Bush Offers Patients’ Rights ‘Concessions’ Making State Suits Easier, But Democrats Say Proposals Do Not Go ‘Far Enough’

Looking to broker a compromise on patients' rights, President Bush on July 26 "applied direct pressure" on House lawmakers, making a "rare" lobbying visit to Capitol Hill and negotiating privately with Rep. Charlie Norwood (R-Ga.), a sponsor of a bill (HR 2563) that Bush has threatened to veto if it passes in its current form, the Washington Post reports. Bush's efforts came at the behest of GOP leaders, who "have implored him to engage more directly with Congress" (Goldstein/Eilperin, Washington Post, 7/27). House leaders on July 25 said they would delay a vote on patients' rights, perhaps until after the August recess, in order to allow Bush to drum up more support for a bill (HR 2315) sponsored by Rep. Ernie Fletcher (Kaiser Daily Health Policy Report, 7/26). But House Speaker Dennis Hastert on July 26 said that he intends to hold the vote next week "and not let it fester over the ... recess" (Mitchell, New York Times, 7/27). Under the Fletcher bill, patients could sue health plans in federal court for quality of care issues and non-quality of care issues, but could only sue in state court in cases where health plans refused to abide by decisions made by outside appeals panels. The bill would cap non-economic damages in federal court at $500,000, but state courts could award as much money in damages as the state allows. The legislation would prohibit punitive damages (Kaiser Daily Health Policy Report, 7/9). Under the bill sponsored by Norwood and Reps. Greg Ganske (R-Iowa) and John Dingell (D-Mich.), 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 their health plan's contract. The legislation would cap damages awarded in federal court at $5 million, but state courts could award as much in damages as the state allows (Kaiser Daily Health Policy Report, 7/19). The Baltimore Sun reports that Bush's meeting with Norwood indicates that GOP leaders "believe they have no hope of winning" enough votes to pass the Fletcher bill (Hosler, Baltimore Sun, 7/27).

The Details
During the meeting, Bush offered Norwood a compromise on a "main sticking point" -- whether patients' can sue their HMOs in state or federal courts for delay or denial of care. According to the Philadelphia Inquirer, Bush offered to accept the provision in the Ganske-Dingell-Norwood bill that would allow patients to sue in state courts in exchange for "stronger protections for employers against lawsuits" (Chatterjee/Koszczuk, Philadelphia Inquirer, 7/27). Under a "bifurcated approach," Bush would keep all suits against employers in federal court, but would allow managed care plans to be sued in state courts (Rogers, Wall Street Journal, 7/27). After the meeting, Bush said, "We are trying to find some common ground on getting a bill that I can sign, and I believe that we are making progress" (Pear, New York Times, 7/27).

Objections from the Other Side
Although Norwood did not "explicitly pledge to support those changes," the Washington Post reports that yesterday evening he discussed the possible compromise with his "allies" -- Ganske, Dingell, Rep. Marion Berry (D-Ark.) and Sens. Edward Kennedy (D-Mass.) and John McCain (R-Ariz.), sponsors of the Senate-approved patients' rights bill (S 1052), which is similar to Norwood's. Participants in that meeting said the proposal was "unacceptable" in its present form, but they "did not rule out a compromise," the Post reports (Washington Post, 7/27). According to a summary of the White House proposal that was prepared by supporters of the Ganske-Dingell-Norwood bill, "The only major concession by the White House is to allow some cases to be litigated in state court. However, state law would not apply, so that an injured patient would not derive the major benefit that we intended by insisting on state court jurisdiction" (Pear, New York Times, 7/27). Supporters of the Ganske-Dingell-Norwood bill also "fear" that the clause allowing patients to sue in state court "would effectively override state patients' rights laws already on the books" (Milligan, Boston Globe, 7/27). Norwood said that another "problem" with Bush's proposal is that doctors would be tried under state law standards, but health plans would be tried under federal standards even if they were defendants in the same case. Sen. John Edwards (D-N.C.), a co-sponsor of the Senate-passed bill, said, "We started with the fundamental principle that if HMOs overrule doctors and make medical decisions, they should be treated exactly like doctors. But the president's proposal maintains the privileged status of HMOs" (Pear, New York Times, 7/27). Although the two sides did not reach an agreement, Berry said, "This is the first time we've actually had an opportunity to negotiate with the White House. That's the big movement here" (Washington Post, 7/27).

Contingency Plan
Hastert said that if no compromise can be reached, he will consider various ways to bring the bill to the floor, including pitting the Fletcher bill against the Ganske-Dingell-Norwood bill (Rovner, CongressDaily, 7/26). Another "leading option" is to make the Ganske-Dingell-Norwood measure the "base bill," but permit a series of amendments that would "scale it back" more to Bush's liking (Rovner, CongressDaily/AM, 7/27).

On the Radio
Ganske and Fletcher discussed patients' right in a July 27 interview on NPR's "Morning Edition." An audio file of the interview will be available at http://www.npr.org/programs/morning/ after noon EST.

Opinions
"Getting the runaround is something patients have grown accustomed to when seeking treatment from HMOs. Now Congress seems to be adopting the same sorry tactic when it comes to fixing the worst HMO abuses," USA Today states in an editorial. The paper adds, "Delays only play into the hands of the HMO industry, which would like nothing better than to see the issue go away" (USA Today, 7/27). In a counter-point op-ed, Karen Ignagni, president of the American Association of Health Plans, writes that supporters of the Ganske-Dingell-Norwood bill "are relying on a dangerous model for change -- medical malpractice." She adds, "An effort to build a safer boat wouldn't use the Titanic as a prototype. But that is precisely where Congress appears headed in the debate about liability. It's time for members of Congress to take off the blinders" (Ignagni, USA Today, 7/27).