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Debate begins on a patients' bill of rights

Sen. Edward Kennedy first introduced legislation in 1996
Sen. Edward Kennedy first introduced legislation in 1996  

By Dana Bash
CNN Washington Bureau

TOPLINE: The U.S. Senate is considering long-stalled legislation to set new standards and protections for patients with health insurance. Here, CNN Capitol Hill Producer Dana Bash looks at how consumers could benefit from provisions of both bills, and at the most significant differences between the two.

Senate Democrats are using their new majority status to put the so-called "patients' bill of rights" up for debate to address HMO horror stories. They say Americans demand managed care reform that gives greater access to specialists and puts doctors, not insurance companies, in control of their care.

Democrats want to change current law that prohibits Americans in many large insurance plans from suing for damages if denied or delayed care results in catastrophe or fatalities. Republicans want to limit what they call "frivolous" lawsuits that could have the unintended consequence of driving up health insurance costs for patients, forcing them into the ranks of the uninsured.

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IN CONTEXT: The Democrat-backed bill sponsored by Sen. Ted Kennedy, D-Massachusetts, Sen. John McCain, R-Arizona, and Sen. John Edwards, D-North Carolina, will be on the Senate floor, but Republicans have their own alternative, backed by President Bush, sponsored by Sen. Bill Frist, R-Tennessee, Sen. John Breaux, D-Louisiana, and Sen. Jim Jeffords, I-Vermont.

IN AGREEMENT: Although the bills differ in many ways, there are similarities in provisions aimed at improving patients' access to medical treatment:

Emergency room care -- Both Democrats and Republicans ensure that patients would be reimbursed for emergency room services, including ambulance services, screening and stabilization, even without prior authorization from insurance companies.

  •  Topline

  •  In context

  •  In agreement

  • Differences

  •  Differences in the right to sue

  •  Other differences

  •  Cost

  •  Key players

  •  Key questions

  •  Bottom line

Access to specialists -- Both sides would put an end to the practice of primary-care physicians denying access to specialists in the plan at the behest of insurance companies. For specialists outside the plan, Democrats would allow a patient to seek treatment at the same cost as with doctor on the plan. Republicans would let the plan decide whether to pay for an out-of-network specialist.

OB/GYN care -- Democrats and Republicans would allow women to see a OB/GYN physician without a referral.

Breast cancer treatment -- Both bills require insurance companies to cover in-patient hospital stays as long as medically necessary following surgery related to breast cancer.

Pediatric care -- Both would let children have a pediatrician as a primary care physician.

Continuity of care -- Each bill would require plans to continue coverage of a terminated medical provider for 90 days if patients are being treated for a complex condition. Considerations would be required for pregnant women and terminally ill patients.

Access to prescription drugs -- Both sides would require insurance companies to give patients access to special medications when medically necessary, but only Democrats would keep the cost sharing the same for those drugs.

Clinical trials -- Both allow patients access to clinical trials approved and funded by the National Institutes of Health, the Pentagon and the Department of Veterans Affairs. Only Democrats would cover FDA trials.

Gag clause -- Democrats and Republicans both ban insurance companies from discussing treatment with a patient in order to cut costs for the plan.

DIFFERENCES: The biggest difference between the Democrat and Republican approaches is over patients' right to sue. Democrats say they want to change a quirk in the law that protects insurance companies covered under federal law from lawsuits. They say Americans need the threat of lawsuit to hang over insurance companies to make sure they comply with patient protections. They say insurance companies should be held to the same standard as doctors for malpractice, and they accuse Republicans of opposing litigation because they are in the pockets of insurance companies. Democrats want suits in state courts, where trials are more expeditious and juries are more likely to grant higher rewards.

GOP lawmakers warn against lawsuits, saying the Democratic approach would make trial lawyers rich and would push premiums up, forcing Americans out of coverage that would be too expensive. Republicans criticize Democrats for leaving open the possibility that employers would be sued. They want to keep lawsuits in federal courts where damages would be much lower.



• Patients would be required to exhaust an internal and external appeals process before filing suit unless they prove irreparable harm. The appeals board would be composed of outside parties.

• Patients would be able to sue insurance companies in state court for medical decisions and federal court for administrative decisions.

• Damages in state court would be set by state law. Punitive damages would be prohibited in federal court but civil penalties up to $5 million would be allowed. There would be no limit on economic and non-economic damages.

• Patients would only be able to sue employers if they made a medical decision resulting in injury or death.


• Patients would be required to exhaust external and internal appeals before suing, but they could seek a court order forcing coverage. The appeals board could be chosen by the insurance company.

• Patients could sue in federal court only over coverage and medical decisions only if the insurance company does not follow the advice of the external review board.

• Economic damages would be unlimited, but non-economic "pain and suffering" damages would be capped at $500,000. Punitive damages would not be allowed.


Financial incentives -- Democrats would ban insurance companies from offering financial incentives to doctors to limit costly medical care. Republicans have no such provision.

State protections -- Under the Democrats' bill, states would maintain their own patient protection laws, and governors would be required to certify their laws comply to the new federal law. The secretary of Health and Human Services would have 90 days to approve the certification. The GOP bill would have a federal board with 13 members appointed by the HHS secretary to decide whether state laws are adequate.

COST: An independent review of both bills estimates the Democratic legislation would increase costs 4.2 percent and the Republicans would raise costs by 2.9 percent. Democrats claim most of that cost goes into greater care and access -- and that less than 1 percent of the increase is due to the threat of litigation.



Sen. Edward Kennedy , D-Massachusetts, is the primary sponsor and engine behind the Democrats' efforts on a patients' bill of rights. Kennedy introduced the first version of the bill five years ago and is using his 40 years of legislative experience to lead the charge as the new chairman of the Health, Education, Labor and Pensions Committee.


Sen. John McCain , R-Arizona, says he decided to buck his party on this issue after listening to horror stories from Americans in town meetings he held during his presidential campaign last year. McCain says this is a continued crusade against special interests and for doctors, nurses and patients. He says he wants to craft a compromise the president would sign.


Sen. John Edwards , D-North Carolina, is an attorney who made millions as a personal injuries lawyer before joining the Senate. He is used as a poster boy by Republicans who accuse Democrats being in the pockets of trial lawyers, but used by his fellow Democrats for his expertise.


Sen. Bill Frist , R-Tennessee, is the Senate's only doctor -- a heart transplant surgeon. Republicans rely on Frist's knowledge of medicine to make their arguments against the Democrats' bill, which has the endorsement of most medical organizations. He is the president's point man on the issue and crafted a compromise along with the White House more moderate than what his fellow Republicans supported last year.


Sen. John Breaux , D-Louisiana, is a centrist Democrat always in search of compromise. He has been Bush's go-to man in the Senate for bipartisanship and bucked his party in crafting a bill with Frist that Bush supports.


Sen. Jim Jeffords , I-Vermont, is in the ironic position of being a co-sponsor of the Bush-backed legislation on an issue Democrats are able to bring to debate only because Jeffords defected from the GOP and flipped control of the Senate. His sponsorship of the Republican-backed bill makes it "tripartisan," as Bush calls it.


President Bush says he is against the Democrats' bill but realizes that a patients' bill of rights is very popular and is cautious about the political consequences of a veto. He is encouraging senators to compromise on legislation that he can sign.


• Democrats say they have the votes to pass their bill, but President Bush has vowed to veto it. Will a compromise emerge during the Senate debate?

• Republicans intend to offer each part of their bill as amendments to the Democrats' bill. Which will pass and how would that affect the likelihood that Bush would sign a bill.

• Republicans in the House are working on a compromise. Will they produce something Bush would sign?

• Republicans say the threat of lawsuits would force insurance companies to raise premiums. How much would these new protections actually increase costs for patients?

• Will Bush follow the advice of some political advisers and veto any legislation he can say benefits trial lawyers and not patients?

BOTTOM LINE: Conscious of how popular managed care reform is among the American people, President Bush says he agrees with most patient protections and wants Congress to send him a bill he can sign.

But he and congressional Republicans are on a collision course with Democrats over one key issue: Whether patients would be able to sue their insurance companies and how much in damages they can seek.

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