The Congress that made the impeachment of President Clinton its first item of business is now approaching its end with little to brag about. During the impeachment, I disagreed with liberals who thought the proceedings were an unmitigated disaster. Anything that distracted this Congress from actually passing legislation seemed to me worth public encouragement. Yet even after the impeachment frenzy was over, the danger of serious congressional accomplishment turned out to be minimal. The Republicans themselves have been too divided to get much done; as the saying goes, the right hand doesn't know what the far right hand is doing.
Now, however, there is at least a faint possibility of a positive change in the political dynamics. Recall that as the 1996 election approached, a Republican Congress hoping to preserve itself produced a flurry of legislation that surprisingly included an increase in the minimum wage and the Kassebaum-Kennedy health insurance reforms. As the 2000 election approaches, a Republican congressional majority with little to show for itself also has an incentive to make a deal on health insurance reforms that have primarily enjoyed Democratic support. In the end, there may be no compromise, but if there is, the resulting legislation could genuinely improve health care.
Last year, the House and Senate passed separate patients' rights bills in response to the widespread public anger about managed care plans' restrictive policies and arbitrary decision making. While differing on key issues, the bills would establish a variety of specific rights to coverage, information, and procedures. For example, the legislation would give patients a right to emergency care from out-of-plan providers in situations that a prudent layperson would deem an emergency. It would require disclosure of considerable information to consumers about the policies followed by health plans and their relationships with providers. And it would establish a right to independent, external review of managed care plan decisions.
In the House, thanks to Republican defections, Democrats were able to pass a significantly more liberal bill than the one that came out of the Senate. The contrast is evident in nearly every provision. The Senate bill, for instance, would allow managed care plans to select the external reviewers of their own decisions, while the House would have an independent body choosing the reviewers. In what are widely viewed as the two biggest differences, the House bill expands patients' rights to sue health plans for damages after reviews are exhausted, while the Senate bill leaves liability law unchanged. And the House bill applies to 161 million people with health insurance, while most of the provisions in the Senate bill are limited to the 48 million in "self-insured" employer plans that fall under the federal Employee Retirement Income Security Act (ERISA).
The House-Senate conference committee has yet to address the most critical differences between the bills, and as I write in the second week of May, what initially seemed like a promising negotiating process has apparently stalled. One senior staffer to the Democrats told me that they worry that the Republicans--who have never been enthusiastic about the legislation--may be stringing them along only because they don't want the political fallout from killing patients' rights. One senior staffer to the Republicans told me that the negotiations will fail only if the Democrats in the House would rather have an election issue than a bill. In fact, the Republicans have raised a great deal of money from insurance companies and employers that oppose the legislation. Both sides have political interests that favor burying patient protections. But the prospect of an election, like a hanging, may concentrate the mind and persuade those running for re-election that an achievement the voters actually care about might come in handy when they ask, "Remind me, what have you done for us?"
The larger significance of this legislation is the development of a national framework of rights in health care. That is why liberals should hope for a deal. To be sure, the final negotiations could produce compromises that vitiate particular rights, but some last-minute sleeper provisions may turn out to be valuable. In one of the last maneuvers over the Kassebaum-Kennedy legislation in 1996, Congress gave the administration authority to establish regulations to protect the privacy of personal health information if Congress itself did not enact legislation within three years. When Congress failed to meet its own deadline last August, the Clinton administration seized the opportunity, and after years of deadlock, we now seem likely to get federal health privacy protections--imperfect though they may be. The counterpart in this year's legislation may be some little-heralded provisions in the Senate bill that prohibit health plans from discriminating in enrollment or premiums on the basis of genetic information
Any patients' rights bill that passes this year will fall far short of the comprehensive reform of health care that the president and many others advocated seven years ago. But while the current legislation does not cover the uninsured, it covers a lot of the ground of the original proposals. Some might consider it a dismal reflection on the Clinton presidency that after beginning with such large ambitions for health care reform, it may end with reforms that are comparatively modest. But we are never going to get on with universal coverage unless we get through these issues first. As one of those involved in the battles in Washington says, the status quo is always the second choice for too many health care reformers--and that is all they get. In this instance, the second choice should be an imperfect bill that at least establishes the legal foundations for health care rights. ¤