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Published online by Cambridge University Press: 24 February 2021
Public concern over the perceived failure of managed care has led many to call for the increased accountability of managed care organizations (MCOs). In response, during his January 1998, State of the Union address, President Clinton outlined a Patients’ Bill of Rights that would guarantee patients certain protections against abuses by their health plans. Since January 1998, the Patients’ Bill of Rights has been entrenched in partisan politics. Consequently, the 105th Congress failed to enact a Patients’ Bill of Rights and the 106th Congress has passed two opposing versions of the Bill. At the time of publication, the two bills sat in a joint House Senate conference committee awaiting reconciliation.
Although both sides support legislation increasing patient protections, Democrats and Republicans are divided over the issue of remedies for patients who have had their rights violated.
1 See Farrell, Margaret G., ERISA Preemption and Regulation of Managed Health Care: The Case for Managed Federalism, 23 AM. J.L. & MED. 251, 252 (1997)Google Scholar. A managed care organization (MCO) is “an organization that accepts a premium or capitation payment for providing comprehensive, medically necessary health care.” Id. at 251 n.4; see also Havighurst, Clark C., Making Health Plans Accountable for the Quality of Care, 31 GA. L. REV. 587, 590 (1997)Google Scholar (arguing that MCOs should be legally responsible for the negligence of their physicians).
2 See Address Before a Joint Session of the Congress on the State of the Union, 34 WEEKLY COMP. PRES. DOC. 129, 133-34 (Jan. 27, 1998). President Clinton established the President's Advisory Commission on Consumer Protection and Quality in the Health Care Industry, to develop a “Consumer Bill of Rights” for patients, and the Commission issued its recommendations on November 20, 1997. See Quality Assurance: Commission Adopts Bill of Rights With Assistance Provision, Broad Goals, 5 Health Care Pol'y Rep. (BNA) No. 46, at 1,759 (Nov. 26, 1997); see also President's Advisory Comm. on Consumer Protection & Quality in the Health Care Indus., About the Commission (last modified June 13, 1998) http://www.hcqualitycommission.gov/about.html.
3 See It's Enough to Make You Sick, N.Y. DAILY NEWS, July 17, 1999, at 18 (arguing that there is a “sharp partisan divide” on the issue of the Patients’ Bill of Rights).
4 See Quality Care for the Uninsured Act of 1999/Bipartisan Consensus Managed Care Reform Act, H.R. 2990, 106th Cong. (1999) (the text of the Bipartisan Consensus Managed Care Reform Act, H.R. 2723, 106th Cong. (1999) (introduced in the House), was added as “Division B,” a new matter to the Quality Care for the Uninsured Act of 1999, H.R. 2990 (engrossed in the House)); Patients’ Bill of Rights Plus Act, S. 1344, 106th Cong. (1999); Leavitt, Paul, GOP Leader Pushes for Patients’ Bill of Rights, USA TODAY, Jan. 14, 2000, at 5AGoogle Scholar; Patients’ Bill of Rights is DOA, DES MOINES REG., Oct. 10, 1998, at 1 (reporting that the Republican-controlled Senate of the 105th Congress failed to pass the Patients’ Bill of Rights Act).
5 See Eric Schmitt, A Bill Protecting Patients’ Rights Will Pass, House Republican Says, N.Y. TIMES, Jan. 14, 2000, at A16. House majority leader, Representative Dick Armey (R-Tex.) anticipated that Congress would send a version of the Patients’ Bill of Rights to President Clinton by April 23, 2000. See id.
6 See Combs, Ann L., Too Much Too Late: The Patients’ Bill of Rights Act Takes the Wrong Approach to Health Plan Accountability, 153 N.J.L.J. 1327, 1327 (Sept. 28, 1998)Google Scholar.
7 Pub.L. 93-406, 88 Stat. 829 (1974) (codified as amended in scattered sections of 26 U.S.C. and 29 U.S.C).
8 See Combs, supra note 6, at 1327; Philip H. Corboy, It's Time to Mop Up the Mess That is ERISA, NAT'L L.J., Sept. 7, 1998, at A21 (arguing that health maintenance organizations (HMOs) that make treatment determinations must be held legally accountable for their actions).
9 The recently passed Bipartisan Consensus Managed Care Improvement Act of 1999, H.R. 2990, would amend the Employee Retirement Income Security Act of 1974 (ERISA) to lift the bar to state tort suits. See H.B. 2990 § 1302. Although a number of Republicans, particularly those with medical backgrounds, support a version of the Patients’ Bill of Rights that would remove the ERISA bar, the Republican leadership supports a version of the Patients’ Bill of Rights that would not lift the ERISA bar. See Michael Grunwald, GOP Doctors in the House Put Patients Before Party, WASH. POST, July 27, 1999, at Al. The Republican-backed Senate Bill 1344 would keep the ERISA bar intact. See S. 1344. Therefore, I will hereinafter refer to those versions of the bill that would lift the bar as “Democratic” and “Bipartisan” versions, and those that would not as “Republican” versions.
10 See Combs, supra note 6, at 1327.
11 Molly Ivins, Action Stalled on Patients’ Bill of Rights, ST. LOUIS POST-DISPATCH, Sept. 18, 1998, at B7; Amy Borrus, Why the Patients’ Bill of Rights Could Pull Through, BUS. WK., Feb. 15, 1999, at 47, 47; see also Jonathan D. Salant, Lobbyists Received S60M to Fight HMO Legislation, BOSTON GLOBE, NOV. 28, 1998, at A3 (citing a figure of $11 million as the amount spent on advertising opposing managed care legislation).
12 See American Med. Ass'n, Managed Care Reform: Patients’ Rights Legislative Information (last modified Feb. 1, 1999) http://www.ama-assn.Org/ama/basic/article/0,1059,200-521-1,00.html. The American Medical Association (AMA) spent $8.3 million on lobbying during the first half of 1998. See AHA 's Wade Defends Lewis’ Role in Greater Southeast Debate, MODERN HEALTH CARE, Dec. 7, 1998, at 60.
13 See, e.g., Remarks to the Women's Leadership Forum in Las Vegas, Nevada, 33 WEEKLY COMP. PRES. DOC. 1817, 1820 (Nov. 24, 1997).
14 See id.
15 See id.
16 See id. at 1817-20.
17 See id. at 1820.
18 See id.
19 See Oberman, Michelle & Schaps, Margie, Women's Health and Managed Care, 65 TENN. L. REV. 555, 556 (1998)Google Scholar (arguing that the contemporary women's health agenda must be updated and revised in light of the shift from traditional, fee-for-service medicine to managed care).
20 See id. at 557.
21 See Misocky, Michael, The Patients’ Bill of Rights: Managed Care Under Siege, 15 J. CONTEMP. H. L. & POL'Y 57, 68 (1998)Google Scholar.
22 See Miller, Frances H., Capitation & Physician Autonomy: Master of the Universe or Just Another Prisoner's Dilemma? (What Can Britain's National Health Service Experience Teach Us?), 6 HEALTH MATRIX 89, 90 (1996)Google Scholar.
23 See Farrell, supra note 1, at 252.
24 See Oberman & Schaps, supra note 19, at 560.
25 Compare Farrell, supra note 1, at 252 (crediting MCOs with lowering health care costs), with Wertheimer, Ellen, Ockham 's Scalpel: A Return to a Reasonableness Standard, 43 VILL. L. REV. 321, 326-27 (1998)Google Scholar (arguing that HMOs cannot lower health care costs and still maintain the same quality of care).
26 See Oberman & Schaps, supra note 19, at 562.
27 See id.
28 See id. at 571.
29 See id.
30 See id. at 562 (finding that MCOs tend to cut services primarily used by women, such as mental health services).
31 See generally id. (discussing how women are disadvantaged in accessing managed care).
32 See id.
33 See id. at 565 (citing a 1991 AMA report reviewing the impact of gender in the health care setting). For a fuller discussion of gender bias in the health care setting, see generally Oberman & Schaps, supra note 19.
34 See id.
35 See id.
36 See id.
37 See id. at 564-65.
38 See Mary Lake Polan, Medical Researchers, Heal Thyselves of Gender Bias, L.A. TIMES, Feb. 24, 1991, at M2.
39 See Oberman & Schaps, supra note 19, at 580 (noting that “the mere increased representation of women in clinical trials and the handful of federally-funded studies on health issues specific to women will not ‘cure’ the problems emanating from a research structure that is accustomed to treating men as the norm and women as the exception.“); Amy Goldstein, Viagra's Success Fuels Gender Bias Debate, WASH. POST, May 20, 1998, at Al.
40 See Bergelson, Bruce A. & Tommaso, Carl L., Gender Differences in Clinical Evaluation and Triage in Coronary Artery Disease, 108 CHEST 1510, 1510 (1995)Google Scholar (concluding that a gender-based selection bias exists in choosing patients to undergo cardiac procedures); Oberman & Schaps, supra note 19, at 565.
41 See Oberman & Schaps, supra note 19, at 563-64.
42 See Farrell, supra note 1, at 251-52.
43 See id. at 260 (“About seventy percent of the health insurance currently sold in the United States is purchased through employer-based plans, the vast majority of which are subject to ERISA.“).
44 See id.
45 Evans v. Safeco Life Ins. Co., 916 F.2d 1437, 1439 (9th Cir. 1990).
46 Employee Retirement Income Security Act, 29 U.S.C. § 1144(a) (1994) (emphasis added).
47 See id. at § 1144(b)(2)(A).
48 See Miller, Frances H., Medical Discipline in the Twenty-First Century: Are Purchasers the Answer?, LAW & CONTEMP. PROBS., Winter & Spring 1997, at 31, 54-55 (1997)Google Scholar.
49 29 U.S.C. § 1144(b)(2)(B).
50 See Miller, supra note 48, at 55.
51 See Farrell, supra note 1, at 261.
52 See, e.g., Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 57 (1987) (holding that a breach of contract claim against an HMO was preempted by ERISA); Wertheimer, supra note 25, at 338-39 (identifying various MCO attempts to use ERISA to preempt state tort suits against them). The author also points out the irony “in allowing ERISA, a statute designed to protect workers, to protect [MCOs] at the expense of workers.” Id.
53 See Scheutzow, Susan O., A Framework for Analysis of ERISA Preemption in Suits Against Health Plans and a Call for Reform, 11 J.L. & HEALTH 195, 208 (1996)Google Scholar.
54 29 U.S.C. § 502(a)(1)(B).
55 See Scheutzow, supra note 53, at 208-09.
56 See Miller, supra note 48, at 55.
57 See discussion supra Part II.A.-B.
58 965 F.2d 1321 (5th Cir. 1992).
59 See id. at 1322-23.
60 See id.
61 See id. at 1323.
62 See id. at 1324.
63 See id.
64 See id.
65 See id.
66 See id. at 1324-25.
67 See id. at 1325.
68 Id. at 1331.
69 Id. at 1338.
70 See, e.g., Nealy v. U.S. Healthcare HMO, 711 N.E.2d 621, 622 (N.Y. 1999) (allowing a spouse to sue her deceased husband's HMO for malpractice and breach of contract in state court); see also Alan Finder, Court Allows Lawsuit Against H.M.O. Doctor, N.Y. TIMES, Mar. 26, 1999, at BIO (discussing the Nealy decision); infra notes 75-812 and accompanying text.
71 See Alan S. Rutkin & Erica B. Garay, ERISA Pre-empts Many HMO Claims, NAT'L L.J., Sept. 9, 1996, at Bll; Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 47 (noting that the “relate to” phrase of the ERISA preemption clause should be given a “broad common-sense meaning“).
72 See Rooney, Curtis D., The States, Congress, or the Courts: Who Will Be First To Reform ERISA Remedies? 7 ANNALS HEALTH L. 73, 100 (1998)Google Scholar (arguing that the courts are beginning to recognize the distinction between claims regarding the quality of benefits, which courts are less likely to preempt, and claims regarding quantity of benefits due).
73 514 U.S. 645, 668(1995).
74 Rooney, supra note 72, at 89; Cerminara, Kathy L., Protecting Participants in and Beneficiaries of ERISA-Governed Managed Health Care Plans, 29 U. MEM. L. REV. 317, 352 (1999)Google Scholar; Studdert, David M. & Brennan, Troyen A., The Problems with Punitive Damages in Lawsuits Against Managed-Care Organizations, 342 NEW ENG. J. MED. 280, 281 (2000)Google Scholar (stating that “[m]ost legal commentators now see possibilities for the growth of institutional liability in the managed-care arena.“).
75 Courts began narrowing the scope of ERISA preemption even prior to the Supreme Court's decision in Travelers. See, e.g., Kearney v. U.S. Healthcare, Inc., 859 F. Supp. 182, 185-86 (E.D. Pa. 1994) (holding that plaintiffs direct liability claim was preempted, but vicarious liability claim was not).
76 See, e.g., Pacificare of Oklahoma, Inc. v. Burage, 59 F.3d 151, 155 (10th Cir. 1995) (holding that plaintiffs vicarious liability claim was not preempted and remanding the claim to state court); Estate of Frappier v. Wishnov, 678 So. 2d 884, 886-87 (Fla. App. 1996) (distinguishing between direct and vicarious liability claims in determining ERISA preemption). For a discussion of the different types of MCO liability and how the courts distinguish between them for purposes of ERISA preemption, see BARRY R. FURROW ET AL., HEALTH LAW 298-306 (noting several decisions, including Estate of Frappier); Rooney, supra note 72, at 91-98; Scheutzow, supra note 53, at 202-15. See also Bearden, Diana Joseph & Maedgen, Bryan J., Emerging Theories of Liability in the Managed Health Care Industry, 47 BAYLOR L. REV. 285, 298-302 (1995)Google Scholar (discussing vicarious liability in the context of managed care); Cerminara, supra note 74, at 354-55 (arguing for a more uniform approach in MCO liability cases and against judicial linedrawing between direct and vicarious claims); Clark C. Havighurst, supra note 1, at 587 (discussing MCO liability for physician torts and advocating for enterprise liability).
77 See, e.g., Estate of Frappier, 678 So. 2d at 886-87; see also Rooney, supra note 72, at 91 (discussing direct malpractice against MCOs). Courts have rejected direct liability claims on the basis of the “relate to” clause and also under the doctrine of “complete preemption.” See id.
78 See Dukes v. U.S. Healthcare, 57 F.3d 350, 357 (3d Cir. 1995). The Dukes court, however, did acknowledge that “the distinction between the quantity of benefits due under a welfare plan and the quality of those benefits will not always be clear.” See id. at 358. In Dukes, the court characterized plaintiffs’ claims against their MCOs as alleging poor quality medical treatment, instead of as claims for benefits due under the plan. See id. at 357, 361. Therefore, the court held the claims were not preempted, even though the court may have viewed the claims as based on a direct liability theory for the arrangement of medical care. See id. at 361; see also Scheutzow, supra note 53, at 214 (categorizing Dukes as a case involving dependent liability for negligent selection and supervision against two MCOs).
79 See Scheutzow, supra note 53, at 206.
80 See id. at 213.
81 See Schuetzow, supra note 53, at 212-13; see also Pacificare of Oklahoma, Inc., 59 F.3d at 155 (affirming the district court's determination that the vicarious liability claim at issue was not ERISA preempted because the claim did not “involve the administration of benefits or the level or quality of benefits promised by the plan … [but] alleges negligent care by the doctor and an agency relationship between the doctor and the HMO.” The court reasoned that “just as ERISA does not preempt the malpractice claim against the doctor, it should not preempt the vicarious liability claim against the HMO if the HMO has held out the doctor as its agent.” See id. (citing Haas v. Group Health Plan, Inc., 875 F. Supp. 544, 548 (S.D. Ill. 1994)).
82 See Rooney, supra note 72, at 91.
83 See Key Patients’ Protections: Lessons from the Field, Hearings on S. 6, S. 300, & S. 326 Before the Senate Comm. on Health, Education, Labor & Pensions, 106th Cong. 106, 107-08, app. A at 111-12 (1999) [hereinafter Key Patients’ Protections Hearings] (prepared statement of Ronald F. Pollack, Executive Director, Families USA Foundation) (analyzing state managed care consumer protection laws).
84 See TEX. CIV. PRAC. & REM. CODE ANN. § 88.002(a) (West Supp. 2000).
85 See id.
86 See id. at § 88.002(c).
87 See Corporate Health Ins., Inc. v. Texas Dep't of Ins., 12 F. Supp. 2d 597, 602 (S.D. Tex. 1998).
88 See id. at 621.
89 See id. at 620, 625. The court held, however, that other provisions of the law, such as independent review process for adverse benefit determinations, improperly mandated the administration of employee benefits, and, therefore, were subject to ERISA preemption. See id. at 625. Aetna U.S. Healthcare, Inc., recently agreed to allow patients to appeal treatment denials to independent review boards. See Borrus, supra note 11, at 47. Commentators view this as a preemptive move, on the part of Aetna, to thwart the movement towards full liability in tort. See id.
90 See Corporate Health Ins. Inc., 12 F. Supp. 2d at 620.
91 See id. at 617.
92 Id.
93 The court suggested that its result in Corcoran might have been different had the Supreme Court decided Travelers first. See id. But see Rooney, supra note 72, at 92 (arguing that the result in Corcoran would not have been different even if it had been decided after Travelers).
94 See Rooney, supra note 72, at 99.
95 See Aronson, Peter, Congress Squares Off Over HMO Liability, 21 NAT'L L.J., June 21, 1999Google Scholar, at A1.
96 See Texas Experience with Managed Care Reform: A Model for the Nation: Before the House of Representatives, 145 Cong. Rec. H9391-02 (daily ed. Oct. 5, 1999) (statement of Rep. Green) (supporting a federal Patients’ Bill of Rights in order to ensure that all Texas citizens, including those enrolled in ERISA-qualifying plans, have the right to sue their MCOs).
97 See Rooney, supra note 72, at 101.
98 See Patients’ Right to Independent Review Act, GA. CODE ANN. § 33-20A-1 (Ga. 1999); Mo. REV. STAT. § 538(1999).
99 See Studdert, David M. et al., Expanded Managed Care Liability: What Impact on Employer Coverage!, HEALTH AFF., Nov.-Dec. 1999, at 7, 9Google Scholar.
100 See Rooney, supra note 72, at 101.
101 See id.
102 See Patients’ Right to Independent Review Act, GA. CODE. ANN. § 33-20A-1 (1999); Mo. REV. STAT. §§ 538.205-.300 (1999); TEX. CIV. PRAC. & REM. CODE ANN. § 88.001-.003 (West Supp. 2000).
103 See David S. Hilzenrath, Backlash Builds Over Managed Care: Frustrated Consumers Push for Tougher Laws, WASH. POST, June 30, 1997 at Al; see also Freiman, Adam M., The Abandonment of the Antiquated Corporate Practice of Medicine Doctrine: Injecting a Dose of Efficiency Into the Modern Health Care Environment, 47 EMORY L.J. 697, 743 (1998)Google Scholar (arguing that MCOs’ policies have forced new mothers to leave hospitals before medically advisable in order to reduce the MCOs’ costs).
104 See Hilzenrath, supra note 103, at A1. Protections for breast cancer patients and women following the delivery of a baby have been enacted at the federal level as well. See discussion infra Part III.C.
105 See Families USA Foundation, Hit and Miss: State Managed Care Laws (last modified Feb. 9, 2000) http://www.familiesusa.org/hitl.htm.
106 See Farrell, supra note 1, at 284; see also discussion supra Part III.A.
107 See id.
108 Pub. L. No. 104-204, 110 Stat. 2874 (codified at 29 U.S.C. § 1185 (West 1999), 42 U.S.C. §§300gg-4,300gg-51).
109 29 U.S.C. § 1185(a)(1)(A)(i)-(ii)
110 Id. § 1185(a)(1)(B).
111 See Miller, supra note 48, at 56.
112 See Hilzenrath, supra note 103, at A1 (noting that the AMA, advocates of managed care regulation, “express reservations about government mandates on such narrow medical questions as the appropriate length of a hospital stay“); see also Farrell, supra note 1, at 277, 281 (describing Congressional micromanagement as one shortcoming of a fragmented approach to regulation).
113 See Farrell, supra note 1, at 286 (arguing that this approach “has resulted in uneven and sometimes inconsistent regulation that does not fully protect consumers or stabilize the unruly market for health services.“).
114 See discussion infra Part IV.
115 See Miller, supra note 48, at 56 (describing how mandated benefits vary from state to state and from plan to plan, because ERISA-qualifying health plans do not have to provide state mandated benefits).
116 Patients’ Bill of Rights Act of 1998, S. 1890, 105th Cong. (1998); Patients’ Bill of Rights Act of 1998, H.R. 3605, 105th Cong. (1998). Because Senate Bill 1890 and House Bill 3605 are essentially identical bills, hereinafter I will refer to them comprehensively as the “Democratic bills.“
117 Patients’ Bill of Rights Act, S. 2330, 105th Cong. (1998). Republican Newt Gingrich introduced similar legislation in the House of Representatives known as the “Patients’ Protection Act of 1998,” H.R. 4250, 105th Cong. (1998); however, because Senate Bill 2330 was a more comprehensive proposal than House Bill 4250, hereinafter I will refer only to Senate Bill 2330 as the “Republican bill.“
118 S. 1890; H.R. 3605.
119 S. 2330.
120 See S. 1890 § 301; H.R. 3605 § 301; S. 2330 (including procedural requirements discussed infra at notes 156-60 and accompanying text).
121 See S. 1890 § 104; H.R. 3605 § 104; S. 2330 § 723.
122 See S. 1890 § 104; H.R. 3605 § 104; S. 2330 § 723.
123 See S. 1890 § 152; H.R. 3605 § 152; S. 2330 § 715.
124 See S. 1890 § 104; H.R. 3605 § 104; S. 2330 § 723.
125 See S. 1890 § 104(a)(1)(A)-(B); H.R. 3605 § 104(a)(1)(A)-(B).
126 See S. 2330 § 723(a)-(b).
127 See S. 1890 §§ 103-04; S. 2330 § 723.
128 S. 1890 § 104(a)(1)(B)(i) (emphasis added); H.R. 3605 § 104(a)(1)(B)(i).
129 S. 2330 § 723.
130 Compare S. 1890 §§ 103-04 (permitting any “health care professional who specializes in obstetrics and gynecology” to perform “routine gynecological … care and pregnancy-related services” without a primary care provider's referral) with S. 2330 § 723 (eliminating obstetrical and gynecological referral requirement with reference only to physicians). This difference was substantively changed by the Republicans in the 106th Congress by Senate Bill 1344 § 723(c)(3), 106th Cong. (1999) (allowing, but not requiring, group health plans to provide for non-physician health care professional obstetrical and gynecological care without referrals).
131 See S. 2330, Title V., subtitle C; H.R. 3605 §§ 15253.
132 See S. 1890 §§ 152-53; H.R. 3605 §§ 152-53.
133 S. 1890 § 152; H.R. 3605 § 152.
134 See S. 1890 § 152(a); H.R. 3605 § 152(a).
135 S. 1890 § 153; H.R. 3605 § 153.
136 S. 2330 §533.
137 See id.
138 See id.
139 See It's Enough to Make You Sick, supra note 3, at 18.
140 See S. 2330 §501.
141 See id.
142 See S. 2330 §§511-15.
143 See S. 2330 §§521-25.
144 See discussion supra Part II.B.
145 See S. 2330 § 121; Patients’ Bill of Rights Act of 1998, S. 1890, 105th Cong. § 302(a)(e) (1998); Patients’ Bill of Rights Act of 1998, H.R. 3605, 105th Cong. § 302(a)(e) (1998).
146 See Combs, supra note 6, at 1327.
147 See President's Radio Address, 35 WEEKLY COMP. PRES. Doc. 1534, 1534 (Aug. 9, 1999).
148 S. 1890 § 302(a)(e); H.R. 3605 § 302(a)(e).
149 S. 1890 § 302(a)(e)(1); H.R. 3605 § 302(a)(e)(1).
150 See S. 1890 § 302(a)(e)(2)(A); H.R. 3605 § 302(a)(e)(2)(A).
151 See S. 1890 § 302(a)(e)(2)(B)(i); H.R. 3605 § 302(a)(e)(2)(B)(i).
152 Patients’ Bill of Rights Act, S. 2330, 105th Cong. § 121 (1998).
153 See id.
154 See id. § 503(a)(1).
155 See id. § 503(b)(3).
156 See id. § 503(b)(2).
157 See id. § 503(d). Senate Bill 1890 and House Bill 3605 provide for both internal and external review of benefit determinations, in addition to granting the right to sue. See S. 1890 §§ 132-33; H.R. 3605 §§ 132-33.
158 See S. 2330 § 503(e). For a discussion of the differences between the Democratic and Republican external review provisions, see Families USA Found., Basic Consumer Protections: How the Federal Bills Compare (last modified Nov. 23, 1999) http://www.familiesusa.org/managedcare+u/compare2.htm.
159 See Families USA Found., supra note 158.
160 See id.
161 See Combs, supra note 6, at 1327; Patients’ Bill of Rights is DOA, supra note 4, at 1.
162 See Patients’ Bill of Rights is DOA, supra note 4, at 1.
163 Pub.L. No. 105-340, 112 Stat. 3191 (1998) (codified at 29 U.S.C.A. § 1185b (West 1999), and 42 id. §§ 300gg-6, 300gg-52).
164 See id.
165 See Pub. L. No. 105-277, 112 Stat. 2681-436 (1998) (codified at 42 U.S.C.A. §§ 285b-7a, 300u-9 (Supp. IV 1999)); see also Women's Health and Cancer Rights Act of 1999, S. 115; H.R. 383, 106th Cong. (1999) (further modifying the 1998 Act to ensure the quality of care received by women, particularly women with breast cancer).
166 See President's Radio Address, supra note 147, at 1534.
167 See Remarks to the Women's Leadership Forum in Las Vegas, Nevada, supra note 13, at 1817; President's Radio Address, supra note 147, at 1534.
168 S. 1344, 106th Cong. (1999).
169 See Status of Significant Legislation, 7 Health Care Pol'y Rep. (BNA) No. 47, at 1,917 (Dec. 6, 1999).
170 H.R. 2723, 106th Cong. (1999). This bill was merged with a Republican bill that includes provisions for medical savings accounts, tax deductions and association health plans to become the Quality Care for the Uninsured Act of 1999, H.R. 2990, 106th Cong. (1999).
171 See Status of Significant Legislation, supra note 169, at 1917. The Senate bill only covers those in ERISA-qualifying plans since these plans are beyond the reach of state patient protection laws but otherwise leaves it to the states to provide protections to those in non-ERISA qualifying plans. See id.; see also discussion supra Part III. The House bill, on the other hand, guarantees a basic set of patient protections at the federal level provided to all those enrolled in private health insurance plans, regardless of whether the particular state enacts such protections. It remains to be seen how many Americans will be covered once the two bills are reconciled by the House-Senate Conference Committee. See Wakefield, Mary K., Consumer Bill of Rights Legislation: A Study in Controversy, NURSING ECONOMICS, Nov. 1, 1999, at 350Google Scholar. See generally Key Patients’ Protection Hearings, supra note 83, at 68-83 (statement of Peter W. Thomas, Esq., Former Chair, Subcomm. on Consumer Rights, Protections & Responsibilities of the President's Advisory Comm. on Consumer Protection & Quality in the Health Care Indus.) (advocating for a uniform set of consumer protection standards).
172 See GOP Leaders Fail to Name Norwood, Ganske to Conference on Managed Care Legislation, 7 Health Care Pol'y Rep. (BNA) No. 44, at 1,743, 1,743-44 (Nov. 8, 1999).
173 See S. 1344 § 9823. This section “waive[s] the referral requirement in the case of a female participant or beneficiary who seeks coverage for obstetrical care and related follow-up obstetrical care or routine gynecological care (such as preventive gynecological care).” Id. at § 9823(a)(1).
174 Id. § 201. It provides for minimum hospital stays for mastectomies and lymph node dissections for the treatment of breast cancer, the coverage of secondary consultations by specialists for women with breast cancer, and prohibits health plans from providing financial incentives to induce providers to limit treatment or referral. See id. at § 715.
175 See H.R. 2990 § 1115.
176 See Patients’ Bill of Rights: Armey Predicts Spring Passage, 6 Am. Health Line (APN) No. 9, 3 (Jan. 14, 2000) (reporting that Senators Arlen Specter (R-Pa.), Charles Robb (D-Va.), Barbara Boxer (D-Calif.), Patty Murray (D-Wash.), Lincoln Chafee (R-R.I.), Bob Graham (D-Fla.), Blanche Lincoln (D-Ark.), Max Baucus (D-Mont.), Mary Landrieu (D-La.), and Dianne Feinstein (D-Calif.) have written a letter to Senators James Jeffords (R-Vt.), Chair of the Senate Committee on Health, Education, Labor and Pensions, and Edward Kennedy (D-Mass.), ranking member, to encourage them to support direct access to obstetrical and gynecological care).
177 See It's Enough to Make You Sick, supra note 3, at 18 (commenting that “[t]he only area of agreement was that women recovering from mastectomies should remain hospitalized until their doctors think they are ready to go home.“).
178 See S. 1344 § 115.
179 See S. 1344 § 121. House majority leader, Representative Dick Armey (R-Tex.) has proposed allowing patients to sue in federal court, as an alternative to lifting the ERISA bar to state tort suits. See Schmitt, supra note 5, at A16.
180 An October 7, 1999, House vote split 275 to 151 (yea-nay), with 206 Democratic votes supporting an amendment to ERISA, Title XXVII of the Public Health Service Act, and the Internal Revenue Code of 1986, to protect consumers in managed care plans. See [1999-2000] 2 Cong. Index (CCH) 37,126 (Oct. 7, 1999).
181 See Bipartisan Consensus Managed Care Reform Act, H.R. 2990, 106th Cong. § 1302 (1999).
182 See H.R. 2990 § 1302(a)(f)(l)(B); H.R. 2990 § 1303 (Limitations on Actions).
183 See McGinley, Laurie, Consumers’ Right to Sue Health Plans Is Backed by GOP Presidential Hopefuls, WALL ST. J., Dec. 16, 1999, at A24Google Scholar. If the compromised version does not grant patients the right to sue, President Clinton is not likely to sign the legislation. See id. President Clinton has also vowed not to sign the legislation if it is loaded up with “poison pills” such as provisions for tax breaks. See William Neikirk, “Patients’ Bill of Rights” Sails Through the House; But Legislation Faces a Long Road Before Implementation, CHI. TRIB., Oct. 8, 1999, at 1.
184 See Nather, David, CBO Raises Costs on Patients’ Bill of Rights: Dual Estimates Add to Confusion Over Impact, 7 Health Care Pol'y Rep. (BNA) No. 18, at 749 (May 3, 1999)Google Scholar; Studdert et al., supra note 99, at 14.
185 free the Patient, WASH. TIMES, Oct. 7, 1999, at A20; see Ann L. Combs, Patients’ Bill of Rights Act Takes Wrong Tack on Health Plan Accountability, LEGAL TIMES, Sept. 14, 1998, at 28; see also Kevin O'Donoghue, Bill Would Not Break HMOs, DES MOINES REG., July 21, 1998, at 10 (citing a report by the American Association of Health Plans (AAHP), that the Patients’ Bill of Rights would cost tens of thousands of Americans their jobs and put health insurance out of reach for almost 2 million people). Commentators have argued that juries may be willing to award punitive damages against MCOs because MCOs are “perceived as wealthy, impersonal targets.” See Studdert & Brennan, supra note 74, at 281.
186 See Combs, supra note 185, at 28; Studdert et al., supra note 99, at 9.
187 See discussion supra Part III.A.
188 See Ivins, supra note 11, at B7. No suits against an HMO have been brought in Texas, and there have been fewer appeals than expected. See id.
189 See id.
190 See Studdert et al.; supra note 99, at 14. The Congressional Budget Office (CBO) is one of many organizations that has estimated how much expanding MCO liability would cost. See id. For example, a 1998 Coopers & Lybrand study conducted for the Kaiser Foundation examining the litigation experiences of three large public employers whose enrollees are permitted to sue their health plans, estimated a slightly lower percentage than the CBO. See Costing Out Health Plan Lawsuits, Bus. & HEALTH, Sept. 1998, at 11, 11 (1998). The Foundation concluded that the three public health plans had litigation rates of 0.3 to 1.4 lawsuits per 100,000 enrollees per year, at a cost of 3 to 13 cents per member per month. See id. In contrast, a Barents Group study conducted for the AAHP predicted that premiums would increase between 2.7 and 8.6% through the five-year period between 1999 and 2003. See Studdert et al., supra note 99, at 14. For further discussion of cost estimates, see id. at 14.
191 See Congressional Budget Office Estimates that House-Passed Managed Care Bill Could Reduce Average Premiums by 0.1%, 10 Health News Daily (FDC) No. 144, at 1 (July 28, 1998).
192 See id.
193 See Nather, supra note 184, at 751. The CBO re-estimate is based on an earlier Democratic version proposed during the 106th Congress and is not based on the Bipartisan bill. See id. The higher projection is not solely based on the expanded liability provisions. See id. According to the CBO, the most expensive provision of a Democratic version of the Patients’ Bill of Rights is its “medical necessity” provision. See id. The “medical necessity” provision increased the CBO's estimate by 1.1%, while the expanded liability provision increased it by 0.6%. See id.
194 See id. The 4.8% estimate was not included in the official CBO report but only in the letter to the Senate Health, Education, Labor and Pensions Committee. See id.
195 See Nather, supra note 184, at 749.
196 See id.
197 See id. at 749-50
198 See id.
199 See Neikirk, supra note 184, at 1.
200 See Studdert & Brennan, supra note 74, at 284.
201 See Cerminara, supra note 74, at 351.
202 See Studdert & Brennan, supra note 74, at 283 (conceding that punitive damage awards impact corporate decisionmaking, but skeptical about whether the tort system is the most effective means for ensuring the quality of patient care).
203 See McGinley, supra note 183, at A24.
204 See id.
205 See Sheryl Gay Stolberg, Do No Harm; Breaking Down Medicine's Culture of Silence, N.Y. TIMES, Dec. 5, 1999, § 4 (Week in Review), at 1.
206 See id.
207 See Memorandum on Federal Agency Compliance With the Patient Bill of Rights, 34 WEEKLY COMP. PRES. Doc. 298 (Feb. 20, 1998). Although President Clinton directed several agencies to comply with the Patients’ Bill of Rights, I emphasize Health and Human Services because the majority of those who receive Medicaid are women. See Oberman & Schaps, supra note 19, at 565; Clark, Elizabeth M., Women in the Healthcare System Part I: As Patients, 83 J. MED. ASS'N GA. 189, 189 (1994)Google Scholar.
208 See Key Patients’ Protections Hearings, supra note 83, at 69 (prepared statement of Peter W. Thomas, Esq., Former Chair, Subcomm. on Consumer Rights, Protections & Responsibilities of the President's Advisory Comm. on Consumer Protection & Quality in the Health Care Indus.) (advocating for the extension of basic patient protections to those in ERISA-qualifying plans).
209 See discussion supra Part III.B.
210 See Oberman & Schaps, supra note 19, at 565; discussion supra Part II.
211 See Farrell, supra note 1, at 286; see also discussion supra Part I1I.C.
212 See Patients’ Bill of Rights Act, S. 2330, 105th Cong. (1998); see also Patients’ Bill of Rights Act of 1999, S. 1334, 106th Cong. (1999).
213 See President's Radio Address, supra note 147, 1534. The Supreme Court articulated this principle in Marbury v. Madison, 5 U.S. 137, 166 (1803) (“[W]here a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy.“).
214 See Patients’ Bill of Rights Act of 1998, H.R. 1890, 105th Cong. (1998); Bipartisan Consensus Managed Care Improvement Act of 1999, H.R. 2990, 106th Cong. (1999).