More MS news articles for August 2001

Deal Is Reached on a Bill to Set Patients' Rights

August 2, 2001

WASHINGTON, Aug. 1 President Bush and Representative Charlie Norwood, the leader of a six-year campaign to enact a patients' bill of rights, said tonight that they had agreed on compromise legislation, clearing the way for House passage of the measure this week.

The agreement stunned Mr. Norwood's allies in Congress, who were meeting to discuss strategy at the moment he was going to the White House to shake hands on the deal with Mr. Bush.

"Congressman Norwood and I have reached an agreement on how to get a patients' bill of rights out of the House of Representatives," Mr. Bush said.

The agreement, a personal triumph for Mr. Bush, spares him from what could have been a major political embarrassment if the House had voted for the original version of Mr. Norwood's bill, in defiance of Mr. Bush's earlier threat to veto it.

Appearing with Mr. Bush at the White House, Mr. Norwood, a Georgia Republican and onetime dentist, said: "The bottom line and the goal is, we want to change the law. And the last time I looked, that's pretty difficult to do without the presidential signature."

The compromise, reached after weeks of talks between Mr. Norwood and the White House, would make it easier for patients to sue insurance companies in state court and to collect damages in cases where care is wrongly denied. But the agreement would allow employers to take steps to protect themselves from liability.

Senate sponsors of the patients' rights bill denounced the agreement. The chief Senate sponsor, John McCain, Republican of Arizona, said it "favors the H.M.O. over the patient."

Senator Edward M. Kennedy, Democrat of Massachusetts, said he was pleased Mr. Bush accepted the substantive protections of the Senate bill, but said the agreement "makes these rights unenforceable." And "a right without a remedy is not an effective right," Mr. Kennedy said.

The other principal sponsor of the Senate bill, John Edwards, Democrat of North Carolina, called the deal "a bad proposal." It would, he said, maintain the privileged legal position that health maintenance organizations have under existing law.

The House plans to take up the patients' rights legislation on Thursday, a day before Congress is scheduled to begin a monthlong summer recess. Mr. Bush and Mr. Norwood said their agreement would be translated into legislative language, which can be offered as an amendment to the bill. House Republican leaders said the amendment and the bill would almost surely be approved because they would have support from Mr. Norwood, the White House and Speaker J. Dennis Hastert of Illinois. Lawmakers of both parties respect Mr. Norwood, and many have said they will follow his lead.

"Norwood gives you the Good Housekeeping seal of approval," said John P. Feehery, a spokesman for Mr. Hastert. "He will bring along a lot of undecided House members."

Mr. Feehery gave some details of the agreement. Injured patients, he said, would have a federal right to sue H.M.O.'s and insurers in state court. The scope of insurer liability would be defined by federal law.

Patients could recover damages equal to the full amount of any lost wages or other financial losses. Payments for pain and suffering and other noneconomic damages would be limited to $1.5 million. A plaintiff could also recover up to $1.5 million in punitive damages if a health plan refused to provide care ordered by independent medical reviewers.

Under the agreement, an employer could be sued if it directly participated in a decision to deny claims for health benefits promised to employees. But an employer could protect itself by naming an outside entity known as a "designated decision- maker" to rule on claims and bear the legal liability.

In June, by a 59-to-36 vote, the Senate passed a similar bill giving patients a much broader right to sue health plans for improper denial of care. Both bills define a wide range of rights for people with insurance, guaranteeing access to emergency care, medical specialists and an independent medical review of decisions denying benefit claims.

The biggest unresolved issue between Mr. Bush and Mr. Norwood had been the patients' right to sue H.M.O.'s and insurers when they believed they had been injured because of improper delay or denial of care.

Mr. Bush had said the Senate bill and the original Norwood bill would have permitted explosive growth in lawsuits, raising the cost of insurance and, thus, the number of Americans without coverage.

Mr. Bush said the agreement illustrated the bipartisan cooperation he promised to bring to the nation's capital, and he praised Mr. Norwood for practicing "the art of what is possible."

The issue of where suits are filed is important; plaintiffs' lawyers say that experience suggests they can win larger verdicts at the state level than they can in federal courts.

Under pressure from Mr. Norwood and others in Congress, Mr. Bush made a significant concession, agreeing that patients denied care should be able to hold their health plans accountable in state courts, not in federal court as he had wanted.

Under the Senate bill, patients could sue insurers in state court for medical decisions, or in federal court for administrative decisions. In federal court, there would be no limits on damages for economic loss or pain and suffering, and patients could win up to $5 million in civil penalties resembling punitive damages. In state court, damages would be subject to the limits of state law, if any such caps existed.

Under the agreement, patients could sue an H.M.O. even if independent medical reviewers had found no justification for their claims. But in those cases, the patients would have a higher burden of proof than if they had prevailed in the external review process. There would be a legal presumption that the decision of the external reviewers was correct, but patients could disprove that assumption with enough evidence.

The legislation would set the first comprehensive federal standards for health insurance, which has been regulated mainly by the states. States could continue to enforce their laws, provided they were at least as stringent as the federal standards.

If the House passes the bill, as expected, the next step would be for the two chambers to try to resolve their differences in a conference committee. The Senate negotiators would probably include Senators McCain, Edwards and Kennedy.

Polls have repeatedly shown that voters want Congress to pass a patients' bill of rights and trust Democrats more than Republicans to handle the issue. Lawmakers of both parties, but especially Republicans, feared they would be pilloried by their opponents if they failed to pass a bill before next year's elections.

With formal language still not available late this evening, some Democrats said the vote should be delayed until Friday or September.

Representative Marion Berry, an Arkansas Democrat and co-sponsor of the Norwood bill, said: "The compromise amounts to nothing more than a loosely stated idea. We haven't seen the actual legislative language, and we don't expect to see it until we are asked to vote on it."

Moreover, Mr. Berry said: "I consider this a breach of a bipartisan effort that has been going on for years. There was nothing bipartisan about the White House approach to this issue."

Representative Greg Ganske, an Iowa Republican who helped write the Norwood bill, was surprised by the agreement. "Charlie cut his own deal with the White House," Mr. Ganske said. "He did not share any information with us."

Mr. Norwood had often said he would consult his co-sponsors before making any deal. Mr. Norwood acknowledged that "the general reaction wais disappointment."

He defended his action, saying, "The deal had to be cut by somebody, and I was the someone elected to do it."