By Sarah Fenske
By Danny Wicentowski
By Lindsay Toler
By Danny Wicentowski
By Danny Wicentowski
By Jessica Lussenhop
By Lindsay Toler
By Lindsay Toler
For one, the normally conservative American Medical Association (AMA) had unleashed an ad campaign in Missouri that morning accusing Ashcroft of carrying water for the insurance industry by voting against the consumer-tailored Patients' Bill of Rights.
For another, a group of senior citizens picketed his St. Louis office that day, charging that the senator had accepted campaign contributions from the pharmaceutical industry in exchange for his repeated votes against a prescription-drug benefit for Medicare beneficiaries. The protesters arrived just days after the Kansas City Star implied in a report that a $50,000 contribution from the drug firm Schering-Plough was made to Ashcroft in exchange for his support of a patent-extension bill that would shower the company with hundreds of millions of dollars at the expense of consumers.
But then the day took a defining turn.
First there was Ashcroft's diplomatic and measured response to a maneuver engineered by Democrats, forcing reluctant Republicans to vote to create a prescription-drug benefit for Medicare recipients. "I think its intention is good, and I think many of its proposals appear to be in line with what the people would want and expect," Ashcroft said from the Senate floor, "but without having an opportunity to read it and inspect it, to understand it and understand its costs, I think it is unwise to vote in its favor."
Later that night, Ashcroft told the AMA that after listening to constituents' concerns, he would indeed support the group's Patients' Bill of Rights -- which, among other things, proposed holding insurance companies legally liable for their misconduct. It was a proclamation the AMA immediately applauded: "The Senator last night affirmed his support of the AMA's efforts to pass a bipartisan Patients' Bill of Rights," an AMA press release announced on June 23.
Two weeks later, an ad appeared in the St. Louis Post-Dispatch, a full-page, full-blown thanks to Ashcroft "for supporting a Patients' Bill of Rights that's right for Missouri." Although the ad wasn't paid for by the AMA or Ashcroft, its sponsors clearly supported the senator's votes on health-care reform.
"It's right to improve our health care," the ad stated in bold capital letters. "It's right to help the uninsured.... It's right to stand up to special interests.... It's right to protect businesses and families.
"Thanks, Senator Ashcroft, for working for the right health care reform."
Had the senator indeed shed his growing image as a politician owned and operated by big business, a politician who sidestepped Medicare reform and who ignored calls for help from constituents who felt herded and corralled into a managed-care system that wasn't working? On the surface, it appeared Ashcroft's detractors were all wrong about his positions on two of the most wide-ranging and controversial issues of the health-care debate.
But as events after June 22 would show, image became one thing and reality another.
During his "State of the Union" address in January 1998, President Bill Clinton called on Congress for a patients' bill of rights in response to swelling demands by the 161 million Americans with private health insurance that something be done about the disastrous state of managed care. In essence, bean counters, not physicians, were making treatment decisions, and when they made the wrong ones to save money, patients had no recourse.
Despite Congress' foul mood over Monica Lewinsky that year, Rep. Charles Norwood (R-Georgia) stood up and wildly applauded the president, even waved at fellow Republicans to do the same. Because many of his peers, particularly Ashcroft, were out of humor at the time, most of them ignored Norwood.
But they couldn't for long. The bipartisan patients' bill of rights Norwood sponsored that session with Rep. John Dingell (D-Mich.) -- and co-sponsored by 60 Republicans and Democrats -- was hailed by the AMA, the American Association of Retired Persons, Public Citizen and Families USA.
It was a sweeping measure. If a patient, for instance, chose to sidestep a gatekeeper physician and use a gynecologist or other specialist within the HMO network as her primary physician, the plan would have to allow that. If a person had severe chest pains and rushed to the nearest emergency room without calling the HMO first, the health plan would still be required to pay for the visit. If a pediatrician decided a child with cancer should see a specialist outside the patient's HMO network, the plan would be required to pay for that, too.
By far the most controversial provision of the bill, though, allowed consumers to sue their health-care plans in state courts for damages resulting from the unnecessary delay or denial of treatment.
The right to sue in state courts was a critical provision. Currently, about one-third of the 161 million Americans covered by private health insurance are in "self-insured plans," which means their employer sets aside a pool of money to pay for the workers' health-care needs and hires a managed-care company to administer it. Under federal law, beneficiaries in self-insured plans cannot sue their employer or managed-care company in state court if they are denied medically necessary treatment. They can only sue in federal court, and if they win, they can only collect the cost of the denied treatment. In short, the only risk for bad medical decisions made by employers or managed-care companies is that they may ultimately only have to pay for the denied treatment. Federal law does not allow beneficiaries to sue for punitive damages.
"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.'
"That's what they do," Clemente continues. "They run the ads in districts where people are up for re-election. The ads put the candidate's name out there and make it sound like he's doing the right thing, which helps him get re-elected. They're designed to cover a bad vote. They're taken out to cover politicians."
John Ashcroft, who from 1994-98 accepted more than $600,000 in campaign contributions from the Business Roundtable and about $250,000 from the health-insurance industry, became one of the bill's most zealous supporters.
But before Republican senators got their business-backed bill to the Senate floor for debate, Democrats brought up their own version of the Norwood-Dingell bill. Fifty of 55 Republicans, including Ashcroft, voted to table it, cutting off any debate or a vote on the bill.
Ashcroft's press offices in St. Louis and Washington, D.C., did not return phone calls for this story.
For the next nine months, the HBC poured millions of dollars into issue ads on radio and TV for Republicans who said they would vote for the business-backed bill. The ads depicted the Norwood-Dingell Patients' Bill of Rights as a big-government boondoggle. They warned that if consumers were allowed to sue HMOs, the cost of health insurance would rise so significantly, many people would lose their health coverage.
In addition to its ad campaign, the HBC began making what, by June 1999, would add up to $1.3 million in campaign contributions. It was an intense front, Clemente of Public Citizen says, for more reasons than the alleged increase of health-care costs. "This goes way beyond health care," Clemente says. "This goes to the heart of the ability of the government to do any regulatory stuff. It's more ideological. It's 'Can the government essentially pass laws that require new regulations?'"
In the first six months of 1999, Ashcroft, a champion of cutting back government regulations, accepted $20,500 from HBC members, the seventh-highest recipient of HBC money in the Senate, according to the Center for Responsive Politics in Washington, D.C.
When the HBC-backed bill finally came to the Senate floor that July, Ashcroft offered what would be the most controversial part of the entire proposal. His amendment was actually an amendment to another amendment offered by Sen. Dick Durbin (D-Ill.). Under Durbin's proposal, all consumers with private insurance could sue their HMOs in state courts. They could also sue their employers if they had a direct say in what services were or were not provided.
Instead of allowing consumers to sue, Ashcroft's amendment required HMOs to provide an appeals process. In other words, a patient who felt he or she had been denied medically necessary care could appeal to an outside reviewer -- a physician -- who would decide the matter. If the reviewer decided the HMO had erred, it would be required to provide the denied service and no more than $10,000 in punitive damages.
On the surface, the amendment looked like a consumer victory, and Ashcroft would later write in a letter to Sen. Don Nickles (R-Okla.), the assistant majority leader: "I offered this amendment in response to concerns from both Missouri physicians and the American Medical Association." A subsequent press release from his office stated: "Included in the Senate-approved Patients' Bill of Rights legislation was a provision written by Senator Ashcroft, and supported by the American Medical Association, that gave ... Americans new legal rights to timely health care."
Asked whether Ashcroft indeed offered an amendment that reflected the AMA's position, Reardon responds bluntly: "He did not."
Although Ashcroft's measure required a reviewer who was a physician, it allowed the managed-care plan to hire the reviewer. Even then, the reviewer could only decide whether the delayed or denied treatment was "medically necessary" as defined by the managed-care plan. "It's totally unacceptable," Reardon says. "Now the health-care plans can say, 'Physicians are making medical decisions.' Well, the allegiance of the physicians they hire will be with the health plan. You're talking about an external reviewer hired by the health plan who works for the health plan.
"The external review should be done by an independent body that is external and independent, and the decisions it makes should be binding. It's unacceptable for the health plan to hire the reviewer."
Vuylsteke, from the Missouri Bar Association, agrees that Ashcroft's amendment isn't as consumer-friendly as it seemed: "The trouble you have with these appeals panels is that they are not timely in many cases, and, of course, you're talking about trying to appeal something when a person is really, really sick. They're going to have to go out and hire an attorney and so forth while they're sick. The whole thing is designed to put more pressure on a patient and discourage them from questioning the decisions of the health plan."
On July 15, 1999, Ashcroft's amendment was adopted by the Senate anyway, as was the entire HBC bill. The vote was 53-47.
Meanwhile, over in the House, the Norwood-Dingell bill was scheduled for a vote, and the AMA didn't spare a dime on its own campaign to get it passed. In August 1999, the group took out newspaper ads in 37 cities calling on House members to support the Patients' Bill of Rights. In a press release, Reardon issued the organization's most forceful statement yet: "I'd like to alert patients and the public that strong forces are at work against them on the issue. The insurance industry has diverted more than $100 million from patient care to pay for an irresponsible propaganda campaign intended to scare patients and intimidate members of Congress."
On Oct. 7, the House passed the Norwood-Dingell Patients' Bill of Rights 275-151, with 68 Republicans voting in favor.
As campaign year 2000 began in earnest, the House and Senate versions of the Patients' Bill of Rights were on a collision course. The key differences would have to be resolved in a joint conference committee. And groups like the Business Roundtable began a media blitzkrieg to tout the Senate version -- and to pay back friends in the Senate like Ashcroft.
"Congress is working on health-care reform," says a narrator as the TV ad, which aired on St. Louis stations, opens. "But what's right for you?" Then a worker in a uniform says: "Hey, watch the cost. I can only afford to pay so much." Next a shop owner asks: "What about the millions who don't have insurance? Help them." Finally a construction worker adds: "Just let doctors make medical decisions -- that's their job." The narrator closes by saying: "Sen. Ashcroft has voted for health-care reforms that are right for Missouri families and employers. Thanks, Sen. Ashcroft. Good job."
According to published reports, the Business Roundtable spent $500,000 on the television ads for five Republican senators, including Ashcroft.
On June 8, as the Senate finalized the Defense Authorization Bill, Democrats pulled a fast one by offering the AMA's Patients' Bill of Rights as an amendment. As it had before, it proposed giving all 161 million Americans with private insurance freer access to emergency rooms and medical specialists, plus the right to sue health plans in state courts.
Republicans, including Ashcroft, voted to table the amendment, but this time they did it with only one vote to spare -- four Republicans sided with the Democrats. Seeing the close vote, the AMA immediately zeroed in on three Senate Republicans who had voted against the bill and who faced tough Democratic challengers in their re-election bids back home. "A lot of these people are going to be voted out," says Reardon of the AMA, "and I think Sen. Ashcroft is an example of a very tight race. Eighty percent of the people want this, and if he doesn't support it, we're going to let the people know. These guys are feeling the pressure."
Ashcroft, now officially at the top of the hit list, was told to expect full-page newspaper ads starting on June 22 condemning his repeated votes against patients' rights.
But public pressure was crashing in from all sides, especially for lawmakers like Ashcroft who faced healthy challengers in the November 2000 election. At the same time, the working public's cry for managed-care reform hit its crescendo, as did senior citizens' call for a Medicare drug benefit.
That was because Medicare does not pay for prescription drugs and the price of pharmaceuticals was skyrocketing. For about one-third of the 39 million beneficiaries, the ones without private supplemental insurance to cover drug costs, the out-of-pocket expenses for many drugs are twice as much as they are for insurance companies with bulk-buying power. And the situation is projected to only get worse. According to a recent New England Journal of Medicine editorial, drug costs are increasing by an average of 15 percent every year and will soon surpass the cost to insurance companies of physicians and hospitalization.
But it's not just because Americans are using more drugs. "The top 10 drug companies are reported to have profits averaging about 30 percent of revenues, a stunning margin," the Journal editorial states. "Over the past few years, the pharmaceutical industry as a whole has been far more the profitable industry in the United States." The editorial adds that "the pharmaceutical industry enjoys extraordinary government protections and subsidies."
So the demand to help Medicare beneficiaries -- who tend to be registered voters -- pay their rising drug bills also meant reining in the excesses of the pharmaceutical industry in general.
"We are concerned about the monopoly position that drug companies have over pharmaceuticals in this country, and we want some way for prices to be moderated," says Dan Schulder, legislative director for the National Council of Senior Citizens in Washington, D.C. "What has happened over the past 20 years has been a cost shift in terms of profits from other countries, where the governments have forced down prices, to this country, where the government has a hands-off policy. So people here pay an exceedingly high price for pharmaceuticals."
Congress jumped on the issue like a fumbled football, and at least 30 bills were introduced last year dealing with Medicare and the prescription-drug benefit. In general, Democrats proposed offering a blanket benefit to all Medicare recipients, with low copays and deductibles. The Republicans, predictably, looked to the industry for a private-sector solution.
Horrified by the thought of the Medicare program's bulk-buying power's being used to push down drug costs and profits, the Pharmaceutical Research and Manufacturers of America (PhRMA), the main trade association, pushed for federal subsidies to private insurance companies, which would then theoretically offer cheaper drug coverage.
Mila Becker, legislative representative for AARP in Washington, D.C., says there was frenzied lobbying on the issue: "This is really intense, because this is one of the major focal points of the Congress. What is interesting is that the consumers' attention has definitely been caught here. And it's not just 85-year-olds. It's the consumers taking care of their parents or getting close to retirement age as well. It's a huge group of people."
The pharmaceutical industry, led by PhRMA, had already spent $74 million for lobbying expenses in 1998. By the end of 1999, it had increased its spending by 13 percent and hired 297 lobbyists to work against the Democrats' drug-benefit proposal. According to Public Citizen, from 1997-99, the pharmaceutical industry spent almost $234 million on lobbying expenses alone.
The investment soon paid off. Republicans countered the Democrats' proposal by introducing bills to provide the federal subsidies the pharmaceutical industry wanted.
On March 25, 1999, as the Senate debated a blueprint for the federal budget, Democrats offered an amendment to create a reserve fund to pay for a Medicare drug benefit. Ashcroft, who got more than $113,000 in campaign contributions from the pharmaceutical industry during his Senate term, voted with the majority to table the proposal.
But the issue wasn't about to go away, so in July 1999, PhRMA established Citizens for Better Medicare -- a lobbying coalition of pharmaceutical interests that would, in the year to come, spend more than $70 million for TV, print and radio ads, along with a telemarketing and direct-mail campaign. The main thrust, says Dan Zielinski, spokesman for Citizens for Better Medicare, was nothing short of privatizing Medicare and allowing beneficiaries to choose from a "menu" of HMO plans. Adding an expensive drug benefit, he says, would only worsen the economic stress on a system already on the path to insolvency -- and might result in private-sector retirement plans' dropping their own coverage.
But because there wasn't much taste on Capitol Hill for the radical notion of privatizing Medicare, the organization settled on simply trying to privatize the drug benefit instead. "All of the polls say that a prescription-drug benefit for Medicare is a leading issue," Zielinski says. "So I think there's a lot of posturing among politicians to score political points. It's a hot-button issue, and what it boils down to is sound bites of people saying, 'This group over here doesn't want to help seniors,' which isn't true. Everyone wants to help seniors, but how you do it is very important. Just because you may oppose a certain approach doesn't mean you oppose the benefit in general."
At the end of July 1999, Sen. Edward Kennedy (D-Mass.) tried once more to create a Medicare reserve fund to pay for drugs. As the Senate debated how to use budget surplus money to cut taxes -- including a $50 million tax credit for converting chicken manure into electricity -- Kennedy offered an amendment to create a reserve fund before any tax cuts were doled out. "These Republican tax bills have $230 billion in new tax breaks for people with incomes over $300,000 a year," Kennedy said on the Senate floor. "They reinstate the three-martini lunch. They are sweetheart deals for the insurance industry, the timber industry, the oil industry and large multinational corporations. But there is not one dime for Medicare prescription drugs for senior citizens."
Ashcroft, along with 54 other senators, voted against Kennedy's amendment. (For the record, Ashcroft also voted against the $50 million tax credit for turning chicken manure into electricity.)
Soon Citizens for Better Medicare launched another huge media campaign against the Democrats' proposal for a Medicare drug benefit. These featured "Flo," an attractive, active senior citizen who tells viewers from the bowling alley where she and the "the girls have fun together" that she doesn't want big government in her medicine cabinet.
During the last six months of 1999, the health-care industry, with pharmaceutical manufacturers leading the pack, spent $117 million on lobbying expenses -- more than any other lobbying group in the country. This didn't include the $13.8 million the industry is expected to give in campaign contributions by the end of the 2000 election cycle (73 percent to Republicans) or the $7.5 million in soft money (80 percent to Republican Party committees.) In April, a vote on the Medicare drug benefit popped up for the third time. The proposal, made during a debate on budget priorities, required the Senate to consider a Medicare drug benefit before cutting taxes. Although six Republicans supported the Democratic measure, it failed. Ashcroft again voted against it.
The next month, with still more Medicare votes on deck, Citizens for Better Medicare co-sponsored a Web site titled "Call Your Grandma," which allowed 10 free minutes of phone time to people if they called their grandmothers to "alert them about Medicare's imperiled future."
By June 22, the airwaves were saturated.
As the battles over a patients' bill of rights and a Medicare drug benefit wore on, Ashcroft, along with eight Republican colleagues, quietly co-sponsored something called the Drug Patent Term Restoration Review Procedure Act of 1999. Among other things, the measure would extend the patent terms of seven prescription drugs, including the extremely popular allergy drug Claritin, manufactured by Schering-Plough, a subsidiary of the Schering Corp. If extended for three years as the bill proposed, the patents would keep generic equivalents at bay, meaning consumers would pay substantially higher prices and companies like Schering-Plough stood to make an additional $11 billion in three years' time. Of that, at least $2.5 billion would come from government health-care programs, including the Department of Veterans Affairs. If a Medicare drug benefit was ever approved, the $2.5 billion would double.
In 1999, says Public Citizen, Schering-Plough spent $9 million lobbying Congress, more than any other pharmaceutical company would spend that year.
"The drug companies simply want to extend their monopoly," says Schulder of the National Council of Senior Citizens. "The federal government theoretically gives a patent to inventors, because those companies say, 'We need some guarantee that our expenses in developing the product will pay off.'
"But the pharmaceutical sector is the most profitable on Wall Street by far. They are doing quite well with their current 17-year patent, but they want to extend it. We oppose that extension. Once Ashcroft and others get that approved, the gates will be opened to extend all patents."
One week after Ashcroft signed onto the bill (July 27, 1999), it was funneled to a subcommittee of the Judiciary Committee, which hears patent issues.
Ashcroft chaired the committee.
The next month, Schering-Plough contributed $50,000 to the Ashcroft Victory Committee. In December, it contributed an additional $1,000 to the senator's main campaign committee.
Ashcroft's critics immediately charged him with playing a pivotal role in promoting corporate welfare. "Our view is that Sen. Ashcroft is a key player in this thing," says Brad Cameron of the Campaign for Fair Pharmaceutical Competition, a coalition of generic-drug makers and consumer groups. "He has supported this from the beginning, and he refuses to do anything to stop this kind of monkey business.
"This bill is nothing more than a private relief bill for a wealthy corporation. There is no constituency anywhere in America, and certainly no constituency in Missouri, for this bill," Cameron says. "We believe that Sen. Ashcroft is -- well, let me put it more diplomatically -- that he is the one senator in America who can stop this."
And by June 22, after the Kansas City Star reported Schering-Plough's $50,000 campaign contribution to Ashcroft, the news was fully out.
On June 22, the AMA made good on its promise by placing an ad in several newspapers, including the Post-Dispatch -- albeit a diplomatically worded one: "With the shift of just one vote, Senator John Ashcroft's vote, the U.S. Senate could pass the real Patients' Bill of Rights that the people of Missouri want."
That night, Ashcroft announced that he would support a patients' bill of rights that held insurers responsible for misconduct. Ashcroft issued a press release saying he "commended the American Medical Association for helping focus public attention to the need for such legislation" and adding that he supported laws that "put doctors and patients in charge of their health care."
The AMA was thrilled. "The senator last night affirmed his support of the AMA's efforts to pass a bipartisan Patients' Bill of Rights," the AMA announced the next morning. But two weeks later, when Democrats tried to amend the Patients' Bill of Rights to the Labor, Health and Human Services and Education appropriations bill, Ashcroft switched back. He again offered amendments that allowed managed-care plans to hire and pay an "independent external reviewer" to adjudicate consumer appeals -- similar to the amendment he offered before with the backing of the insurance and business lobbies.
This time, however, Ashcroft's amendment allowed the patient to sue the managed-care plan in federal court for unlimited economic damages and no more than $350,000 in punitive damages. But there was a catch: Patients could sue only if the insurance company didn't comply with a finding of negligence on the part of the "independent external reviewer," which it hired anyway.
Ashcroft's new amendment, says Vuylsteke of the Missouri Association of Trial Attorneys, is deceptive. Although it allows patients to sue in federal court, it sets an incredible burden of proof on them. "It's another roadblock on the way to getting needed care," he says. "Once you go to federal court, your rights are still severely curtailed, because you have to bear the standard of proof that the HMO acted recklessly in denying care as opposed to negligently. Well, that's a pretty heavy burden for anybody to meet. So it's really illusory and, in fact, would reduce the rights consumers already have."
But once again, Ashcroft's amendment and the entire business-backed version of the Patients' Bill of Rights was approved, 51-47, by the Senate.
The AMA called the Republican measure a "sham" and a "transparent attempt to subvert the will of the American people for a real Patients' Bill of Rights." Meanwhile, over in the House, Norwood and 20 other Republicans held a press conference saying they would never support the Senate version of the bill.
However, Ashcroft's press releases continued citing the AMA's support of his amendments. After listing the vague terms of his measure -- "ensuring that patients get care when they need it," "medical decisions that are made by independent physicians, not by insurance claims adjusters" and mandates that "HMOs abide by strict timetables and face penalties for non-compliance with findings by independent physician reviewers" -- one press release stated that "Ashcroft drafted these provisions at the request of the American Medical Association."
Then, on July 5, the full-page "Thanks, Senator Ashcroft" ad appeared in the St. Louis Post-Dispatch. In addition to praising Ashcroft for supporting the "right" Patients' Bill of Rights, it thanked him for "making sure doctors make the medical decisions," for "watching costs" and for "working to ensure that family premiums are kept affordable." At the bottom of the ad were the names of the 15 groups that paid for it -- the Business Roundtable, the National Federation of Independent Business, the National Association of Manufacturers, the National Restaurant Association, Associated Builders and Contractors and others who had spent millions to kill the AMA's bill. Since then, the same groups have paid for TV ads that also thanked Ashcroft for supporting the "right" Patients' Bill of Rights.
And in the current election cycle, Ashcroft has accepted at least $382,000 from members of the Business Roundtable, $67,000 from the insurance industry and $48,000 from the other members of the HBC.
June 22 was also the day when Democrats forced a fourth vote on a Medicare drug benefit in the Senate. Standing on the Senate floor, Ashcroft claimed he couldn't support the measure because he hadn't had time to read it.
Sen. Dick Durbin stood up and chastised Ashcroft: "For those who think they can vote against this prescription-drug benefit and go home and explain that it was such a new idea and they didn't have a chance to read it, I can tell them the president has had a proposal here for years. This idea has been out here for years. You have been in control of the committees and in control of the Senate. We have waited for a prescription-drug benefit, but there is nothing to consider from the Republican side." The bill died in a 51-48 vote.
But Ashcroft, who has taken at least $81,500 this election cycle from the pharmaceutical industry (including $50,000 from Schering-Plough), continued stumping for the industry's proposal to offer federal subsidies to insurance companies to provide the drug benefit.
Meanwhile, by the end of July, Public Citizen had issued a report titled "Prove It Isn't So, Sen. Ashcroft" regarding his support of the Claritin bill, the Post-Dispatch printed a scathing editorial titled "The Senator from Claritin," and the Christian Science Monitor published the story "Profits, Politics, and a Drug Patent." In addition, Ashcroft's challenger to his re-election bid, Gov. Mel Carnahan, began handing out press-release indictments like party favors.
Cameron, of the Campaign for Fair Pharmaceutical Competition, says that he expects Ashcroft and other supporters of the bill to try attaching it in conference to a spending bill that has already passed both House and Senate. That way, he says, there's little anyone can do to stop it.
"These conference-committee meetings are always private and behind closed doors, so one of the conferees -- appointed by the House and Senate leadership -- will slip this provision in at the request of Schering-Plough," says Cameron. "Once the conference report goes back to the House and Senate, they can only be voted on in their entirety. There is no ability to amend or delete anything. Since appropriations bills are required by law to pass every year, they're trying to do this in the cover of the night."
Meanwhile, Ashcroft is busy polishing his image. "Key Issues: Promoting Affordable Healthcare," one window on John Ashcroft's campaign Web site, currently reads. "Ashcroft understands the importance of quality healthcare in our lives. His work for health care includes a Patients' Bill of Rights, help for seniors with the cost of prescription drugs, better health care for women and children...."
See sidebar, Unhealthy Relationship, for more information.