Congress Again Tackles Patient-Protection Bill

In a rare show of bipartisan support, five senators representing both sides of the aisle introduced the Bipartisan Patient Protection Act last month. The bill is similar to the compromise on the Norwood-Dingell bill reached last October (see box on page 42), but which failed to gain final passage. A key element of the compromise was limiting lawsuits eligible to be filed in federal courts to those challenging a health plan’s administrative benefit decisions and capping possible damages in those suits at $5 million.

Senators John McCain (R-Ariz.), John Edwards (D-N.C.), Edward Kennedy (D-Mass.), Lincoln Chafee (R-R.I.), and Bob Graham (D-Fla.) introduced S 283 in the Senate and Representatives Greg Ganske (R-Iowa) and John Dingell (D-Mich.) introduced the companion bill in the House (HR 526) last month.

The new bipartisan bill applies to an estimated 191 million Americans with private health insurance including employer-based and individual health insurance. It provides the right to choose a physician and to have a point-of-service option; allows access to specialty care for management and treatment of chronic conditions; and provides protections for children and access to nonformulary drugs and clinical trials, according to the legislation.

The federal bills would supercede state patient-protection laws when the state laws provide weaker protections, according to the bill.

The language ensures that independent medical experts would conduct external reviews of health plan decisions that beneficiaries or physicians challenge. The bill does not define the term “medical experts.”

Only after patients exhaust the health plan’s internal and external appeals processes could they seek remedies through the courts.

The bills would set up a two-track system for liability disputes. Health plans could be sued in state court for adverse medical decisions. Employers, however, would be exempt from this type of lawsuit unless they are directly involved in making medical decisions.

Health plans could be sued in federal court only if the complaint involves administrative benefit decisions, which falls within the scope of the Employee Retirement Income Security Act (ERISA).

A patient could seek punitive damages in state court if the plan failed to meet specified timelines for acting upon claims or didn’t abide by the findings of an external appeals panel, according to a summary of the bill.

Punitive Damages

A patient could seek punitive damages in federal court up to $5 million, if a plan engages in “flagrant disregard of a patient’s safety,” the bill states.

The sponsors of the Bipartisan Patient Protection Act stated in a press release that this two-track system is consistent with the Supreme Court decision in the landmark Pegram v. Herdrich case last year. The court ruled in that case that only state courts can decide claims of medical negligence or malpractice filed against managed care plans.

APA Medical Director Steven M. Mirin, M.D., applauded the bill’s sponsors for including mental illness as a possible cause of “personal injury” and “irreparable damage.” This gives patients with mental illness the right to sue the health plan if they sustain injuries due to denied treatment.

“APA believes your bipartisan legislative approach offers meaningful patient protections without imposing undue burdens on business or the insurance industry,” said Mirin in a February 22 letter to Ganske.

Shortly after the bill was introduced, President George W. Bush released his “Principles for a Bipartisan Patients’ Bill of Rights.” He called for comprehensive protections for patients, a rapid medical review process before care can be denied, giving physicians rather than nonmedical personnel the authority to make medical decisions, and access to care in a timely manner.

Frivolous Lawsuits

Another of Bush’s principles is that employers should be shielded from unnecessary and frivolous lawsuits and from multiple suits in state courts. “Only employers who retain responsibility for making final medical decisions should be subject to suit,” stated Bush.

Bush sent the principles and a letter to House and Senate Democratic leaders, Senate Majority Leader Trent Lott (R-Miss.), and House Speaker Dennis Hastert (R-Ill.).

The President declared in the letter that “no bill currently before Congress meets all these principles.” Bush did not, however, explain what he objects to in the Bipartisan Patient Protection Act, the only patients’ rights bill introduced this year with bipartisan support.

The President did, however, promise to work with congressional leaders to enact patient-protection legislation this year, according to his letter.

Information on the Bipartisan Patient Protection Act is available on the Web at thomas.loc.gov by searching on bill numbers H.R. 526 or S. 283. ▪