Although grand themes and brawling debates have marked this year's war about national patient-protection legislation, one managed-care lobbyist saw a sign that HMOs had all but lost a key battle during a quieter moment: a private meeting with Rep. Bob Goodlatte (R-Va.).
The lobbyist, who did not want to be identified, said he could not dissuade Goodlatte, a pro-business conservative who earns top ratings for his voting record from the U.S. Chamber of Commerce, from supporting a move to allow HMO enrollees to sue plans for injuries or deaths resulting from the denial of covered benefits.
"He could not understand why health plans should be exempt from liability when no other business is," the healthcare lobbyist said. He summed up the HMO industry's surprise that normally conservative, pro-business lawmakers have turned against them: "If you can't get Goodlatte, who can you get?"
As the House nears its scheduled showdown this week on legislation to crack down on managed-care practices, HMOs find themselves not playing to win but to keep the other side from running up the score.
Goodlatte's argument to the managed-care lobbyist illustrates the difficulties Speaker J. Dennis Hastert (R-Ill.) faces as the House prepares to vote. Many Republican members have taken the side of physicians and the American Medical Association: that managed-care enrollees ought to be able to sue plans for injuries and deaths that result from the denial of covered benefits (See related story, p. 16).
With just a five-vote majority and numerous members sympathetic to the physicians' argument, Hastert appears to have forfeited on the question of whether House legislation will allow such lawsuits. The only question is under what conditions the lawsuits will be allowed.
The American Hospital Association and the Federation of American Health Systems haven't been visible on the question of health plan liability, the battle royale of the patient-protection debate.
But they have been active in fighting against measures included in some bills that would offer job protection to healthcare workers who report misdeeds to state and federal authorities. They are also in favor of measures that would require timely payment from managed-care plans (Aug. 16, p. 4; Sept. 13, p. 9).
The Premier hospital alliance is fighting provisions that would require all managed-care plans to provide a point-of-service option. Premier said it would be a disadvantage for small provider-sponsored plans because it would force them to take on health insurance functions, which they are not well-equipped to handle.
At the crossroads. The final House vote on whether to make plans liable for injuries or deaths could be a watershed event in the policy debate. The Senate eliminated such language from the bill it passed in July.
A strong House vote in favor of liability would make it hard for the Senate to block such a provision when leaders from both houses meet to work out the differences between their two bills. But Senate leaders appear to be sticking to their guns.
If a liability provision gets 280 to 300 votes in the 435-member House, lobbyists working both for and against managed-care reforms said Senate leaders would have a hard time excluding such a provision from a final compromise measure that could be approved later this year or next year.
But that creates a dilemma for HMO lobbyists. Although they want the liability language to be as weak as possible, the weaker language could earn more "yes" votes from normally pro-business Republicans and thus send the Senate a stronger message that a liability provision should be included.
So the managed-care lobbyists may not want to lobby for a weakened liability provision, such as one that would require patients to appeal the denial to an independent arbitration panel before they could sue.
Meanwhile, Senate GOP leaders, who worked hard to weaken the measure that finally passed in the Senate, may not be in a position to simply stonewall the House vote by refusing to negotiate with House leaders or delaying the appointment of members of a House-Senate conference committee.
Sen. Edward Kennedy (D-Mass.), who led Democratic efforts earlier this year to tie up spending legislation until the Senate leaders called a vote on managed-care reforms, raised the possibility that he could yet again entangle the Senate if the House-Senate conference doesn't move swiftly.
"There's no reason the conferees shouldn't be chosen quickly," Kennedy said. He added that he believed the Senate should hold a vote on the House bill as passed.
Senate GOP leaders, meanwhile, could try to stonewall if legislation is sent to the conference.
They believe that members such as Sens. Spencer Abraham (R-Mich.), John Ashcroft (R-Mo.), Mike DeWine (R-Ohio) and James Jeffords (R-Vt.) may be vulnerable in the 2000 election and will not want to expose themselves to another vote that could be portrayed as siding with the unpopular health insurance industry.
That's especially true since the managed-care ruckus has been lubricated liberally by campaign donations.
In the 1997-98 election cycle, health professionals, who have fought to expand liability, gave $31.2 million in campaign donations, 59% of which went to Republicans, according to the Center for Responsive Politics. Managed-care plans, meanwhile, gave $5.2 million, 72% of which went to Republicans.
Looking for a plan. Before the House-Senate conference can begin, however, House leaders, like the managed-care lobbyists, must determine what their strategy will be when the legislation is debated.
Last week, the only clear thing was that bipartisan legislation sponsored by Reps. Charlie Norwood (R-Ga.) and John Dingell (D-Mich.) would be the bill subject to debate (See chart). But beyond that it was not clear what amendments would be allowed or whether members would vote on some of the other leading legislation as amendments meant to substitute for the Norwood-Dingell bill.
That lack of clarity was in keeping with the meandering path the GOP leadership has followed so far.
Hastert first promised a managed-care vote by the end of July. He then delayed the vote until after the August recess when no compromise could be reached. The responsibility for drafting legislation, meanwhile, has bounced from committee to committee and member to member as Hastert and the rest of the leadership have attempted to strike a consensus.
In fact, the House Education and Workforce employer-employee relations subcommittee was able to approve a package of patient-protection bills, minus a liability provision. But that package didn't pass the full committee.
Meanwhile, the Commerce Committee, which also has jurisdiction over healthcare issues, was unable to draft legislation that could be approved by its healthcare subcommittee.
Hastert resolved the issue by relying on two GOP members with medical backgrounds-Norwood, a dentist, and Tom Coburn (R-Okla.), a physician-to draft legislation that could also win some support from Democrats.
But that effort broke apart. Norwood ended up supporting the bill with Dingell, while Coburn ended up supporting legislation co-sponsored by Rep. John Shadegg (R-Ariz.).
The GOP leadership's zigzags on health policy are surprising, as many observers expected Hastert to flex his leadership muscles on healthcare issues (Jan. 4, p. 6).
Before being elected speaker this year, Hastert served as chairman of the GOP's healthcare task force, making him the leadership's point man on managed-care regulation and Medicare policies enacted under the Balanced Budget Act of 1997.
In fact, Hastert drafted the patient-protection legislation that passed the House last year.
But in developing the GOP strategy for 1999, Hastert has been handcuffed by the Republicans' razor-thin House majority, which makes it unable to afford defections. With Norwood and Rep. Greg Ganske (R-Iowa), a surgeon, bucking the leadership, the majority shrinks to just three.
"I think it starts with five votes and ends with five votes," Chip Kahn, president of the Health Insurance Association of America, said of the leadership's inability to set a stronger agenda.
The pool gambit. Its most forceful tactic, revealed last week, was to try to shift the debate to health insurance access. Hastert supported a bill, likely to be rolled into the managed-care debate, that would allow small-business owners to join health insurance purchasing pools called "association health plans," which health insurers widely oppose.
That could be a winning strategy in the long run. According to a poll released last week by the American Association of Health Plans, voters are concerned more about expanding health insurance coverage and the future of Medicare than they are about regulating HMOs.
Conducted by the Roswell, Ga., polling firm Ayres, McHenry & Associates, the poll shows that lawmakers who support patient-protection legislation are the ones who are vulnerable, the AAHP said.
"If you take steps in HMO regulation that undermine the access and affordability of healthcare, the effort is going to backfire," said Whit Ayres, president of the polling firm.
But bashing HMOs could be a winning strategy in the short term. Polling done in May by New York-based Louis Harris & Associates shows that the reputations of managed-care plans and health insurers continue to decline in the public's mind.
The percentage of people who think managed-care companies are doing a good job has steadily declined-from 51% in 1997 to 45% in 1998 and to 34% in 1999-a loss of 17 percentage points.
Health insurers have fared almost as poorly. The percentage who think they're doing a good job has dropped from 55% in 1997 to 41% in 1999.
"It's easy to get people excited about this," said Bill Pierce, spokesman for Chicago-based Blue Cross and Blue Shield Association. "The anxiety about healthcare is just below the surface and always there. But now we have a clear bogeyman."