What's Best For The Patient?

By DOUGLAS WALLER/WASHINGTON

For months, George W. Bush and Ted Kennedy were Washington's Odd Couple--the Texas conservative and the Massachusetts liberal who had teamed up and become something like friends. They swapped stories, watched a movie, got things done. Just two weeks ago, the Republican President phoned the Democratic Senator to congratulate him on the education bill they had maneuvered through Congress together. But if one week is a long time in politics, two weeks is an eternity. The Odd Couple has split up, because Washington has resumed its four-year war over the patients' bill of rights. The issue: How much power should government give people to sue and second-guess the insurance companies and health-maintenance organizations that make life-and-death decisions about medical care?

Last Wednesday morning Bush convened a war council of top aides in the Oval Office. For weeks he had hinted at the possibility of a veto if Congress sent him Kennedy's version of the patients' bill of rights. Now Bush decided to make the threat explicit the next day--in a three-page document from his Office of Management and Budget that laid out a stinging indictment of the measure. In legislative warfare, this was the equivalent of a 16-in. gun.

Thursday afternoon Kennedy charged into the L.B.J. Room off the Senate floor feeling pumped. Bush's first broadside hadn't sunk him. Kennedy's team had just defeated the Republicans' initial attempt to amend his bill. When Kennedy appeared inside the room, 30 lobbyists for patients'-rights groups and powerful health-care organizations like the American Medical Association broke into applause. But he quieted them. This President was good at snatching back victory, he knew. The grassroots activists had to keep the phones ringing in Senate offices. "We can't let up," Kennedy told the lobbyists. "We've got to keep the pedal to the metal every hour."

Bush and Kennedy are adversaries this week, but each will be ready to wrap his arms around the other when doing so suits his purpose. That makes each man's camp more than a little nervous. Kennedy often thrives during a Republican Administration. He despised Jimmy Carter and suffered in silence as Bill Clinton tilted to the center. During a G.O.P. Administration, he is freer to bend Democrats to his agenda without competition from a President of his party. And Bush realized before he arrived in Washington that he would have to go through Kennedy to pass his domestic agenda.

The two men began their courtship while Bush was still a presidential candidate. Last July, during the funeral in Atlanta for Georgia Senator Paul Coverdale, Bush walked up to Kennedy and said, "I understand that what you do, you do well." Kennedy wasn't sure if that was a compliment or a jab, but five months later, while Kennedy was vacationing in the Caribbean, President-elect Bush phoned him and sounded him out about working together on education. Kennedy liked the idea. On Jan. 20, during a congressional lunch after the Inauguration, Kennedy got former Wyoming Senator Alan Simpson, a conservative friend, to take him over to Bush's table for a chat. "Mr. President," Simpson said, "here's Ted Kennedy, the orneriest s.o.b. in this place. But if he tells you he's going to stick, he'll stick."

Kennedy and Bush laughed, then began swapping family stories. Afterward, Kennedy told Simpson he and Bush would be "scrapping like I did against you, Al. But I'm not going to hurt this guy." Bush didn't plan to hurt Kennedy either. He later invited the Senator to a White House screening of Thirteen Days, the movie about J.F.K.'s handling of the Cuban missile crisis. Kennedy had talking points on legislation tucked into his pocket, but all Bush wanted to do was munch hot dogs and watch the film. "The President has a lot of respect for Senator Kennedy," says senior White House adviser Karen Hughes. "He thinks the Senator is very savvy, that he's a good legislator and that he's a person of his word."

During an Oval Office meeting in January, Bush said to Kennedy, "When you walk out of here, the press is going to try to divide us. Can we put that off to the side and work together?" Kennedy agreed--and then made good on the promise, refusing to be drawn into public discussions of their legislative differences. When reporters pointed out that Bush supports school vouchers while Kennedy loathes them, the Senator insisted there was "very broad agreement" between them. When the education bill passed on June 14, liberals were enraged by the Bush reforms Kennedy accepted, such as giving states more flexibility in spending federal money. Conservatives were just as angry that its $33 billion price tag was $14 billion more than Bush had wanted. Even some White House aides were nervous about how the two had cozied up. "I couldn't believe we were talking every day to Kennedy's staff," says one. "Ted Kennedy! We're supposed to hate everything he represents!" But Kennedy and Bush hailed the bill as a victory for bipartisanship. "I've enjoyed this working relationship," Kennedy told TIME.

He enjoyed it so much he was eager to do it again on his Patient Protection Act, which he introduced two weeks ago with Republican John McCain and North Carolina Democrat John Edwards. "We ought to do the same thing on this," he told Bush during a Capitol Hill lunch on March 15. Bush smiled but didn't commit. "We've gotten the cold shoulder," Kennedy later complained.

He shouldn't have been surprised. Bush, like Kennedy, wants more protections for patients, including more access to emergency rooms, specialty care and clinical trials. But he wants no part of provisions in the Kennedy bill that would allow aggrieved patients to sue HMOs in state court and win jury awards of up to $5 million. Conservative Republicans in Congress were appalled at the thought of a Kennedy-Bush compromise on the legislation, but they needn't have worried. Bush wasn't eager to strike any deal that would burnish the reputation of McCain, his bitter opponent in the Republican presidential primaries and still a rival today. So instead of supporting McCain-Edwards-Kennedy, Bush endorsed the more business-friendly measure sponsored by Senators John Breaux, Bill Frist and Jim Jeffords. So far, Kennedy's bill appears to have more support, though Republicans, led by minority leader Trent Lott, are introducing amendment after amendment meant to water down or even kill it.

If the bill isn't finished this week, majority leader Tom Daschle has threatened, he will keep the Senate in session through the July 4 recess. But Lott wants to string out the debate so HMO and insurance groups can get more attack ads on the air and G.O.P. Senators will have more time to round up votes for their poison-pill amendments. The American Association of Health Plans, for instance, has budgeted up to $5 million this year to attack the Kennedy bill, and is running a TV spot featuring a small-business owner in Texas who frets that the bill will drive up insurance costs and force her to cut employee benefits. Republicans want to lower the caps on jury awards that patients can receive in federal courts, allow no cases to be filed in state courts, and put in place ironclad guarantees that employers can't be sued over the health-care benefits they offer. "This bill is a disaster for employers and employees," claims Senate minority whip Don Nickles. The new regulations and costs it imposes on insurers and HMOs, he adds, "could cause millions of people to lose their insurance."

That's by no means a given. Kennedy's bill could increase health-care costs 4.2%, according to a Congressional Budget Office estimate, but states like California, Georgia and Texas have put in place tough patient-protection acts, yet have not seen waves of new lawsuits or hordes of workers dropped from insurance rolls. The year after Texas enacted its patients'-rights law, the cost of premiums decreased while the number of people with insurance increased more than 200,000, according to Kennedy. "The actual number of uninsured has gone down," he argues. His bill would shield employers from suits except when they are directly involved in medical decisions. Even Bush has said he doesn't want to let employers completely off the hook. Can they find middle ground?

If not, Republicans could be the ones paying the price. Polls show overwhelming support for a patients'-rights bill. Everyone these days has heard an HMO horror story--or lived through one. Says McCain: "Too many Americans have had life-altering medical decisions micromanaged by businesspeople rather than medical professionals." Bush, who has seen his poll numbers slip because of voter concern that he's too sympathetic to Big Business, doesn't want to carry out his veto threat. G.O.P. Senators up for re-election in 2002 don't want to be labeled obstructionists. "We're going to pass a patients' bill of rights that is balanced," says Frist.

That requires compromise. Both sides will have to budge on liability caps, and Democrats will have to accept language more clearly exempting employers from suits. Republican moderate Olympia Snowe is leading the way on that issue, and Daschle supports her. House Speaker Dennis Hastert is floating a proposal to allow a limited number of patient suits in state courts.

Kennedy may yet get a phone call from his new friend in the White House. Bush doesn't trust McCain or Edwards, both of whom may vie for his job in 2004, and he suspects Daschle would like to milk this debate for its political value rather than strike a deal. "The President doesn't view Ted Kennedy that way," says White House press secretary Ari Fleischer.

Bush may have Teddy pegged correctly. Though he's by far the most liberal of the bill's top three sponsors, Kennedy is also the most skilled legislator, the one who knows how to cut deals and enjoys the process. He plans to give Bush fits on judicial nominees, and he will try to put Bush on the spot with bills Republicans hate, like a minimum-wage increase. But Kennedy can be pragmatic. "I try to set the bar high and see if we can reach it," he says. If he and Bush can get near the bar on patients' rights, Kennedy won't mind lowering it to get to a deal. "If we can't," he says, "I'll battle for another day." That's a language Bush can understand.

--With reporting by James Carney/Washington

With reporting by JAMES CARNEY/WASHINGTON