Senate Picks Up PBOR Debate

June 18, 2001 ( ? Debate on the Patient's Bill of Rights begins again this week in the Senate ? and odds are that one version will emerge triumphant ? but which one?

Looming large in the debate are the McCain-Kennedy-Edwards (S. 872) bill and the Frist-Breaux-Jeffords (S. 889) version.

The former appears to have co-opted much of the support from last year’s Dingle-Norwood proposal (including those sponsors), while the latter has emerged not only as a compromise alternative, but also has the expressed support of the White House.

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Common Threads

And yet, the two bills have much in common. Both would require health plans to:

  • accept an independent review of decisions to withhold medical care/service, requiring the health plan to cover care if so ordered by that reviewer
  • provide timely access to specialists, where applicable
  • provide access to an obstetrician/gynecologist
  • designate a pediatrician as a child’s primary care physician.
  • cover the cost of “second opinions” for cancer specialists
  • provide up to 90 days of treatment from health providers that have left the plan network for patients facing scheduled surgery, those being treated for serious/complex conditions and those receiving institutional care
  • cover emergency medical care that meets “prudent layperson” standards without prior authorization
  • cover medically necessary prescription drugs that may not be part of the plan’s list of covered medications

Gaps Remain

Despite those overlaps, the bills are most far apart on the critical issues of liability ? who and how much.

Critics of the Frist-Breaux-Jeffords bill say that it provides no remedy for denial of coverage based on eligibility. Realizing this “gap”, HMOs will move toward barring coverage based on a lack of eligibility, rather than a lack of medical necessity.

More critically, they argue that the $500,000 cap on non-economic damages ? and the lack of a provision for damages that punish behaviors – will not change the behavior of HMOs in dealing with these claims. Rather, they reason that the HMOs will find some denials are cost-justified.

On the other hand, critics of the McCain-Kennedy offering most often cite concerns that healthcare costs will increase significantly, as insurers pass on the higher costs of litigation defense. Just as significantly, there are concerns that employers will reduce healthcare coverage as a result of higher employer liability under the bill ? particularly for the growing number of companies that self-insure.

Supporters of the Frist-Breaux-Jeffords bill like:

  • the limits provided on damages of a non-economic nature
  • the requirement to resolve issues through an external review prior to filing a lawsuit
  • the relative consistency of federal law standards
  • protections for employers

Still, while the Frist-Breaux bill currently seems to enjoy the support of the White House, it has still drawn fire from those who say it doesn’t go far enough, while others are concerned that its reliance on federal standards may prove to be too limiting (see ).

You can contact your legislators on this matter by taking advantage of the American Benefit Council’s “Capitol Connection” at .