Fix ‘Mistake’ in HMO Bill

Managed-care patients in much of the country would gain at least a little protection from a “compromise” patients’ bill of rights supported by President Bush and Rep. Charlie Norwood (R-Ga.) and passed by the House of Representatives. However, California already has stronger patient protections that would be preempted by the provisions in the Norwood bill. California’s congressional delegation should get to work on preserving those protections.

House and Senate negotiators meet early next month to seek a compromise between the Norwood bill and a stronger bipartisan patients’ bill of rights in the Senate, by John Edwards (D-N.C.), Edward M. Kennedy (D-Mass.) and John McCain (R-Ariz.). Their most critical task will be ensuring that the flaws in Norwood’s measure don’t make their way into the legislation that lands on the president’s desk. Three defects stand out:

Last week, Norwood admitted that one provision--a tiny but hugely significant change in wording, from “a” to “the,” made when no patient advocates were looking--was “a mistake” that he would be “glad to correct.” To win damages under the stronger Senate bill, a plaintiff must show that a health plan’s negligence was “a proximate cause” of personal injury or death. But under Norwood’s bill, the plaintiff must show that such negligence was “ the proximate cause” of injury or death.

Under the Senate bill, an HMO could be held responsible if a woman developed breast cancer and died after having been denied a mammogram. But the House bill would allow the HMO to argue, despite its wrongdoing, that the proximate cause of death was her cancer.

The second big flaw in Norwood’s bill would let health plans select the supposedly independent medical reviewers who would evaluate a patient’s appeal before the last-stage, lawsuit phase, so long as those reviewers didn’t have an economic link to the company. But, of course, such reviewers have an economic link to the HMO because they are hired by it. (In California, the state’s Department of Managed Care selects these so-called “external reviewers.”)

The bill’s biggest flaw, however, is that it would not allow stronger patient protections in California and other states. Norwood earlier this month said that Bush had insisted on the preemption, vowing not to “allow states to just do anything that they want to do.”

Even managed care executive Alan D. Bloom, senior vice president and general counsel of Los Angeles-based Maxicare, has acknowledged that the Norwood bill “probably gives the HMOs more protection than they are losing.”

The gist of what the Bush administration says it is trying to do--discourage lottery-level lawsuits that could raise health care costs and erode health care coverage--makes sense, and the Senate version does go overboard in favor of lawsuits. Still, Norwood’s midnight negotiations with Bush produced a bill that undercuts not just lawyers but genuine victims of managed care miserliness and poor judgment as well.

House Speaker J. Dennis Hastert (R-Ill.) and Senate Majority Leader Tom Daschle (D-S.D.), who will oversee next month’s House-Senate negotiations, should help make sure that the final bill protects states’ rights, eases patient appeals and ensures the independence of medical review boards.

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To Take Action: House Speaker J. Dennis Hastert, e-mail www.house.gov/hastert, phone (202) 225-2976; Senate Majority Leader Tom Daschle, e-mail www.senate.gov/~daschle, phone (202) 224-2321. To find California legislators, go to www.house.gov/ and click on Write Your Representative. There is also a link to Senate addresses.