By Charles Lane

Monday, April 5, 2004; Page A15

On Oct. 17, 2000, in a presidential debate against Democratic candidate Al Gore, then-Gov. George W. Bush of Texas promised a patients' bill of rights like the one in his state, including a right to sue managed-care companies for wrongfully refusing to cover needed treatment.

"If I'm the president . . . people will be able to take their HMO insurance company to court," Bush said. "That's what I've done in Texas and that's the kind of leadership style I'll bring to Washington."

Today, legislation for a federal patients' bill of rights is moribund in Congress. And the Bush administration's Justice Department is asking the Supreme Court to block lawsuits under the very Texas law Bush touted in 2000.

To let two Texas consumers, Juan Davila and Ruby R. Calad, sue their managed-care companies for wrongful denials of medical benefits "would be to completely undermine" federal law regulating employee benefits, Assistant Solicitor General James A. Feldman said at oral argument March 23.

Moreover, the administration's brief attacked the policy rationale for Texas's law, which is similar to statutes on the books in nine other states, arguing that the benefits to patients are outweighed by costs to managed-care companies -- which, passed on to employers, "could make employers less willing to provide health benefits."

"The big story is the total flip-flop here," said M. Gregg Bloche, a professor of law at Georgetown University who specializes in health care issues.

The White House says there is no contradiction.

"The president continues to support Texas's law, which applies to actual health care treatment decisions," White House spokesman Trent Duffy said. "However, decisions of an HMO to deny coverage have always been covered by federal law."

Bush's position is clearly consistent in the sense that he was actually never as strongly in favor of the Texas statute as he said at the debate. As governor, he vetoed it in 1995, then let it become law without his signature in 1997, saying, "This legislation has the potential to drive up health care costs and increase the number of lawsuits. I hope my concerns are proven wrong."

Also, his administration did support a separate patients' rights provision -- independent review of managed-care coverage decisions -- at the Supreme Court two years ago. The court upheld state independent review laws, 5 to 4.

In 2001, Bush backed a federal bill that would have permitted suits against HMOs; it died because Bush wanted to limit damage awards and Democrats disagreed.

But the Bush administration's current position on a part of the president's Texas record that he had once unequivocally praised is also a case study in the shifting politics of health care.

In the two consolidated cases argued at the court last week, Aetna Health v. Davila, No. 02-1845 and Cigna Healthcare of Texas v. Calad, No. 03-83, the president is not only taking the side of powerful Republican constituencies at the national level, such as large employers and health insurers. He is also reflecting changed public priorities: Voters no longer place as high a value on suing HMOs as they do on other concerns, such as drug costs.

A February 2004 Kaiser Family Foundation survey found that 6 percent of Americans identify "insurance company concerns" as the top health care issue. By contrast, in a July 2000 Washington Post/Kaiser Family Foundation/Harvard University poll, 15 percent of registered voters said "protecting patients' rights in health plans" would be the most important health care issue in deciding their votes for president.

In part, health care analysts say, this is because the problem a federal patients' bill of rights was meant to solve -- denial of doctor-recommended treatment by health insurance companies -- has abated.

During the full-employment boom of the late 1990s, employee bargaining power grew, and, through their employers, workers were able to demand more flexible coverage, albeit at higher cost later on. Today, 44 percent of Americans identify "costs" as the top health issue, the Kaiser poll found.

"With HMOs doing so much less as far as denying specific instances of care, there were fewer instances to sue them over," said Paul B. Ginsburg, president of the Center for Studying Health System Change, a Washington-based nonprofit funded by the Robert Wood Johnson Foundation. "The public does not feel vulnerable like it did five years ago."

Developments in state and federal law also aided consumers -- a trend the Bush administration is now asking the Supreme Court to curtail.

In 2000, the Supreme Court said that federal employee-benefit law prevents patients from suing HMO doctors in federal court in cases in which the doctor decided both whether a particular treatment was needed and whether it should be covered. But it left open the possibility that such "mixed" decisions can still be challenged under state malpractice law.

Patients Davila and Calad say the logic of the 2000 case should be extended to their situations. Both say they suffered physical harm when managed-care firms denied coverage for treatments their physicians had recommended. Paying for treatment is tantamount to treatment itself, they argue.

"None of these patients would have needed health insurance if they . . . could just whip out a gold card," their lawyer, George Parker Young, told the justices.

But the Bush administration says the two cases are completely different. The 2000 ruling should not apply to cases "where, as here, the HMO and its representatives are not treating the patient but are making benefits determinations," the administration's brief says.

The U.S. government is highly influential at the court, and at oral argument, the justices seemed receptive to the administration's case.

Justice David H. Souter, who wrote the court's unanimous opinion in the 2000 case, Pegram v. Herdrich, observed that "in Pegram you were dealing with a treating physician. We're not dealing with a treating physician" now.

A decision is expected by July.