Senate to Vote on GOP Employer Liability Amendment Today in Patients’ Rights Debate

The Senate will likely vote today on an amendment to the Kennedy-McCain-Edwards patients' rights bill (S 283)that would shield employers from liability in health care disputes, the New York Times reports (Pear, New York Times, 6/26). While the amendment "probably won't pass," it may "speed up negotiations" on the issue of employer liability, which could provide an "important signal for the future of the entire bill," the Baltimore Sun reports (Hosler, Baltimore Sun, 6/26). The bill 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, the bill 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). Under the proposed amendment, sponsored by Sen. Phil Gramm (R-Texas), employers would have a "blanket exemption" from lawsuits filed in health care disputes. Republicans and business groups maintain that Kennedy-McCain-Edwards would expose employers to new liability, which would raise the cost of health insurance and could prompt employers to drop coverage for employees (Baltimore Sun, 6/22). "The practical effect is that a lot of employers are going to drop their insurance," Sen. Judd Gregg (R-N.H.) said (McQueen, AP/Philadelphia Inquirer, 6/26). Gramm asked, "What good is the right to sue a (health) plan if I am not a member of a plan because I lost my health insurance?" (Baltimore Sun, 6/26). However, Democrats "argue" that the provision "goes too far" and offers "no protection" to patients covered by large self-insured companies that administer their own health plans (Rogers, Wall Street Journal, 6/26).

Snowe, Breaux on Employer Liability
Meanwhile, Sen. Olympia Snowe (R-Maine) has been meeting with sponsors of the Kennedy-McCain-Edwards bill and several moderate senators, including Sens. Mike DeWine (R-Ohio) and Ben Nelson (D-Neb.), to draft a compromise employer liability amendment. Snowe also discussed the proposal with White House Chief of Staff Andy Card yesterday, a Snowe aide said. Under the proposal, employers could create an outside "designated decision maker" to make medical decisions that affect employees, shielding employers from liability, Edwards said (Pear, New York Times, 6/26). "Snowe wants to provide the level of accountability for employers in the bill without that degree of uncertainty" in the language of Kennedy-McCain-Edwards, a Snowe spokesperson said (Fulton, CongressDaily, 6/25). The bill's sponsors hope to introduce the amendment today (Fulton, CongressDaily/AM, 6/26). In addition, Sen. John Breaux (D-La.) said that he may draft a separate employer liability amendment that would provide "much more protection" against lawsuits than the Snowe proposal would. The provision would require patients to exhaust all administrative appeals before filing lawsuits, and the federal government would limit damages that they could recover (New York Times, 6/26). Edwards said that Breaux would not likely "successfully peel off" support from Snowe's amendment (CongressDaily/AM, 6/26).

To Committee?
The Senate will also likely vote today on an amendment that would send the Kennedy-Edwards-McCain bill to Senate committees for hearings and debate, ending floor debate for at least two weeks (Neus, Gannett News Service/Detroit News, 6/26). Sen. Charles Grassley (R-Iowa), who sponsored the amendment, said, "Here we are, with a bill that hasn't even been through" the Senate Health, Education, Labor and Pensions Committee, adding, Kennedy-McCain-Edwards "is offset by a revenue source from ... the [Senate] the Finance Committee. Any Finance Committee member should be disturbed by this situation" (CongressDaily/AM, 6/26). Meanwhile, Republican senators said that they would offer additional amendments in "four or five areas," including provisions to expand medical savings accounts and allow small businesses and self-employed individuals to deduct the full cost of health insurance from their income taxes (CongressDaily, 6/25). In addition, Lott said that Republicans would offer an amendment to ensure that the federal government does not "overrun or pre-empt the state laws" on health insurance standards (New York Times, 6/26).

End in Sight?
According to the Wall Street Journal, Democrats plan to "push" for an agreement that will "assure passage of their patients' rights bill no later than early July." Senate Majority Leader Tom Daschle (D-S.D.) said that "if enough progress is made" this week, he would meet with Republican leaders to "set a fixed time" to finish debate on the bill. Lott said, "[I]t's more important that you do it right than that you get it done quickly. But it's possible that we could ... make some real progress." Breaux, who said last week that President Bush would have to veto the Kennedy-McCain-Edwards bill, said that he "believes changes could be made in the course of debate to allay the president's concerns" (Wall Street Journal, 6/26). Bush renewed his threat to veto the bill last week, saying that the legislation would raise the cost of health insurance and expose employers to new lawsuits (New York Times, 6/26). Gregg said, "The differences are resolvable" (Wall Street Journal, 6/26).

Formal Unveiling in the House
In the House, GOP leaders plan to introduce patients' rights legislation that would allow patients to sue health plans in state court in some cases -- the "first time conservative leaders would support state court lawsuits" (McQueen, Associated Press, 6/26). The bill would provide a "narrow venue" for state lawsuits, allowing patients to sue HMOs in state court when health plans refused to abide by decisions made by outside appeals panels (CongressDaily/AM, 6/26). House GOP leaders say they hope that the legislation will "dissuade" Republicans from supporting a rival bill ( HR 526) -- the House version of the Kennedy-McCain-Edwards bill -- sponsored by Reps. Charlie Norwood (R-Ga.), John Dingell (D-Mich.) and Greg Ganske (R-Iowa). However, the Associated Press reports that GOP leaders may "lose a floor vote unless they come up with a bill that can compete" with the Norwood-Dingell-Ganske measure, which 68 Republicans backed last year (Associated Press, 6/26).