For Patients' Rights, a Quiet Fadeaway
Hill Partisanship And HMO Changes Cooled a Crusade

By Amy Goldstein
Washington Post Staff Writer
Friday, September 12, 2003; Page A04

As the opening question of the final 2000 presidential debate, barely three weeks before the election, a man in the St. Louis audience asked why the government did not hold HMOs accountable for their decisions. George W. Bush replied that, as president, he would work for a federal law to protect patients' rights. "It's time for our nation to come together and do what's right for the people," he said that October night.

Nearly three years later, the government provides no federal safeguards for Americans in managed-care plans. Yet the crusade for patients' rights has faded from view -- both at the White House and in Congress.

Apart from one sentence in his State of the Union address in January, Bush has not mentioned the topic all year. The father of the patients' rights movement in Congress, Rep. Charles Whitlow Norwood Jr. (R-Ga.), resurrected legislation in March so half-heartedly that he decided not to seek any co-sponsors. In the Senate, the issue's main champions have not even gone through the motions of filing a bill.

It was two years ago that the drive to protect the nation's patients crested, when Bush and Norwood reached an agreement on the issue's most divisive aspect: how much recourse to give patients in the courts if their health plans deprive them of care. The House accepted the surprise deal, but more than a year of negotiations between the White House and the Senate quietly ended in an impasse.

According to politicians and policy specialists, the demise of the patients' rights campaign reflects the difficulty of compromises in Washington's intensely partisan environment -- even, or perhaps especially, on issues that become rallying cries for both parties.

Its disappearance also attests to the limited attention span of policymakers and advocacy groups as fresh issues emerge. At the same time, the issue has dimmed as a political cause in part because the health care industry, states and courts have produced changes even though Congress did not act.

The crusade "feels almost like ancient history," said Ron Pollack, executive director of the health care lobby Families USA, for years one of the most outspoken proponents of patients' rights legislation.

Starting in the mid-1990s, the House and Senate passed several bills that would have restricted the power of health maintenance organizations and other managed-care plans to determine how much care patients receive. In general, the bills would have guaranteed that patients could go to an emergency room when necessary and allowed children access to pediatricians and women to obstetrician-gynecologists without advance permission from their health plan. They also would have set up outside appeals systems to handle grievances.

To this day, Republicans and Democrats trade accusations over why such protections have not become law.

"We reached out to get a strong agreement on patient protections, but unfortunately powerful trial lawyers had too strong a grip on some Democrats," said White House press secretary Scott McClellan. Jim Manley, a spokesman for Sen. Edward M. Kennedy (D-Mass.), countered: "When you've got a situation where Republicans control all the levers of power in Washington, and the insurance industry [is] calling the tune, it would be impossible to get a good bill through the House and the Senate."

Sen. John McCain (R-Ariz.) faults Norwood for undercutting a House-Senate coalition through his deal with Bush. Norwood, in turn, says the White House miscalculated in insisting the president could persuade the Senate to accept the limits Bush wanted on lawsuits.

Regardless of who is right, such blame-seeking overlooks a feature of U.S. politics that Anthony Downs, a senior scholar at the Brookings Institution, has labeled the "issue-attention cycle." No matter how prominent, he said, domestic issues usually fade after a relatively brief time, even if the problems that catapulted them to attention are not solved.

Administration officials refused to discuss whether Bush still believes the country needs the patient protections he promised as a presidential candidate. They said the White House is pursuing a health care agenda that focuses on making care more affordable and accessible, through measures including new drug benefits for those on Medicare and tax credits for uninsured people who want to buy insurance. They also said there is more enthusiasm on Capitol Hill for such issues than for HMO regulations.

To some extent, the political momentum behind patients' rights has been drained by changes in the managed-care industry. Since the late 1990s, most of the nation's large health plans have dropped their central practice of requiring prior approval for medical tests, hospital admissions or visits to medical specialists. Instead, plans are simply requiring patients to pay more for the care they want.

"It's not so much that HMOs are responding to political pressure. It's based on their direction from customers -- employers and . . . consumers," said Paul B. Ginsburg, president of the Center for Studying Health System Change.

The move away from prior reviews has abated some of the anger that physicians have against managed care. The American Medical Association, one of the main lobbyists for HMO regulation, a year ago shifted its top legislative priority to limits on medical malpractice lawsuits -- a goal that Bush shares.

In a parallel trend, the nation's courts have become more accepting of lawsuits against health plans by disgruntled patients. Courts had long held that managed-care plans were largely shielded from litigation as a side effect of a 1974 federal law governing employee health benefits.

In recent decisions, however, the Supreme Court has ruled that patients can bring complaints over HMOs' coverage decisions in state courts; that states can adopt independent review systems to handle complaints against health plans; and that states may require managed-care companies to work with any doctor who wants to take part.

"The logical case for making the issue of suing managed-care companies a high-profile legislative matter is gone," said M. Gregg Bloche, a professor at the Georgetown University Law Center who co-directs a program in law and public health.

Still, there is little evidence that Americans have become substantially more satisfied with their health plans. The proportion of the public saying they would assign their plan a grade of "A" hovered consistently at about one-third from 1998 to last year, according to Harris surveys, while a roughly equal proportion has said each year they would give a grade of "C" or less. The idea of a federal law protecting managed-care patients also has stayed popular, supported by about four people in five, the Kaiser Family Foundation said.

What has shifted is the importance Americans place on such a law. In 1998, managed-care regulation ranked nearly as high a priority among voters as changing Medicare and extending health coverage to the uninsured. By last October, only 2 percent of voters said patients' rights would be important in determining their vote for Congress. "As a priority, this issue just fell off people's radar," said Robert J. Blendon, a Harvard University professor specializing in public attitudes toward health care.

Today, Norwood says that the changes in the courts have shifted his focus away from guaranteeing patients a right to sue. But the former dentist said in a interview that the other protections remain essential. "If you get down in the trenches and talk to folks who are seeing patients every day, the bottom line is [health plans] are still paying as little as possible."

Norwood said he is waiting for a proper moment to press the issue again. He believes his best chance could come next year if Congress proves unable to agree on Medicare changes or medical malpractice limits and his fellow Republicans are looking for a concrete health care accomplishment to carry into their campaigns.

"For the rest of my life I will be watching for an opportunity to get through patients' rights," he said. "Every day I wake up looking for an opportunity to get it done."