The 1999 Patients' Bill of Rights would have amended some provisions of ERISA, which is why Dr. Myers testified before the subcommittee with jurisdiction. In particular, Kennedy-Dingell would have amended ERISA to permit additional legal remedies (i.e. the ability to sue an HMO for injury or death as a result of a denial of care). In his statement, Dr. Myers doesn't specifically address the PBR, but he addresses a number of the policy changes that the PBR would have brought. Kennedy-Dingell did come explicitly during the hearing, of course, during the questioning and Dr. Myers response in context, reveals how absolutely shameless it is to claim that the hearing wasn't concerned with the PBR:
Mr. Boehner. We thank all of the witnesses for their testimony. I think it was certainly helpful to the Committee and enlightening to the Members. I'm going to remind Members that each member will have five minutes to ask their questions.
Ms. Kramerich, in your written testimony, you refer extensively to the Presidential Commission on the Patients' Bill of Rights. And even in your testimony today, you referred to the administration's efforts at trying to move the Patients' Bill of Rights.
But there are some significant differences between the President's Patients' Bill of Rights and issues that we find in the Kennedy-Dingell Bill that we have on the Hill. Most notably in the area of liability under ERISA. And even in your testimony today, you call for remedies that include greater access to the courts. But from my reading of the activities of the Presidential Commission on the Patients' Bill of Rights, that commission almost unanimously recommended that we not open up the liability situation. They didn't even mandate, didn't even call for mandatory external reviews.
So I'm trying to find out, determine in my own mind, where the Administration really is on the issue of liability.
Ms. Kramerich. Mr. Chairman, yes, thank you. I'm happy to address that. My understanding of the Commission's recommendations is not that they rejected the idea of enhanced accountability in some form. But because it was a bipartisan group and because it was a group that involved federal representatives, private sector representatives, state and local government plans, union representatives, a broad perspective of interests.
They worked in a very diligent way to try to come up with consensus recommendations. And one area, at least one area, in which they did not achieve perfect consensus was on remedies, what they should be, if they should be improved and how exactly that should happen.
The president has gone beyond that and said that in order to impose a patients' bill of rights that embodies all of the principles that the Commission did achieve consensus on, it's necessary to find a way to make those protections strong and enforceable.
And he's commented on a lot of different legislative proposals that have approached that in different ways. And you're right. I've talked about the importance of those principles without being absolutely explicit as to how exactly one might achieve that, and there are at least three different ways that one could do it. And I'm happy to talk more about how those can be designed.
Mr. Boehner. Well, Ms. Kramerich, do you believe if we opened ERISA to remedies such as access to state courts that we would see increases in the cost of health care to employers and employees?
Ms. Kramerich. That's an interesting question. If we open ERISA to permit access to state courts, it is possible right now for someone in an ERISA plan to sue in state court to get the benefit that they feel that they've been wrongfully denied.
What we're hearing at the Labor Department is that what often will happen in a case like that is the participant will feel they've been denied. They often feel that the internal review process hasn't given them an answer that makes them trust the denial.
They bring an action in state court. The person or the entity that they're suing will remove to federal court. The participant has the perception that that makes the litigation much more expensive to pursue, much more time delayed. And then it's then impossible to get a review as to whether or not the benefit was denied wrongfully.
Instead, what happens is the review is was the denial arbitrary and capricious. If the denial is simply wrongful, that's not enough to overturn it. That's the testimony that we're hearing at the Department.
So the cost of litigation is already borne. The remedy is inadequate.
Mr. Boehner. Dr. Myers, if we opened up ERISA to allow for additional remedies on the liability front within ERISA, what effect would it have on Ford Motor Company and its ability to offer quality health care to their employees?
Dr. Myers. First of all, Ford Motor Company would continue to offer quality benefits, but it would hurt us in the sense that the costs that are associated will clearly go up. There's no way around that at all.
The ability to bring in a number of members of the legal profession who would then try to find ways to come at our benefit, to me, is absolutely the wrong thing that we want to----we don't want to encourage. The ability to have protracted costly litigation in a jury that doesn't necessarily get the opportunity to understand all the ramifications; it's not the right way, from our perspective, for us to go.
We think that the costs would certainly rise with respect to our HMOs across the country. They would rise in our PPOs, and that we would have to find a way to deal with those very difficult cost issues within our whole benefit structure. And I just would not want to predict how that would affect the kind of benefit that we offer.
I think that many other companies will have a great deal more trouble than Ford with that question because they're on a much different margin than are we.
Indeed, in context, Boehner asks one witness about the proposed changes in Kennedy-Dingell (by name) and then proceeds to ask Dr. Myers how the exact same changes would effect Ford.
Indeed, the response from the Myers Campaign is not only unpersuasive, it's factually wrong. This isn't helping Dr. Myers credibility on this issue one bit.