Capitol Hill lawmakers took little time in reviving one of the most contentious issues of the previous Congress--providing protection for patients in health plans.
Sens. John McCain (R-Ariz.) and John Edwards (D-N.C.), along with 12 others, on Feb. 7 introduced the Bipartisan Patient Protection Act, which would allow patients to challenge health plans in state courts if they deny coverage on medical necessity, appropriateness and other factors. Federal courts would have jurisdiction over terms of insurance policies. Seeking to maintain control over the issue, President Bush released patient rights principles he supports and would want to see in any legislation he might sign.
"I see the makings of compromise," says Paul Ginsburg, president of the Center for Studying Health System Change in Washington, noting Bush supports the notion of allowing patients to sue their plan as a last resort. But healthcare policy watchers aren't predicting a deal any time soon, given that the president's priorities lie elsewhere.
Mindful that Bush and conservative Republican lawmakers oppose open-ended liability for health plans, the Bipartisan Patient Protection Act authors hedged their language on this key issue.
"This bipartisan bill strikes a solid compromise, recognizing that employers should expect uniform, federal standards for administrative processes, but any 'medically reviewable decisions' should be subject to state law with regard to medical decisions," the bill's sponsors said in a Feb. 6 statement. "By not pre-empting state laws, covering all Americans and banning punitive and exemplary damages on the federal level, this bipartisan bill will achieve this goal and give Americans the health insurance coverage they deserve," McCain said.
According to the bill, if a dispute involves medical judgment, the patient would be able to seek redress in state court under applicable state law subject to state damage caps. (Currently, 33 states have implemented some level of caps on damage awards.) If the dispute is an administrative benefit decision, the patient would be able to seek up to $5 million in federal court. Punitive and exemplary damages are prohibited at the federal level.
As such, the bill goes further than Norwood-Dingell, a bipartisan patient bill of rights the House approved last year. Co-sponsored by Reps. Charlie Norwood (R-Ga.), a dentist, and John Dingell (D-Mich.), that bill had no provision allowing patients to sue in federal court. Norwood-Dingell died last session as a result of conservative Republicans opposing passage, largely due to liability concerns.
Doctors were quick to rally around the new bill. "This new legislation resolves the most serious issues," said D. Ted Lewers, M.D., AMA board chairman, in a Feb. 6 statement. "It protects patients from managed care abuses, protects employers from frivolous lawsuits and protects state laws already in place. It's a win-win for everyone."
Mary Frank, M.D., a family practitioner in Rohnert Park, Calif., and a board member of the American Academy of Family Physicians, says it's "a big plus that the bill has come out so early and that it has many of the issues that we feel are important for patient protection." Frank is immediate past chair of the academy's committee on legislation.
Not surprisingly, the American Association of Health Plans predicts that the legislation would create a "volatile and unpredictable system" of litigation, according to a Feb. 13 statement. Speaking generally of patient protection bills put forth by Congress so far, spokesperson Susan Pisano says "it's unfortunate that the patient proposals use increased liability for employers and plans as their foundation. We are four-square behind patient protection. We don't think more lawsuits is patient protection."
On the same day the bill was introduced, President Bush sent a letter and principles to lawmakers outlining his goal of having a bill that gives patients the right to independent medical review and allows patients their day in federal court after the review and appeals processes are completed.
According to the documents Bush sent Congress, a patient rights bill must not encourage "unnecessary or frivolous litigation. Employers, many of whom are struggling to offer health coverage to their employees, should be shielded from unnecessary and frivolous lawsuits and should not be subject to multiple lawsuits in state court."
Frank says that because Bush "seems to be much more aligned with business entities . . . he's going to have the hardest time in the (bill's) areas of ERISA and managed care liability." Moreover, healthcare takes a backseat behind tax relief and education for Bush, she says. "Unless there is a lot of external pressure from patients . . . I don't foresee anything happening quickly."
Ginsburg agrees that the president's priorities lie elsewhere. "I'm sure he wasn't looking for this to happen so early," he says.
However, if Bush can find a way to reach agreement quickly and easily without causing him to lose much focus on his core issues, he will move forward, Ginsburg says.
Ginsburg notes that patient rights clearly has strong bipartisan support and that much of the compromise needed for a final bill was worked out in previous sessions of Congress.
"I think it's an issue that everyone can come away with something," he says.