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Jewish World Review May 29, 2001 / 7 Sivan 5761

Morton Kondracke

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Consumer Reports


Stalemate Likely On Patients'
Rights Unless Bush Pushes


http://www.jewishworldreview.com -- AS good a compromise as it might be, the patients' bill of rights just endorsed by President Bush isn't likely to become law unless Bush undertakes a concerted campaign to pass it.

The measure introduced last week by Sens. Bill Frist (R-Tenn.), John Breaux (D-La.) and Jim Jeffords (R-Vt.) is opposed - for opposite reasons - by most Senate Republicans and Democrats.

To Republicans it's too permissive in allowing patients to sue HMOs. To Democrats it's too restrictive and sets too low a cap on the liability awards patientscan win in court.

At present it appears that Democrats, with some Republican support, could win majorities in both Houses with their version of a patients' rights bill.

However, it will take 60 votes to pass any measure in the Senate, and the Frist-Breaux-Jeffords measure at the moment has the least support of three competing approaches.

What it does have going for it is that it's a middle-ground solution that sets up an independent review system when HMOs refuse to cover a patient and allows patients to sue their HMOs in federal court but caps damage awards.

The bill is designed to discourage frivolous litigation, thereby keeping health insurance premiums under control and keeping the ranks of the uninsured from swelling further.

The Congressional Budget Office calculates that the Democratic proposal, sponsored by Sens. Edward Kennedy (D-Mass.), John Edwards (D-N.C.) and John McCain (R-Ariz.), would increase insurance premiums by 4.2 percent.

The Lewin Group, an independent research firm, estimates that each percentage point rise increases the number of uninsured Americans by 300,000; thus, Kennedy-McCain could cause some 1.26 million people to lose their health insurance.

Kennedy-McCain and its House counterpart, sponsored by Reps. John Dingell (D-Mich.) and Greg Ganske (R-Iowa), allow patients to sue their HMOs in state court when denied a procedure, test or referral.

The bill sets no cap on awards for economic losses - missed work, for instance-or "non-economic" damages, such as "pain and suffering." It puts a $5 million cap on punitive damages. Democrats in the past opposed any caps, but yielded to attract McCain's endorsement.

After the Kennedy-McCain bill was introduced, Bush made it clear he would veto the measure on the grounds that it would encourage litigation and drive up insurance costs. He laid down principles which the Frist-Breaux bill matches, and last week he said he favored the bill.

However, it was roundly denounced and attracted no co-sponsors. Nor, as yet, is there a House counterpart, although House GOP leaders presumably would be inclined to favor a measure backed by the President.

To get Frist-Breaux enacted into law, Bush presumably would have to unite House Republicans around it, then persuade conservatives in the Senate to back it.

Led by Sen. Don Nickles (R-Okla.), however, a phalanx of Senate Republicans is currently likely to oppose it on the grounds that Frist-Breaux supercedes state laws.

In 1999 and 2000 the Senate passed two Nickles-sponsored measures, both of which offered federal protection to a minority of patients. One bill limited economic damages to $350,000.

Nickles hasn't introduced a bill this year, but he criticized Frist-Breaux as "a serious expansion of federal power into an area that's been a prerogative of the states" and charged that Frist had "moved significantly to the left" of fellow Senate Republicans.

Frist-Breaux has a cap of $500,000 on non-economic damages, puts no limit on economic awards and bars punitive damages.

Still, it was also denounced by the HMO industry for allowing independent review boards to order procedures not covered under insurance contracts, based on the board's determination of "medical necessity."

On the other side of the issue, Kennedy and Rep. Charlie Norwood (R-Ga.) assailed the Frist-Breaux measure as a step backward from existing federal court decisions allowing for suits in state courts.

Norwood was a key co-sponsor of the Dingell bill in the last Congress and has said he would vote for it if it came to the floor, but this year he is not a co-sponsor and says he is trying to persuade Bush to modify his stance.

On May 10, Norwood, Dingell and House Speaker Dennis Hastert (R-Ill.) met with top White House policy adviser Josh Bolten, but no apparent progress was made.

That's not surprising, since Bush is a tort reformer who opposes expanding the power of trial lawyers to, as he sees it, harass industries for profit. Norwood wants HMOs to suffer if their decisions cause harm to patients.

The likeliest outcome is a stalemate, with no bill able to win the necessary 60 votes in the Senate. This would surely be used as a 2002 campaign issue by Democrats, but at least Bush would be able to say Republicans tried to pass something-a compromise, at that.



JWR contributor Morton Kondracke is executive editor of Roll Call, the newspaper of Capitol Hill. Send your comments by clicking here.

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