June 15, 2001 (Washington) -- It's back to the future with managed care reform next week in Congress. Sparks are going to fly, and no one is sure when or how the legislation is going to settle out, although Democrats have a fresh edge.
Under the new Democratic leadership, thanks to the defection of former Republican Sen. James Jeffords (I-Vt.), the Senate will take up an open-ended debate on a question that has eluded final congressional agreement for years.
A patient protection bill almost made it to then-President Bill Clinton in 1999, but in the end, the Senate and the House could not agree on the details.
As the Senate readies to debate again, President George W. Bush already has issued a veto threat of the bill that will kick off the proceedings.
"But Democrats obviously now have the initiative," says American Enterprise Institute political scholar Norman Ornstein, PhD. "The votes are not there for Bush to get what he wants. He would have been obviously in much better shape if he had control of the agenda of the Senate."
Meanwhile, the Washington ad airwaves are filling with big-dollar blitzes from HMOs and insurers on one side, and patient and doctor groups on the other.
Any of the various "patients' bill of rights" proposals are intended to offer consumers better assurances of quality care and fair procedures in managed care plans.
Common elements in the competing packages would improve patient access to medical specialists and emergency care, ensure continuity of care, make drug formularies more flexible, and guarantee better insurer coverage of clinical trials.
But other details have bedeviled reaching any agreements in a series of recent meetings among lawmakers and the White House.
Indeed, each of the two prominent proposals before the Senate have support from both parties, but the bills differ strikingly in their allowances for consumers to sue health plans for physical injury.
"It's always been a question of where you reach a compromise on the issues of the venue for lawsuits, and the limits on suits," says Ornstein. "That compromise is still very likely to be somewhere in between the two major bills."
The bill that is under the veto threat has the support of most of the Senate's Democrats. Sponsored by Sens. Edward Kennedy (D-Mass.) and Bush rival John McCain (R-Ariz.), it would allow consumers to sue plans in state and federal courts. For HMO decisions that are subject to a medical review, the Kennedy-McCain measure would allow economic, "pain-and-suffering", and punitive damages in state courts, limited only by state rules.
The bill's main competition is a Bush-endorsed measure from Sens. John Breaux (D-La.), and Bill Frist, MD, (R-Tenn.), who is the Senate's only physician member. It would allow suits only in federal courts.
The Breaux-Frist bill would allow unlimited economic damages, but would cap pain-and-suffering awards at $500,000 and not allow punitive damage payments.
According to official congressional budget estimates, the Kennedy-McCain bill would raise private health insurance premiums by 4.2% over the next five years, while the Breaux-Frist proposal would increase premiums by 2.9% over the same period.
According to Bush adviser Mark McClelland, MD, the cost increases that Kennedy-McCain would bring would further erode employer-based coverage. This week, the Center for National Policy reported that health benefits have declined since 1979 in most industries and in firms of all sizes.
But Kennedy charged that the lawsuit provisions of the Breaux-Frist plan were a "mockery of fair play" and could actually roll back rather than expand legal protections for consumers.
Meanwhile, House Republicans are scrambling to prepare their own bill that they hope to pass by the end of the month. At the same time, however, maverick GOP Rep. Charles Norwood (Ga.), a fierce and prominent critic of HMOs, announced this week that he was siding with the Kennedy/McCain bill.
In 1999, Norwood's HMO bill passed the House, over the objections of Republican leaders.
"Now there is a much greater impetus for the president to compromise sooner rather than later," Ornstein tells WebMD. "He doesn't want to compromise by first vetoing a bill and making it look like Republicans are against patients' rights. If I were Bush, I would cut the deal sooner, and get something where I could declare victory."