Historically, First Bi-Partisan Agreement To Reform ERISA

For the first time in history, all the major candidates for president of the United States appear to support some reform of the federal Employee Retirement Income Security Act (ERISA) to allow patients with private employer-paid health coverage to sue their HMO or health insurer for damages, according to a survey this week by the Associated Press.

The Foundation for Taxpayer and Consumer Rights called for the candidates to be pressed on the details of their HMO liability platform, noting that the right to sue for full damages is the litmus test for true reformers.

“The fact that all the major candidates appear to support some form of HMO liability is tribute to the populist energy for reform, ” said Jamie Court, FTCR’s advocacy director and co-author of Making A Killing: HMOs and The Threat To Your Health (Common Courage Press, 1999). “But the devil is in the details and all candidates should be pressed on whether or not they will end ERISA’s preemption of state common law causes of action, allowing state by state rules to preside, including those state laws governing whether compensation to patients should be capped. The salient issue is whether patients will be able to avail themselves of state common law that applies to every other industry.”

The Associated Press asked this question of the candidates: “Should federal law be changed to give patients new rights to sue their HMOs, and if so, should that right to sue be limited or unfettered?”

• Bill Bradley: “Health care decisions should be made by doctors and their patients, not an insurance company bureaucracy. A patient who feels that an HMO has denied needed care should have the right to an independent appeals process and should have the right to sue if harmed by an HMO decision. I support the Patients’ Bill of Rights and I would push for a Consumers’ Right to Know, which would ensure that HMOs reveal important details of a plan that affect the care you receive.”
• George W. Bush: “I believe patients need access to a speedy and impartial forum to resolve disputes over health care coverage. Texas has a law that gives patients the right to seek legal action if they have been harmed. I allowed it to become law because we have a strong, independent review process and other protection designed to encourage quick, out of court resolutions instead of costly litigation. The process is working in Texas. I would support similar protections at the federal level provided they do not supersede the patient protection laws Texas and many other states already have on the books.”
• Al Gore: “I believe that we must pass a strong, enforceable Patients’ Bill of Rights to ensure that people insured by HMOs get the health care they need, when they need it. For many people, the decisions HMOs make can be the difference between life and death, and no one should have to worry about an HMO at a time when they are worried about their immediate survival. That is why I am calling for improved patient care by granting patients the right to an independent appeal when they are denied treatment, access to specialists, guaranteed coverage of emergency room treatment, and the right to hold health maintenance organizations accountable for their actions that can allow individuals to seek redress for decisions made by these organizations.”

• Steve Forbes: “Americans want the right to sue their HMOs because they feel they don’t have any control over their own health care. My ‘Health Care Declaration of Independence’ would dramatically reform the system so all Americans have the freedom to choose doctors they trust, specialists they need and second opinions they want. A lawsuit should certainly be an option, but also the last resort. … Under the Forbes plan, we would move to a system in which people can own their own health insurance policies. They would have the option to select from a variety of plans that could be arranged through their trade or professional associations, their churches, or other trusted groups, including their employers. Then, if they are denied care, they could take their health plans to court for breach of contract, just as they would under any other contract.”
• John McCain: “Yes. Once a patient has exhausted all options to obtain appropriate medical care that has been denied by an HMO, including going through a free and fair internal and external appeals process, that patient should have the right to seek redress in the courts. The right to sue should be limited to actual economic damages and capped non-economic damages under terms that do not foster frivolous lawsuits or unduly add costs to the health care system.”

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