House may yield on HMO suits

Whether patients can sue their health-care providers is key to this

Congress is weighing a bold shift in federal regulation of health care this week, as the House takes up sweeping legislation aimed at bolstering patient protections and access to medical insurance.

Despite major differences among Democrats and Republicans over controversial issues such as the right of patients to sue health-care plans for damages, the bills coming before the House also reveal a broad consensus emerging in Congress on the need to raise the quality and availability of health coverage.

This week's debate unfolds against the backdrop of widespread public concern that, as health maintenance organizations (HMOs) and other managed-care groups have eclipsed traditional fee-for-service health care in the 1990s, patient well-being has lost ground to the profit imperative.

Central to the debate are important questions over the scope of patient protections and how they will affect the supply of health insurance as the ranks of uninsured - now at 44 million - grow. Also at issue is the federal versus state role in health-care regulation. Already, states have introduced hundreds of bills since the mid-1990s to govern managed-care organizations, and regulation remains a patchwork of varying state laws. "From a federalism perspective, things are kind of a mess," says Randall Bovbjerg, a health expert at the nonpartisan Urban Institute.

By far the most divisive issue, however, is if all Americans should have the right to sue their health plans for damages, an idea supported by most House Democrats and dozens of Republicans.

The GOP House leadership opposes a bipartisan bill that contains an open-ended right to sue, but has struggled so far without success to unify its slim 223-to-211 Republican majority around a weaker alternative. In the Senate, by contrast, Republicans stuck together in July to pass a narrow bill without the liability provision. President Clinton indicated he would veto the Senate version.

The House is also scheduled to vote this week on a GOP-sponsored package of tax cuts and other measures designed to improve access to health care. Democrats oppose the bill and say a GOP leadership plan to link it to the patients' rights bill could kill any meaningful legislation.

Two major trends in US health care underpin this week's discussions. First, Americans have shifted rapidly in recent years from traditional indemnity coverage, where patients choose doctors and they together decide on treatment, to managed care, which now covers 75 percent of the privately insured, according to a recent Urban Institute report.

While the spread of managed care has been widely credited for slowing health-care cost increases, patients have complained of a lessening of their control over care decisions.

Experts agree that tougher regulation of health plans would cause costs to rise, although they differ on how much. This, in turn, might exacerbate a second major trend: the growing number of Americans who lack medical insurance. Despite a strong economy, the ranks of the uninsured grew last year by nearly one million people to 44 million, or 16.3 percent of Americans, the highest percentage this decade, according to US Census Bureau figures released this week.

As a result, health care promises to become a potentially potent campaign issue in 2000. Recent polls show that health care is "one of the top second-tier issues," ranking below education and Social Security but on par with gun control, says Robert Blendon, a professor at the Harvard School of Public Health in Boston.

The broadest, boldest remedy in the House legislation being taken up this week is contained in the bipartisan bill introduced by Michigan Democrat John Dingell and Georgia Republican Charlie Norwood.

The bill would allow patients to sue their health plans in state courts for damages if they are harmed by the denial of treatment. Most Democrats and a group of some two dozen Republicans, including several doctors and dentists, support the bill, which GOP leaders say stands a good chance of passing.

The Norwood-Dingell measure must withstand challenges from amendments and two other weaker Republican bills. All the bills offer enhanced patient guarantees of emergency care and independent, external appeals options when care is denied - a right experts say will have greater impact than the right to sue.

"There is little question it is better to [appeal and] resolve the problems up front, rather than ... suing after the fact," says Larry Levitt at Kaiser Family Foundation in Menlo Park, Calif.

Still, proponents of the right to sue for damages, including many physician groups, say it is vital to give teeth to an appeals process and ensure accountability. "Health plans now have every incentive to delay and ... deny," says Ronald Pollack of the Families USA Foundation, a consumer-advocacy group in Washington.

Many Republicans, joined by the managed-care industry and employers - who worry about a possible flood of expensive litigation - argue that the right to sue will increase costs and limit availability of health coverage while doing little to improve quality. "The threat of litigation as a quality measure has been very poor," says Gail Wilensky, a former health adviser to President Bush. Even without federal legislation, trial lawyers have increasingly targeted HMOs in recent years.

(c) Copyright 1999. The Christian Science Publishing Society