The New York Times, Op-Ed Page (Sept. 1, 2001)

By MARION BERRY

WASHINGTON -- When Congress reconvenes next Wednesday after a monthlong recess, preparations will begin for a conference of the House and the Senate to reconcile the differing versions of patients' rights legislation that they passed this summer. The negotiations are expected to be bitter and hard-fought, and it is unclear whether an agreement can be forged that will create a bill the president will sign.

This is a surprising turn of events since the House version of the bill was practically identical to the Senate version up until the evening before it passed. In fact, the lead bipartisan sponsors of both bills had closely coordinated their efforts to avoid the battle that will take place this month.

Now the conference promises to be extremely contentious because of a last-minute amendment that represented a political betrayal. Instead of ensuring important rights for patients and families, the House actually passed a health maintenance organization and insurance company protection act that would leave patients with even fewer options for legal recourse than they have now.

Here is the short version of what happened:

This year the Senate passed the McCain-Edwards-Kennedy bipartisan patients' rights bill, which, in addition to providing guarantees of medical care, gives patients the right to seek redress in court for decisions made by health insurance companies that result in injury or death. To this day, as a wholly unintended consequence of a 1974 law, health insurance companies cannot be held liable for their actions - they are the only businesses with such protection.

The version of the McCain-Edwards-Kennedy bill that was passed by the Senate contains strong employer protections, so that business owners will not be held accountable for any negligence in the services rendered by the health insurance companies they contract with.

This legislation is designed to hold H.M.O.'s just as accountable for their actions as any other business is - and, contrary to the claims of the insurance industry, it is not designed to promote a tide of reckless lawsuits that would put responsible business owners at risk or would increase the cost of health insurance for consumers.

As the Senate considered its bill, the group of House lawmakers that I have been working with for years - including Greg Ganske, a Republican from Iowa; John Dingell, a Democrat from Michigan; and Charlie Norwood, a Republican from Georgia - worked closely with the Senate sponsors to make sure that key provisions and amendments would be acceptable in the House. After the McCain-Edwards-Kennedy legislation passed, we decided to reintroduce our bill so that it was practically identical to the Senate-passed version.

Coordination increased as the prospect for House consideration became more likely, and our House group began meeting regularly with the Senate sponsors to find a way to bridge our differences with the White House and the Republican House leadership.

There were seven of us - the named sponsors of the House and Senate bills - participating in the negotiations, but the White House insisted on meeting with only Charlie Norwood, and all of us agreed to honor that preference. We trusted Charlie Norwood to work out a deal that would be a fair compromise. Every day he came back to us and told us what the White House wanted, and every day we tried to come closer to what increasingly seemed like impossible demands.

Then one day, six of us emerged to find our seventh partner - Charlie Norwood - on live television. He was participating in a hastily assembled White House press conference, announcing to the nation that he had reached a deal with the White House. He never checked back with us, his House and Senate colleagues. He knew that he had agreed to terms we could never accept. And yet he and the White House called this a "compromise."

A compromise is not an agreement reached behind closed doors between two members of the same political party, especially when it contradicts the principles so fundamental to one side.

The so-called "Norwood amendment" that resulted from a handshake between Mr. Bush and Mr. Norwood was written overnight and then passed by the House the very next day by barely a majority.

The Norwood amendment gutted our bipartisan legislation, and this is why:

First, our original bill started with the premise that a health insurance company should be treated just like any other person or institution in the health profession. That is, if it makes a decision that results in harm to a patient, it should be held accountable for that action. The Norwood amendment creates a whole new category for H.M.O.'s. It gives them special protections that no other industry has - like new federal limits on damages in cases where a patient is hurt by the actions of an H.M.O.

Second, the amendment may pre-empt most state laws, so that already existing patients' rights laws in places like Texas, California and New Jersey could be rendered void. And in states where case law has been building in favor of patients' rights, the Norwood amendment would basically kill years of legal progress.

Third, the amendment calls for a legal device called "rebuttable presumption." Few people could tell you what this means, but we've figured out that it increases the presumption of innocence for H.M.O.'s, making it harder for a plaintiff to prove liability.

The big question for all of us as Americans has to be: Why is this happening?

Why did the White House oppose a real patients' bill of rights at every turn, even when a majority of Americans support one, and even when a coalition of Republicans and Democrats in both houses of Congress had united behind one? And why are we sitting here today without a law that holds health insurance companies accountable, when the health and livelihood of millions of Americans depend on such a law?

Could it be that the White House intended to create an impasse with the Senate, and leave us once again without managed care reform?

Those are the questions we should put to the White House.

In the meantime, the stage is set for a crucial House-Senate conference with a very difficult assignment. Consensus will be impossible without compromise on both sides. And without consensus, this nation will be left with a situation in which children, senior citizens and others will be unable to demand the care and treatment to which they are entitled.

Marion Berry, Democrat of Arkansas, is a member of the House of Representatives.