Breaux-Frist Patients’ Rights Draft Released
According to a draft summary of patients' rights legislation crafted by Sens. John Breaux (D-La.), Bill Frist (R-Tenn.), James Jeffords (R-Vt.) and other "centrist" senators, patients in employer-sponsored health plans would have a limited federal right to sue their HMOs over "coverage determinations" resulting in "har[m]," CongressDaily reports. The draft of the bill, called the "Bipartisan Patients' Bill of Rights of 2001," would guarantee patients access to specialists, emergency care and hospital stays -- similar to provisions in the McCain-Kennedy-Edwards patients' rights bill -- but would place stricter limits on lawsuits. The legislation would require patients to exhaust an independent external review process, unless the case proves "futile," before suing health plans in court. In addition, the bill would place a $500,000 cap on non-economic damages and allow unlimited economic damages, although the legislation "makes no mention" about civil assessments which are considered to be punitive damages awarded in federal court.
Under the McCain-Kennedy-Edwards bill, 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 health plan contracts. The bill would cap civil assessments awarded in federal court at $5 million, but state courts could award as much in damages as state laws allow. According to CongressDaily, to address the issue of employer liability -- a "major complaint" about the McCain-Kennedy-Edwards bill -- the Breaux-Frist legislation would protect employers by allowing them to "designate a third party," such as an insurer, to have "clear and exclusive authority to make determinations that could give rise to a cause of action." In addition, the bill would require HHS, with advice from an independent board, to determine whether a state's patient protection laws meet federal standards. "If states failed to receive a waiver, then the new federal standards would apply," CongressDaily reports. A spokesperson for Sen. Edward Kennedy (D-Mass.) criticized the bill, arguing, "There's too many loopholes. The scope and liability [provisions] appear to be lacking." He added that "governors can opt out" of the Breaux-Frist plan. A Breaux spokesperson said, "Changes are being made" (CongressDaily, 3/12).