Senate to Debate Employer Liability Amendment to Patients’ Rights Bill
With the Senate set to begin a second week of debate on patients' rights legislation, Republicans and Democrats plan to consider a pair of amendments that would limit employer liability in health care disputes, the AP/Baltimore Sun reports (AP/Baltimore Sun, 6/25). The legislation (S 283), sponsored by Sens. Edward Kennedy (D-Mass.), John McCain (R-Ariz.) and John Edwards (D-N.C.), 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, it would cap damages awarded in federal court at $5 million, but state courts could award as much money in damages as the state allows. Supporters of the bill say that it would shield employers from lawsuits "except when they are directly involved in health care decisions that harm a patient," but Republicans have said that the legislation would "expose many employers to costly litigation" and prompt them to drop health coverage for employees (Dewar, Washington Post, 6/25). Sen. Phil Gramm (R-Texas) offered an amendment Friday that would exempt employers from lawsuits, and Sen. Olympia Snowe (R-Maine) has met with the bill's sponsors and several moderate senators to "craft a compromise" on the issue (AP/Baltimore Sun, 6/25). The Senate will likely vote on Gramm's amendment Tuesday (Washington Post, 6/25). However, Democrats "reject" Gramm's provision, "saying it goes too far" (Pear, New York Times, 6/25). Democrats predicted they could defeat Gramm's proposal, but said they hope to "compromise with moderates" to end "controversy over the issue" and boost support for the legislation.
Over the weekend, Snowe began negotiations with Kennedy, McCain and Edwards, as well as Sens. Mike DeWine (R-Ohio) and Ben Nelson (D-Neb.), to draft a compromise employer liability amendment, which an aide to Snow said would "go a long way toward satisfying her" concerns (Washington Post, 6/23). Snowe's amendment, according to aides, would likely allow employers to designate an outside "decision maker" to make medical decisions that affect employees, shielding employers from liability (Entous, Reuters/Philadelphia Inquirer, 6/24). The New York Times reports that Snowe's amendment "appears likely to prevail," with support from Democrats and some Republicans (New York Times, 6/23). In a "partial retreat," Senate Majority Leader Tom Daschle (D-S.D.) said that he would likely back Snowe's amendment. "I think that I'm in a position to be supportive of it," he said (Espo, AP/Philadelphia Inquirer, 6/23). He added that Snowe's amendment represented "our desire to go the extra mile" to protect employers from "frivolous" lawsuits (Reuters/Philadelphia Inquirer, 6/24). Kennedy spokesperson Jim Manley said, "I think [the employer liability amendment] is something we can work out" (Miller, Los Angeles Times, 6/23). The New York Times reports that the amendment would "remove a major obstacle" to the Kennedy-McCain-Edwards bill (New York Times, 6/24). The amendment also would likely "make the legislation more palatable" to Bush, who has threatened to veto the bill, the Los Angeles Times reports (Los Angeles Times, 6/23). Despite Bush's "stern veto warning," senators from both parties predicted that the president would "cave in to Democrats" and sign the Kennedy-McCain-Edwards bill if it passes if approved (Morris, New York Post, 6/25).
Over the weekend, senators addressed the patients' rights debate on several television and radio news programs. A sampling of their remarks appears below.
- McCain on "Fox News Sunday," on prospects for patients' rights legislation: "I think we've had some good negotiations with the White House, and we certainly have had some good negotiations with those who are opposing this bill, and I hope we can get it done this coming week" (FOX, "Fox News Sunday," 6/24).
- McCain on CNN's "Late Edition," on Bush's opposition to the Kennedy-McCain-Edwards bill: "The president knows we need a patients' bill of rights as well as anyone, and he doesn't want to have to veto, so I am cautiously optimistic that we can reach an agreement on a bill that he can sign" (CNN, "Late Edition," 6/24).
- Senate Minority Leader Trent Lott (R-Miss.) on NBC's "Meet the Press," on a provision in Kennedy-McCain-Edwards that would allow patients to sue HMOs in state court: "The problem with the suits in state courts, most of them have no limits. This should be about quick delivery of health care, not about lawyers getting 40% to 60% of what might come of a lawsuit" (NBC, "Meet the Press," 6/24).
- Sen. Tom Harkin (D-Iowa) on NBC's "Meet the Press," on charges that Kennedy-McCain-Edwards would lead to frivolous lawsuits: "This is just a red herring. ... Texas and several other states have had tough patients' bill of rights. And in Texas, in four years they've had 17 lawsuits out of four million people covered. ... This has not been a bonanza for trial lawyers" (NBC, "Meet the Press," 6/24).
- Sen. Kay Bailey Hutchinson (R-Texas) on NPR's "Weekend Edition," on employer liability provisions: "I have talked to big employers and small employers who ... say unequivocally if it is not very specifically clear that you can't sue an employer for offering health care coverage to employees, they will drop the coverage" ("Weekend Edition" transcript, NPR, 6/23).
- Sen. Debbie Stabenow (D-Mich.) on NPR's "Weekend Edition," on employer liability provisions in Kennedy-McCain-Edwards: "The only way an employer would be held accountable ... is if they had direct participation in ... making the medical decisions" ("Weekend Edition" transcript, NPR, 6/23).
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