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Managed care reform far from accomplished
“You don’t see too many crossbreeds between Chihuahuas and Great Danes,” California’s Rep. William Thomas warns.
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WASHINGTON – Yes, the Dingell-Norwood “patients-rights bill” passed by a wide bipartisan margin with a vote of 275-151, but significant changes are likely at each step the bill must still take before being presented for the president’s signature – which might never be granted to the bill that finally reaches the White House.
“Although we feel like passage of this bill is a real victory, we realize that the battle is not yet over,” the American Academy of Ophthalmology (AAO) vice president of federal affairs Catherine Cohen said in a press release issued by the AAO the day after the Norwood-Dingell bill was passed.
“If the bill goes to conference with the Senate, it will likely be next year when members of the Senate and House actually meet to try and work out a compromise between the House bill and the much narrower version the Senate passed in July,” Ms. Cohen added.
Bags fully packed
After years as a staple of the Clinton-Gore political agenda, the issue of a “patient’s bill of rights” arrived on the House floor with a full load of partisan baggage. Democrats charged that Republicans were siding with the health care industry at the expense of patients, while Republicans argued that the Democrats were looking for a campaign issue, not effective legislation.
Health-care providers have been represented in the debate by the Patient Access Coalition, an assemblage of 129 medical societies that includes the American Academy of Ophthalmology (AAO), the American Society of Cataract and Refractive Surgery (ASCRS) and other ophthalmology societies. For these groups, the bill is an attempt to guarantee basic patient rights that have somehow slipped away with the evolution of managed care.
Although the House passed the bill that they have been lobbying for, it seems likely that the issue will still be very much alive during the 2000 elections.
What’s in the bill
The bill passed by the House, H.R. 2723, was introduced by Reps. Charles Norwood, DDS, R-Ga., and John Dingell, D-Mich. and co-sponsored by more than 60 Republicans and Democrats, contains the principles advocated by the American Medical Association (AMA) and the Patient Access Coalition. These principles are a requirement to make an out-of-network, point-of-service option available to health-plan subscribers; guaranteed patient access to emergency and specialty care; an expedited independent appeals process for coverage decisions; a consumer information checklist to allow comparison of health plans; and a ban on financial incentives to or “gag clauses” upon physicians.
The Norwood-Dingell bill gives patients the right to sue health plans in state courts, the intention being to hold health-care insurers accountable if patients suffer as a result of being denied care. The bill would prohibit lawsuits in cases where the plan complied with an external reviewer’s decision.
The general business community and the managed care industry in particular argue that the right to sue health plans, and possibly the employers offering health insurance, will drive up the cost of coverage and increase the number of uninsured in the United States.
“Employers who voluntarily provide health insurance to their employees would be exposed to out-of-control lawsuits in state courts that could cost them their business and force them to drop health insurance altogether,” charged the Health Benefits Coalition an employer-based health care coalition representing more than three million employers, in a statement.
Precursors to vote
The pressure on legislators increase steadily as the day of the debate over Norwood-Dingell approached.
Three days before the House vote, the U.S. Census Bureau released data from the annual Current Population Survey showing that the number of U.S. citizens who were without health care coverage in 1998 had grown to 44.3 million. According to the report from the Associated Press, the Census Bureau report stated that 15.6% of U.S. citizens had no health-care coverage in 1996, a proportion that grew slightly to 16.1% in 1997 and to 16.3% in 1998. Each 0.5% increase represents approximately 1 million more Americans without health insurance.
The 44-million figure was to become a recurring theme of opponents of the Norwood-Dingell proposal.
One day before the vote, Speaker of the House Dennis Hastert (an Illinois Republican who voted against the Norwood-Dingell bill) went through with a previously scheduled fund-raising breakfast with the managed-care industry. According to an Associated Press report, invitations to the $1,000-a-plate event were issued under the names of officials of Aetna, Blue Cross-Blue Shield and Cigna. The event became fodder for many political commentators on both sides of the issue.
Failed compromises
The lawsuit provision of the Norwood-Dingell bill made it especially unpalatable for House Republicans. Several compromises were proposed as it became clear that the political price of blocking patient protection would be too great.
The right to sue – and to sue in state court, where judgments for plaintiffs are typically much higher — was the most contentious issue of the 2-day House debate. Its absence or weakness in other bills became their downfall.
A bill introduced in September, H.R. 2926, by John A. Boehner, R-Ohio, a member of the House leadership and chairman of the House Subcommittee on Employer-Employee Relations, offered none of the six principles advocated by the Patient Access Coalition. It was quickly defeated in the House.
Another bill with restrictions on the right to sue was proposed by Reps. Amo Houghton, R-N.Y. and Lindsey Graham, R-S.C. It also failed.
The best hope for an alternative to Norwood-Dingell was seen in the bill introduced by Reps. Tom Coburn, R-Okla. and John Shadegg, R-Ariz., H.R. 2824, which offered the same protections for patients, but differed in its handling of liability. While allowing patients the right to sue when an injury is suffered as a result of a health plan’s decision, it added a binding appeals process.
The Coburn-Shadegg bill allowed lawsuits only in federal court, but would not have preempted state law. It also prohibited lawsuits against an employer unless the employer “directly participates” in the final decision of the plan with respect to a beneficiary, and the decision resulted in injury or death of the beneficiary.
The bill was defeated by a vote of 238 to 193, with 29 Republicans ignoring Speaker Hastert’s plea for support. That left only the Norwood-Dingell coalition bill up for consideration.
Final confrontation
The final stages of the debate on patient protection legislation was managed by Reps. Norwood and (in opposition) Shadegg. The two were effusively cordial in matters of parliamentary procedure, but the substance of the debate brought out deep differences between parties and professions.
One after another Republican opponent of the bill pointed out the windfall it represented for plaintiff’s attorneys, and most mentioned that group’s long-standing support of the Democratic party.
Rep. James McCrery, R-La. rhetorically asked why the AMA would argue in favor of a bill opening health insurers to legal liability when the group had fought so long for malpractice suit protection for its own members.
Rep. Norwood responded that there were award caps and other controls in the bill to prevent abuses, although he acknowledged that there was no limit on the amount of punitive damages or real compensation that could go to plaintiffs.
It seems clear that one aspect of the health insurance business will be changing. Many in Congress — even Rep. Shadegg, who expressed his opinion in a letter to USA Today published the day after his compromise bill failed – called for an end to the significant limitations on lawsuits against health insurers that the industry has enjoyed since the Employee Retirement Income Security Act (ERISA) of 1974.
That bill restricts suits by patients against their employers’ health insurers to federal court and limits any award to the cost of treatment not received. Members of the House from both parties went on record opposing those provisions, arguing that only foreign diplomats enjoyed the kind of legal protection provided to U.S. health-care insurers.
Rep. Barney Frank, D-Mass., based his support of the Norwood-Dingell bill in part on the fact that it would set up the treating physician as the “gatekeeper” not only of treatment decisions but of the decision to sue the insurer.
At what cost?
Opponents of the bill raised a question that remained unanswered even at the end of the debate: what would be the cost of enacting these patient protections, especially if more citizens are forced out of managed care to become one of the millions of uninsured or qualify for Medicaid?
One reason the question went unanswered is that in setting up the debate, House leaders established “rules of consideration” that excluded any amendments addressing the issue of cost. But that did not keep the matter entirely out of discussion.
Minority Leader Richard Gephardt, D-Mo. repeated the Norwood-Dingell coalition’s claim that the bill would lead to no more than a 1% increase in the cost of health-care coverage to consumers. He said that is a price American citizens have said they are willing to pay for the protections they would receive.
Legislation enacted at the state level in Texas under Gov. George W. Bush showed that the right to sue did not trigger sharp increases in cost, he added.
In a passionate speech near the close of the debate, Rep. Gephardt told the story of his young son’s diagnosis of terminal cancer in 1972 and the expensive therapy that saved him. Under managed care, he argued, only the kind of protections provided by the Norwood-Dingell bill would let patient-care decisions win out over financial concerns.
When the vote on the bill was taken, it was 275 in favor (206 Democrats, 68 Republicans and 1 Independent) and 151 against (149 Republicans and 2 Democrats).
“Ruthless” lobbyists
The day after the patient protection bill was passed, ophthalmologist John Cooksey, MD, R-La., was quoted in USA Today saying that managed-care companies “are the most ruthless lobbying organizations up here.… The doctors are really angry, and justifiably so.”
“I would say that the concerns of ophthalmology have been heard by the members of the House,” H. Dunbar Hoskins, MD, the executive vice president of the AAO said in a press release.
The bill now moves to a House-Senate conference committee, which must develop a version that resolves the major differences between the House bill and the much more limited one passed earlier in the Senate. If a compromise bill that is passed out of conference is significantly different from the initial Senate and House versions, it will then be returned for a full vote by each body before reaching President Clinton’s desk.
“When the House and the Senate negotiators meet… the Republican leaders must resist the urge to weaken the patient protects guaranteed in the Norwood-Dingell bill,” President Clinton said. “They must also resist the urge to load up the final legislation with poison-pill provisions that they know I can’t sign.”
Poison in place
But some are saying that patient protection has already been poisoned.
In the House, the Norwood-Dingell bill was tied to previously passed legislation expanding the availability of tax-exempt Medical Savings Accounts (MSAs) and allowing deductions for health insurance and long-term care by the self-employed. Democrats have opposed MSAs on the ground that they will allow the “healthy and wealthy” to opt out of the managed-care system, leaving it underfunded and overburdened.
The most significant parts of Norwood-Dingell may never become law because they differ so radically from the Senate bill.
“You don’t see too many crossbreeds between Chihuahuas and Great Danes walking around,” quipped California’s William Thomas, a Republican and chair of the influential Ways and Means health subcommittee.
The ASCRS issued a “Grassroots Alert” saying that the attached legislation expanding MSAs and self-insurance tax breaks was indeed a poison pill, and that the Senate’s legislation “is a weak bill that does not offer true patient protection and is not supported by the ASCRS or the Patient Access Coalition.”
The AMA, AAO and ASCRS had all previously come out strongly against the Senate bill.
The AMA criticized the Senate bill because no point-of-service option is made available for employees of small businesses; patients are prohibited from suing a health plan even when its decision results in injury or death; and external reviews of health plan decisions are virtually impossible under its provisions.
Another shortcoming of the Senate bill, according to the AAO, is that it only covers patients on ERISA plans, which are offered by employers who self-insure. This includes only about 48 million of the 160 million Americans in managed care.
“To be a true patient protections bill, the reforms must be available to all patients in managed care, Ms. Cohen said.
For Your Information:
- Catherine Cohen, vice president of the American Academy of Ophthalmology’s federal affairs division, can be contacted at 1101 Vermont Ave. NW, Ste. 700, Washington, D.C. 20005-3570; (202) 737-6662; fax: (202) 737-7061.
- Nancey McCann, director of government relations for the American Society of Cataract and Refractive Surgery, can be contacted at 4000 Legato Rd., Suite 850, Fairfax, VA 22033-4055; (703) 591-2220; fax: (703) 591-0614; e-mail: mccann@ascrs.org; Web site: www.ascrs.org.
- The Patient Access Coalition can be contacted at 9111 Old Georgetown Rd., Bethesda, MD 20814-1699; (301) 897-2620; fax: (301) 897-8757.