Bush in corner on patients' rights

As the fight over a patients' bill of rights moves from the Senate to the House, President Bush is getting his first taste of just how much the power dynamic in Washington has changed.

Despite his repeated veto threats, Democrats and a handful of moderate Republican senators passed a bill on Friday extending greater protections to patients, including the right to sue their HMOs.

This has left Mr. Bush looking to the GOP-led House to pass a bill more to his liking, in the hope that lawmakers from both houses will reach a compromise when they meet in conference. Otherwise, he will face the uncomfortable proposition of vetoing a bill that the majority of Americans support.

The predicament represents a striking role reversal for the president. In a few short weeks, he has gone from dictating the agenda - pushing his tax-cut plan through Congress with remarkable speed and authority - to a more defensive posture.

As he tries to counter coming Democratic measures, he may rely more and more on Republicans in the House, as well as his own veto power.

But while opposition can be a successful political strategy for a president, as Bill Clinton demonstrated, it could pose problems for Bush - especially as Democrats take up popular issues such as protecting consumers or the environment.

"The ball is now in the Democrats' court," says Jeffrey Berry, a political scientist at Tufts University. "The Republicans have to find a way to regain the initiative on issues the people care about and where the president has some advantage."

But this may be difficult, he adds, given the popularity of the Democrats' current agenda. "We are not driven by big business the way we used to be. People take prosperity for granted," he says. "In that environment, environmental groups and consumer groups do quite well."

Indeed, the Democrats' relative ease in pushing a patients' bill of rights through the Senate reflects the current popularity of consumer-protection measures. Congress has actually been grappling with a bill of rights for the past five years, as polls repeatedly showed the public favoring greater regulation of HMOs. Bush embraced the issue on the campaign trail but did not make it a top priority as president.

No. 1 on Democrats' agenda

When the Democrats took control of the Senate after Sen. James Jeffords defected from the GOP, majority leader Tom Daschle announced it would be the first item on their agenda.

Significantly, many Republicans had already come to agree with Democrats on most aspects of the bill, including provisions guaranteeing access to things like emergency care, medical specialists such as obstetricians and pediatricians, and clinical trials for experimental treatments.

The main sticking point has been over the question of liability. Democrats have insisted that patients must have recourse to sue their HMOs to ensure their rights are protected. The bill passed by the Senate allows patients to sue in state and federal courts. It places no limit on damages for pain and suffering, and caps punitive damages at $5 million. It does however, protect employers from lawsuits, under a compromise amendment negotiated by a bipartisan group led by Sen. Olympia Snowe (R) of Maine.

But Republican opponents of the bill contend it will lead to a flood of lawsuits that will drive up the insurance costs and cause some Americans to lose coverage.

"What you've got is a new legal regime in healthcare," says Robert Moffit, director of domestic policy studies at the Heritage Foundation in Washington. Higher insurance costs may lead many small businesses to stop offering their employees healthcare coverage, he says.

Equally significant, Mr. Moffit adds, is the bill's regulatory impact. "The patients' bill of rights achieves its goals through massive regulation," he says. "It extends federal rules, guidance, and control over virtually every aspect of private healthcare," which will drive up costs even further.

Yet the bill does nothing for the 43 million Americans without health insurance - a fact Republicans have emphasized throughout the debate. Still, the Senate bill will provide significant protections for the millions of Americans who do have health insurance, says Tricia Smith, director of health issues for the federal affairs division of AARP here.

"There's real potential for the bill to be meaningful for consumers," she says. She calls the bill's creation of an external review authority "extremely important," since, with a review board looking over their shoulder, insurance providers may be less likely to wrongfully deny care.

What Bush favors

For now, Bush is backing a version of the bill put forward by the House GOP leadership, which he says will keep down litigation costs. This version limits patients' ability to file lawsuits, does not allow for punitive damages, and caps awards for pain and suffering at $500,000.

But the bill faces a rival version in the House that is much closer to the Senate's bill - and that has passed the House before. If Bush is unable to persuade enough Republicans to switch their vote to his preferred bill, he will have to decide whether to exercise his veto power.

On the one hand, vetoing the measure presents risks. Polls show a majority of Americans support a patients' bill of rights, and it may only contribute to the image of Bush in the pocket of big business - in this case, insurance companies.

But it could be a good opportunity for Bush to show his backbone. Although a veto may "reinforce the image of him in bed with the HMOs ... he ought to think about it, because he's already taken a beating [on the issue]," says Mr. Berry. "It's important for a president to show he's not going to get rolled all the time."

(c) Copyright 2001. The Christian Science Monitor