1. Reed, Stephanie

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Patients' rights legislation is back in the spotlight, as a new mix of legislators in Congress and a new president try their hands at shaping the issue. New patients' rights legislation introduced early this year may move toward enactment during this Congress.


"Since the 105th Congress (1997-98), the ANA has been a leader in the effort to pass strong, comprehensive patient protection legislation that holds health plans accountable for decisions they make that harm patients," says ANA president Mary Foley, MS, RN. "The ANA has also been in the forefront of efforts to ensure that any patients' bill of rights includes whistleblower protections for registered nurses who are advocates for their patients' health and safety."



The Patients' Bill of Rights Act, S. 6, introduced by Senate minority leader Tom Daschle (D-SD), is modeled on the bipartisan Norwood-Dingell bill (the Bipartisan Consensus Managed Care Improvement Act of 1999) that passed the House in the last Congressional session.


The Bipartisan Patient Protection Act of 2001, S. 283, introduced by a bipartisan group of senators led by John McCain (R-AZ) and John Edwards (D-NC), is also based on the Norwood-Dingell bill but has several significant revisions to language addressing health plan liability for patient injury or death. The bill is cosponsored by a number of leaders in previous efforts, including Senator Edward Kennedy (D-MA). The House companion bill to the McCain legislation is H.R. 526, introduced by Representatives Greg Ganske (R-IA) and John Dingell (D-MI).


A whistleblower provision, supported by the ANA, is included in each of these bills. These bills also prohibit plans from discriminating against health providers based on the types of licenses they hold.


While the support of Senator McCain and five other Republicans could set the stage for passage of a strong patients' rights bill this year, President Bush's stance on this issue may be critical to its success. The president campaigned on having supported a strong bill in Texas-even though he allowed it to become law without his actual signature. President Bush entered the congressional debate by sending a letter and a set of principles for legislation on the issue to House Speaker J. Dennis Hastert (R-IL).


According to the Bush principles, lawsuits would be restricted to federal courts, requiring patients to exhaust all internal and external appeals before they sue; there would also be "reasonable caps on damages." The McCain bill would permit a patient to sue in state courts when the case involves denial of benefits or quality of care. It would move to the federal courts those cases involving purely administrative decisions, which would be tried as civil cases with a $5 million cap on damages. Senator Daschle's bill (S. 6) is simpler: it allows patients to sue plans in state courts under state law, the usual venue for this type of lawsuit. It would not allow for punitive damages if a plan had followed the decision of an external reviewer.


The McCain proposal would address business community concerns by allowing employers to be sued only if they directly participate in benefits decisions that result in injury or death. The Bush principles would protect employers from suits unless they "retain responsibility for and make final medical decisions."


Another issue to be hashed out is the scope of coverage in the proposed new protections. The newly introduced bills embody the position of the ANA and other proponents of comprehensive coverage-the legislation must provide a federal floor of protections for everyone and state law should apply only when it strengthens federal law. The Senate Republicans, led by Senate majority whip Don Nickles (R-OK), have previously insisted that federal legislation cover only plans that are not subject to state law, which affects only about one-third of the people who have private health coverage. President Bush's principles state that "deference should be given to . . . state laws . . . ," a standard that is somewhat ambiguous.


"The ANA's message to Congress on patient protection legislation is unwavering: Congress should enact strong, comprehensive, and enforceable protections," said Foley. "The final bill must include the whistleblower provision that protects nurses and other health care professionals from retaliation when they advocate for their patients."