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Washington Perspective

The fight for patient rights: an uphill battle in Congress

From the October 1999 ACP-ASIM Observer, copyright © 1999 by the American College of Physicians-American Society of Internal Medicine.

By Robert B. Doherty

As this issue of ACP­ASIM Observer went to press, the House was preparing to vote on a patient bill of rights. The good news is that despite the opposition of GOP leaders in the House, rank-and-file House members seem poised to support a hard-hitting, comprehensive patients' rights bill. The bad news is that even if the House passes a sound bill, patients' rights legislation will remain an uphill battle.

Movement in the House

Earlier in the summer, most Democrats, joined by several dozen House Republicans, came out in favor of the Bipartisan Consensus Managed Care Improvement Act (H.R. 2723), introduced by Reps. Charlie Norwood (R-Ga.) and John Dingell (D-Mich.).

The bill includes all the key elements that the College believes should appear in a patient bill of rights. It applies to all insured individuals, not just those in ERISA plans; it gives patients recourse to the courts if they're harmed by a health plan's denial of service; and it allows patients to appeal a health plan denial to an external appeals body. That body would base its determinations on professional standards of medical necessity, not on an insurance company's own definition of medically necessary services.

The College was hardly alone in supporting the bill. Most patients' rights advocates put their support behind it, reasoning that it offered the best chance of getting a strong bipartisan bill through the House.

As of press time, however, another legislative proposal joined the bipartisan bill. On Sept. 9, Reps. John Shadegg (R-Ariz.) and Tom Coburn (R-Okla.) introduced the Health Care Quality and Choice Act of 1999 (H.R. 2824). Their aim in drafting the bill was to present an alternative that would garner the support of the House Republican leadership while still being attractive to supporters of the Norwood-Dingell bill.

Like the Norwood-Dingell proposal, the Republican bill applies to all insured individuals and provides access to an independent external appeals process. It differs, however, on health plan liability. First, individuals would be able to sue a health plan only in federal court, not in state courts. Before patients could bring a lawsuit, they would have to demonstrate that the actions of a health plan had likely caused their injury. Finally, the amount of damages that could be imposed on a health plan would be limited.

Even with the more restrictive liability language, Reps. Shadegg and Coburn were unable to convince their colleagues in the House GOP leadership to endorse their proposal. Their efforts also failed to mollify the managed care industry, which immediately blasted the bill as "unacceptable." Without support from the House leadership, most groups favoring patients' rights continued to ally themselves with the bipartisan bill rather than the Republican response.

Stumbling blocks

Even if a strong patient bill of rights makes it through the House, significant obstacles will remain. The Senate, for example, will likely present a huge stumbling block toward getting any legislation enacted into law.

The bill the Senate passed in July included none of the most elementary protections in the current House bills. For one, it applied most of its provisions only to the 40 million or so individuals enrolled in self-insured ERISA plans, leaving the vast majority of insured Americans without federal protections. It also failed to provide any recourse to the courts if a health plan's denial of services causes harm to the patient.

External appeals procedures are also weak in the Senate bill. The insurance company would get to choose who would conduct the external appeal, and that body would base its determinations on the insurance company's own definition of medical necessity, rather than using independent evidence.

Before any bill could be enacted, the gap between the Senate bill and a House-passed bill would have to be reconciled in a House-Senate conference committee. The Senate leadership doesn't appear to be in any mood to compromise, and since the House and Senate GOP leaders decide who would serve on a conference committee, it's unlikely that a bill opposed by the GOP leadership would be approved. If the conference committee can't reach agreement, the bill will die for this year--and quite likely, for the rest of the 106th Congress.

Even if the House and Senate do reach a consensus, the agreement could lack some of the key protections that patient rights proponents argue are essential. At that point, ACP­ASIM and other supporters of patients' rights will have to decide if a "lite" version of any bill still includes enough protections to be worthy of support.

Any consensus bill would also have to be voted on by the full House and Senate. Finally, President Clinton would have to decide whether to sign or veto the bill. The President has already indicated that he would veto a bill that does not include health plan liability and adequate external appeals protections.

Rallying cry for 2000

Even though the political obstacles that stand in the way of enacting a patient bill of rights are formidable, it's too early to conclude that they are insurmountable. Pollsters tell us that most voters favor patients' rights legislation. And the organizations that favor patients' rights legislation—including the College—will persist until Congress gets the job done right.

If the 106th Congress chooses not to act, patients' rights will almost certainly become an election issue in the year 2000. Democrats in particular are likely to use a defeat of patients' rights legislation as a rallying cry to regain control of the House of Representatives and to challenge vulnerable Senate Republicans. This prospect may yet convince enough Senate and House Republicans to join with Reps. Norwood, Shadegg and Coburn to enact a bipartisan patients' bill of rights that truly lives up to its name.

Robert B. Doherty is ACP­ASIM's Senior Vice President for Governmental Affairs and Public Policy.

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