Inside the Battle over the Patients' Bill of Rights

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After a week of gabbing with Europeans cranky about his stands on national missile defense and the climate, George W. Bush may be itching for some old- fashioned deal-making back home, where he's already scored triumphs on education and taxes. But then again, he may want to linger in the departure lounge. Waiting for him is one of the most frustrating and gridlock-producing pieces of legislation to bind up Washington in recent years, which Democrats will force Bush to take up this week: the patients' bill of rights.

Bill Clinton ran into a brick wall on the measure during his second term and W may find that the bipartisan deals he got on taxes last month and education last week were easy compared to passing a bill that gives patients more clout with their health maintenance organizations. The stakes are high for both sides, which have important constituencies to satisfy. Republicans don't want to upset big business and HMOs by raising healthcare prices while Democrats want their friends, the trial lawyers, to have the right tools to sue over bad care. With the Senate now under Democratic control, this is the first test for Majority Leader Tom Daschle to press an issue that's been a winning one for his party, and for Bush to play defense.

The White House had wanted to put off the patients' bill of rights for the moment. And it could when Republicans controlled the Senate. Bush wrapped his arms around Ted Kennedy to reach a compromise education bill. But when Sen. John Edwards introduced his patients' rights measure last February with Kennedy and Sen. John McCain, Bush couldn't seem to return the phone calls. He wanted no part of their bill's provisions that allow aggrieved patients to tie up HMOs in state courts and win up to $5 million in jury awards. Bush also wasn't eager to strike any deal that would burnish McCain, his bitter rival in the Republican presidential primaries.

Stalling worked for a while. White House aides got Republican Congressman Charles Norwood to hold off sponsoring a similar measure in the House with the promise that they'd negotiate a compromise with him. But "he was being strung along," says GOP Congressman Greg Ganske, a cosponsor of Norwood's bill. While they kept Norwood closeted in endless meetings, Bush aides secretly helped write a bill more to their liking with GOP Sen. Bill Frist and moderates John Breaux and Jim Jeffords. That measure channels all suits into federal courts and limits jury awards for pain and suffering to just $500,000.

But Bush's end run petered out when Jeffords' defection from the GOP gave Democrats control of the Senate. Daschle ordered that the patients' bill would be the next measure considered after education, not energy legislation that Republicans had wanted. Fed up with the White House, Norwood trashed the administration as inflexible and deceptive in a memo to colleagues last week and made a public show of introducing his legislation in the House. Now the White House has to take those defections seriously, which affects their negotiating posture. Apply too much muscle and you might lose moderates like Senator Lincoln Chaffee, who cares about this issue and who last week was publicly flirting with pulling a Jeffords.

Bush has been trying to warm up to the other side but his pick-up lines haven't been working. After a long cold period, he dispatched senior White House aide Josh Bolton to meet with McCain and invited all the Senate sponsors to a White House meeting last week. But it was mostly for appearances. The Bolton- McCain huddle lasted only about 15 minutes and the White House meeting "was a dog-and-pony show," admits a top Senate GOP staffer.

The president also has to tend to conservative members in his own party. Republican senators are drafting dozens of amendments to pick apart the Democrats' measure. "It's going to be hit by armor-piercing incendiaries," vows GOP conservative Phil Gramm. White House aides laugh at Gramm's colorful opposition, but conservatives are angry about a series of administration apostasies on education, taxes and defense. There is no great rush to give Dashcle his first victory. But the White House knows that passage may mean fighting through a filibuster threat from members of its own party.

For all of the problems getting to a solution, both sides think after years of failure, a deal might be possible. Bush has threatened to veto the more liberal forms of legislation, but those who are now at the table with him know that's just an opening bid. Bush is willing to shave away the details to get a result. And this is a result that happens to be wildly popular, with as many as 79% of Republican voters telling pollsters they support a patient's bill of rights. The HMO lobby disputes that figure but most Republicans see a bigger reality. "You can never win an argument that people can't sue," says a GOP aide. "It's un-American. We need to get a deal and move on." After a week in foreign lands, that's a language Bush can understand.