Senate to Vote on Employer Liability in Patients’ Rights Bill

The Senate will likely vote today on an amendment to the Kennedy-McCain-Edwards patients' rights bill (S 283) that would shield employers from liability in health care disputes, the New York Times reports (Pear, New York Times, 6/26). While the amendment "probably won't pass," it may "speed up negotiations" on the issue of employer liability, which could provide an "important signal for the future of the entire bill," the Baltimore Sun reports (Hosler, Baltimore Sun, 6/26). The bill 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, the bill would cap damages awarded in federal court at $5 million, but state courts could award as much money in damages as the state allows. Under the proposed amendment, sponsored by Sen. Phil Gramm (R-Texas), employers would have a "blanket exemption" from lawsuits filed in health care disputes. Republicans and business groups maintain that Kennedy-McCain-Edwards would expose employers to new liability, which would raise the cost of health insurance and could prompt employers to drop coverage for employees (Baltimore Sun, 6/22). "The practical effect is that a lot of employers are going to drop their insurance," Sen. Judd Gregg (R-N.H.) said (McQueen, AP/Philadelphia Inquirer, 6/26). Gramm asked, "What good is the right to sue a (health) plan if I am not a member of a plan because I lost my health insurance?" (Baltimore Sun, 6/26). However, Democrats "argue" that the provision "goes too far" and offers "no protection" to patients covered by large self-insured companies that administer their own health plans (Rogers, Wall Street Journal, 6/26).

Meanwhile, Sen. Olympia Snowe (R-Maine) has been meeting with sponsors of the Kennedy-McCain-Edwards bill and several moderate senators, including Sens. Mike DeWine (R-Ohio) and Ben Nelson (D-Neb.), to draft a compromise employer liability amendment. Snowe also discussed the proposal with White House Chief of Staff Andy Card yesterday, a Snowe aide said. Under the proposal, employers could designate an outside "designated decision maker" to make medical decisions that affect employees, shielding employers from liability, Edwards said (Pear, New York Times, 6/26). "Snowe wants to provide the level of accountability for employers in the bill without that degree of uncertainty" in the language of Kennedy-McCain-Edwards, a Snowe spokesperson said (Fulton, CongressDaily, 6/25). The bill's sponsors hope to introduce the amendment today (Fulton, CongressDaily/AM, 6/26). In addition, Sen. John Breaux (D-La.) said that he may draft a separate employer liability amendment that would provide "much more protection" against lawsuits than the Snowe proposal would. The provision would require patients to exhaust all administrative appeals before filing lawsuits and the federal government would limit damages that they could recover (New York Times, 6/26). Edwards said that Breaux would not likely "successfully peel off" support from Snowe's amendment(CongressDaily/AM, 6/26).

The Senate will also likely vote today on an amendment that would send the Kennedy-Edwards-McCain bill to Senate committees for hearings and debate, ending floor debate for at least two weeks (Neus, Gannett News Service/Detroit News, 6/26). Sen. Charles Grassley (R-Iowa), who sponsored the amendment, said, "He we are, with a bill that hasn't even been through" the Senate Health, Education, Labor and Pensions Committee, adding, Kennedy-McCain-Edwards "is offset by a revenue source from ... the [Senate] the Finance Committee. Any Finance Committee member should be disturbed by this situation" (CongressDaily/AM, 6/26). Meanwhile, Republican senators said that they would offer additional amendments in "four or five areas," including provisions to expand medical savings accounts and allow small businesses and self-employed individuals to deduct the full cost of health insurance from their income taxes (CongressDaily, 6/25). In addition, Lott said that Republicans would offer an amendment to ensure the federal government does not "overrun or pre-empt the state laws" on health insurance standards (New York Times, 6/26).