PBOR Debate Centers on ER Liability

The GOP amendment came one day after the Senate killed a Republican amendment by a 52-45 margin that would have accelerated the full deductibility of health insurance premiums for the self-employed by a year. The amendment fell prey to a Democratic point of order that the amendment violated the constitutional requirement that tax legislation originate in the House.

Republican opponents of the McCain-Kennedy-Edwards proposal (S. 1052) have continued to express concerns over the opening of employer liability under the bill, which they claim is made possible by pages of exceptions under the existing bill.

On the other hand, the bill’s backers have continued to maintain that those exceptions involve only situations where employers have “direct participation” in medical decisions that harm patients. And, at least in terms of Friday’s debate, those supporters appeared to believe that that level of direct participation contemplated by the bill was extraordinarily rare, including Michigan Senator Debbie Stabenow.

Gramm Designs

The champion of Friday’s amendment was Senator Phil Gramm (R-Texas), who cautioned “If there is any ambiguity with regard to suing employers, what is going to happen all over America is that employers are going to get out of the business of buying health insurance.” As he had the day before, Gramm referenced the Texas version of a PBOR, which has been frequently cited by the opposition as a model that this type legislation does not have to create a litigious nightmare.

Gramm repeatedly referenced the statement in the Texas bill that simply stated that no employer liability was created by the bill ? and contrasted that simplicity with the contorted 7 1/2 pages of legalistic exceptions contained in S. 1052.

Gramm took pains to point out that the current language of McCain-Kennedy would make employers liable where “the employer is making such decision, or exercises control in such decisions.” “But under ERISA, the employer is ALWAYS assumed to be in control of the employee benefit,” cautioned Gramm.

Opponents seemed particularly incensed that last minute changes to the bill had taken pains to exclude doctors and hospitals from liability but had left employers vulnerable.

“Employers beware!” warned Senator Don Nickles (R-OK) on the floor.

Unintended Consequences

Meanwhile, reports emerged that Senator John Edwards (D-North Carolina) and other cosponsors of the bill “never intended to make employers liable” and were working to clarify the language to that effect.

By late Friday Senate Democrats were noting they would support contemplated changes to the PBOR, including one from Senator Olympia Snowe (R-Maine) that would reportedly shield businesses from liability by letting them opt out of making health care decisions that impact their workers in favor of a “designated decision-maker.” While comparable to one emerging in the GOP House version, it still falls short of the proposal by Senator Gramm.

This Week

The Senate will convene at 2:00 p.m. today to resume discussions on the Gramm amendment, while Senator McCain is expected to offer an amendment to S. 1052.

The Senate will vote on Tuesday on Gramm’s amendment on employer liability and on a procedural motion that would send the Democrat-backed patients’ bill of rights to committee for reconsideration.

Senate Majority Leader Tom Daschle (D-South Dakota) continued to express optimism about the ability to pass the bill soon, if not before the July 4 recess. “If we did it in four days in 19