Navigating the politics and substance of patient protection legislation
By Robert B. Doherty
Trying to get a consensus in Congress on patient protection legislation has been a bedeviling experience, one curiously immune to the political give and take that usually yields agreement on bills with broad public support.
Polls have consistently shown that a huge majority of Americans—more than seven out of 10 people—favor legislation to protect patients from HMO abuses. As evidence, a powerful coalition of physicians, nurses, hospitals, labor unions, trial lawyers and consumers joined forces last year to support patient rights.
Largely because of the coalition’s efforts, the Norwood-Dingell patient protection bill passed the House of Representatives. The bill later died, however, because of opposition from the Senate and GOP congressional leaders.
The year began with renewed hope that patient protection legislation would finally pass Congress. President Bush said he wanted Congress to pass a federal bill of rights.
As governor of Texas, he allowed a pioneering patient protection law, which included the right to sue, to go into law. Democratic gains in the Congress, coupled with the desire of many Republicans to finally put the issue behind them, also pointed toward quick action.
In February, a revised version of last year’s Norwood-Dingell bill was introduced in the Senate by Sens. John McCain (R-Ariz.) and Ted Kennedy (D-Mass.). In the House of Representatives, the same bill was introduced by Reps. Greg Ganske (R-Iowa) and John Dingell (D-Mich.).
That bill, the Bipartisan Patient Protection Act (BPPA) of 2001, was endorsed by ACP–ASIM, the AMA and major health and consumer advocates. Any hope for quick action was dashed, however, when President Bush pledged to veto the BPPA during a speech before the American College of Cardiology’s annual scientific meeting.
The president expressed particular concern about the bill’s “right-to-sue” provisions. He said that he would sign only a bill that strictly limited the amount of non-economic damages that could be awarded to a plaintiff who sued a health plan.
The President’s threat led many Republican members of Congress, including many who had voted for Norwood-Dingell last year, to hold back on supporting the BPPA. They wanted to wait and see if a viable administration-favored alternative would be introduced.
Since then, the coalition of groups that supported last year’s Norwood-Dingell bill began to split. Although the AMA, ACP–ASIM and other large medical organizations endorsed the BPPA, a coalition of 70 medical specialty societies and patient groups known as the Patient Access Coalition chose not to endorse the BPPA. Members of the coalition instead decided to enter into discussions with the Bush administration and its supporters in Congress to talk about a compromise.
Progress or more gridlock?
On May 15, Sens. Jim Jeffords (R-Vt.), Bill Frist (R-Tenn.) and John Breaux (D-La.) introduced a compromise measure, the Bipartisan Patient Bill of Rights Act of 2001. The compromise had the support of many, but not all, members of the Patient Access Coalition. President Bush released a statement supporting the compromise measure.
Supporters of the measure argued that it was a reasonable compromise that would extend basic federal patient protections to all Americans, provide access to an independent appeals process and give patients a limited right to sue. (The bill would allow patients to sue in federal courts, but only after they had exhausted external appeals in most cases. In addition, the bill would limit non-economic damages to $500,000.)
Critics, however, said the bill would be gutted by provisions allowing states to opt out of the federal patient protections if they could demonstrate that they had “consistent” protections in state law. Critics claimed that rules governing the external appeals process were skewed against patients in favor of insurers. They also argued that patients would have to overcome so many hurdles to get their day in court that the liability provisions were meaningless.
Sens. McCain and Kennedy and Rep. Norwood were among those who immediately expressed opposition to the Frist-Jeffords proposal. The AMA released a statement welcoming the intent of the Frist-Jeffords proposal, but questioning the adequacy of the bill’s patient protections.
ACP–ASIM, on the other hand, had a more measured response to the Frist-Jeffords bill. We wrote to Sens. Frist, Jeffords and Breaux, congratulating them for trying to bridge divisions that have impeded past efforts to develop a consensus.
However, the College declined to endorse the bill, noting that we had not yet fully evaluated whether the bill provided adequate protections to patients. Endorsement also would have limited ACP–ASIM’s ability to advocate greater patient protections as the legislation progresses in Congress.
It is unclear if the Frist-Jeffords compromise will serve as the basis for a future consensus. The cries of opposition from Sens. McCain, Kennedy and other sponsors of the Bipartisan Patient Protection Act suggest that Congress is still a long way from consensus.
The split within the patient rights coalition into two camps—those that endorsed the compromise bill and those that continue to support the BPPA—will likely be exploited by insurers and other opponents. In addition, key Senate leaders’ continued opposition to any strong patient protection bill may stymie any effort to bridge the gap.
This does not mean that the patient bill of rights is dead for the year, in part because there seems to be broad agreement on central principles. The White House and sponsors of both the BPPA and the Frist-Jeffords compromise all agree that insured Americans should be protected, that there needs to be a strong independent appeals process and that patients should have their day in court.
The ACP–ASIM, most of the groups in the Patient Access Coalition and the AMA share these same principles. We now need all parties to make the extra effort to reach out and translate these principles into legislation that Congress can support and that the president will sign into law.
This will require putting aside the rancor over the differences between the BPPA and the Frist-Jeffords compromise and entering a dialogue on how to resolve the remaining disagreements. ACP–ASIM is committed to exerting our considerable influence to try to bring about such agreement.
It remains to be seen if the key players in Congress and the White House, and within the fractured coalition for patient rights, are willing to do the same.
Robert B. Doherty is ACP–ASIM’s Senior Vice President for Governmental Affairs and Public Policy.
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