- The Washington Times - Monday, July 23, 2001

The House is set to consider the Senate-passed Patients Bill of Rights this week. The names of its sponsors - liberal Sen. Ted Kennedy, lawyer Sen. John Edwards, and formerly conservative Republican Sen. John McCain are suggestive of something definitely not right, and that is indeed the case. In attempting to put a Band-Aid on the bruisings of the 1974 Employee Retirement Income Security Act (ERISA), the bill does taxpayers no favors.

Lawyers definitely take their cuts. Provisions allowing patients an unrestricted private right of action and up to $5 million in punitive damages could open 56,000 new lawsuits per year at a cost of $16.3 billion, according to a study by the Employment Policy Foundation. For their pains of suing, American trial lawyers (whose association made 90 percent of its political donations to Democrats in the 2000 election cycle) could receive nearly $3 billion per year.

Yet the lawsuits are minor compared to the bill's heartstopping regulatory regime. Essentially, the bill passed by the Senate on June 29 operates as an unfunded mandate. Heritage Foundation Health Care analyst Robert Moffit stated that the bill's enactment would result in an "explosion of paperwork," because it prescribes "a quantum leap in federal control over the financing and delivery of health care."

Mr. Moffit's examination revealed that "The language is remarkably prescriptive." It orders new regulations throughout the health care system, including prescription drug formularies, patient care in clinical trials, the relationship between physicians and private health plans, the health care delivery of private plans, and the manner in which health plans handle internal appeals, external appeals, and appeals procedures. So excessive is this regulation regime that even liberal columnist Michael Kinsley recently opined "The patient's bill achieves its goals thorough regulation, rather than tax-and-spend."

To pay for these unfunded mandates, insurers will have to raise rates by a Congressional Budget Office estimated 4.1 percent above inflation - enough to flatline the health insurance coverage of millions of Americans. Yet the cost of stifled innovation may well be even higher, since the new regulations will insure that the treatments that doctors invent almost per deim will now be subject to legislative, and hence, bureaucratic approval. If passed, the bill will insure that individuals will no longer have to wait until they are broke or old to experience the miracles of a Medicaid/Medicare-style regulatory regime.

It's no wonder that federal unions, such as the National Association of Letter Carriers, are opposed to it. It's also no wonder that the members of Congress were none too happy about opening their own federal health care providers to then same lawsuits and regulatory regime as private providers, though in the end the Senate did.

A scalpel won't save the Senate patients bill of rights. Nor will major amendments. If the House refuses to table the Senate's bill, then Mr. Bush should do the responsible thing and kill it.

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