. Or it could mean he backs the Senate GOP bill, which defers to any existing state laws. Grumbled one aide to a House member who supports the broader bill: "He's about as clear on scope as President Clinton was on defining sex."

Republicans and Democrats alike say they want to get this bill done and off the table as soon as possible. Once again, they're "this close," but there's no cigar just yet.

 

Julie Rovner. Patients' rights: The never-ending story. Business and Health 2001;3:13.