Pressing for patients' rights.

Democrats in Congress have discovered during the past five years just how tough it can be not having the majority. Still, some House members earlier this year proved that when an issue is truly important to the public, party lines--while they never disappear--can partially and temporarily fade. On October 7, 1999, the House wrapped up two days of arduous debate on patients' rights, passing the Bipartisan Consensus Managed Care Improvement Act by a vote of 275 to 151.

Sixty-eight Republicans joined 206 Democrats and one Independent to pass H.R. 2723, or what is commonly referred to as the Norwood-Dingell bill, named for the two Congressmen--Rep. Charlie Norwood (R-Ga.) and Rep. John Dingell (D-Mich.)--who negotiated the bipartisan legislation.

Difficult road

The road to this level of bipartisanship was not an easy one. Last year, during the 105th Congress, the Republican-led House begrudgingly tackled the managed care issue. Former Speaker Newt Gingrich introduced his version of a patient protection act, which passed 216 to 210 on July 24, 1998.

As far as holding the managed care insurance industry accountable, the Gingrich bill proved weak: It would not have reversed preemption of state law by the Employee Retirement Income Security Act (ERISA), and it would have severely restricted state medical malpractice, medical products, and bad faith insurance claims.

Democrats tried to block the Gingrich bill with a substitute Patients' Bill of Rights Act offered by Dingell. The vote was close--212 to 217--but the substitute failed, no doubt prompting Democrats to dream of what they could accomplish if only they could take back the House.

Ultimately, the Gingrich bill never advanced in the Senate, and the managed care issue sputtered to a close for that session of Congress.

The House leadership didn't express any real interest in taking up the issue during the 106th Congress, either--that is, until a cadre of Republicans, who also happen to be doctors or dentists, led a small political rebellion in the House. Norwood, a Georgia dentist, and Greg Ganske, an Iowa surgeon, bucked House leadership and said they would oppose bills that didn't hold managed care plans legally liable for decisions that injured or killed patients.

Come midsummer, the House leadership was worried. GOP leaders shifted their focus to the tax cut bill, stalling for time. As a result, patients' rights issues never made it to the floor before the August recess.

The late-summer break gave House leaders an opportunity to devise a bill that they hoped would stanch the flow of Republicans over to the Democratic side. They tried to use their majority status--a home field advantage of sorts--to give themselves three attempts (in the form of substitute amendments) to defeat Norwood-Dingell.

Had any of the three substitutes passed, the House would have taken it up for a vote instead of Norwood-Dingell. All the substitutes failed. The momentum created by the House doctors, in combination with a virtually unified Democratic front, helped pass the kind of legislation long sought by patients' rights advocates.

GOP leadership fared much better on the Senate side, but like their counterparts in the House, GOP Senate leaders were never eager to take up the managed care issue. In fact, for two years Senate Democrats asked the leadership to schedule debate on this topic, but Majority Leader Trent Lott (R-Miss.) refused.

By June of this year, Democrats were tired of trying to bring managed care to the floor, only to be rebuffed. They fought back by tying up other legislation. These procedural tactics worked, and Lott, at long last, said he would permit a floor debate.

Senators debated for four days in July, ultimately passing S. 1344, as amended by the "Lott substitute," offered just before passage of the bill.

The two senators who crossed the aisle to vote with Democrats were the late John Chafee of Rhode Island and Peter Fitzgerald of Illinois. The Democrats, even with the help of Chafee and Fitzgerald, could not defeat Lott's amendment. The final vote was 47 to 53.

The Senate bill, as passed, only applies to self-funded ERISA plans. It allows patients to appeal care decisions to an external review panel, but it gives patients no new rights to sue health care providers. Plus, it preserves ERISA preemption of state law.

Broader bill

The House bill is broader and applies to all health plans. The bill

* removes the ERISA preemption of state law;

* permits actions under state law to recover damages for personal injury or death against an insurer or plan administrator for an ERISA plan; and

* ensures, among other things, access to emergency room treatment, obstetrical/gynecological care, pediatric care, certain clinical trials, and continuity of care.

Judging from the political maneuvering it took to even bring about debate on the managed care issue, it could prove difficult for Senate and House conferees to agree on the final language of the bill.

Winning combination

Momentum created by the House doctors and a virtually unified Democratic front helped pass the kind of legislation long sought by patients' rights advocates.

Kristin Loiacono is media relations coordinator for ATLA.