The trick to understanding the most stubborn issue in health care is all in the wrist. There, you can feel the pulse quicken in politicians, patients, health care providers and employers as the words "HMO," "managed care" and, above all, "patients' bill of rights" are uttered.

The explosion of managed care, where nurses increasingly are employed, and excesses in cost containment are the impetus for the federal patient protection legislation generically known as the Patients' Bill of Rights. It's a political hot potato in Congress and always on the agenda of nursing professional organizations, medical care providers and business groups.

RNs are at the heart of managed care, recruited to use their broad knowledge and hands-on experience in utilization review, a pillar of cost containment in which health plans determine what is clinically necessary and appropriate medical treatment, as well as judicious use of resources. The Patients' Bill of Rights legislation specifically addresses the use of utilization review, although what quickens pulses is the specter of lawsuits resulting from denial of coverage.

Congress is trying to reconcile liability provisions-historically the bone of contention-in House and Senate versions of patients' bills of rights sponsored by Rep. Charlie Norwood, R-Ga., and Sen. John McCain, R-Ariz., and Sen. Edward Kennedy, D-Mass.

Passage, sought in various forms since 1995, isn't inevitable, although Steve Zatkin, vice president of governmental affairs for the Henry J. Kaiser Family Foundation, said it's more likely than ever. Zatkin said some provisions of the bills go beyond what Kaiser Permanente has talked about, but that in 1997 the nation's largest health maintenance organization recognized a "backlash" against growth in managed care and endorsed patient protections, such as the right to appeal denial of coverage to non-Kaiser sources.

Aside from new opportunities in utilization review, a successful patients' bill of rights will have little effect on RNs' workdays or how they perceive their jobs, said Mary Foley, MS, RN, president of the American Nurses Association, which supports the Senate bill. The legislation is consumer-oriented, she said.

When whistle-blower protection for nurses was written into the Senate version, "we were very excited about that because it accomplishes the same thing we were trying to achieve in a separate law," Foley said. "We want to see this across the country so when nurses see care that endangers or is substandard, they can speak about it and not have retaliation in their employment world," she said.

Norwood, through his spokesman John Stone, said the House and Senate bills are identical on patient protections. The key difference, and the hang-up as in past years, is liability limits, or "caps." The debate is whether limits should be set on damages and punitive awards.

Norwood, a former Army dentist, introduced the first patients' bill of rights in 1995, the year after he first was elected from Georgia's 10th District. "The irony is that President Clinton vowed to veto it if it contained caps on liability," Stone said. had to fight like the devil to keep caps out of the bill. Now that Bush is in, he says he'll veto it if it doesn't have caps."

Stone said negotiations have led to this: a compromise on liability in exchange for the Bush administration accepting the Senate-passed bill-"no exceptions."

"Under the Senate bill, you have the right to go to state court and sue under whatever your state law is … some states have liability caps in place already, some don't; [for] some it's unlimited, [for] some it's very limited.

"Under the House bill, your basic right would be to go to state court, under a federal law, and sue for unlimited economic damages and up to $3 million in non-economic and punitive damages, or whatever the limit is at your state level."

President Bush had wanted federal courts to hear health plan lawsuits, Stone said. "For the average person and the average attorney, having to go to federal court is just not a reasonable and practical remedy. You need to be able to go down the street to the county courthouse with your family attorney and file a suit to get your care. We've got that. Bush has agreed to it," he said.

The opposition

Opponents of a patients' bill of rights primarily argue that the threat of lawsuits will destroy employer-based health insurance.

About 160 million Americans have group health insurance through an employer and 16 million more buy coverage directly from insurance companies, according to a 2001 Georgetown University study. (States do-and will continue to-regulate practices for those who buy directly from insurance companies.) The federal law would govern the 160 million who may or may not have state protection now depending on where they live.

Of the 160 million, 51 percent are covered by self-funded plans, meaning the employer acts as the insurer. People who sue for denied care or injury under such plans will be suing their employer, something that Kate Sullivan, director of health care policy for the U.S. Chamber of Commerce, said businesses never bargained for.

It's one thing to take on the risk of being sued as a medical professional, it's another to voluntarily provide health coverage and risk it as a manufacturer or entrepreneur, she said.

"You can't sue your way to good health care," said John Schachter, deputy communications director of The Business Roundtable, a Washington-based association of chief executive officers of 150 companies. The United States has 40 million uninsured people and "the last thing we need to do is aggravate that."

Opponents say that rather than risk being sued, self-funded employers simply will quit offering health coverage. Businesses that purchase insurance elsewhere or subsidize it for employees may drop coverage because of higher costs.

"Health plans would have to factor in any potential lawsuits that could arise into their premiums," said Todd Irons, spokesman for the Health Benefits Coalition, a group of 3 million employers and health plans formed in Washington in the mid-'90s to counter the first talk of a patients' bill of rights. "We don't support any new health care lawsuits against employers, no matter what the cap is. They still will increase costs. With health care costs at the point they are now, employers really feel like they're up against a wall," Irons said.

Beyond employers, but having everything to do with business, are trial lawyers who prefer no law to one with liability limits, Stone said. Not only would liability limits hold down the value of judgments, but both Norwood's bill and the McCain-Kennedy bill cap attorney fees at one-third of any award. Together, those measures would make it less attractive for lawyers to initiate cases.

Where nursing fits in

Lynne Caraway, RN, has seen the growth in utilization review in 18 years with Cigna Corp., one of the nation's larger managed care companies with 14 million members, 3,600 hospitals and 288,000 physicians. She manages 28 utilization review nurses-up from 19 five years ago-who are responsible for monitoring the care of 600,000 members who use 45 affiliated hospitals in Arizona.

A typical morning, Caraway said, has on-site review nurses receiving a list of as many as 25 patients they'll see later in the day. Each patient's chart is reviewed with an eye toward medical status, length of hospitalization, diagnosis, medical procedures and the patient's eligibility under Cigna coverage, all of which are later reviewed in telephonic rounds with a medical director.

The RNs that Cigna hires for on-site review have strong backgrounds in med/surg, surgery, ER and ICU because of their knowledge and experience, she said.

"If you determine that the member is at the appropriate level of care and receiving the appropriate services at that level, then cost containment comes with that," Caraway said. "A lot of times there are things that aren't covered under the insurance and we can help members get services through community resources as well."

That's where utilization review segues into case management, said Diane Huber, Ph.D., RN, FAAN. She is an associate professor at the University of Iowa, where she teaches undergraduate and graduate courses in case management, nursing administration and health policy.

"In one respect, nurses are direct care providers, but in the other respect, because they are the center of the information flow, their function always has been to coordinate care, from carrying out physicians' orders to providing nursing care to seeing that food is served," Huber said. "Case management has always been a concept in which both the pressures to be efficient and of high quality have been rolled into one function."

Utilization review and its goal of cutting costs by eliminating redundant services and unnecessary procedures did not by itself bring on the patients' bill of rights movement, Foley said. "It was when it became managing costs, not care, done by nonhealth care people for the purpose of saving money," she said.

"I'm disdainful, as a lot of people are, of strict [utilization review] for the purposes of simply minimizing expense when individual needs aren't considered and when there isn't a comprehensive plan of care," Foley said. "If you are a bean counter and you're simply there counting days and aspirin tablets, shame on you and shame on any company that employs those services for that purpose."

Foley said she believes that the public's interest in a patients' bill of rights may push Congress to passage. "[People] want to know they're going to get access to appropriate care and if there are questions, if there are barriers being put up, they have some rights. They have the right to appeal. And I think that's a very American way of doing things."

Contact Phil McPeck at getpjm@aol.com.