Norwood Introduces Patient Protection & ERISA Clarification Acts

The latest proposals come from the lawmaker who has fought for a federal patients’ bill of rights throughout his congressional career.   However, in the latest chapter of the saga, the Georgia Congressman is pursuing a different strategy than in past years.   Namely: Going this one alone, realizing the Republican controlled House of Representatives and Senate do not view a patient bill of rights as their top health care priority.

Patient Protection

The Patient Protection Act includes all of the patient protection provisions that were in the House-passed “Patients’ Bill of Rights” from the last session of Congress.   In particular, the provisions include ensuring access to emergency care, pediatric care, and needed prescription drugs; as well as coverage for individuals participating in approved clinical trials.   Additionally, it contains agreements that would guarantee a patient’s access to information and protect the “Doctor-Patient” relationship by prohibiting both discrimination against providers based on licensure and any improper incentive agreements.  

Also included is an external review package that passed during the previous House session.   The external review provision would give every American the right to an independent review when their doctor and insurance company disagree.   In a shift from the agreement struck by Norwood with President Bush in August of 2001, the external review provision in The Patient Protection Act has been made consistent with the Supreme Court’s recent Rush versus Moran decision (See  US High Court Green Lights State HMO Review ).  

That decision, decided in June 2002 by a divided 5-4 court, determined an Illinois Health Maintenance Organization Act, which calls for independent medical review in certain situations, is not preempted by ERISA.

In the news media release, Norwood pointed to recent federal court decisions that have since used the high court’s verdict in Rush to justify returning cases that are medical in nature to the state courts:   Bui versus AT&T and Isaac versus Seabury.   To reflect this, The Patient Protection Act would permit a state to have a more stringent, but not less, external review provision than the federal law.  

“This bill includes the patient protections and external review provisions of the agreement I made with the President on August 1, 2001…   it will provide patients with basic standards for their insurance plans, ” Norwood said in a news release.

However, the Patient Protection Act also does not include the Medical Savings Accounts and Association Health Plans.   These two provisions were added by a House floor amendment relating to the uninsured previously and are expected to be brought up separately in the next few months.

ERISA Clarification

The other bill being introduced by Norwood has been dubbed the ERISA Clarification Act, a two-page bill that seeks to clarify what appears to be the position the Supreme Court has taken regarding ERISA in Rush, and thus ensure that ERISA does not preempt a state cause of action arising from an insurer’s determination of medical necessity.  

“While I wish we could have done this (resolve the liability issue) legislatively, I believe we are winning this in the courts.   While it’s too early to say we’ve won, I think the trend is crystal clear.   The federal bench is sending cases that involve an insurer making medical necessity decisions back to the state courts.   That’s all I was fighting for all along…   I don’t need a Rose Garden ceremony and a ticker tape parade to declare victory,” Norwood said speaking to necessity of the action.

Uphill Battle

However, the Georgia lawmaker understands that his latest attempt to float reform legislation will face an uphill battle.   Backers and opponents of patients’ rights legislation note that it is far from a priority for Republican leaders in the House and Senate. Opponents frequently point to rising health care costs and a need to steer clear of new requirements that they deem likely to further increase the cost of health insurance.

“I know others will say that with health care costs on the rise, now is not the time for patient protections; but from my perspective, now is precisely the time for patient protections,” Norwood said in the release. “When insurers and employers are concerned about the cost of health care, the quality of patient care can be jeopardized for the bottom line. We must put laws in place that make certain the concern for the bottom line doesn’t go too far.”

Additionally, as opposed to the previous attempts to pass patients’ rights legislation with Representative John Dingell (D-Michigan), Senator Edward Kennedy (D-Massachusetts) and other lawmakers in the 107th Congress, Norwood is going the latest round alone.   The previous attempt fell short after Norwood emerged from his sponsorship camp and negotiated a deal with the President to rewrite the liability language in that bill prior to its consideration in the House (See  Bush Outlines Patients Bill of Rights Requirements ).

The revised language, which placed a series of restrictions on lawsuits not present in the original bill, then raised protests from Dingell, Kennedy and others who had previously supported the Norwood bill.   Ultimately, the House’s version of the bill passed, but the White House and sponsors of a Senate version, which had far more sweeping provisions for expanding patients’ access to the courts, never reached an accord.