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Focus shifts to House on patient protection bill

Medical necessity and health plan liability remain the most contentious issues in the House. Medical and consumer groups want a stronger bill than the Senate's.

By Geri Aston, AMNews staff. Aug. 2, 1999. - Additional information.

Washington -- Medical and consumer groups are pinning their hopes for strong patient protection legislation on the House, following the Senate's passage last month of a scaled-back Republican measure they criticize as window dressing.

But they face the same powerful foes they squared off against in the Senate debate: the insurance and managed care lobbies.

The final outcome will have a major impact on physician practices.

The most contentious items, medical necessity and health plan liability, are the ones that hit doctors closest to home, according to Robert Blendon, ScD, health policy and political analysis professor at Harvard University.

"What is fundamentally at stake is the autonomy of physician decision-making," he said.

The debate "is the top issue for patients and medicine," said AMA President Thomas R. Reardon, MD.

Disappointed in the Senate vote for approving what it views as a "sham" bill, the AMA is lobbying for a tougher House measure.

"It's going to take the House of Representatives to repair the damage and put patients back into the patients' bill of rights," said AMA Chair D. Ted Lewers, MD.

The hope is that a stronger House bill would carry the day in negotiations between the House and Senate on their competing measures when differences in the bills are negotiated.

Among the areas in the Senate bill that need fixing, according to medical and consumer groups, is the external appeals provisions.

The Republican bill would limit reviewers' examinations to a determination of whether a plan met its own rules -- in effect gutting the reason for independent appeals, said Judy Waxman, director of government affairs for the consumer group Families USA. The bill would preempt appeals laws in about 25 states.

Other criticisms of the Senate bill are that it:

  • Fails to guarantee that physicians, rather than plans, make medical necessity determinations.
  • Doesn't give patients enrolled in employment-based insurance the right to sue their plans.
  • Primarily covers only the 48 million people in employer-sponsored plans that aren't subject to state insurance laws. The external appeals language would be an exception to this provision.

On the other side of the debate, the insurance and business industries argue that the provisions doctor and consumer groups support would drive up costs, increase the rolls of uninsured Americans and unnecessarily duplicate state HMO reform efforts.

In fact, many of these groups also oppose the GOP leadership bills because they believe that the market, not the government, should solve the crisis of confidence in managed care.

"We're pleased with the Senate's courageous votes on liability and medical necessity," said Neil Trautwein, health care lobbyist for the National Assn. of Manufacturers. "But we're not going to cheer Senate passage of a bill that would add costs to the system."

The insurance and business communities' message seemed to resonate with GOP senators, who repeatedly said they offered a more limited package to avoid encouraging costly litigation, increasing insurance prices and boosting the number of uninsured.

The Senate GOP leadership decided it was more concerned with the worries of business and insurance than those of the general electorate as it looks ahead to the 2000 elections, Dr. Blendon of Harvard said.

Their goal was to appear as if they support reform on some of the more emotional issues for the general public, such as postmastectomy hospital stay lengths and emergency department coverage, and then hope that managed care doesn't become a major issue in 2000, he said.

"They've moderately immunized themselves," he said, adding that he expects a similar outcome in the House.

House legislative agenda unclear

But things are more complicated there. At AMNews deadline, the GOP leadership had said that it would like a floor vote before the August recess, but it hadn't decided which bill it would offer or which committee it would come through.

Several competing measures are in play: The GOP leadership bill that passed last year, a package of eight bills assembled by a group of Republicans led by Rep. John Boehner (Ohio), a compromise package offered by several GOP physician-lawmakers and the Democrats' measure.

One of the biggest wild cards in the House is the handful of GOP doctors and their supporters who are pushing a measure closer to the Democrats' bill than the GOP leadership is comfortable with. Those lawmakers, led primarily by Rep. Charles Norwood, DDS (Ga.), have criticized the Senate bill as coming up short on patient protection and vowed to fight passage of similar legislation in the House.

Dr. Norwood voted for the leadership bill last year but seems determined to hold out this year. He views last year's House action as "a big mistake," said his spokesman John Stone.

The slim Republican margin in the House could mean that the leadership has to make a deal with Dr. Norwood or face losing on the issue in committee or on the floor, Waxman said.

The AMA views Dr. Norwood's package as the "best opportunity to get bipartisan support," Dr. Reardon said.

But common ground in the House has proved elusive so far this year.

The GOP leadership continues to oppose health plan liability, a provision that Norwood supporters consider essential.

"We don't want to have some trial lawyer bonanza," said Pete Jeffries, spokesman for House Speaker J. Dennis Hastert (R, Ill.).

Last year's House vote was dominated by partisanship, and that hasn't abated yet. Earlier this year, the Boehner package of bills passed on party-line votes out of a subcommittee of the Education and the Workforce Committee.

And Hastert already has accused Democrats of not wanting a bill but an election issue to win back the House next year.

"The political situation has just gotten so poisoned that it's hard for people to find compromise," Harvard's Dr. Blendon said.

If no compromise is found and the Republican leadership prevails, President Clinton has promised a veto.

Still, failure to pass legislation would not kill the patient protection drive, Dr. Blendon predicted.

The AMA will not give up, Dr. Reardon said. "We've been at this five years, and we're not going away. We will not stop until we have a strong patients' bill of rights."

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The sticking points

As the debate over a federal patient protection bill moves from the Senate to the House, these controversial issues -- and the arguments for and against them -- remain.

Pro: Supporters believe that patients with employer-sponsored coverage should be able to sue their health plans when they believe they've been denied a necessary covered benefit.
Con: Detractors argue that any liability provision would increase costs, force small businesses to drop insurance out of fear of lawsuits, and boost the number of uninsured Americans.

Medical necessity
Pro: Supporters argue that medical necessity should be decided by physicians, rather than health plans, based on generally accepted principles of professional medical practice.
Con: Detractors say that this would hinder plans' ability to control quality and would promote continued wide and sometimes dangerous variation in physician practices across the country.

Uniform protections
Pro: Supporters believe that the same protections should apply to all Americans, regardless of their health plan type.
Con: Detractors argue that most of the federal protections should apply only to people with employer-sponsored insurance that is exempt from state insurance laws.

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