Mired by a competing plan supported by President Bush, patient rights legislation backed by Sens. John McCain (R-Ariz.), John Edwards (D-N.C.) and Ted Kennedy (D-Mass.) received a large shot in the arm last month when Sen. Jim Jeffords of Vermont bolted from the Republican party, putting Democrats in control of the Senate.
"The Democrats taking control of the Senate changes the landscape completely," says Larry Levitt, vice president of the Kaiser Family Foundation in Menlo Park, Calif. "It means that the McCain-Edwards bill is going to the floor of the Senate, which is night and day from last year," when less comprehensive patient rights legislation introduced by Sen. Don Nickles (R-Okla.) was debated.
Indeed, Sen. Tom Daschle (D-S.D.), the new majority leader, moved the bill to the floor June 21, after vowing on June 8 not to compromise further with the Bush-backed plan sponsored by Sens. Bill Frist, M.D. (R-Tenn.), Jeffords (I-Vt.) and John Breaux (D-La.).
While Democrats finally succeeded in bringing their bill to the attention of the full Senate, it was immediately bombarded by Republicans, who sought to add amendments. One such plan, to accelerate tax breaks to help self-employed individuals buy insurance, was defeated.
The Democrats on June 26 beat back GOP attempts to give employers full immunity in healthcare disputes. However, Daschle has threatened to cancel an Independence Day break scheduled to begin June 30 unless a final vote was held by then.
Democrats also will have to contend with Bush's continuing threat of a veto, reiterated the day the bill came to the floor.
The key difference between the McCain-Edwards and Frist-Jeffords bills centers on liability. Under McCain-Edwards, if a dispute involves medical judgment, the patient will 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 will be able to seek up to $5 million in federal court. Punitive and exemplary damages are prohibited at the federal level.
The Frist-Jeffords bill would allow patients to sue their health plans only after exhausting an appeals process by an outside review panel and only in federal court, with noneconomic damages capped at $500,000.
Democrats were able to not only get their bill to the floor but also are likely to get a much better reception from Republicans in terms of votes, says Ron Pollack, executive director of Families USA in Washington.
"The Republican leadership, especially Don Nickles (now the assistant minority leader) . . . has to be much more cautious in stonewalling," Pollack says.
"They will need the cooperation of Democrats and if they stonewall on this, it will be tougher to get their priorities dealt with."
Another plus for Democrats is that Nickles won't be the head of the Senate-House conference committee, which would reconcile the two bills, thereby eliminating a major stumbling block, Pollack says. Last year, patient rights legislation died in the committee because of Nickles' intransigence. "If it goes to conference, Democrats in the Senate will likely have control of that process," Pollack says.
Adding momentum to the bill from the other side of the Capitol, Rep. Charlie Norwood (R-Ga.) June 13 threw his support to the McCain-Kennedy legislation.
Norwood, who had been negotiating with the White House on the question of liability, grew frustrated with its lack of compromise. Norwood, a dentist, was joined in his support of McCain-Kennedy by many other House Republicans.
"Norwood is going to make a huge difference," Pollack says. "Norwood brings a lot of Republicans with him" in the House, where they are still the majority.
At this point, Kennedy has said backers are close to having 60 votes, which would allow them to cut off a possible filibuster.
Still, a veto threat looms large.
"The president has some pretty strong feelings about the liability issue, and that is the key," says Richard Roberts, M.D., president of the American Academy of Family Medicine and a family practitioner at the University of Wisconsin-Madison. "My bet is there will be some compromise on liability. I think he (Bush) will soften his position, but I still think there will be some caps."
While the outcome of patient rights legislation is far from clear, Pollack says "it is very likely that we're going to see passage of strong patient rights legislation this year."