Do We Need a Consumer Bill of Rights?

Commentary by Pete du Pont

There seems to be a growing sentiment among members of Congress and state legislators that consumers need to be protected from the practices of health insurance companies and managed care plans. In response to their concerns, President Clinton appointed an advisory committee that proposed a "Consumer Bill of Rights" last fall.

Now, Senate Minority Leader Tom Daschle (D-SD) is floating a proposal that he and other Democrats contend would ensure certain consumer protections for patients. For example, Daschle's proposal intends to increase access to a specialist, make sure that patients can get emergency care when needed and that insurance will pay for potentially helpful clinical trials.

In addition, the Daschle proposal seeks to get more information to patients about drugs, procedures and other options they might have. And perhaps his most radical proposal would be to open insurers, health plans and employers to a wide array of lawsuits.

All of these ideas sound good at first, especially to anyone who has encountered problems in the current health care system. But the real question is: Would they help people get better health care?

Take the case recently highlighted on National Public Radio, of William Delashmit, 72, a senior on Medicare who has lost sight in his right eye due to a particular eye disease known as Cogan's Dystrophy. His physician, Dr. Walter Stark of Johns Hopkins Medical School, wants to use a laser devise on his right eye. According to Dr. Stark, his patient has a 95 percent chance of regaining sight in his eye.

But there is a problem. Medicare only pays $400 for this procedure. Unfortunately, the machine cost half a million dollars, and the owners charge $800 to use it. Ideally, Mr. Delashmit could simply pay the additional $400 and get his eyesight back. But having the patient pay the balance of a medical bill is against the law for seniors on Medicare.

The next best option would be to let the patient "privately contract" with the physician, by paying the full $800 out of his own pocket. But a new law (enacted by a Republican Congress) went into effect in January that would require any physician who privately contracts to refuse to accept any Medicare payments for the next two years - virtually impossible for a physician associated with a medical school.

As a result, the patient remains blind in one eye. Mr. Delashmit is quoted as asking, "Why should government be able to tell me that I can't spend my money to get medical treatment as I see fit?" Exactly. And not a bad question for Sen. Daschle and his Patient Bill of Rights.

Would the Bill of Rights help patients caught in this government web? No, it won't. Democrats intend to make passing a Consumer Bill of Rights an election year issue, which won't help patients like Mr. Delashmit get the care they need. But they will strongly oppose any attempt to expand private contracting, which means locking many patients out of health care.

After the president's Advisory Commission on Quality and Consumer Protections reported its findings, President Clinton asked Vice President Al Gore to look into several government agencies overseeing health care programs to see to what extent they complied with the Commission's recommendations. On February 20, Vice President Gore responded: "I am pleased to note that each of the agencies that directly administer federal health programs reports that they are, or have the potential to be, in substantial compliance with the Consumer Bill of Rights." Some of the agencies reporting include Medicare, Medicaid, the veterans health system and the Federal Employees Health Benefits Program. These four programs alone probably cover 70 million Americans or more. And the health insurers that are involved cover many millions more.

Now, it's probably fair to say that all of these plans could stand some improvement. But complying with Daschle's Bill of Rights won't help Mr. Delashmit, or address the problems of managed care.

What we need is not more health care rights but more health care freedoms. If Congress really wants to increase health care quality, it needs to get out of the business of regulation and into the business of freedom. Preventing Mr. Delashmit from regaining his eyesight is surely not Sen. Daschle's goal. But it is the result of his policies.