Employer Concerns Permeate PBOR Debate

June 29, 2001 (PLANSPONSOR.com) ? You needed a scorecard to keep up with all the amendments, debates and votes in the Senate's continued deliberations on S. 1052, the Patients' Bill of Rights.

Once again employers ? and the desire to encourage their support of health insurance programs ? was at the center of the debate.

What differed, of course, were the varying perspectives of what provisions of the bill would scare employers into forsaking their support of the current health insurance system, which covers more than 170 million Americans.

Snowe “Blow”

For many, the highlight of the session was the anticipated introduction of the “designated decision-maker” amendment by Senator Olympia Snowe (R-Maine). Quickly embraced by Senators Kennedy and Edwards, the discussion that followed provided an interesting comparison of the Snowe amendment language alongside similar language from the Frist-Breaux-Jeffords alternative, from which the concept was borrowed.

Supporters of the Snowe amendment claimed it would directly shield 94% of employers that sponsor such programs and that the remaining 6% that self-insure and/or self-administer such programs could acquire that protection by designating such a “decision-maker.” The measure passed 96-4.

Caps and Limits

Other amendments considered were:

One from Senator Susan Collins (R-Maine) that would have left pre-existing state patient protections in effect, if they were consistent with the provisions of the federal law. That measure fell 53-44, with opponents contending that it would leave too many patients unprotected.

That was followed by a similar proposal from Senator John Breaux (D-Louisiana) that would leave the state protection in place if it “substantially complies” with the language of S. 1052. That proposal passed by a 64-36 vote.

Lawyer Limits

Less fortunate was a proposal from Senator Kit Bond (R-Missouri) that would have capped plaintiff?s attorneys? fees at 15% of the amount awarded by the court. This amendment was tabled (set aside) by a 62-38 vote.

Another effort to ensure that recoveries went to patients, not lawyers, was proposed by Senator John Warner (R-Virginia). His proposal would have capped attorneys’ fees at a fixed percentage, depending on the amount of the award (33% for “smaller” settlements, sliding to 25% and then to 15%, depending on the size). Co-sponsor of S. 1052 Senator John McCain (R-Arizona) asked that Warner’s amendment be set aside while the two negotiated the specifics of the approach.

Senator Mike Enzi (R-Wyoming), by his own admissions from a state with mostly small employers and a single HMO (sponsored by a group of doctors), took the floor on behalf of his fellow senators from states with larger employers. His amendment would have offered self-administered plans an additional shield from liability by providing an exemption if these employers gave employees the option to stay in the self-administered plan without a right to sue, or to enroll in an insured health plan while retaining the right to sue, or to buy individual health insurance with a defined contribution amount from their employer. That was tabled by a 55-45 vote.

By unanimous consent, the Senate approved an amendment by Senator Kay Bailey Hutchison (R-Texas) that stipulated that the “disenrollment” of a plan participant from a health plan by the provider be specifically detailed as a “material change” for which 30-day prior notification is required.

At the end of the long day, the Senate also tabled, and effectively rejected, an amendment by Senator Arlen Specter (R-Pennsylvania) that called for the creation of a federal cause of action that would stipulate that actions against health plans under the act be tried in f