The Patients' Bill of Rights: women's rights under managed care and ERISA preemption.

I. INTRODUCTION Public concern over the perceived failure of managed care has led many to call for the increased accountability of managed care organizations (MCOs).1 In response, during his January 1998, State of the Union address, President Clinton outlined a Patients' Bill of Rights that would guarantee patients certain protections against abuses by their health plans.2 Since January 1998, the Patients' Bill of Rights has been entrenched in partisan politiCS.3 Consequently, the 105th Congress failed to enact a Patients' Bill of Rights and the 106th Congress has passed two opposing versions of the Bill.4 At the time of publication, the two bills sat in a joint HouseSenate conference committee awaiting reconciliation.5 Although both sides support legislation increasing patient protections, Democrats and Republicans are divided over the issue of remedies for patients who have had their rights violated.6 Specifically, the controversy centers on the Employee Retirement Income Security Act of 1974 (ERISA),7 which essentially bars patients from suing MCOs in state court via federal preemption.8 The Democratic and Bipartisan versions of the Patients' Bill of Rights would amend ERISA to remove this bar, while the Republican versions would leave it intact.9 The debate over a Patients' Bill of Rights has quickly moved from the Congressional floor to the public arena. Proponents of Republican versions of a Patients' Bill of Rights claim that Democratic and Bipartisan versions would increase the costs of litigation and drive up the cost of health care to the point where many could not afford the premiums.10 According to news reports, "MCOs have even aired television advertisements claiming that allowing patients to sue their MCOs would only serve to swamp the system, drive up costs and deny health care to millions."11 On the opposite side of the spectrum, the American Medical Association (AMA) strongly supports the passage of a Democratic version of the Patients' Bill of Rights that would "(1) . . . cover[] all 161 million privately insured Americans; (2) . . . give[] patients a stronger, wider range of rights; and (3) . . , allow[] patients to sue their health plans for damages in state courts if denial of care results in injuries ." 12 Anticipating opposition, Clinton and other members of the Democratic leadership made early efforts to rally public support for the passage of a version of a Patients' Bill of Rights that would permit state tort suits.13 One group that the Clinton administration has targeted for support of the Bill is women.14 In November 1997, President Clinton addressed the Women's Leadership Forum about the importance of health care reform.15 He initially spoke about health care legislation specifically affecting women.16 He then broadened the discussion to the Patients' Bill of Rights, noting that women are affected "in a larger sense" by the failure of Congress to enact patient protections.17 As President Clinton recognized, women play a key role in the battle over the Patients' Bill of Rights.18 This Note examines the reasons why women should support a version of the Patients' Bill of Rights which lifts the ERISA bar to state tort suits against MCOs. Specifically, Part II of this Note examines the reasons why managed care has created a need for heightened patient protections for women. Part III explores why ERISA renders current protections safeguarding women inadequate and ineffective. Moreover, it asserts that the state and federal laws already in place to protect women only serve as a partial solution to the ERISA problem. Consequently, although both men and women could benefit from the increased protections a strong Patients' Bill of Rights would provide, women are in particular need of such legislation because of the special issues they face vis-a-vis their MCOs. Part IV examines the 105th and 106th Congresses' proposals for a federal Patients' Bill of Rights and explores the implications of proposals expanding MCO liability. …