Senate ‘Health
Week’ Brings Focus to Medical Issues
Ronald Szabat, J.D., L.L.M., Director
Governmental and Legal Affairs
s
will be detailed in the August 2006 “Governmental
Affairs” edition of this
NEWSLETTER,
May 1 brought hundreds of anesthesiologists to Washington,
D.C., for ASA’s highly successful annual Legislative
Conference. At about the same time, the United States
Senate also began “Health Week” as a way
to spotlight major issues of importance to America’s
patients and physicians.
First up was a medical litigation reform bill, S.22,
the “Medical Care Access Protection Act of 2006,”
sponsored by Sen. John Ensign (R-NV), that would improve
patient access to health care services by reducing
the excessive burden that liability premiums place
on physicians. The bill is the first major Congressional
measure to advance the Texas stacked cap model for
noneconomic damages up to a $750,000 total, with the
stipulation that physicians and other health care
providers would see any judgments against them for
such injuries limited to no more than $250,000 for
each claimant.
The bill also included a new expert witness rule,
whereby an expert in one medical specialty or subspecialty
could not testify against a physician in another medical
specialty or subspecialty unless the expert demonstrated
substantial familiarity between the two and showed
that the standards of care were similar.
Despite the higher noneconomic damages cap in this
measure, the Senate still failed to muster the 60
votes needed to allow it to proceed to a final vote,
failing to invoke cloture (cut off debate so that
the bill could proceed to amendments and a vote on
final passage) by a vote of 48-42. Of note, several
of the newer Republican senators did vote “yes,”
thus increasing overall Senate support for medical
litigation reform, as compared to prior Congresses.
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Mississippi Contingent at 2006 Legislative
Conference
Left
to right: Kirk L. Kinard, D.O., Candace E. Keller,
M.D., M.P.H., Congressman Chip Pickering (R-MS),
Timothy J. Beacham, M.D., Stephanie J. Dyer,
M.D., Claude D. Brunson, M.D., Dale F. Sutherland,
M.D. Photo by Claude D. Brunson, M.D. |
Following on the heels of the unsuccessful vote on
S. 22, the Senate also voted on S. 23, the “Healthy
Mothers and Healthy Babies Access to Care Act,”
sponsored by Senate Budget Committee Chairman Judd
Gregg (R-NH) and Senate Conference Chairman Rick Santorum
(R-PA). This bill was remarkably similar in structure
to S. 22 except that it sought, as its name implied,
to limit noneconomic damages to physicians and other
health care providers involved in services relating
to labor, delivery and postpartum care.
As a “specialty-specific” bill, S. 23
highlighted the loss of obstetrical care nationally
and the ill effects of runaway juries on this segment
of physician medical care. As with S. 22, for its
part, ASA supported moving the bill to cloture even
as it quietly continued to work with Sen. Gregg to
ensure that all anesthesia services incidental to
labor, delivery and postpartum care would fall under
the protective umbrella of the bill. Unfortunately
this bill also failed to garner the 60 Senate votes
needed to move to final passage, again failing largely
along party lines by a vote of 49-44.
Following on the heels of the votes on S. 22 and S.
23, the Senate turned to S. 1955, the “Health
Insurance Marketplace Modernization and Affordability
Act of 2006,” sponsored by Senate Committee
on Health, Education, Labor and Pensions [HELP] Chairman
Michael B. Enzi (R-WY). Working from a revised Chairman’s
Substitute to an Amendment in the Nature of a Substitute
to S. 1955, as reported from the HELP Committee on
March 15, 2006, the Senate debate was lengthy and
heated. Ultimately, a key vote to invoke cloture failed
on a 53-43 vote.
ASA took no official position on S. 1955 but effectively
lobbied at the committee level to ensure that no state
scope-of-practice laws would be changed by its provisions.
In short, the bill would amend the Employee Retirement
Income Security Act of 1974 (ERISA) and Public Health
Service Act to expand health care access through creation
of small business health plans by modernizing state
health insurance laws and practices. The bill would
accomplish this by amending ERISA to provide for the
establishment of special group health plans that could
be sponsored by trade, professional, chamber of commerce
or similar business associations that meet certain
certification requirements. Under its terms, the bill
would require the U.S. Secretary of Labor to consult
with states regarding any exercise of authority over
such plans.
The measure also would amend the Public Health Service
Act to advance the development and use of new Model
Small Group Rating Rules drawn from the National Association
of Insurance Commissioners (NAIC) Adopted Small Employer
Health Insurance Availability Model Act of 1993. It
is noteworthy that NAIC has a more recent model act
on this subject that was not used.
In addition the bill would require that the secretary,
in consultation with NAIC, establish the Health Insurance
Consensus Standards Board to develop recommendations
that would harmonize state health insurance laws relating
to form and rate filings, market conduct review standards,
and prompt payment of claims and internal review.
As expected, S. 1955 has had mixed support among a
wide range of national trade and professional associations.
The American Medical Association, NAIC and the states’
attorneys general, for example, all voiced specific
and serious concerns on a number of the bill’s
provisions. ASA has continued to work with the committee
and bill sponsors, discussing matters of interest,
and has commended the authors of this legislation
for their efforts to expand the availability of health
insurance.
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New Hampshire Contingent at 2006 Legislative
Conference
Left to right: Steven K.
Andeweg M.D., Steve J. Hattamer, M.D., Alex
Heinecke (Dartmouth University student), Paul
Sansone, M.D., Paul DelGiudice, M.D., Congressman
Jeb Bradley (R-NH), Sean E. Hunt, M.D., Palmer
Jones (New Hampshire Medical Society Executive
Director), Timothy J. Quill, M.D. Photo by Timothy
J. Quill, M.D. |
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