- The Washington Times - Monday, July 2, 2001

At the beginning of the debate over the Kennedy-McCain patient bill of rights, it was apparent that Senate Majority Leader Tom Daschle was engaged in a power play with the White House.

The bill was Mr. Daschle's first test as the Senate's new leader, and he made it clear to his caucus that the Democrats could not afford to lose this one. They could not back down in the face of President Bush's veto threat. Democrats had to stick together to defeat every Republican assault on a bill that seeks to win in the courts through expanded lawsuits against insurers, health maintenance plans and employers what Democrats cannot win in Congress.

Texas Republican Sen. Phil Gramm's amendment to shield employers from costly lawsuits was crushed 57-43. Even Colorado Republican Sen. Wayne Allard's less sweeping amendment, which would have protected small businesses with 50 or fewer workers from ruinous lawsuits was killed 53-45.

The White House soon realized it would not get any substantive changes in a bill that would impose an array of mandates on the health-care business and, worse, open it up to a wave of litigation that would make the government's tobacco liability wars look tame by comparison.

Besides, the administration's offensive in the Senate made Mr. Bush look as if he were against something as humane as "patients' rights." He was seen fighting the Kennedy-McCain bill, rather than as on the side of patients and calling for a set of reforms to make sure that insured people were not denied needed health care treatment.

An axiom in the art of legislative craftsmanship is that you cannot beat something with nothing, and the White House needed a bill they could embrace.

Sooner than you could say the words "sensible alternative," the administration in a sharp strategy change had House Speaker Dennis Hastert order a bill that included most of the Senate bill's patient protections, but which limits the use of lawsuits until all other internal and external independent reviews have been exhausted.

Produced by Reps. Ernie Fletcher, Kentucky Republican., a doctor, Collin Peterson, Minnesota Democrat, and Nancy Johnson, Connecticut Republican, with the help of Ways and Means Chairman Bill Thomas, the bill was immediately embraced by Mr. Bush at a quickly called White House conference last week. If it is sent to his desk, he will sign it, he said. If Kennedy-McCain or its House version, Dingell-Norwood, is sent to him, he will veto it.

Now the issue is no longer the sweeping health-care mandates the bill would place on health care plans and insurers. Fletcher-Peterson-Johnson contains most of the mandates Kennedy-McCain has. The issue is lawsuits.

"If there is, and has been, bipartisan agreement on patient protections, why hasn't Congress already made them the law of the land? In one word, lawsuits," Mr. Thomas said.

"A patients' bill of rights only has meaning if real people can afford health insurance. HMOs should be held accountable; but more trial lawyers and excessive legal battles will not improve patient care, they will just make it more expensive," he said.

Largely missing from the media coverage of this debate is the fact that the Kennedy-McCain bill will result in sharply higher health-care costs for employees and employers. Even its sponsors concede that.

A Congressional Budget Office study says that Kennedy-McCain would raise health insurance costs by 4.2 percent for everyone. That means fewer people and fewer businesses especially small businesses could afford it.

A separate study found that for every 1 percent increase in health-insurance costs, some 300,000 people are added to the ranks of the uninsured. That would mean about 1.2 million more people without coverage.

"And that doesn't count employers who will stop providing insurance because they fear lawsuits over coverage decisions they don't control," said the National Federation of Independent Business, which represents 600,000 small businesses.

Also ignored in this debate is that Kennedy-McCain does nothing for the uninsured. This was the big issue in last year's elections. Mr. Bush ran on refundable tax credits, Medical Savings Accounts and other initiatives that would provide health-insurance coverage to millions of uninsured Americans.

It seems to me that Congress has its priorities mixed up here. Maybe we should be working to solve the problem of the uninsured first instead of expanding coverage for people who are at least insured.

Two more points to make: Polls tell us that a majority of Americans think that more lawsuits seeking unlimited punitive damages from HMOs and other insurers is a very bad idea. A recent poll by the American Association of Health Care Plans found that 60 percent of Americans prefer health-care plans be held accountable by an independent review process and that lawsuits be limited.

At the same time, a poll by the Kaiser Family Foundation in April showed that the number of people having problems with their managed-care plans has dropped dramatically.

What we should fear about Kennedy-McCain is the unintended consequences of heavy-handed government regulation and unlimited lawsuits. Their bill would mean fat fees for wealthy trial lawyers, escalating insurance costs, employers dropping plans and fewer people covered. In short, it is a disaster crying out for even more government intervention. But that's what these national health-care advocates have wanted all along.

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