Senate to Debate Employer Liability in Patients’ Rights Bill

With the Senate set to begin a second week of debate on patients' rights legislation, Republicans and Democrats plan to consider a pair of amendments that would limit employer liability in health care disputes, the AP/Baltimore Sun reports (AP/Baltimore Sun, 6/25). The legislation (S 283), sponsored by Sens. Edward Kennedy (D-Mass.), John McCain (R-Ariz.) and John Edwards (D-N.C.), would allow patients 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. In addition, it 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). Supporters of the bill say that it would shield employers from lawsuits "except when they are directly involved in health care decisions that harm a patient," but Republicans have said that the legislation would "expose many employers to costly litigation" and prompt them to drop health coverage for employees (Dewar, Washington Post, 6/25). Sen. Phil Gramm (R-Texas) offered an amendment Friday that would exempt employers from lawsuits, and Sen. Olympia Snowe (R-Maine) has met with the bill's sponsors and several moderate senators to "craft a compromise" on the issue (AP/Baltimore Sun, 6/25). The Senate will likely vote on Gramm's amendment June 26 (Washington Post, 6/25). However, Democrats "reject" Gramm's provision, "saying it goes too far" (Pear, New York Times, 6/25). Democrats predicted they could defeat Gramm's proposal, but said they hope to "compromise with moderates" to end "controversy over the issue" and boost support for the legislation.

Snowe's Amendment
Over the weekend, Snowe began negotiations with Kennedy, McCain and Edwards, as well as Sens. Mike DeWine (R-Ohio) and Ben Nelson (D-Neb.), to draft a compromise employer liability amendment, which an aide to Snowe said would "go a long way toward satisfying her" concerns (Washington Post, 6/23). Snowe's amendment, according to aides, would likely allow employers to designate an outside "decision maker" to make medical decisions that affect employees, shielding employers from liability (Entous, Reuters/Philadelphia Inquirer, 6/24). The New York Times reports that Snowe's amendment "appears likely to prevail," with support from Democrats and some Republicans (New York Times, 6/23). In a "partial retreat," Senate Majority Leader Tom Daschle (D-S.D.) said that he would likely back Snowe's amendment. "I think that I'm in a position to be supportive of it," he said (Espo, AP/Philadelphia Inquirer, 6/23). He added that Snowe's amendment represented "our desire to go the extra mile" to protect employers from "frivolous" lawsuits (Reuters/Philadelphia Inquirer, 6/24). Kennedy spokesperson Jim Manley said, "I think [the employer liability amendment] is something we can work out" (Miller, Los Angeles Times, 6/23). The New York Times reports that the amendment would "remove a major obstacle" to the Kennedy-McCain-Edwards bill (New York Times, 6/24). The amendment also would likely "make the legislation more palatable" to Bush, who has threatened to veto the bill, the Los Angeles Times reports (Los Angeles Times, 6/23). Despite Bush's "stern veto warning," senators from both parties predicted that the president would "cave in to Democrats" and sign the Kennedy-McCain-Edwards bill if it passes (Morris, New York Post, 6/25).

Clinical Trials Amendment OK'd
Meanwhile, last Friday, the Senate, on an 89-1 vote, approved a "nonbinding resolution" urging insurers to allow patients with cancer and other serious illnesses to participate in federally funded or federally approved clinical trials "if recommended by their physicians" (Washington Post, 6/23).

On the Airwaves
Over the weekend, senators addressed the patients' rights debate on several television and radio news programs. A sampling of their remarks appears below.

• McCain on "Fox News Sunday," on prospects for patients' rights legislation: "I think we've had some good negotiations with the White House, and we certainly have had some good negotiations with those who are opposing this bill, and I hope we can get it done this coming week" (FOX, "Fox News Sunday," 6/24).
• McCain on CNN's "Late Edition," on Bush's opposition to the Kennedy-McCain-Edwards bill: "The president knows we need a patients' bill of rights as well as anyone, and he doesn't want to have to veto, so I am cautiously optimistic that we can reach an agreement on a bill that he can sign" (CNN, "Late Edition," 6/24).
• Senate Minority Leader Trent Lott (R-Miss.) on NBC's " Meet the Press," on a provision in Kennedy-McCain-Edwards that would allow patients to sue HMOs in state court: "The problem with the suits in state courts, most of them have no limits. This should be about quick delivery of health care, not about lawyers getting 40% to 60% of what might come of a lawsuit" (NBC, "Meet the Press," 6/24).
• Sen. Tom Harkin (D-Iowa) on NBC's "Meet the Press," on charges that Kennedy-McCain-Edwards would lead to frivolous lawsuits: "This is just a red herring. ... Texas and several other states have had tough patients' bill of rights. And in Texas, in four years they've had 17 lawsuits out of four million people covered. ... This has not been a bonanza for trial lawyers" (NBC, "Meet the Press," 6/24).
• Sen. Kay Bailey Hutchinson (R-Texas) on NPR's "Weekend Edition," on employer liability provisions: "I have talked to big employers and small employers who ... say unequivocally if it is not very specifically clear that you can't sue an employer for offering health care coverage to employees, they will drop the coverage" ("Weekend Edition" transcript, NPR, 6/23).
• Sen. Debbie Stabenow (D-Mich.) on NPR's "Weekend Edition," on employer liability provisions in Kennedy-McCain-Edwards: "The only way an employer would be held accountable ... is if they had direct participation in ... making the medical decisions" ("Weekend Edition" transcript, NPR, 6/23).

House GOP Bill Seeks Support
In the House, GOP leaders have begun "trying to gin up support" for their version of patients' rights legislation (Fulton, CongressDaily, 6/22). Under the legislation, drafted by House Speaker Dennis Hastert (R-Ill.) and Reps. Ernie Fletcher (R-Ky.), Billy Tauzin (R-La.), Bill Thomas (R-Calif.) and John Boehner (R-Ohio), patients could sue health plans in state courts when the plans refused to abide by decisions made by outside appeals panels. The bill would also allow state courts to decide lawsuits for damages from personal injury, for wrongful death resulting from denial of claims and for some cases of "malpractice under group health plans" (Kaiser Daily Health Policy Report, 6/21). Many House Republicans and Democrats "prefer a broader bill that would allow state courts to review the medical decisions of HMOs," and critics called the GOP bill a "step backward," adding that the legislation would "overrule" state liability laws. Although House GOP leaders have "failed to attract many moderates or Democrats," aides said that they have "just begun to reach out." One aide said, "We need some time to talk to members. We're not just jamming it down their throats" (CongressDaily, 6/22).