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WASHINGTON -- The stage is set for a congressional showdown on patient protection legislation.
This week, both the House and Senate are set to begin consideration and possibly vote on measures that, among other things, would give enrollees improved access to health care providers and services.
Last week, Senate Republican leaders, preparing for a floor vote, unveiled many of the details of a measure they will bring to the full Senate.
That measure includes provisions that would: give patients in managed care plans direct access to pediatricians and obstetricians/gynecologists; mandate that employers in certain situations offer employees more than just a closed-panel provider network; give patients better access to emergency room treatment; mandate new internal and external independent review requirements of coverage denial decisions; and expand eligibility for tax-favored medical savings accounts. Those provisions in similar form all are part of legislation earlier endorsed by a House Republican health care task force.
But the Republican measures differ markedly in one key area from a patient protection proposal advanced by Democrats: While the Democrats' bills would modify federal law to allow patients to sue employers under state malpractice laws, the Republican bills would continue to protect employers from malpractice actions.
That difference has not gone unnoticed by legislators.
"You simply cannot sue your way to better health care quality," said Sen. Susan Collins, R-Maine, referring to the Democratic bill.
Democrats, for their part, have derided the Republican efforts. Sen. Edward Kennedy, D-Mass., for example, described the Republican patient protection bills as "notable for the nobility of sentiments expressed -- and the emptiness of the proposals announced."
Still, amid the political sniping, some Washington observers see a potential for compromise that could lead to the enactment of patient protection legislation before the session expires in fall.
While there are many political obstacles to such legislation, "I think there is pressure on Congress to do something rather than nothing," said Frank McArdle, a consultant with Hewitt Associates L.L.C. in Washington.
"Both sides feel it is imperative to get something passed," concurred Henry Saveth, an attorney with William M. Mercer Inc. in Washington. "With the fall elections coming up, both parties have found that the public hates something -- managed care abuses -- as much as the IRS."
Democrats, while certain to continue to press for expanded employer and health care plan liability, ultimately could vote for a patient protection bill without that feature if they perceive it as helpful to health care plan enrollees, predicted Mr. McArdle.
As the majority party in the Senate and House, Republicans will take the lead in trying to get their versions of patient protection legislation passed. While there are common elements to the House and Senate Republicans' patient protection measures, there are significant differences that will have to be ironed out if both chambers pass measures.
For example, certain improved health care access provisions in the Senate Republican bill, such as giving enrollees an out-of-network option and direct access to OB/Gyns, would apply only to employers with self-funded plans. And the out-of-network mandate would not apply to employers with fewer than 50 employees.
Senate Republicans say such protections do not have to be extended to fully insured plans because insurers and health maintenance organizations offering health care plans to employers are regulated by the states and do not need to be subject to a new set of federal rules.
The structures of the POS requirements also differ in the bills.
Under the House Republican measure, closed-panel HMOs would be required to offer employers a POS option. Employers, though, could reject the POS option for their plans at the time they purchase coverage. If an employer declined the POS option, the HMO would be required to offer a POS as a supplemental coverage that could be purchased by employees.
By contrast, the Senate Republican bill would apply the POS mandate only to self-funded employers offering a closed-end provider network. In that situation, the employer would have to give employees another health plan option.
Another difference in the two measures is that the Senate Republican bill would repeal a 1984 Internal Revenue Service rule, often known as "use it or lose it," that requires employees to forfeit at the end of each year unused balances in their flexible spending accounts.
The Senate bill would allow employees to transfer up to $500 in unused funds in their FSAs at year-end to their 401(k) plans or individual retirement accounts. Alternatively, employees could roll over unused balances -- up to $500 -- and apply the balance toward health care-related expenses in the following year. The House bill currently lacks a comparable provision.
The House Republican bill also differs from the Senate proposal by including a $250,000 cap on non-economic damage awards in medical malpractice suits as well as a provision that would allow employers to band together to cover their health care risks through trade association plans that would be exempt from state regulation. Neither provision is expected to survive.
Provisions in the Senate Republican patient protection bill that are not in the House measure include:
* Continuity of care. The bill would require health care plans to allow patients with certain extended medical conditions to be able to continue to receive care from a physician treating them after the physician left a network.
* Mastectomy. The Senate bill would leave it to physicians and patients to decide on an appropriate length of stay in a hospital after a mastectomy.