Senate Approves Kennedy-McCain-Edwards Patients’ Rights Bill

The Senate last Friday night approved by a 59-36 vote the patients' rights bill (S 283) sponsored by Sens. Edward Kennedy (D-Mass.), John McCain (R-Ariz.) and John Edwards (D-N.C.), the New York Times reports. The bill would "for the first time" set "detailed" federal standards for health insurance (Pear, New York Times, 6/30). Under the 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. 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. In addition, the measure guarantees patients access to emergency and specialty care, as well as a number of other protections. Nine Republicans voted with all 50 Democrats for the legislation, while 35 Republicans and James Jeffords (I-Vt.) voted against the bill (New York Times, 6/30). The vote followed two weeks of debate on the issue, with Democrats "fend[ing] off virtually all GOP assaults on the bill" (Dewar/Goldstein, Washington Post, 6/30). Senate Minority Leader Tom Daschle (D-S.D.) said the Kennedy-McCain-Edwards bill "is every bit as strong today as it was two weeks ago (Hosler, Baltimore Sun, 6/30). However, the bill's sponsors agreed to "numerous compromises" to address "objections" from some Republicans and President Bush, who has threatened to veto the bill. "We've made a lot of changes I think would be to his liking," Daschle said, adding, "I think he should reconsider" his veto threat (Washington Post, 6/30). He concluded, "I can't imagine why the president would want to veto a bill this good" (Koszczuk, Philadelphia Inquirer, 6/30).

Bush, who has said that the Kennedy-McCain-Edwards bill would "drive up" the cost of health insurance premiums and prompt employers to drop coverage for employees, said that the Senate failed to "address the danger that excessive, unlimited litigation in state courts would drive up premium costs and cause many American families to lose their health insurance." He added, "I could not in good conscience sign this bill" (Baltimore Sun, 6/30). He also "vowed" to support House Republican efforts to pass a patients' rights bill that "discourages runaway litigation costs." HHS Secretary Tommy Thompson also "complained" that Democrats "were more interested in securing a campaign issue than a viable bill." He asked, "What's the sense of having a bill that (the president) is going to veto? What do we have to gain, except some finger-pointing and some partisan shots?" (Miller, Los Angeles Times, 6/30). Democrats, however, said that Republicans "did not have much credibility as guardians of the uninsured" (New York Times, 6/30). Many GOP senators also "complained" that the legislation would place an "increased burden" on states to comply with a new federal standard (Baltimore Sun, 6/30).

Before the vote last Friday, the Senate "slogged" through a number of amendments to the Kennedy-McCain-Edwards bill. Democrats, however, "prevailed on every key vote" (Los Angeles Times, 6/30). Some of the amendments included:

• The Senate defeated, on a 59-36 vote, a substitute patients' rights bill (S 889), sponsored by Sens. John Breaux (D-La.), Bill Frist (R-Tenn.) and Jeffords, that would have allowed patients with private health insurance to sue health plans after exhausting appeals by an outside review panel. Under the measure, patients could have only sued health plans in federal court, not state court, with damage awards capped at $750,000 (Baltimore Sun, 6/30).
  
• On a 55-43 vote, the Senate voted down an amendment sponsored by Sen. Wayne Allard (R-Colo.) that would have exempted small businesses with fewer than 15 employees from federal and state lawsuits in health care disputes. Allard said that the Kennedy-McCain-Edwards bill would lead many small businesses to drop health care coverage for employees.
  
• The Senate voted 50-46 to defeat an amendment sponsored by Sen. Rick Santorum (R-Pa.) that would have funneled 75% of punitive damages awarded in state lawsuits into a federal trust fund to purchase health insurance for the uninsured. Democrats said that the proposal represented a "tax" and "preempted state laws on punitive damages."
  
• Senate Democrats also voted to "beat back" amendments that would have expanded medical savings accounts and shielded doctors who provide charity medical services to patients (Archibald, Washington Times, 6/30).
  
• Meanwhile, the Senate voted unanimously to pass an amendment sponsored by Sen. Fred Thompson (R-Tenn.) that would require patients to exhaust an independent appeals process before suing HMOs, "unless that process exceeds 31 days" (Los Angeles Times, 6/30).
  
• The Senate unanimously approved an amendment sponsored by Santorum that would "clarify that fetuses born alive have the same rights as a person." The provision "drew no opposition" from abortion-rights supporters (Baltimore Sun, 6/30).
  
• The Senate also passed, on a unanimous vote, an amendment sponsored by Sen. Mike DeWine (R-Ohio) that would place "strict restrictions" on class-action lawsuits filed under the Kennedy-McCain-Edwards bill. The provision would limit class-action suits to employees from one company or members of one health plan (Los Angeles Times, 6/30).
  
• The Senate agreed to an amendment sponsored by Sen. John Warner (R-Va.) that would cap lawyers' fees at one-third of damages awarded, after expenses.
  
• The Senate approved, on a unanimous vote, an amendment sponsored by Sen. Don Nickles (R-Okla.) that would include federal employees and Medicare and Medicaid beneficiaries under the Kennedy-McCain-Edwards bill (Washington Post, 6/30).

The House will now address the patients' rights issue, likely within the next month. Last week, the White House "threw its full weight behind" a bill (HR 2315) supported by House Republican leaders, holding meetings with House members in an "ongoing lobbying campaign" to boost support for the legislation (Los Angeles Times, 6/30). The bill, sponsored by Rep. Ernie Fletcher (R-Ky.), would allow patients to sue health plans in state courts when the plans refused to abide by decisions made by outside appeals panels. The bill would also allow state courts to decide lawsuits for damages from personal injury, for wrongful death resulting from denial of claims and in some cases of "malpractice under group health plans." House Speaker Dennis Hastert (R-Ill.) said that Bush would sign the bill (Price, Washington Times, 7/2). The Republican-controlled House may serve as Bush's "last line of defense" against the Kennedy-McCain-Edwards bill, a "popular" measure that the president "would like to avoid killing" with a veto, the Washington Times reports (Lambro, Washington Times, 7/2). While Bush has a "numerical advantage" in the House, he will have to "persuade jittery House Republicans" to "rally to his side." Many House GOP members back a rival bill (HR 526) sponsored by Reps. Charlie Norwood (R-Ga.), John Dingell (D-Mich.) and Greg Ganske (R-Iowa), the House version of Kennedy-McCain-Edwards (O'Rourke, McClatchy Newspapers/Arkansas Democrat-Gazette, 7/2). House Democrats and some Republicans said that they would "resist any changes that weaken protections for patients or the patients' right to sue HMOs for decisions that cause injury or death" (New York Times, 6/30). Still, House Republican leaders "insisted" that their bill would "stand a better chance of becoming law" than the Kennedy-McCain-Edwards measure (Greenberg, AP/Miami Herald, 7/2).