If Congress passes a patients' bill of rights, it now appears all but certain that the bill will contain some provisions allowing enrollees to sue their health plans for harm caused by the denial of covered benefits.
In a signal that even the staunchest opponents have conceded that health plan liability is coming soon, the national Republican Party and its congressional leadership, and even the Texas government under Republican presidential nominee George W. Bush all have endorsed giving healthcare enrollees the right to sue their health plans.
"That pretty much makes your party's position clear," says John Stone, spokesman for Rep. Charlie Norwood (R-Ga.). Norwood, a dentist, has taken on the GOP leadership and allied with Democrats in a quest to pass managed-care reform legislation.
While it's clear where the GOP stands, it isn't clear that the warring sides of the patient-protection battle will come to agreement. If they do, signals coming from Republican leaders indicate that the question won't be whether to allow lawsuits against HMOs, but rather how limited the lawsuits will be.
The national Republican Party, meeting earlier this month in Philadelphia to formally nominate Bush, approved a platform that called for patient-protection measures that include the right to sue health plans "as a last resort."
That comes on the heels of a Senate measure, approved in June, that also would give patients the right to sue under federal law when health plans defy external reviewers' decisions that certain healthcare services are necessary (July 3, p. 4).
The measure was sponsored by Senate Republican Whip Don Nickles of Oklahoma, who had previously fought to keep managed-care reform measures from including any liability provisions.
Both the platform and the Nickles bill require enrollees to go through an appeals process before going to court.
They also are consistent with managed-care reforms that have taken effect in Texas during Bush's tenure there.
The trend worries some lobbyists who represent HMOs, although they know that election-year politics could yet derail any move to make health plans liable for patient harm.
The latest GOP concessions come against the backdrop of a years-long battle by Democrats and some Republicans to impose requirements on health plans, such as guaranteed access to emergency and specialty care, and to ban contract clauses preventing physicians from telling patients about all their treatment options.
Last year, the Senate and House passed separate patient protection measures. The biggest difference: The House bill allowed lawsuits broadly, while the Senate bill allowed none.
Earlier this year, a conference committee convened to create a compromise bill, but it has stalled on the HMO liability issue.
That roadblock has prompted Democrats to try to use Senate procedures to attach the House bill to various spending bills. The passage of Nickles' bill, which was attached to an HHS spending measure, was a counterattack to just such a procedural maneuver.
The latest twist in the saga is the loss of one Republican seat in the Senate. The death of Sen. Paul Coverdell (R-Ga.) and his replacement by Democrat Zell Miller has many wondering if the Senate GOP can hold off the House bill any longer.
The last time the Senate rejected the House-passed version of the legislation was in June, when the vote was 51-48 (June 12, p. 4). Coverdell voted against it.
Miller's appointment could mean a potential 50-50 tie on the House measure if it comes to the floor again, which would allow Vice President Al Gore to be brought to the Capitol as president of the Senate to break the tie. That would be a golden opportunity for Gore, now trailing in the polls, to burnish his image as a leader on healthcare.
"Everybody can count votes," acknowledges Sharon Cohen, senior vice president of federal affairs at the Health Insurance Association of America.
Gore will likely focus on healthcare this week when the Democrats gather in Los Angeles for their convention.
"I think Democrats will talk about it every chance they get," says Bill Pierce, spokesman for the Blue Cross and Blue Shield Association.
Even as the GOP met, Gore's campaign already was criticizing the Republicans for their infrequent mention of healthcare during their convention (Aug. 7, p. 3).
But the rising political tone also could jeopardize the bill's passage. If Democrats--now hungry to retain the White House and take back the House--want to use the patients' bill of rights as an issue, they will refuse to compromise and blame Republicans for blocking the bill.
If vulnerable Republican members tell their leaders that they need further compromise to win re-election, however, the GOP leadership may consent to further compromise on the HMO liability issue but will attempt to structure the legislation and its vote so that any compromise comes on their terms.