Senate Set to Debate Kennedy-McCain Patients’ Bill of Rights

The Senate is set to open debate this week on "long-stalled" patients' rights legislation, the New York Times reports. Senate Democrats on June 18 plan to begin debate on a bill (S 283) sponsored by Sens. Edward Kennedy (D-Mass.), John McCain (R-Ariz.) and John Edwards (D-N.C.) (Mitchell/Pear, New York Times, 6/18). Under the legislation, patients should be able to sue HMOs in state court for denial of benefits or quality of care issues and in federal court for non-quality of care issues. The legislation would cap damages awarded in federal court at $5 million, but state courts could award as much money in damages as the state allows (Kaiser Daily Health Policy Report, 2/7). "I think that we will show the tremendous resonance this issue has and the tremendous support this issue has all over the country," Senate Majority Leader Tom Daschle (D-S.D.) said. President Bush has threatened to veto the bill. According to the New York Times, while Bush and Democrats agree on many provisions in the legislation, they "diverge" over whether patients could sue HMOs and insurers in state court, the financial amount of caps on damage awards and whether the bill would expose employers and doctors to additional liability (New York Times, 6/18). Still, White House officials said that despite Bush's "tough talk," he "sincerely wants to sign" patients' rights legislation (Kirhhoff, Boston Globe, 6/18).

'Last-Minute' Efforts
To "meet some concerns" raised about the Kennedy-McCain-Edwards legislation, the bill's sponsors this weekend agreed to "last-minute changes" that would "shield" doctors and insurance agents from lawsuits. In addition, lawmakers revised the appeals process, which "could make it harder" for some patients to sue health plans. Reuters/Philadelphia Inquirer reports that patients would have to show that they were harmed "before they could bypass the review process and go to court." A Democratic aide said that the changes should "allay fears" that critics have raised about liability exposure under the bill, saying that the "overly broad" original language might have had "unintended consequences." Republicans said that the changes "took the Kennedy-McCain bill in the right direction" but "did not go far enough." Sen. Bill Frist, who has sponsored a rival bill (S 889) with Sens. John Breaux (D-La.) and Jim Jeffords (I-Vt.), said, "Unfortunately, this new bill still has serious problems" (Entous, Reuters/Philadelphia Inquirer, 6/17). Under the Breaux-Frist-Jeffords bill, patients with private health insurance could sue health plans after exhausting an appeals process by an outside review panel. Patients could only sue health plans in federal court, not state court, with damage awards capped at $500,000 (Kaiser Daily Health Policy Report, 5/16). Bush supports the Frist legislation (New York Times, 6/18).

In the House
House Republican leaders are "scrambl[ing] to produce an alternative" to the Kennedy-McCain-Edwards bill and its House counterpart (HR 526), sponsored by Reps. Greg Ganske (R-Iowa), John Dingell (D-Mich.) and Charlie Norwood (R-Ga.). Roll Call reports that Republican negotiators looking for a competing bill "have their work cut out for them," because Ways and Means Committee Chair Bill Thomas (R-Calif.), Rep. Ernie Fletcher (R-Ky.) and Ways and Means Health Subcommittee Chair Nancy Johnson (R-Conn.) are working on one bill while Energy and Commerce Committee Chair Billy Tauzin (R-La.) and Education and the Workforce Committee Chair John Boehner (R-Ohio) are "exerting their jurisdictional authority" by writing a different version of patients' rights legislation. Rep. Amo Houghton (R-N.Y.) said, "If we get into a jurisdictional battle on the issue, that's really going to slow things down" (Crabtree, Roll Call, 6/18).

Lott Points to Compromise
On CBS' "Face the Nation" June 17, Senate Minority Leader Trent Lott said that he could support a provision opposed by Bush that would allow patients to sue HMOs in state court. "Where you sue is an important point, but I think that is one (difference) that can be bridged," Lott said, adding that he "can see circumstances where being able to go to state court would be acceptable." In addition, Lott "appeared to approve" of the changes made over the weekend to the Kennedy-McCain-Edwards bill. Kennedy called the remarks "encouraging."

Premium Hikes?
Frist told ABC's "This Week" June 17 that the Kennedy-McCain-Edwards bill would boost the costs of health insurance premiums. "We know this is going to drive up the cost of health care premiums, and when it does that, it means that working people aren't going to be able to afford health insurance," he said (Greenberg, AP/Nando Times, 6/17). The Congressional Budget Office has estimated that the Kennedy-McCain-Edwards bill would raise health insurance premiums for employer-sponsored coverage by 4.2%, compared to 2.9% under Breaux-Frist-Jeffords (New York Times, 6/18). Frist also warned that the Kennedy-McCain-Edwards bill would prompt employers to stop providing health coverage for employees and "line the pockets of trial lawyers" (AP/Nando Times, 6/17).

Is This the Year?
According to the Boston Globe, this year "may be the clincher" for patients' rights legislation, "though getting there will not be easy" (Boston Globe, 6/18). Daschle has promised "wide open" debate on the issue, allowing amendments to the Kennedy-McCain-Edwards bill on the Senate floor. The New York Times reports that while "no one quite knows what will emerge" from the debate, Republicans will likely not use a filibuster to block the legislation (New York Times, 6/18). The Washington Post reports that Senate Democrats have "slightly" more than 50 votes in favor of Kennedy-McCain-Edwards and "believe they can hold their ranks," although they lack the votes to stop a filibuster or to override a Bush veto (Goldstein/Dewar, Washington Post, 6/17). Still, the New York Times reports that Bush and Democrats "will be reluctant to back down" on the issue, with both sides "likely to weigh whether a compromise is preferable to having a campaign issue in 2002" (New York Times, 6/18).

In The 'Intensive Care Unit'
Meanwhile, the Washington Post reports that Daschle has established a media "intensive care unit," where aides will coordinate media efforts on behalf of the Kennedy-McCain-Edwards bill. Described by one leadership aide as a "communications boiler room" where reporters can get "immediate information," the unit will be equipped for live television, radio and Internet broadcasts, allowing senators who support the bill to "explain their position to constituents as the debate heats up." The unit will also house "spin doctors, who will offer reporters quick rebuttals to attacks by the health care industry and its allies in Congress," the Post reports. "The patient died in the last Congress. I'm hopeful that we have a little more success with this ICU than we had with the last one," Daschle said (Lancaster/Dewar, Washington Post, 6/18).