Importing HCFA-Style Regulation Into the Private Sector Through ThePatients' Bill of Rights

Report Health Care Reform

Importing HCFA-Style Regulation Into the Private Sector Through ThePatients' Bill of Rights

June 27, 2001 24 min read
Senior Fellow
Robert E. Moffit is a senior fellow in The Heritage Foundation's Center for Health Policy Studies.


The leading patients' bill of rights legislation, revised in several versions (S. 1052/ S. 872/ S. 283), is being debated in the Senate. The bill would affect 190 million Americans.

The House of Representatives has already enacted a version of the patients' bill of rights (H.R. 2990) and is reconsidering yet another version of the legislation again this year.

The Range of Control
If enacted, the Senate bill, like the House versions, would have a massive impact on the structure and functioning of the American health care system. Beyond the highly visible issue of litigation, the legislation would extend federal rules, guidance or control over virtually every major aspect of private health plan operations. These include:

  • Utilization reviews.

  • Internal and external appeals processes.

  • Peer review processes.

  • The standards and processes for determining medical necessity in coverage decisions.

  • The conditions for judicial review of external appeals decisions.

  • Private plan grievance procedures.

  • The establishment of point of service options.

  • The delivery of care and access requirements specialists, emergency care and continuity of care.

  • Formularies for prescription drugs and requirements for patient participation in clinical trials.

  • The content and distribution of plan information.

  • The contractual relationship between doctors and private health plans.

  • The definition of fee for service medicine.

As is often the case with health benefit mandates, every regulatory provision can be justified in a specific instance, but the accumulation of these provisions is tantamount to a massive transformation of private health insurance into something more akin to a public utility. With this level of federal regulation, compounding the intensive regulation of health insurance that already exists at the state level, private health insurance in America is likely to be "private" in name only.

Anticipating the Consequences
Last year, The Heritage Foundation published a major paper, "The Patients' Bill of Rights: A Prescription for Massive Federal Health Regulation" (Backgrounder 1350) by John S. Hoff, a prominent Washington attorney specializing in health care law and a former staff member with the National Bipartisan Commission on the Future of Medicare. (The Backgrounder is attached to this Memo.) That paper did not focus on the issue of litigation, which has been the subject of so much debate on Capitol Hill and in the media, but rather on the regulatory infrastructure that would be created by the legislation. As counselor Hoff then argued, an honest examination of the House legislation shows that it goes beyond its stated purpose and is a "Trojan Horse" for increased federal regulation of private health insurance, having nothing to do with the ability of members of private health plans to sue. As the Backgrounder clearly demonstrated, the regulatory regime created by the House bill would apply not only to HMOs, but also to fee for service plans. Much the same holds true for the Senate legislation, particularly in its recent versions.

Fueling The Regulatory Crisis
Health care economists and policy analysts know that regulation, regardless of the laudability of its intention, adds higher costs to the system, including costs on plans and providers in the process of compliance. Every dollar spent on complying with government regulation in the health care system is a dollar less spent for patient care.

What makes the current congressional debate ironic is that congressional oversight committees are already wrestling with the excesses of regulation in the Medicare program, which have become legendary. Recently, PriceWaterhouseCoopers prepared a stunning report for the American Hospital Association (AHA) that revealed that for every hour spent of delivering care to a Medicare patient in American hospitals, hospital officials are consumed with complying with one half hour's worth of Medicare paperwork. And, among the doctors, antipathy to Medicare's regulatory system is at an all-time high. Writing in a recent edition of Harvard Health Care Policy Review, Harry M. Cain, a former Executive Vice President of Blue Cross and Blue Shield Association, warns, "The level of provider antipathy to Medicare-what often comes across as genuine hatred, especially in the western part of the country-is now reaching dangerous heights."1 So while the Congress is trying to cope with ways to reform or streamline the massive regulatory regime that is now burdening doctors, hospitals, and other providers in the federal government's huge public insurance program, Congress is simultaneously preparing to add yet another layer of regulation on the private-sector health care system.

Hiding HCFA
The Bush Administration, in trying to cope with the growing anger of health care plans and providers who must do business with the Medicare bureaucracy, has gone so far as to change the name of the regulatory agency from the Health Care Financing Administration (HCFA), an agency of the U.S. Department of Health and Human Services (HHS), to the new Centers for Medicare and Medicaid Services (CMS). Hiding HCFA under a new name at HHS, of course, doesn't change HCFA's substantive identity. Nonetheless, even a cursory glance at the House and Senate language contained in the competing versions of the patients' bill of rights legislation shows that the statutory requirements will, of necessity, generate an enormous regulatory regime. (Under Section 402 of the Senate bill, for example, HHS and the Department of Labor are given plenary authority to issue regulations in the system after executing an inter-agency memorandum on their divisions of responsibility under the legislation; see Senate Bill, p. 177.)

Rest assured that the multiple problems that trouble HCFA/CMS in the administration of traditional Medicare, and the heavily damaged "Medicare+Choice" program now groaning under literally hundreds of pages of regulations, will surely be imported into the private sector.

Bipartisan Bureaucracy
Thus far, neither congressional Republicans nor Democrats debating the patients' bill of rights legislation have focused strongly on the regulatory issue, and perhaps for different reasons, both have adopted variations of the same regulatory themes. This regulatory passion is evident in both House and Senate Democratic and Republican measures, yet it is mostly congressional Republicans who have previously sounded the alarm over the regulatory excesses in the health care system. As Michael Kinsley, editor of Slate Magazine and a prominent liberal commentator, notes, "A massive new regulatory system imposed on one of the country's biggest industries (health care)? Supported in theory, while quibbling over details, by the Republican president and Republican congressional leadership? It seems to me that even the GOP version is a pretty impressive piece of meddling in the free market."2

Instead of opening the floodgates to more and more expensive lawsuits, or adding another layer of complex regulation to the private health insurance market, Congress and the Bush Administration should stop and go back to the drawing board. They should make the necessary legal and regulatory changes into the America's health insurance market that would give Americans choice, ownership, and control over their health care plans and benefits. In that way, most of the problems frustrating doctors and patients with the insurance market would be resolved. The professional literature shows that the more choice patients have of plans and benefits, the higher their level of satisfaction with their insurance. It is much easier and simpler for patients to fire poorly performing insurance companies than to hire a lawyer to sue them.


The bulk of discussion and debate on this legislation has focused on the nature and scope of the litigation that would be permitted; the kinds and level of damages (economic, non-economic, and punitive) to be assessed in federal or state courts against health plans (or employers) that make decisions that injure, or seriously harm patients enrolled in them and the impact on the willingness or desirability of private companies to continue to offer health insurance for their employees.

In the media, virtually all of the discussion on the patients' bill of rights legislation has focused on these litigation issues. The House bill would permit states to subject all plans to litigation that treats contractual disputes between the plans and their enrollees over the terms of coverage much like malpractice lawsuits, with awards for pain and suffering and punitive damages, and other non-economic damages.

Dropping a Texas-Sized Fig Leaf
Like the House bill, incautious Senators are likely to enact provisions that increase the costs and reduce the availability of health insurance for workers and their families by creating new opportunities for lawsuits. Members of Congress who support the patients' bill of rights legislation often deny that the legislation will open a floodgate of litigation, and point to the experience of the state of Texas, where a version of the patients' bill of rights legislation has been enacted. Yet, when Senator Phil Gramm of Texas offered Texas-style language as a substitute for the Kennedy-Edwards-McCain litigation provisions, the Gramm amendment was soundly defeated on the Senate floor. Employers are not, and will not, be shielded from such lawsuits. Prudence is called for in this complex area, but prudence is clearly a casualty of the debate. As David S. Broder, veteran columnist for The Washington Post, recently stated, "The Kennedy-McCain-Edwards bill violates this prudent principle by opening the door to court suits, not just against HMOs but, under certain circumstances, against the employers who provide health insurance."3

Out of Focus
What has been largely missing from public discussion is the breadth and depth of the regulation embodied in both the House and the Senate bills. The enactment of either bill into law would result in a quantum leap in federal control over the financing and delivery of health care.

This stubborn congressional refusal to address the regulatory issue is supremely curious given the popular opposition and congressional rejection of the Clinton health care plan in 1994, largely because of the extraordinary regulatory reach and bureaucratic complexity and cost of that ill-fated proposal. It is also mysterious, as noted, given the widespread and bipartisan dissatisfaction in Congress with the Medicare bureaucracy, and its costly and time-consuming regulatory excesses in the troubled Medicare program. Moreover, Congress and health care providers and insurers and state regulators are also struggling with the implementation and compliance with rules borne of the complex Health Insurance Portability and Accountability Act of 1996 (HIPAA). Not to be overlooked, of course, are the recent congressional efforts to repair the damage to home health care agencies, hospitals, and other health care providers inflicted through regulatory excesses in the Balanced Budget Act of 1997.


Both the House and Senate bills would put the federal government in the business of regulating private health plans and private health care delivery.

Under the House-passed bill (H.R. 2990), the federal government would impose new rules on utilization reviews; internal and external appeals of coverage decisions; peer review standards; the conditions for judicial review (restricted to only one party in the dispute); the grievance processes for plans; point of service options; setting formularies for prescription drugs; participation of plan enrollees in clinical trials; patient information; and how plans contract with doctors. The House-passed bill even establishes federal rules on fee-for-service indemnity insurance and imposes Medicare regulations on certain aspects of private physician compensation. The mind-numbing level of legal compliance on private plans is fraught with a myriad of ambiguities: words such as "appropriate," "sufficient," "fair," "qualified," and "valid." This kind of language fills page after page of statutory text. It will, of course, define new legal obligations-a large number of them. This guarantees full-time employment for a federal regulator. And it is a lawyer's dream.

Last year, as noted, the Heritage Foundation published "The Patients' Bill of Rights: A Prescription for Massive Federal Health Regulation," Heritage Backgrounder 1350 (attached) by John S. Hoff. It was widely disseminated, and it was not refuted. It outlined the nature, extent, and likely consequences of federal regulatory control over private health insurance operations. It demonstrated, beyond dispute, that the House bill provided for a major expansion of federal authority over virtually all private health plan operations, including-for reasons that are still unexplained-even private fee for service plans.

Compare the Kennedy-Edwards-McCain version of the patients' bill of rights4 with the Backgrounder's discussion of the regulatory provisions of the House-passed bill (H.R. 2990). This analysis of the regulatory aspects of patients' bill of rights as outlined in the House bill is fully applicable to the leading Senate bill.


In order to make comparison easy, the following analysis of Kennedy-Edwards-McCain is tied to the titles in Heritage Backgrounder 1350. There are some minor differences in the regulatory provisions, but the main components of new federal regulatory control in the House bill, as discussed in Heritage Backgrounder 1350, are also in McCain-Kennedy. In some cases where there are differences, it appears that the sponsors of the Senate legislation tried to fix the technical problems indicated in Backgrounder 1350, but they did not address the fundamental issues presented in the analysis.

There is a paradox in the legislative language of both bills. On the one hand, it is often vague and unclear. On the other hand, the language is remarkably prescriptive; any normal changes, brought about by the natural innovations in health care delivery through market forces, would not, of course, be automatically adopted by health plans in their normal operations. Under the proposed legal regime, any change would require Congress to revisit these prescriptive procedures and either make more changes in law or authorize the Department of Health and Human Services (HHS) or the Department of Labor (DOL) to issue regulations to clarify issues in contest or points of dispute. This would be akin to introducing into the private health care sector the style of congressional micromanagement, plus HCFA-style rule-making, that today plagues the troubled Medicare and "Medicare + Choice" programs.

Consider an item-by-item comparison:

Utilization Review
The House Bill prescribes in considerable detail how private health plans can evaluate the utilization of medical services, treatments, and procedures. The House prescribes written policies, what is to be included and who can conduct such reviews, and when they can or should conduct them. (See Backgrounder 1350, p. 3.)

The Senate bill language does the same. (See Senate bill, pp. 3-7.)

Internal Appeals
The House bill requires plans to provide an internal appeals process and specifies in considerable detail how this process is to work. (See Backgrounder 1350, p. 4.)

The Senate bill language does the same. (See Senate bill, pp. 16-24.)

External Appeals
The House bill requires health plans to provide an external appeals process for the denial of claims and specifies how appeals are to be processed. It specifies, for example, that the review panel must be composed of three physicians who are "appropriately credentialed," though what this means is utterly unclear. (See Backgrounder 1350, p. 4.)

The Senate bill language does the same. But it does not require that the review panel be composed of three professionals.

Appeal Procedures
The House bill requires that the external appeals process to be "fair" but otherwise leaves crucial details up to the regulatory authority of HHS and Department of Labor. This means that, as a practical matter, "fairness" either will be outlined in painful and laborious detail in future regulations, submitted to The Federal Register for review and comment by the public (in reality, the lawyers and lobbyists of the various special-interest groups that actually read the Register), or will, among a myriad of other items, be another point of contention to be decided by lawyers and judges in the courts. (See Backgrounder 1350, p. 5.)

The Senate bill language is similar. But it does not include the vague requirement that the process be "fair." Nor does it use the term de novo in describing the review process. Instead, the Senate bill says that the review is a "new independent determination" without "deference" to the earlier decision in the claims review. (See Senate bill, pp. 35 and 37.)

The Medical Necessity Quandary
Americans, as a practical matter, do not often have the chance to pick a plan that gives broad discretion to their doctors to determine what is or is not medically necessary treatment-simply because Americans do not often pick their plans at all. But the most difficult and troublesome issue is the intersection of employment-based health insurance contracts and physician practice: the issue of how and under what circumstances reviewers are to handle the question of medical necessity. Claims for services can, and are, denied by insurance officials because they are not deemed medically necessary or appropriate. This has been a major point of frustration for members of the medical profession who believe that the issue of medical necessity, or what is or is not medically appropriate, should be the province of the medical profession. Insurance intrusions into these decisions are seen as a violation of physicians' professional independence and integrity.

As David Broder has observed, "The issue underlying this debate is who decides what is a medical necessity."5 Once again, it is particularly instructive that Members of Congress have not addressed this topic of medical necessity, and the denial of physicians claims' on the grounds of medical necessity, where it appears to be more common and most troublesome for physicians and their senior citizen patients, namely the Medicare program for which they are directly responsible.

The House bill language specifies that an external review panel must determine whether a denial of a claim for medical services is "in accordance with the with the medical needs of the patient…." Moreover, the House language authorizes the external review panel to disregard any provisions in the plan defining "medical necessity." As noted in the Heritage Backgrounder, medical necessity is a common phrase that has no universally accepted meaning, and therefore the effect of the House language is to turn over the final determination as to what is or is not covered in a private plan, in terms of what is or is not medically necessary, to a government-regulated entity. (See Backgrounder 1350, pp. 5-6.)

The Senate bill language does the same. Most important, like the House bill, it stipulates that the external reviewers are not bound by private contractual definitions of medical necessity, although it uses a slightly different articulation of the issue in such cases. (See Senate Bill, pp. 35-37.)

Judicial Review
The House bill assumes judicial review of decisions arrived at in an external review process. The House bill, however, adds an odd twist. While members of a health plan who are dissatisfied with the decision of an external review panel can appeal to the courts, the health plan may not be able to appeal. The House bill specifies that the external review decisions are "binding on the plan." (See Backgrounder 1350, p. 6.)

The Senate bill language is essentially the same, with slight differences in language. The Kennedy-Edwards-McCain language does not contain the explicit requirement that the determination of the external review agency is "binding on the plan," but like the House bill, it provides for fines if the plan does not comply. The Kennedy-Edwards-McCain language does not clear up the issue as to whether the plan can appeal. (See Senate bill, pp. 44-48.)

Federal Fines, Penalties, and Purges
The House bill provides that any person who does not comply with the decision of the external reviewers in the statutorily required appeals process is liable to the patient for up to $1,000 per day. Moreover, the federal government, either HHS or DOL, would be able to assess a civil penalty of up to $500,000 for any plan official who demonstrated a "pattern or practice" of refusing to carry out coverage decisions of the external reviewers, and request a court to remove that plan official from his position and bar that person from "involvement" with the plan. (See Backgrounder 1350, p. 6.)

The Senate bill language does the same. (See Senate bill, pp. 45-46.)

Federally Established Grievance Process for Managed Care and Fee for Service Plans
The House bill requires private plans to establish a grievance process for resolving matters other than claims for benefits or treatments. This mandatory grievance process would apply not only to managed care plans, but also to fee for service plans. (See Backgrounder 1350, p. 6.)

The Senate bill language is different. The Kennedy-Edwards-McCain bill does not have a requirement that plans have a grievance process. In discussing protections for whistleblowers, it apparently assumes that private plans may have a grievance process. (See Senate bill, p. 113.)

Federally Required Point of Service
The House bill specifies that any health insurer who offers a network plan must offer a plan that covers medical services not covered through the network. In other words, HMOs must by law offer a point of service plan or be forbidden to sell insurance to employers if no one else is doing so. This is, as noted in the Backgrounder, an unprecedented federal attempt to regulate and control the supply of private health insurance products and could, under certain circumstances, have the unintended consequence of reducing the supply of insurance products and coverage. (See Backgrounder 1350, pp. 6-7.)

The Senate bill language does the same. (See Senate bill, pp. 66-67.)

Federally Directed Delivery of Care
The House bill sets forth a regulatory regime governing how private health plans will deliver care. For example, it outlines procedures for private plans for providing a continuity of care and access to specialists and emergency services. (See Backgrounder 1350, pp. 7-8.)

The Senate bill does the same. (See Senate bill, pp. 68-97.)

Federal Prescription for Drugs
The House bill specifies how private health plans must develop and apply prescription drug formularies. (See Backgrounder 1350, p. 8.)

The Senate bill does the same. (See Senate bill, p. 88.)

Federal Requirement for Patient Care in Clinical Trials
The House bill provides that a private health plan may not deny enrollees the ability to participate in clinical trials and that private plans, moreover, must pay for routine costs for medical services performed in connection with those trials. The bill specifies that the clinical trials to which it applies are those funded and approved by the National Institutes of Health, Department of Veterans Affairs, or Department of Defense. (See Backgrounder 1350, p. 8.)

The Senate bill does the same. The Heritage Foundation Backgrounder 1350, however, noted that the House bill's requirement applied only to trials approved and funded by specified government agencies and thus would not apply to trials conducted by drug companies prior to FDA approval of a new drug. The Senate bill tries to fix that problem by adding FDA to the government agencies listed. (See Senate bill, p. 93.) The problem is that a prescription drug trial is not funded by FDA, and it is unclear what "approved" means in the context of the bill language.

Federal Information Requirements
The House bill would require private plans to give specified types of information to enrollees, and the details of these requirements take up no less than seven pages of statutory text. For example, the House bill requires plans to have procedures to address the needs of patients who do not speak English; information on the private plan's "loss ratio"; information on the use of emergency services and utilization reviews; and information on doctors' credentials. (See Backgrounder 1350, p. 8.)

The Senate bill does the same. But there are differences in language stretching over 12 pages of statutory text. It does not require, for example, that the insurer's loss ratio be disclosed, and the language governing doctors' credentials has been removed. (See Senate bill, pp. 98-109.)

Federal Regulation of the Physician-Plan Relationship
The House bill would enable the federal government to regulate the relationship between private health plans and physicians in a variety of ways. This regulatory reach would not be confined to managed care organizations, but would also include fee for service plans. Remarkably, the House bill even adopts Medicare rules on incentive plans for physician compensation. (See Backgrounder 1350, p. 9.)

The Senate bill does the same. (See Senate bill, pp. 110-112.)

Federal Regulation of Fee-for-Service Coverage
The House bill defines fee for service health care coverage. It sets forth the conditions a plan must meet under the language of the bill to be considered a fee for service plan. Private plans that do not meet these criteria would not, for purposes of the legislation, be considered fee for service health plans. As noted in Backgrounder 1350, in an attempt to regulate managed care plans, the authors of the House bill have inadvertently set up conditions that could undermine fee for service medicine. (See Backgrounder 1350, pp. 9-10.)

The Senate bill does the same. (See Senate bill, pp. 128-129.)


Members of Congress seem preoccupied, as they almost always do in the complex field of health care policy, with broad themes and generalities, such as the "right to sue" faulty insurance plans or insensitive employers, but invariably neglect the structural details that have enormous impact of the direction of policy. This is key to understanding the paradox of health care policy. In so many other areas of public policy, such as tax or budget policy, the broad themes can and do set the direction and drive the policy toward a more or less anticipated goal. Tax cuts have behavioral consequences that economists can often measure with remarkable accuracy. Budget cuts mean less spending in specific areas, and these too can be predicted and measured. But in health care policy, the dynamics are quite different; broad generalities (e.g., "better access to care," "high quality health care for all," etc.) often mean little; rather, it is the intricate details of the proposals, the fine print, that matters most. Even a slight change in statutory text, like turning the dial on a sensitive piece of gadgetry, can mean that one ends up in a far different place than one ever anticipated.

In public policy, the law of unintended consequences is well known (in everything from welfare policy to environmental policy), but in health care the law of unanticipated consequences can go berserk. Remarkably, the Bush Administration has signaled a willingness to work out the Senate differences on the litigation issue and get a bill that the President "could sign," indicating, in the view of Senator Olympia Snowe, the Maine Republican, that the Bush Administration would be " flexible" on the details.6 In health policy, being "flexible" on the details often means abandoning the substance of the policy.

It is certain that the many provisions of the patients' bill of rights legislation, as drafted in the House and Senate, will have unintended consequences. It is hard to imagine how these provisions, particularly more Americans suing each other, will make the health care system better.


  • It would create new inequities in the health care system by exempting Federal health programs from its provisions.
    The expansive regulatory provisions and the provisions regarding litigation and the recovery of substantial damages would not apply either to Members of Congress's own private plans in the Federal Employees Health Benefits Program (FEHBP) or to Medicare, Medicaid, the Indian Health Service, and other federal health programs. This is not an oversight; it is deliberate. Last year, the House Rules Committee jettisoned an amendment by Representative John Peterson (R-PA) to apply the House language to government health insurance programs.

  • It would increase the cost of health benefits, probably well above the official estimates.
    The Congressional Budget Office (CBO) estimated the House bill would increase health insurance premiums by an additional 4.2 percent. Combined with the risk of large awards for damages resulting from the operation of the health plan they sponsor, it is uncertain how many employers would drop health benefits or coverage, even if the legislation is amended to protect employers from direct liability.

What is unknown is the cost of the regulatory impact of the House or Senate bills. As Michael Kinsley, nationally syndicated columnist, has noted, "The patients bill achieves its goals through regulation, rather than tax and spend. Nobody denies that the cost of these new benefits will ultimately hit the beneficiaries in the form of higher insurance premiums. But nobody who supports the bill plays this up, either."7

  • It would surely increase the number of the uninsured.
    There are roughly 43 million Americans, based on Census Bureau estimates, who are without insurance. A recent report from the Commonwealth Fund, examining trends over a 19-year period, found that two-thirds of private-sector workers had health insurance through their employers in 1979, but only half of workers did in 1998; the biggest decline was among low-wage workers in the bottom quintile of the wage scale, with coverage falling from 42 percent to 26 percent.8

Congress is acting as if the problem doesn't even exist. The Senate and the House bill sponsors blithely assume either (a) that few Americans would lose coverage as a result of their legislative handiwork or (b) that the issue of higher cost or lost coverage is simply secondary in importance to the need for more legal actions where employees dispute the employer's plan decisions. In writing of the Senate Democratic Leadership's top priority, Kinsley, though often sympathetic to the agenda of congressional liberals, observes that the politically attractive objective in this case is to make "marginal improvements" for people who are already covered by private health insurance: "It not only ignores but actually thumbs its nose at what is obviously the biggest gap in the social safety net: the millions of people with no health insurance at all."9

On average, health insurance premiums for 2001 show an average increase of 10.3 percent, with HMOs showing an average increase of 10.5 percent. Health care costs are expected to increase by 12 percent in 2002.10

There is a direct relationship between health care cost and loss of coverage. According to the Lewin Group, a prominent econometrics firm that measures the impact of health care reform measures, every 1 percent increase in health care costs causes 300,000 persons to lose their coverage. (Confining analysis to the previously cited CBO projections alone, this means that under the terms of the patients' bill of rights legislation, more than 1.2 million more Americans would lose their employer-based coverage.)

If House and Senate sponsors are wrong about the larger impact of their bills, as they have been so often in the past, then perhaps millions of Americans will suffer as a result of their miscalculation.


Congress should stop, go back to the drawing board, and develop new and innovative policies that promote competition and expand personal choice of private plans, treatments, and doctors within the framework of a free market.

Recent surveys show that most Americans are satisfied with their health care coverage. It is also true, however, that from time to time Americans are frustrated with managed care arrangements, or what they perceive to be the quality of care being delivered by managed care organizations. It is also true that much of this frustration could be relieved by giving Americans more choice of plans and benefits, and more direct control over their health care dollars.

In health care policy, Americans need competent, prudent, and imaginative political leadership in both Congress and the White House. What Americans do not need is another public exercise of congressional incompetence in health care policy, enacting provisions of complex bills that they do not read, or promoting narrow, special interest-driven initiatives that have unintended consequences. Members of Congress, yielding to the temptation to "do something" for health care, should not simply build on faulty institutional and regulatory arrangements, increase federal micromanagement of the health care system, and generate even more counterproductive paperwork.

Robert E. Moffit, Ph.D., is Director of Domestic Policy Studies at The Heritage Foundation.

1 Harry Cain, "The Medicare Menace," Harvard Health Policy Review, Vol. 2, No. 1 (Spring 2001), p. 19.

2Michael Kinsley, "Liberalism a la Mode," The Washington Post, June 22, 2001, p. A25.

3David S. Broder, "Battle of Anecdotes," The Washington Post, June 26, 2001, p. A17.

4In recent days, there have been several revisions or versions of the leading Senate bill. The point of comparison for the current text is S. 1052.

5 Broder, "Battle of Anecdotes."

6 Helen Dewar, "Health Care Bill Clears Big Hurdle in Senate," The Washington Post, June 27, 2001, p. A1.

7 Kinsley, "Liberalism a la Mode."

8 "Trends Show Disturbing Erosion in Employer-Sponsored Health Benefits," news release, The Commonwealth Fund, June 13, 2001, available at

9 Kinsley, "Liberalism a la Mode."

10 "Health Care-Future Strategy and Direction,", C. T. Hellmuth &Associates, May 2001, p. 1.


Robert Moffit

Senior Fellow