Will there be a meaningful patients' bill in 2002?

In the several Congresses before the current 107th, the House of Representatives took the lead on the issue of managed care accountability in the form of a Patients' Bill of Rights. In fact, the House produced the most potent version of the bill yet when it passed the Norwood-Dingell Managed Care Improvement Act in 1999. The Senate, however, could not muster the votes to pass a similar bill, and the 106th Congress adjourned without enacting managed care reform.

The congressional climate changed last summer after Sen. Tom Daschle (D-S.D.) became majority leader. Suddenly the Senate took the lead, passing a strong patient-protection bill (S. 1052) in June. This time, however, the House followed with a bill that contained no meaningful accountability, passing its version just before the August recess.

The next step was for a House-Senate conference committee to seek a compromise bill that could be sent to the president's desk. Shortly after members returned in September, however, terrorism issues wiped the Patients' Bill of Rights off the legislative agenda, and no conference committee has yet been appointed.

Is it still possible for lawmakers to refocus and finish the job in 2002, passing meaningful protection for managed care patients?

The word on the street

When asked that question recently, a source close to the debate (who asked not to be named) responded with a laugh. Then he said that although the Patients' Bill of Rights has been "pushed aside," the situation is temporary and "does not mean the bill has been killed."

Quite the contrary, he said: "There is a commitment on the part of the [bill's] sponsors and on the part of the White House to get it taken care of."

Jennifer Levine, a spokeswoman for the National Breast Cancer Coalition (NBCC), agreed that lawmakers "are focusing again and want to move forward" on a Patients' Bill of Rights. Passing a bill with "meaningful enforcement provisions, including a right to sue," is one of the coalition's six legislative priorities for 2002.

Alice Weiss, director of health policy for the National Partnership for Women and Families, agrees that such legislation "will be a priority for Congress as part of its health care agenda." The National Partnership and the NBCC are two of several groups ATLA has aligned with in the struggle for patients' rights.

"The opponents of the bill certainly haven't gone anywhere. The advocacy community will do whatever it takes to ensure something will happen this Congress," said Weiss.

Representatives of virtually all groups seeking enactment of a bill with meaningful legal remedies acknowledge that getting such a measure to the president's desk may be difficult. It was his involvement last August that weakened the House bill.

The great divide

On the pivotal issue of legal accountability, the conference committee will need to resolve significant differences between the House and Senate versions of the bill.

Under the House bill, patients still could not hold managed care providers accountable under state law. Actions would be available only in federal court and would be subject to numerous statutory restrictions, including a $1.5 million cap on noneconomic damages. The bill would prohibit punitive damages except under extremely limited circumstances; in those cases, it would cap punitives at $1.5 million. And it would allow states with even more restrictive caps to apply them in a federal cause of action.

The Senate version, on the other hand, would allow patients to bring actions in state court, under state law, when injury occurs as a result of a medically review-able decision. Actions that arise from an administrative or contract decision would have to be brought in federal court, but with no restrictions on compensatory damages.

As for punitive damages, the Senate bill would allow state law to apply in cases involving medically reviewable claims. These damages would not be available in federal cases involving contract disputes, but the bill provides for a "civil penalty" of up to $5 million in such cases.

Federal preemption of state law is a critical issue in dispute. The Senate bill does not preempt the law of the 10 states that have enacted accountability statutes for managed care insurers; the House bill does.

Getting to `yes'

The last conference comittee on this issue--in the 106th Congress--came to an impasse. Capitol Hill and advocacy-group sources agree that this time a different approach could yield a compromise.

"There might be the same problem there was the last time there was a conference, so there is talk of trying to `preconference' the bill in order to get an agreement and move quickly to call a conference afterwards," said one source close to the debate. "So far, it's been discussion only--not negotiation."

Weiss agreed: "It's unclear whether the bill will follow a traditional path of conferencing or untraditional negotiations among the major bill sponsors and the White House."

Regardless of how a compromise is achieved, advocacy groups remain optimistic that there will be one.

Kristin Loiacono is media relations coordinator for ATLA.