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Government News
Bush Backs Latest Version Of Patients’ Rights Bill
Psychiatric News
Volume 36 Number 12 page 13-30

A new patient-protection bill has the distinction of being backed by President George W. Bush. The president announced his support last month when the bill was introduced by Sens. Bill Frist (R-Tenn.), John Breaux (D-La.), and James Jeffords (then Republication-Vt.).

The bill, S 889, is titled the Bipartisan Patients’ Bill of Rights. What sets it apart from another bipartisan patient-protection bill introduced in the Senate in February is a cap of $500,000 on noneconomic damages such as pain and suffering that patients can collect in federal court.

By contrast, the patient-protection bill introduced by Senators John McCain (R-Ariz.), Edward Kennedy (D-Mass.), and John Edwards (D-N.C.) caps noneconomic damages in federal court at $5 million (Psychiatric News, March 16). It also expands patients’ rights to sue their health plans for punitive damages in state courts.

The president has been adamant that any patient-protection bill he signs must have "responsible tort reform," which he defines as discouraging frivolous and unnecessary lawsuits that could drive up health care costs, according to White House spokesperson Ari Fleischer at a recent press briefing.

APA is pleased that the new bill allows patients whose mental illness deteriorates significantly due to a denial of ordinary treatment coverage to sue their health plan in federal court.

APA President Richard Harding, M.D., said in a press release, "We are grateful to Senators Frist, Breaux, and Jeffords for addressing our concerns about psychiatric patients."

To sue in federal court requires that patients show they suffered "substantial harm" due to their claim’s being denied. A draft version addressed only physical conditions in the definition of "substantial harm." Patients whose mental illness had significantly deteriorated would have been excluded from having their day in court.

After vigorous lobbying by APA, the definition of "substantial harm" was changed to read "loss of life, loss or significant impairment of limb or bodily function, significant mental illness or disease, significant disfigurement, or severe and chronic physical pain," according to the press release.

The American Medical Association strongly opposes the bill. AMA President Thomas Reardon, M.D., said in a press release, "The Frist bill falls seriously short of offering patients protections against managed care abuses and takes away important protections patients have now."

The AMA complains that the bill would pre-empt health plan accountability laws in nine states, reverse developing case law in federal courts, and allow states to implement weaker patient protections instead of the federal standard, according to the press release.

The AMA strongly reiterated its continuing support for the McCain-Kennedy-Edwards bill and the House companion introduced by Reps. Greg Ganske (R-Iowa) and John Dingell (D-Mich.).

The Frist bill shares many of the following less-controversial provisions with the McCain-Kennedy bill.

• It applies to about 170 million Americans with private health insurance including employer-based and individual plans and Americans in fully insured state and local government plans.

• It guarantees patients access to medical specialists, medical emergency care, needed prescription drugs, point-of-service coverage, and insurance coverage for clinical trials.

• It bans "gag" clauses that prohibit doctors from fully disclosing all treatment options.

• It requires health plans to fully disclose to patients any financial incentives to physicians and health care professionals.

The proposed legislation also guarantees patients access to an independent medical review panel to appeal health plan decisions including denial of care. If a health plan fails to comply with a panel’s decision that care should be provided, and "substantial harm" results, the patient has a right to sue the plan in federal court.

Although the bill mandates that patients exhaust the external review process before filing suit in federal court, they may seek injunctive relief from the court before then. A health plan could be ordered by the court to approve needed care if the patient can show that exhausting the internal or external review process would cause him or her to suffer irreversible damage with or without treatment.

The right to sue health plans in federal court also allows patients to collect an unlimited amount of economic damages. It expands the current law, which allows patients to be awarded only the economic value of their denied care.

The McCain-Kennedy-Edwards bill also allows patients to sue for unlimited economic damages and expands their right to sue their health plans in state courts for punitive and exemplary damages, subject to state caps. About 33 states have caps on damages, according to a press release by McCain.

In spite of Bush’s public endorsement of the Frist-Breaux-Jeffords bill, its fate is not guaranteed in Congress. At press time, the Republican leadership, which has resisted previous attempts to expand patients’ right to sue their health plans, had not endorsed the bill.

McCain, Kennedy, and Edwards were quick to denounce the new measure as too weak and vowed to oppose it. In addition, Dingell and Ganske have vowed to oppose a companion measure if introduced in the House.

A summary of the Frist-Breaux-Jeffords bill can be accessed on Frist’s Web site at www.senate.gov/~frist/ by clicking on "Patient Bill of Rights."

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