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"We think the legal accountability should be where the decision is made," says Thomas Reardon, former president of the AMA. "Physicians have been held accountable their whole practicing lives for taking care of patients and for making decisions. If they make an error in decision-making and harm results, a patient can go through the legal system and sue. But if a health plan does that, they're protected."
That's because of a 1974 law called the Employee Retirement Income Security Act (ERISA), designed to protect Americans from fraud and abuse in their private-sector pension-benefit plans. Back then, no one had ever heard of managed care, so managed-care plans were never mentioned in ERISA.
But more and more large employers started creating "self-insurance plans." And these increasingly popular plans were unintentionally exempted from state laws under ERISA, because they were considered a "benefit" supplied by an employer. That meant states could not tax or regulate them, and beneficiaries couldn't sue their employers or the plans for violating state malpractice laws.
"This law was originally intended to protect consumers, but it's been twisted and perverted to actually take away the rights of the doctor-patient relationship," says Ken Vuylsteke, chairman of the medical legal committee for the Missouri Bar Association and chairman of the HMO health-law committee for the Missouri Association of Trial Attorneys.
So on the campaign trail in 1998, bashing HMOs replaced kissing babies, and slogans from the Patients' Bill of Rights became rhetorical mantras: Let doctors make medical decisions! Let patients choose their own physicians! Let managed-care companies be accountable for their actions!
It was the issue of the political season, and for politicians like Ashcroft who faced re-election in 2000, health-care reform had to be addressed.
But the business and insurance communities, two of Ashcroft's biggest campaign contributors since his election to the Senate in 1994, reared up at the proposals in the AMA bill. "The biggest concern with the House bill is that it exposes sponsors of health plans to unlimited liability under 50 different state laws," says Paul Dennett, vice president of health policy for the Association of Private Pension and Welfare Plans. "There are literally millions of health-care decisions that are made every day, and any one of them could be subject to unlimited liability and not only threaten the employer's ability to offer health-care benefits, it could jeopardize the business itself."
So the business and insurance sectors rallied. The Business Roundtable, for example, an elite collection of CEOs of major U.S. corporations, was concerned that the cost of providing health insurance to their employees would increase if the reforms were made into law. It was a powerful group on Capitol Hill and included companies like Anheuser-Busch, Boeing, Eli Lilly & Co., Monsanto, Lockheed Corp., Philip Morris, AT&T and Shell Oil. In the previous election cycle, members of the Business Roundtable gave more than $35 million to the Republican and Democratic national committees and another $35 million in campaign contributions to candidates and their committees.
Worried by the momentum the Norwood-Dingell bill was gaining in 1998, the Business Roundtable went on the offensive and tripled its membership dues to pay for $27 million worth of advocacy ads against the proposal.
Meanwhile, the National Federation of Independent Business (NFIB) and the Blue Cross and Blue Shield Association organized 31 managed-care companies and businesses into an umbrella group called the Health Benefits Coalition (HBC) to fight the Patients' Bill of Rights. The HBC included the Business Roundtable, along with the American Association of Health Plans, the American Insurance Association, the U.S. Chamber of Commerce and other high-powered trade organizations such as the Food Marketing Institute, Associated Builders and Contractors, the National Restaurant Association and the National Association of Manufacturers.
It was a consumer advocate's worst nightmare: the biggest business groups in the country allied with the insurance industry. In 1998, they would spend $70 million to lobby against the health-care reforms, according to Public Citizen in Washington, D.C.
At stake were billions of dollars. Dennett, whose association belongs to the HBC, says many state laws have no cap on damage awards for these types of cases, so employers would be economically vulnerable. Moreover, companies that operated in multiple states would have to deal with different courts' interpretations of different state laws. "It would create chaos," Dennett says.
So in addition to lobbying pressure, the HBC fed policy suggestions to Republican lawmakers who were on its side. Earlier in the year, Senate Republican leaders, with input from the HBC, formed a "health-care task force," which by July came up with its own version of a Patients' Bill of Rights. Although it contained many of the provisions of the Norwood-Dingell bill, it only covered about one-third as many people -- those whose health plans were governed by federal law. More important, though, it would not allow consumers to sue their health plans in state courts.
What the bill did allow was heavy political cover in the form of issue ads, says Frank Clemente, director of Public Citizen's Congress Watch. Now business-minded Republicans had a "Patients' Bill of Rights" they could tell their constituents they had voted for. "Here in Washington, these industry organizations and corporations regularly meet with the staff and the senators to discuss political strategy," Clemente says. "So the head of the Senate might say, 'On such-and-such a date, we plan to bring up your Patients' Bill of Rights, so you guys need to start running a lot of ads to give cover to our guys who are going to vote your way but who are going to be hurt back home because of it. Smooth the way so it doesn't look so bad for them.'
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