ON THE PATIENT BILL OF RIGHTS:

* LETTER TO SENATE FROM WHITE HOUSE
* SURVEY FINDS AMERICANS LESS ACCEPTING OF BILL IF RAISES PREMIUMS

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June 21, 2001
(Senate)


S. 1052 - Bipartisan Patient Protection Act
(Sens. McCain ® AZ, Kennedy (D) MA, Edwards (D) NC)

The President strongly supports passage of a patients’ bill of rights this year and has been working with members of both parties since the first week of the Administration to forge a compromise. Congress has been divided on this issue for far too long at the expense of patients and their families. The President strongly urges Congress to pass a strong patients’ bill of rights this year that provides meaningful protections for patients, not a windfall for trial lawyers or a threat to Americans’ ability to obtain and afford quality health care. On February 7, 2001, the President transmitted to Congress his principles for a bipartisan patients’ bill of rights and urged Congress to move quickly on this important issue.

The President’s principles called for passage of a patients’ bill of rights that ensures all Americans enjoy strong patient protections, including: access to emergency room and specialty care; direct access to obstetricians, gynecologists, and pediatricians; access to needed prescription drugs and approved clinical trials; access to health plan information; a prohibition of “gag clauses”; consumer choice provisions; and continuity of care protections. The President also recognizes, however, that many States have passed strong patient protection laws already, some of which have been in force for over a decade. To the extent possible, a Federal patients’ bill of rights should give deference to these effective State laws.

The President’s principles emphasized the importance of providing patients who have been denied medical care with the right to a fair, prompt, and independent medical review, which will ensure that disputes are resolved quickly and inexpensively and that patients receive the quality care they deserve.

The President stated that only after this independent review decision is rendered should we resort to the costlier, time-consuming remedy of litigation in Federal courts to ensure that health plans are held liable for wrongful decisions.

The President’s principles also reminded Congress of the necessity of avoiding unnecessary and frivolous lawsuits, which will only serve to drive up costs and leave more individuals without insurance coverage. S. 1052 will significantly increase health insurance premiums and the number of uninsured. According to the Congressional Budget Office, health insurance premiums under S. 1052 as originally drafted would increase by over 4%. If the effects of litigation risk on the practice of medicine and of the reduced ability of health plans to negotiate lower rates were included, CBO’s estimated cost impact could be much higher, by 4-5% or more. This is in addition to the estimated 10-12% premium increases employers are already facing in 2001. Further, leading economists have predicted that employers drop coverage for approximately 500,000 individuals when health care premiums increase by 1%. According to these estimates, S. 1052 could cause at least 4-6 million Americans to lose health coverage provided by their employers.

The President is encouraged by efforts in the Senate, like those of Senators Frist, Breaux, and Jeffords, to develop a common sense compromise that forges a middle ground on this issue and meets the President’s principles.

While the President strongly supports a comprehensive and enforceable patients’ bill of rights and has been working with members of both parties to enact legislation this year, he believes that S.1052 would encourage costly and unnecessary litigation that would seriously jeopardize the ability of many Americans to afford health care coverage.

The President objects to the liability provisions of S. 1052. The President will veto the bill unless significant changes are made to address his major concerns. In particular, the serious flaws in S. 1052 include:

-- S. 1052 circumvents the independent medical review process in favor of litigation. The President believes that patients should be given care first—litigation should be the last resort. Patients should exhaust the medical review process first, allowing doctors, not trial lawyers, to make decisions about medical care.—S. 1052 jeopardizes health care coverage for workers and their families by failing to avoid costly litigation. S. 1052 overturns more than 25 years of Federal law that provides uniformity and certainty for employers who voluntarily offer health care benefits for millions of Americans across the country. The liability provisions of S. 1052 would, for the first time, expose employers and unions to at least 50 different, inconsistent State-law standards. The result will inevitably be that employers and unions will be forced to pay for different benefits from State to State, even within a particular State, based on varying precedents set in State courts and leading to inconsistent standards of care for patients. Further, S. 1052 imposes no limitations on State court damages, and it is not clear whether existing State-law caps would apply to the broad, new causes of action in State courts that S. 1052 creates.

S. 1052 also would allow causes of action in Federal court for a violation of any duty under the plan, creating open-ended and unpredictable lawsuits against employers for administrative errors. These new Federal claims do not have any limitations on the amount of noneconomic damages, creating virtually unrestrained damage awards that are limited only by an excessive $5 million cap on punitive damages.

Moreover, S. 1052 would subject employers and unions to frequent litigation in State and Federal court under a vague “direct participation” standard, which would require employers and unions to defend themselves in court in virtually every case against allegations that they “directly participated” in a denial of benefits decision. Because such determinations are inherently fact-specific, any such allegation will force a costly and time-consuming court process and result in varying State interpretations of “direct participation,” forcing employers to adhere to different standards in every State.—S. 1052 fails to provide a fair and comprehensive remedy to all patients. The President believes the new Federal law should establish a comprehensive set of rights and remedies for patients. S. 1052 instead encourages costly litigation by providing no effective limitations on frivolous class action suits and allows trial lawyers to go on fishing expeditions to seek remedies under other Federal statutes.—S. 1052 subjects physicians and all health care professionals to greater liability risk. S. 1052 would expand liability for physicians and all health care professionals in State courts well beyond traditional medical malpractice by permitting new, undefined causes of action in State courts for denials of medical benefits. This expanded litigation against physicians and all health professionals will create an opportunity to circumvent State medical malpractice caps that may not apply to these new causes of action.—Extraneous User Fee Provision. The Administration objects to inclusion in S. 1052 of an extraneous revenue-raising provision (section 502), which extends for multiple years Customs charges on transportation, passengers, and merchandise arriving in the country.

Pay-As-You-Go Scoring

S. 1052 would affect direct spending; therefore, it is subject to the pay-as-you-go requirement of the Omnibus Budget Reconciliation Act of 1990. OMB’s preliminary scoring estimate of the bill is under development.


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PATIENTS’ BILL OF RIGHTS ALREADY OUTDATED

Congress is considering several versions of the Patients’ Bill of
Rights. The White House has promised to veto any legislation that
goes too far. But according to the NCPA’s Greg Scandlen, members
of Congress, like old generals, keep fighting the last war. Most
of the problems associated with Health Maintenance Organizations
(HMOs) and other managed care providers are being fixed—not by
legislation, but because of the demands of the market, evolving
case law and changing public perceptions.

o A Kaiser Family Foundation survey found Americans report
far fewer problems with their health plans than they
enumerated in a similar survey three years ago—in some
cases a drop-off of 40 percent (see table
http://www.ncpa.org/ba/ba363/images/ba363fig1.gif ).

o When asked if they favored the Bill, 85 percent said they
did and 10 percent opposed it.

o But when asked if they still favored it if it raised
premiums $20 a month, the numbers went to 60 percent and
30 percent respectively.

o And if it meant some companies might stop offering health
plans to their workers, only 41 percent continued to
support it while 47 percent opposed it.

As for the provision allowing people to sue HMOs for malpractice
if they make “life-or-death decisions,” the Supreme Court has
already ruled (in Pegram v. Herdrich) that they can. In fact,
HMOs are being sued left and right.

The lawsuits and the changing face of the marketplace have caused
HMOs to reduce their use of “gatekeepers” and “capitated”
payments to physicians and drop utilization review and
preadmission certification requirements.

In fact, says Scandlen, in many cases they have stopped being
HMOs at all, moving instead to become “point of service” plans or
”preferred provider organizations”—and making the Patients’
Bill of Rights unnecessary.

Source: Greg Scandlen (NCPA), “Fighting The Last War,” NCPA Brief
Analysis No. 363, June 28, 2001.

For text http://www.ncpa.org/ba/ba363/ba363.html

Source:Directly taken from Daily Policy Digest, National Center for Policy Analysis. 6/29/01.



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