Intense Lobbying, Mistrust Between GOP, Democrats Doom Patients’ Bill of Rights

Every congressional session ends with unfinished business, but this time scrapped legislation includes a proposal that had great prospects only a few months ago--a patients’ bill of rights.

Democrats supported it, indeed had helped sponsor a bipartisan bill and managed to get it approved by the House. Many Republicans saw its advantages. Public interest was high. And President Clinton wanted to sign it into law.

But the bill fell victim to powerful interests, including intense lobbying by business groups, a lack of trust between Democratic and Republican negotiators and a deep reluctance on the part of the conservative Senate Republican leadership to see any but the most limited version become law. By September, the approaching election doomed hopes for the legislation.

The measure’s fate provides a real-world tutorial on how the legislative process works--or doesn’t.

At a minimum, the legislation would have guaranteed about 170 million Americans in employer-sponsored health plans or individual insurance plans more leverage in dealing with their managed health care providers and health maintenance organizations and the right to appeal denials of care or coverage.

Republicans Deeply Divided on Bills

There were two major versions of patients’ rights legislation. One, approved by a bipartisan majority in the House and supported by Senate Democrats, gave all consumers broad protections. A second, narrower version with more limited protections was passed on a party-line vote by Senate Republicans. Part of the friction in negotiating a bill that a majority could support--in addition to differences between House and Senate versions of the bill--was that Republicans were deeply divided, with many House Republicans supporting far stronger protections than their GOP colleagues in the Senate.

Last summer, it appeared that there was enough support in the Senate to pass the bipartisan House version by a bare majority. But Assistant Majority Leader Don Nickles (R-Okla.), frustrated with Democrats’ efforts on behalf of the House bill in conference negotiations to resolve differences between the two versions of the legislation, said that he would use parliamentary procedures to force a 60-vote majority in the Senate instead of the 51 votes normally required. That made it all but impossible for the bipartisan bill to win approval in the Senate.

House Democratic leaders, for their part, were prepared to support the legislation if they liked whatever compromise was reached. But they believed that they could turn failure to pass the measure to political advantage by holding Republicans responsible in Tuesday’s election. So they never urged compromise.

“The speaker and the president saw a land of compromise,” said John Feehery, press secretary for House Speaker J. Dennis Hastert (R-Ill.). But neither House Minority Leader Richard A. Gephardt (R-Mo.) nor the Senate “wanted to enter that land,” Feehery said.

Hastert became personally involved in trying to broker a compromise among House and Senate Republicans, once chairing a nine-hour negotiation that ended at 2 a.m. But it was to no avail, in large part because of a clash of personalities.

The leading House GOP sponsor was Rep. Charlie Norwood (R-Ga.), a dentist who had espoused a bill of rights for patients since 1997 and worked closely with the medical community, which strongly supported the bill. Rep. John D. Dingell (D-Mich.) and Sen. Edward M. Kennedy (D-Mass.), the lead Democrats who worked with Norwood, were wary of Nickles, whom they did not think even wanted a bill. Nickles, for his part, believed that he was negotiating in good faith and that most GOP senators wanted a much narrower bill, he said.

“It was personality-based intransigence,” said Johanna Schneider, a spokeswoman for the Business Roundtable, which represents 100 of the nation’s largest companies. “Clearly, Congressman Norwood drew a pretty bright line that he was unwilling to step over . . . and so did Congressman Dingell. And Sen. Nickles had some pretty specific things he didn’t want.”

Number of Patients to Be Affected Debated

One issue on which House and Senate negotiators could never agree was how many patients should be covered by the bill. Senate Republicans wanted to limit many protections to the 55 million workers in plans regulated exclusively by the federal government and leave states to decide on protections for workers in plans regulated either partly or completely by state insurance laws.

House lawmakers of both parties and Senate Democrats wanted protections to be uniform for every consumer--more than 170 million workers.

A second and even more contentious issue was whether patients should be allowed to recover substantial damages from health plans if they were injured as a result of the delay or denial of care or if plans refused to comply with the decision of independent reviewers.

For Senate Republicans and for business groups, any significant expansion of patients’ access to the courts was unacceptable because, they contended, it would lead to a flood of lawsuits. That, in turn, would raise the price of health insurance for employers who pay at least half of most workers’ insurance costs, they said. Above all, Republicans wanted to avoid any legislation that would send business to trial lawyers, a group they view as a Democratic constituency.

“We wanted . . . to look at patients’ interests from a variety of fronts,” said Eric Ueland, chief of staff to Nickles, who crafted the Senate Republicans’ approach to the legislation. “Sen. Nickles didn’t want to drive up costs or dramatically increase the number of uninsured and you certainly don’t want a swinging door open to trial lawyers,” Ueland said.

Concerns About Lawsuits Expressed

Employers strongly backed that view, saying that opening the door to lawsuits was unacceptable and even threatening to drop coverage for workers if an expanded liability provision became law. Instead, they supported an independent review by outside doctors of health plan decisions but stopped short of making the requirement enforceable in court.

“There’s a very strong view among employers that the much better approach is to start with external review,” said Paul Dennett, vice president for health policy at the American Benefits Council, which represents medium-size and large employers.

Democrats and a number of House Republicans, as well as doctors and consumer groups, countered that giving injured consumers the right to recover damages was crucial to ensure that managed health care executives would think twice before denying or delaying care. The bill’s supporters felt so strongly and had so little trust in GOP senators that they ruled out any compromise proposals that put caps on the damages that patients could receive, even though such an approach might have been key to winning critical Senate GOP support.

Dingell, who kept a low public profile through the negotiations, later expressed frustration with the Senate Republicans’ defense of HMOs.

“They were protecting their pocketbooks, because they knew it was going to cost them money,” he said. “There are only two categories of people in this country who cannot be sued: foreign diplomats and health plans who are shielded by federal law.”

Whether legislation will be likely to pass after the presidential election depends in great part on who is elected. If Republican George W. Bush wins the White House, it is likely that patients’ rights will take a back seat to other domestic issues such as reshaping the Medicare system and education, both of which are higher on Bush’s agenda. If Vice President Al Gore is elected, it appears likely that patients’ rights would be one of the first health care issues Congress would consider.