Score one for organized medicine. Lobbying efforts by the AMA paid off last month when the House passed sweeping patient rights legislation by a considerable margin.
But the game against their HMO opponents is far from over; the sides will face off again when a congressional conference committee attempts to reconcile the House legislation with a far weaker bill passed by the Senate in August. The committee isn't expected to meet until January, Hill observers say, and that's when political jockeying will begin in earnest.
The House legislation passed Oct. 7 by an overwhelming majority of 275 to 151, with 68 Republicans and all but two Democrats voting for the measure. The bill, known as the Norwood-Dingell bill after its two main sponsors, Reps. Charlie Norwood (R-Ga.), a dentist, and John Dingell (D-Mich.), would allow patients to sue in state courts and collect unlimited damages. The bill also would set up independent grievance panels, which allow patients to appeal treatment decisions by HMOs. The legislation would also guarantee patients more information about their health plans' rules, forbid HMOs from inserting gag clauses into contracts and force plans to pay for a wider range of drugs and experimental treatments (see chart).
The bill passed after similar legislation favored by House Republican leaders was defeated 238 to 193. That bill would have permitted lawsuits only under severely limited circumstances.
"It (the House victory) was a tour de force of lobbying," says Robert Blendon, a professor of health policy and political analysis at Harvard University.
"There's no question that the lobbying and publicity (by the AMA) made an enormous impact."
Blendon says that Republican physicians, such as Norwood, were key in getting nonphysician Republicans to vote for the bill. That's because Republicans are worried about how they will be perceived on patient rights in elections next year.
"The thing that really moved people was the possibility that the words of your own party members would be used against you in an election campaign," Blendon says. "It's one thing for (Sen.) Ted Kennedy (D-Mass.) to attack you. It's another thing for a rock-solid Republican to do it." Some Republican doctors, Blendon adds, threatened to disrupt the campaigns of their nonphysician Republican colleagues if they didn't vote for the measure.
Adds Bart Fleming, senior consultant with PricewaterhouseCoopers in Fairfax, Va., "If something is not passed, I think the Republicans have a big election problem."
Another factor in the bill's passage was a lack of leadership by Republicans in the House, says one Republican staffer on the Senate Health, Education, Labor and Pensions Committee who declined to be named.
In the Senate, Republican leaders became involved in patient rights in the previous session of Congress and "decided to address it constructively," the staffer says. "In the House, leadership has been generally fighting patient rights, and it (the issue) got away from them. . . . They were essentially overtaken by events."
The House vote indicates that legislators are listening to irate Americans who are upset with their health plans, says Paul Ginsburg, president of the Center for Studying Health System Change in Washington.
"I see managed care being more constrained than I had anticipated and am more worried about (rising) healthcare costs," Ginsburg says.
In the short term, however, it's unclear whether angry Americans and doctors will get their way. The House and Senate must create a conference committee to reconcile the greatly differing bills and win a majority of votes from both houses of Congress. When that will happen and who will be on the committee is unclear, the Senate staffer says.
"I think we will be probably naming the members before adjournment," which had been targeted for Oct. 29, but the committee isn't likely to meet until after Congress returns for President Clinton's State of the Union address, sometime late in January, he says.
Who is named to the committee will be critical to its outcome. Party leaders decide who will be on the committee, and because Republicans constitute the majority in each house, they will constitute a majority on the committee.
Usually, members are picked from committees that produced the bill. But on the Senate side, much of the bill was developed by a task force, some of whose members don't sit on the Finance Committee or the Health, Education, Labor and Pensions Committee.
Clearly Senate Republicans will be more enthusiastic about their bill than House Republicans about Norwood-Dingell. If senior Republicans, such as Rep. Tom Bliley (R-Va.) and Rep. Bill Archer (R-Tex.), who oppose strong patient rights legislation, are named, it will make it more difficult for House members of the conference committee to sign off on a compromise.
"I think that means we could see a long conference," the staffer says.
But Fleming believes that the conference committee will hammer something out. The key will be whether employers can persuade the committee to protect them from lawsuits, he says. If that happens, and Dingell compromises by allowing patients to sue only in federal court and not state court, then there's a reasonable chance that a bill will make it out of conference, he says.
Blendon also sees the possibility of movement.
"There's no question that members are going to move to some compromise," Blendon says. "The issue is . . . whether (Senate Republicans) want to have a bill that the president wants to sign."
Clinton has stated that he will veto anything other than a bill that gives patients full rights to sue.
"The wild card is whether the Senate leadership will be more effective than the House Republican leadership," Ginsburg says.
Bridging the gapHow House and Senate patient rights bills compare
Right to sueHouse: A patient injured as a result of a covered benefit being denied or delayed can sue in state court for damages. A patient unfairly denied benefits but suffering no injury can sue in federal court for $750 a day for every day that care was denied up to $250,000, plus the cost of the care, plus attorney fees and court costs.
Senate: No additional rights.
External appealsHouse: Enrollees can demand a third opinion from medical specialists totally independent from the health plan, and that decision is legally binding on the plan.
Senate: Similar provision.
AccessHouse: Access to obstetricians, gynecologists and pediatricians without referral.
Senate: Similar, but applies only to plans that cover federal employees.
Guaranteed emergency room careHouse: Enrollees can choose to go to any emergency room of their choice and pay no more out-of-pocket than they would have at their health plan's designated hospital. If the problem reasonably appeared to be an emergency, but turned out not to be, the insurance plan still has to pay.
Senate: Similar but applies only to plans that cover federal employees.
Freedom of communicationHouse: Precludes gag clauses or health plans firing or disciplining doctors for talking freely with patients.
Source: office of Rep. Charlie Norwood (R-Ga.), text of Senate bill