The long road to a patients' bill of rights began in the Clinton era, and it could become a reality during the Bush administration with both houses of Congress having passed a bill-but we have traveled this road before.

In 1997, President Clinton created the Advisory Commission on Consumer Protection and Quality in the Health Care Industry. Concentrating on managed care issues, the commission issued its proposals for a Consumer Bill of Rights and Responsibilities in March 1998.

Key protections included:

The 106th Congress took up the issue of patient protection in 1999. The House and Senate passed different bills, but they died in the conference committee when House and Senate conferees could not agree on the applicability of the law in the private insurance market, on the expansion of patients' legal remedies and on provisions designed to increase access to health insurance coverage.

Patient protection was revisited in the 107th Congress. On July 2, the Senate passed S.1052, the Bipartisan Patient Protection Act. The bill includes many of the provisions agreed to by both houses in bills passed by the 106th Congress. It adds tax provisions to increase access to health insurance and attempts to resolve differences about legal remedies by distinguishing between types of claims, allowing suits in state courts for malpractice but reserving actions to federal courts when there are disputes about coverage policy. The bill sets no limits on damages awarded in state courts and caps damages at $5 million in federal actions.

An identical bill, HR 526, was introduced in the House in June, but President Bush promised not to sign it, which is not the same as a veto. If the President does not sign the bill instead of a veto, Article I, Section 7 of the Constitution provides that the bill become law in 10 days. This is what Bush did in Texas with similar legislation.

A competing bill, HR 2315, was introduced in the House, which Bush supports. The bill limits federal court damage awards to $500,000 and would make it more difficult for patients to sue in state courts.

After weeks of negotiations with key Republicans, particularly Charles Norwood, R-Ga., a supporter of the right to sue provisions in the House, Bush and House Republicans struck a deal that allows the limited right to sue in state courts, caps malpractice damage awards at $1.5 million and allows such damages only when the HMO first failed to comply with a medical reviewer's decision that a denied service should be covered. It also exempts self-insured employers from state court liability. That bill, HR 2563, passed the House Aug. 2.

As in 1999, patient protection now goes to a House-Senate conference committee to resolve differences between bills, which won't happen until the fall, if at all. As before, the defining issue is patients' right to sue their health plan and the damages they can collect.

Why is the right to sue such a contentious issue? A 1974 law, the Employee Retirement Income Security Act (ERISA), offers a virtual wall of protection from lawsuits to HMOs and other types of managed care entities. ERISA regulates employer health benefit plans at the federal level, does not allow money damages and bars states from also regulating such plans. These protections, known as the ERISA preemption clause, prevent lawsuits in state courts.

The managed care industry opposes S.1052/HR 526 because they would undo the near immunity to lawsuits under ERISA. Meanwhile, the American Medical Association and the American Nurses Association support the bills.

Some states have tired of waiting for Congress to act, at least on the patient protection provisions that do not involve the right to sue and collect damages. Fifteen states have enacted gag clause prohibitions, 14 have enacted emergency room access protections, 12 protect access to specialty care, 11 have drug formulary laws and nine states have continuity of care protections.

New state laws already affect nurses who practice in managed care. Nursing practice and patient advocacy nationwide will be affected by whatever bill finally becomes law, if Congress acts--this time.