CongressDaily Reveals Provisions of Breaux-Frist Patients’ Rights Plan

According to a draft summary obtained by CongressDaily of patients' rights legislation crafted by Sens. John Breaux (D-La.), Bill Frist (R-Tenn.), James Jeffords (R-Vt.) and other "centrist" senators, patients in employer-sponsored health plans would have a limited federal right to sue their HMOs over "coverage determinations" or care resulting in "har[m]," CongressDaily reports. The draft of the bill, called the "Bipartisan Patients' Bill of Rights of 2001," would guarantee patients access to specialists, emergency care and hospital stays -- similar to provisions in the bill sponsored by Sens. John McCain (R-Ariz.), Edward Kennedy (D-Mass.) and John Edwards (D-N.C.) -- but would place stricter limits on lawsuits. The legislation would require patients to exhaust an independent external review process, unless the case proves "futile," before suing health plans in court. If the case is "futile," a term CongressDaily does not define, then the patient could go directly to court. In addition, the bill would place a $500,000 cap on non-economic damages and allow unlimited economic damages, although the legislation "makes no mention" about "civil assessments," which are considered punitive damages awarded in federal court (Fulton, CongressDaily, 3/12). Under the McCain-Kennedy-Edwards bill, patients could sue HMOs in state court for denial of benefits or quality of care issues and in federal court for non-quality of care issues, such as those involving violations of health plan contracts. The bill would cap civil assessments awarded in federal court at $5 million, but state courts could award as much in damages as state laws allow. McCain-Edwards-Kennedy also would allow the external review process to be skipped if the patient dies or suffers irreparable damage (Kaiser Daily Health Policy Report, 2/7). According to CongressDaily, to address the issue of employer liability -- a "major complaint" about the McCain-Kennedy-Edwards bill -- the Breaux-Frist legislation would protect employers by allowing them to "designate a third party," such as an insurer, to have "clear and exclusive authority to make determinations that could give rise to a cause of action." In addition, the bill would require HHS, with advice from an independent board, to determine whether a state's patient protection laws meet federal standards. "If states failed to receive a waiver, then the new federal standards would apply," CongressDaily reports. A Kennedy spokesperson criticized the bill, saying, "There's too many loopholes. The scope and liability (provisions) appear to be lacking." He added that "governors can opt out" of the Breaux-Frist plan. A Breaux spokesperson said, "Changes are still being made" (CongressDaily, 3/12).