In ‘Two Significant Victories’ for Democrats, Senate Rejects Patients’ Rights Amendments to Pull Bill from Floor, Provide ‘Blanket’ Employer Immunity

Senate Democrats on June 26 "easily fought off" a GOP-backed employer liability amendment to the patients' rights bill (S 283) sponsored by Sens. Edward Kennedy (D-Mass.), John McCain (R-Ariz.) and John Edwards (D-N.C.) and "neared compromise" on several "key sticking points," the Los Angeles Times reports (Miller, Los Angeles Times, 6/27). The vote boosted "prospects for compromise" on the bill (Dewar, Washington Post, 6/27). The bill 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). The Senate yesterday defeated, on a 57-43 vote, an amendment sponsored by Sen. Phil Gramm (R-Texas) that would have provided employers with "blanket protection" from lawsuits filed in health care disputes (Los Angeles Times, 6/27). Republicans say 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. Democrats warned that the provision went "too far" and offered "no protection" to patients covered by large self-insured companies that administer their own health plans (Kaiser Daily Health Policy Report, 6/26). Senate Democrats joined six Republicans and Sen. Jim Jeffords (I-Vt.) to defeat the amendment (Hosler, Baltimore Sun, 6/27). In addition, the Senate voted 61-39 against an amendment sponsored by Sen. Charles Grassley (R-Iowa) that would have sent the Kennedy-Edwards-McCain bill to Senate committees for hearings and debate.

Sense of 'Momentum'
According to the New York Times, the votes "created a sense that the bill was gaining momentum" (Pear, New York Times, 6/27). Democrats expressed "new optimism" that they could pass the bill, or "reach broad agreement on its major components," by the end of the week (Los Angeles Times, 6/27). In addition, the Wall Street Journal reports that Senate Majority Leader Tom Daschle (D-S.D.) has become "increasingly confident" that he can "hold together his majority by making small refinements to satisfy moderates in both parties" (Rogers, Wall Street Journal, 6/27). Edwards called the votes "an indication that our legislation is supported by the majority of the Senate" (Los Angeles Times, 6/27). McCain called the votes "very helpful," but added that "there are still tough issues remaining." The bill's sponsors "conceded that they would have to do more" to protect employers from lawsuits in order to receive support from President Bush, who has threatened to veto the legislation (Koszczuk, Philadelphia Inquirer, 6/27).

Compromise Amendment
Sen. Olympia Snowe (R-Maine), the sponsors of the Kennedy-McCain-Edwards bill and several moderate senators, including Sens. Mike DeWine (R-Ohio) and Ben Nelson (D-Neb.), have been meeting to draft a compromise employer liability amendment. Last night, they "moved toward a critical compromise" and plan to introduce an amendment today that would allow employers to name an outside designated decision maker to make medical decisions that affect employees, shielding employers from liability. According to the Los Angeles Times, Senate GOP leaders urged Snowe to add a number of other provisions to the amendment, which "could present a serious threat" to the Kennedy-McCain-Edwards bill, but Snowe "all but ruled out that approach." Republicans "fear" that after the Senate addresses the employer liability issue, Democrats will have "less incentive" to negotiate on other provisions in the bill. Meanwhile, Bush "intensified his role" in the negotiations, making telephone calls to Snowe, DeWine and Nelson yesterday (Los Angeles Times, 6/27). A White House spokesperson said that Bush hopes to "reshape the measure to the administration's liking" (Espo, AP/Owensboro Messenger-Inquirer, 6/27). The Wall Street Journal reports that the Bush administration "is frustrated by its lack of success in winning more backing" for its preferences (Wall Street Journal, 6/27). Edwards said that Bush's "active involvement" signals his "recognition of the solid support" for Kennedy-McCain-Edwards (Baltimore Sun, 6/27).

Debate on Damages
In addition to employer liability, lawmakers face a number of "remaining obstacles," including a "still-elusive" agreement on a cap on damage awards. Bush and most Republicans hope to cap damages awarded in federal court at $500,000, but the Kennedy-McCain-Edwards bill would place the cap at $5 million (Los Angeles Times, 6/27). The Baltimore Sun reports that the issue stands as the "last major threat" to the legislation (Baltimore Sun, 6/27). Edwards admitted that "there has been little movement" on the issue, but the Los Angeles Times reports that Democrats may not "need to give ground" and may "welcome the opportunity to put Bush in the uncomfortable position" of vetoing "extremely popular" legislation (Los Angeles Times, 6/27). The Wall Street Journal reports that Bush would agree to raise the cap to at least $750,000 (Wall Street Journal, 6/27). On Tuesday, Sen. John Breaux (D-La.), hoping to "lure" Democratic votes, "tinkered with" an amendment that would limit damages to $750,000 or three times the amount of compensatory damages awarded in a case. He may introduce the amendment today. However, bill supporters said they could defeat the proposal (Los Angeles Times, 6/27).

Today's Agenda: Coverage Concerns
In the Senate today, lawmakers will likely address "some of the thorniest disputes in the bill." Lawmakers will likely vote on an amendment sponsored by Sens. Nelson and Jon Kyl (R-Ariz.) that would prohibit independent reviewers from ordering coverage of benefits "specifically excluded" or "expressly limited" in an insurance contract. The amendment would also establish "safe harbors" for employers and health plans that used an "approved definition of 'medically necessary and appropriate' or 'experimental and investigational'" to make care decisions. Supporters of Kennedy-McCain-Edwards say the provision "would limit patients' rights too much." Sen. Evan Bayh (D-Ind.) plans to offer a compromise amendment developed with Sen. Thomas Carper (D-Del.), Edwards and Kennedy that would "tighten up the language to honor the original intent of the bill -- that medical decisions are medically reviewable but that costs would not be run up unnecessarily." The amendment would allow "medical review of medical judgment calls," but "items expressly not covered in the contract would not be subject to review." Yesterday, the Senate voted 93-6 in favor of an amendment sponsored by Sen. Christopher Bond (R-Mo.) that would repeal liability provisions in the Kennedy-McCain-Edwards bill if more than one million Americans lose their health insurance during the first year the law is in effect (Rovner, CongressDaily/AM, 6/27).

House Bill Introduced
Meanwhile, House Republicans yesterday unveiled a patients' rights bill, sponsored by Rep. Ernie Fletcher (R-Ky.), that would allow patients to sue HMOs in state court when health plans refuse to abide by decisions made by outside appeals panels (Washington Post, 6/27). House GOP leaders said that the legislation represents "the only bill so far that Bush would sign." However, House Republicans would have to "siphon support away" from 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) (Los Angeles Times, 6/27). House Speaker Dennis Hastert (R-Ill.) "crowed" over the bill, but admitted that "it would be a heavy lift" to pass the bill this week. Aides said that they "don't have the votes" to move the legislation to the floor for a vote (Chicago Tribune, 6/27). House GOP leaders have not decided whether to move the bill to the floor or to send the legislation to three committees for debate (Bloomberg News/Omaha World Herald, 6/27). The White House began to "line up behind" the House bill after the Senate votes yesterday (Shepard, Cox News Service/Atlanta Journal Constitution, 6/27). According to the Washington Post, Bush plans to endorse the legislation today (Washington Post, 6/27). Bush plans to meet with House leaders today to "work on a compromise" (Hall/Welch, USA Today, 6/27). To view live coverage of Senate debate on patients' rights on kaisernetwork.org, click here. Please note this link is available to Web readers only.