Senate Passes Patients’ Rights Bill, Allows Patients To Sue Insurers

With the passage of an amended version of the Bipartisan Patient Protections Act of 2001 in the U.S. Senate, the focus turns to the ability of the House of Representatives to pass a similar version of the landmark legislation while attempting to ensure that President George W. Bush will sign the final version of the bill.

Consideration of a House companion bill to S 283, known as the McCain/Edwards/Kennedy bill after its primary sponsors in the Senate, was expected to have begun with Congress’s return from its July 4 recess. Congressional leaders had expressed hope that a compromise bill could be ready for the White House’s consideration prior to the traditional fall recess in September.

The 59-to-36 vote in the Senate capped a contentious two-week debate during which Democrats were able to fend off nearly all of the Republicans’ proposed amendments, compromising on some aspects while preserving the core of the legislation. The bill makes it easier for patients to secure a wide range of medical services, including emergency room visits without preapproval, direct access to specialists, and access to medically necessary prescription medications.

The legislation provides ample opportunity for patients to challenge the decisions made by their insurers and health maintenance organizations through a two-step review process. Patients who continue to be dissatisfied with their care have the right to sue insurers and HMOs over decisions leading to an injury or death.

“A key piece of progress in this legislation,” said APA President-elect Paul Appelbaum, M.D., “is the right imbedded for patients who are denied appropriate, necessary care to seek redress for injuries they have suffered as a result of decisions to limit care.” Employer liability, Appelbaum told Psychiatric News, had to be addressed, and the final amended bill puts the responsibility for decisions to deny or limit care on the entity where it should rest, the HMO or insurance plan that is making the decision, should that decision be made negligently.

Bush has vowed to veto the bill, however, if it comes to his desk essentially unchanged from the form passed by the Senate. White House Press Secretary Ari Fleischer reiterated the president’s intentions following the passage of the bill, backed mostly by Democrats. “He will veto something if it includes the liability provisions as passed by the United State Senate.”

House Speaker Dennis Hastert (R-Ill.), said that his plan is to bring up a bill in the House that is “a better bill,” one that President Bush would be likely to sign. Bush had openly supported a patient protection bill introduced in the Senate by Sen. Bill Frist (R-Tenn.), John Breaux (D-La.), and James Jeffords (I-Vt.) (Psychiatric News, June 15).

“APA supported the McCain/Edwards/Kennedy bill in its original form,” Jay Cutler, J.D., director of APA’s Division of Government Relations, told Psychiatric News. “We thanked Sen. Frist for his inclusion of mental illness in his bill; however, APA worked closely with Sen. Kennedy’s and Sen. Daschle’s staffs to ensure that the strongest, most comprehensive patient protections legislation prevailed.”

Passage of the McCain bill was also applauded by the American Medical Association, which called it a “huge victory for patients and a firm rejection of the HMO’s propaganda.” The National Mental Health Association described the bill’s passage as “an important step toward realizing the critical goal of guaranteeing the rights of individuals and families touched by mental illness.”

The bill’s sponsors agreed to several compromises on issues in a bid to overcome some of Bush’s objections, including an amendment sponsored by Sen. Olympia Snowe (R-Maine). That amendment addressed his concerns by allowing most employers to escape liability by assigning responsibility for medical decisions to health plans or other benefit managers. Sen. Mike DeWine (R-Ohio) won support for a revision that would limit class-action lawsuits to one health plan at a time instead of allowing multiple plans to be included in one suit, and Sen. Fred Thompson (R-Tenn.) wrote a successful amendment that requires patients to exhaust external appeals in most cases before resorting to court action. In addition, Breaux offered an amendment that would allow state patient-protection laws to prevail over the federal law if they “substantially complied” with the federal standards.

Bush did praise the Senate for “narrowing some loopholes and giving greater deference to state [law] patient protections.” He warned, however, that the bill could lead to unlimited litigation that would ultimately result in higher premiums and some employers refusing to offer health coverage for fear of being held liable for the insurers’ actions.

Democrats and Republicans agree on the need for basic patient protections in managed care, but differ greatly on how best to accomplish their goals. The McCain bill allows patients to sue in state courts and sets no limit on the amount of money that can be awarded for lost wages, pain and suffering, or punitive damages, unless a state’s law imposes limits. If a suit is heard in federal court, the Democratic-backed bill caps potential punitive damages at $5 million.

Republicans argue that the McCain bill would increase health care costs and serve only to enrich trial lawyers at the expense of patients, and cause employers to drop coverage for their employees.

APA’s Cutler told Psychiatric News that APA is grateful to Sens. McCain, Edwards, and Kennedy, as well as the 59 senators who voted for passage of a bill that would provide patients with necessary protections. “APA is eager to work on passage of companion legislation in the House and eventually in the sending of a bill to the president for his signature,” he said.

The text of the amended “Bipartisan Patient Protection Act of 2001” is available on the Web at http://thomas.loc.gov by searching on bill number S 283. ▪