Patients' Bill of Rights Makes a Comeback

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Senator Ted Kennedy speaks as Senate Majority Leader Tom Daschle looks on

After all-too-brief hiatus, the perennial battle over the Patients’ Bill of Rights begins again this week on Capitol Hill. And while lawmakers on both sides of the aisle claim to be more than ready to sign a bill into law, the crucial question remains: Whose bill will they sign?

Last week, President Bush threatened to veto the Kennedy-McCain bill, which provides patients with a great deal of leeway in suing their HMOs, casting his lot instead with a more HMO-friendly version sponsored by GOP Senator Bill Frist. It sounds like a recipe for stalemate, but after years of arguing and finger-pointing over their failure to compromise, Capitol Hill lawmakers can scarcely afford to let a chance for indemnification pass them by. White House observers say Bush is open to negotiations.

TIME White House correspondent John Dickerson, who has been keeping close track of the Patients’ Bill of Rights, spoke with about the legislation — and its likely fate. The Frist bill would allow patients to sue their health plans for as much as $500,000 in cases where necessary medical treatment was withheld. That is much less than the Kennedy-McCain cap ($5 million). How important are those numbers?

John Dickerson: Those numbers are an absolutely critical part of this debate, and the difference between them is directly traceable to two major constituencies within the parties. The business interests that generally support Republicans believe that higher caps on damages will mean higher costs for coverage — which means businesses either drop employees or take on greater costs associated with higher premiums.

On the other hand, you have the Democrats, who are traditionally supported by trial lawyers, and who believe patients should be free to take their HMOs to court.

The money issue is big — but the parties are within reach of compromise on almost every other issue. There is some disagreement as to whether cases will be heard in state or federal court. If you’re a multinational company and you’re trying to keep track of every state law, it’s too complicated. You want a sweeping federal statute that covers every patient in every state. Democrats, on the other hand, want to allow patients to sue their HMOs in state and federal court — a provision believed to bolster patients’ rights.

The nonpartisan Congressional Budget Office estimates the Kennedy-McCain bill would raise premiums by about $100 per year. The Frist version would raise them about $60. This appears to be a largely symbolic difference, but lobbyists for HMOs insist that $40 would exclude many Americans from coverage. What are the HMOs really afraid of?

They’re afraid of massive judgements against them in court or all of the protections they have to put in place to avoid massive judgments. So all the measures they’ve put in place to streamline medical processes will have to be peeled back and restructured completely. Restructuring, of course, means more regulations and more red tape, which increases the cost of business for HMOs. They’re also worried businesses will drop coverage because they won’t be able to afford the premiums they’ll be forced to raise to keep

Plus, business always hates change.

Republican Rep. Charlie Norwood moved closer to casting his support behind the Kennedy bill after he reportedly became frustrated in negotiations with the White House. Is this a signal to Bush?

There are a couple of ways to see Norwood’s threat of defection. Norwood believes the White House hasn’t negotiated with him in good faith. So he can put public pressure on Bush by adding his support to the House version of Kennedy-McCain. It’s a politically savvy move; Norwood’s been on this case for a while — he knows who the key players are.

You could also argue that Norwood’s defection is a result of the White House’s old approach, which involved strong-arming or intimidating lawmakers to get their way. But the White House has to be careful now — they face not only the reality of building consensus, but also the problematic (post-Jeffords) perception that they’ve been abandoned by members of their own team.

What’s eventually going to happen? Will we see a compromise bill?

I think there’s going to be an agreement at some point. The White House needs it. There will be a lot of posturing, of course, but all parties will eventually decide on something.

Will the damages cap ultimately fall closer to the $500,000 mark or the $5 million mark?

That’s the big question right now. Bush is genetically predisposed to keep court fees down. But at the same time, he knows he needs a patients’ bill of rights. Bush is willing to compromise, but the compromise has to have the right dressing on it.