Analysts still give long odds to bill passing full Congress in its current form
Historic legislation creating an alternative claims handling process for those injured by asbestos exposure in the workplace was passed by the Senate Judiciary Committee Thursday afternoon but faces an uncertain future on the Senate floor.
The bill was reported out by a 13-5 vote.
The consensus remains, however, that despite the Herculean three years of work that it took to get the bill out of committee, it is still unlikely to be passed by Congress in the form it left the committee, if at all.
For example, in a note to investors last Wednesday, prior to the vote, Joe Lieber of Washington Analysis said that while moving the bill out of committee "will likely be seen as good news for asbestos stocks, we continue to believe that this legislation faces long odds of being enacted into law."
Even if the bill–the Fairness in Asbestos Injury Resolution Act of 2005, S. 852–makes it out of the Senate, which in itself is a huge hurdle, Mr. Lieber said, "the House is still a big question mark, which no one has been focusing on."
"There is a real possibility that the House could pass a simple medical criteria bill," he speculated, referring to a bill which would provide that an individual couldn't sue unless he or she had certain defined ailments.
"How a conference with the Senate on a medical criteria bill would work out is anybody's guess, but it would likely be something Senate Democrats had a major problem with," he continued.
As the Senate Judiciary Committee struggled to complete work on the bill last week, its deliberations centered on provisions being proposed to assuage business and insurance industry concerns about the bill.
For example, work on the bill included deliberations of a new proposed amendment, strengthening the criteria that claimants with terminal illnesses have to meet to secure fast payment during the start-up phase.
The latest proposal, in the form of a manager's amendment, was drafted by Judge Edward Becker, a former federal appeals court judge. He has been working with Sen. Arlen Specter, R-Pa., for over a year in an effort to shepherd asbestos legislation through Congress.
The amendment requires those with an "exigent claim"–that is, suffering from mesothelioma, a terminal illness–to win the personal approval of the fund administrator before being paid. Specifically, the amendment said that "the administrator or interim administrator [should] make a determination of exigency upon initial receipt of an application," and not accept the diagnosis of a qualified specialist.
It is being added, Judge Becker said, "out of stakeholder concern about the absence of a process whereby defendants can challenge the validity of the exigent claim." The concern, according to Judge Becker, is that the legislation not create an "incentive for the defendants to 'settle' with all claimants despite their actual status of exigency."
Ironically, despite the addition of the provisions, larger insurers are still voicing deep concerns about the bill. As one industry lobbyist noted, "It is necessary, but not sufficient."
Representatives of organized labor voiced different concerns in a letter that questioned the bill's "fundamental fairness for victims."
The strong letter from the AFL-CIO was sent to Sen. Arlen Specter, R-Pa., and Patrick Leahy, D-Vt., chairman and ranking minority member, respectively, of the committee late Tuesday.
The letter was signed by William Samuel, the AFL-CIO's top lobbyist.
Mr. Samuel said labor's opposition is based on the fact that the bill, "as currently amended, does not meet the test of fundamental fairness for victims of asbestos disease in a number of significant respects."
Among the provisions that "deeply dismay" organized labor, Mr. Samuel said, is the one that deals with the bill's start-up provisions, "where concerns about so-called 'leakage' to the tort system have taken precedence over the need to ensure just compensation for those who are sick."
Latest amendment strengthens criteria that claimants with terminal illnesses have to meet to secure fast payment
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