Bush, Kennedy Look for Compromise on Patients’ Rights
White House officials and Sen. Edward Kennedy (D-Mass.) have begun "intensive discussions" in an attempt to reach an agreement on a patients' bill of rights that would combine elements of the House and Senate versions passed last year, the New York Times reports. Kennedy, along with Sens. John Edwards (D-N.C.) and John McCain (R-Ariz.), sponsored the Senate-passed version, which contains a more expansive right to sue insurers, while President Bush supported the House version and threatened to veto the Kennedy bill last year. The two sides are reportedly discussing legislative language to define the "standard of care" to which insurers would be held when they make medical decisions. In a concession that could remove one of the main roadblocks to a compromise, aides to Kennedy have also "indicated" they may be willing to accept an arrangement in which patients' right to sue "would be governed mainly by federal law, not by state laws regulating insurance or the quality of medical care," the Times reports, adding that such a design would "apparently give insurers the uniformity they seek." In exchange, the White House would agree to allow lawsuits involving "questions of medical judgment and medical necessity" to be filed in state courts, which are generally considered more favorable to plaintiffs. Insurers would be judged based on federal standards set forth in the patients' rights law; under the compromise being discussed, they could be sued if they failed to exercise "ordinary care," or care that would be given by a "reasonable and prudent health care professional." The Times reports that the two sides have not discussed the "precise level" of possible caps on damages awarded in lawsuits against health plans.
The talks between Kennedy and the White House come nearly six months after Congress last acted on the issue (Pear, New York Times, 1/23). In June, the Senate passed a bill (S 1052) that 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. It would cap damages awarded in federal court at $5 million but allow state courts to award as much in damages as the state allows. In August, the House approved a bill (HR 2563) that would provide a narrower right to sue. It would allow patients to sue health plans in state court for non-economic damages of up to $1.5 million and would allow courts to award patients up to $1.5 million in punitive damages, but only in cases where patients won complaints against health plans before an outside appeals panel and an HMO still persisted in refusing the care. The two bills were headed for conference committee in the days before the Sept. 11 attacks on the World Trade Center and Pentagon (California Healthline, 1/10). Both bills would guarantee access to specialists, emergency care and medically necessary prescription drugs. James Manley, a spokesperson for Kennedy, said, "The conversations with the White House are designed to see if there is any common ground."
The negotiations, however, have caused "alarm" among consumer advocates, who fear a bill too tilted toward managed care, and among business and insurer groups opposed to patients' rights legislation altogether. Suzanne DeFrancis, a spokesperson for the Health Benefits Coalition, which represents employers and insurers, said, "We are incredulous that talks on this bill are still going on. How in the world can Washington pass a bill that raises health costs at a time when costs are already going through the roof? ... Why are Congress and the White House discussing legislation that would make things worse?" Consumer advocates, on the other hand, are concerned that the current agreement being discussed would allow the insurance industry, under the "guise of a patients' rights bill," to "secure more protections for itself to stave off the impact of recent developments in courts and state legislatures that are trying to regulate managed health care," the Times reports (New York Times, 1/23).This is part of the California Healthline Daily Edition, a summary of health policy coverage from major news organizations. Sign up for an email subscription.