Patient rights bill may stay derailed this time

Los Angeles Times

Talk about star-crossed legislation. The patients’ bill of rights just can’t seem to catch a break.

Every time new protections for U.S. health maintenance organization enrollees appear imminent, something happens to push them off track.

Moments after the U.S. House of Representatives passed a patient protection bill in 1998, a gunman burst into the Capitol, killing two police officers. The Senate never took up the issue that year.

Over the next two years, the House and Senate passed competing versions of the legislation, but failed to reach a compromise because of politics surrounding the 2000 election.

Then, after bills passed the House and Senate last year, terrorists struck and the economy faltered, and patients’ rights lost its place on the nation’s list of priorities.

The events of Sept. 11 have pushed patients’ rights so far afield that it might be hard to resurrect with any vigor. In fact, one expert now calls it a dead issue.

"Man, I don’t know what to think other than it’s frustrating," said Rep. Charlie Norwood, a Georgia Republican who has championed patients’ rights for six years. "Some days I throw things, and other days I get ahold of myself, be calm and keep going."

Opponents, including Greg Scandlen of the conservative National Center for Policy Analysis, attribute the bill’s problems to fate. "Maybe God is telling us something," Scandlen said.

The legislation, which has broad general support, would provide certain protections for health maintenance organization members, including access to specialists, the right to appeal treatment decisions to independent experts and insurance coverage of experimental trials.

Naturally, the whole legislative arena changed after Sept. 11. Proposals to offer prescription drug coverage to senior citizens and to increase coverage for the uninsured are off the health care agenda, at least for now.

But the patients’ bill of rights — the subject of campaign commercials, public opinion polls and multimillion-dollar lobbying efforts — is the only piece of health legislation that has been around for so long.

In some ways, it grew out of the failure in 1994 of the proposed overhaul of the health care system proposed by the Clinton administration. That debacle led to the growth of managed care and to calls by critics for government to protect patients in the medical marketplace.

In fact, lawmakers broadly agree that all 161 million Americans with private health insurance deserve some blanket protections.

Before Sept. 11, both sides said they were more optimistic than ever about finally breaking the logjam and passing legislation that President Bush would sign. But the pressure to resolve disagreements over the legislation has dissipated — and neither side sees much incentive to budge.

The key dispute is about whether patients should have the ability to sue HMOs in state court and collect punitive damages if they are injured as a result of poor care provided by the HMO.

In general, Republicans want to send those cases to federal court and impose stiff monetary limits on awards. Democrats typically support sending lawsuits to state court, where each state’s damage limits would apply.

In 2001, the House passed a bill reflecting Republican priorities and the Senate voted for legislation in line with Democratic desires.

The president has said he strongly supports the House bill but not the Senate version.

"Both sides are ready and eager to move on these issues — but only their way," Washington, D.C., health analyst Robert Laszewski wrote in a recent client bulletin. "Compromise is not only hard but also, maybe, impossible."

At a Capitol Hill health retreat last winter, legislative staff members predicted that the reforms would be completed in 2001.

"What they agreed unanimously was that they were sick of it," said Edward Howard, executive vice president of the nonpartisan Alliance for Health Reform, which sponsored the retreat.

When planning this month’s retreat, Howard said, "we didn’t even bother to schedule a session on it because there isn’t anything substantive to say at the moment."

Politicians now face tough questions: Do they keep pressing for an HMO reform bill, use the issue in next year’s elections or drop the issue entirely?

Democrats, the most ardent backers of HMO reform, now are fighting for government subsidies to maintain health coverage for the 1.1 million people who have lost their jobs in the last three months.

The HMO industry trade group, which opposes the Democratic bill, said its polls now show that voters are less interested in HMO reform than in the rising costs of health care and in keeping their insurance coverage. In fact, officials say, HMO lawsuits will only raise costs and force more employers to drop health benefits.

"We need to make sure that the left hand and the right hand are connected to the extent that Congress does not focus on legislation that will make problems worse," said Karen Ignagni, president of the American Association of Health Plans. "Congress is just now getting the message."

Harvard University health policy expert Robert Blendon said patients’ rights is a dead issue from the public’s perspective. At the same time, "when you have something in a conference committee, usually that’s pretty far along to just quit."

"When it’s all said and done, it is a casualty of Sept. 11," he said.

That isn’t stopping Norwood, the longtime backer of HMO reform.

"Little old me is just going to be sitting here screaming about it," he said. "I can assure you (the Congress is) going to hear about it for 10 more years."