[Congressional Record Volume 142, Number 100 (Tuesday, July 9, 1996)]
[House]
[Pages H7149-H7151]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




      CLINTON ADMINISTRATION SHELVES RULES ON HEALTH MAINTENANCE 
                             ORGANIZATIONS

  The SPEAKER pro tempore (Mr. Gutknecht). Under a previous order of 
the House, the gentleman from California [Mr. Horn] is recognized for 5 
minutes.
  Mr. HORN. Mr. Speaker, I was shocked when I read in yesterday's Long 
Beach Press Telegram an article that originated in the New York Times 
concerning the administration's shelving of rules as they concern 
HMO's, health maintenance organizations. For

[[Page H7150]]

years I have felt very strongly that most doctors I know and most 
Americans I know do not want a doctor to be paid a bonus because that 
doctor does not refer the patient to the specialist whom is needed to 
solve a particular problem. Probably each of our district offices has 
had one or more cases where our constituents have complained of that 
type of treatment under both Medicaid and Medicare depending on the 
type of health organization they have gone to.
  Let me read the first two paragraphs of this article:

       Facing a torrent of criticism from health maintenance 
     organizations, the Clinton administration has temporarily 
     shelved new rules that would have restricted the common HMO 
     practice of rewarding doctors who cut costs and control the 
     use of services by Medicare and Medicaid patients.
       On March 27, the administration issued rules to protect 
     consumers by limiting the use of such financial incentives to 
     reward doctors. But after the protests by HMO's health 
     maintenance organizations the Department of Health and Human 
     Services quietly suspended enforcement of the rules, which 
     are mandated by a 1990 law.

                              {time}  1730

  That is a law passed by the Congress of the United States. We are now 
in 1996, and that has been kicking around in the Department of Health 
and Human Services over the last two administrations, the Bush 
administration and the Clinton administration. I must say, I think that 
set of rules ought to be reexamined by the Clinton administration. 
People are sick and tired of seeing poor care because somebody is 
making a profit out of it.
  This article goes on to cite a few classic examples which could 
happen anywhere in the United States. One lawyer--Mark Hiepler of 
OxNard--who has been successful in suing a number of HMO's said the 
incentives created conflicts of interest and put a wedge between doctor 
and patient. ``The more a doctor treats a patient, the less money he 
gets,'' said Hiepler, who added: ``The less he treats a patient, the 
more money he gets. The incentives take several forms. In many cases,'' 
says reporter Robert Pear of the New York Times. ``In many cases, a 
group of internists or family doctors receives a flat payment--say $70 
a month--to manage all the care required by a Medicare patient. If the 
patient needs tests or specialty care, the physician group must provide 
it or pay for it. This might encourage the group to minimize the 
referral of patients to specialists.''
  Mr. Speaker, I think we have to be very careful when we have 
conflicts of interest that lead to wrong medical judgments which are to 
the ultimate ill of the patients involved. It is one thing to find 
economies in a hospital or a nursing home, or any human organization, 
but we do not find economies when we make a decision that ends up in a 
tragic situation because the general practitioner or health care 
gatekeeper could not discover something that perhaps only a specialist 
could discover and that individual patient has not been referred by the 
gatekeeper to the specialist.
  I think that is shocking, and I think the administration ought to 
reexamine its decision. If there are problems with those regulations 
that defy common sense, that is one thing. But if the Federal 
Government sides with one party in this relationship, it should be the 
patient.
  Mr. Speaker, I think the deferral is an outrage and the 
administration ought to get to work, clean up the regulations and issue 
them if they prevent conflicts of interest and if they prevent 
responsible, solid, and effective medical practice. I do not know one 
doctor, frankly, that does not think what has been going on with these 
so-called gatekeepers is a real tragedy.
  Mr. Speaker, I include the article by Robert Pear of the New York 
Times which appeared in the Long Beach Press-Telegram on July 8. It is 
entitled ``U.S. rules on HMOs shelved.''

                       U.S. Rules on HMOs Shelved


  incentives: plan attempted to protect patients from cuts in medical 
                               referrals

                            (By Robert Pear)

       Washington.--Facing a torrent of criticism from health 
     maintenance organizations, the Clinton administration has 
     temporarily shelved new rules that would have restricted the 
     common HMO practice of rewarding doctors who cut costs and 
     control the use of services by Medicare and Medicaid 
     patients.
       On March 27, the administration issued rules to protect 
     consumers by limiting the use of such financial incentives to 
     reward doctors. But after the protests by HMOs, the 
     Department of Health and Human Services quietly suspended 
     enforcement of the rules, which are mandated by a 1990 law.
       The rules were an effort by the administration to ensure 
     that elderly and poor people were not denied medically 
     necessary care.
       But HMOs, including Kaiser Permanente, Aetna, Humana and 
     the Health Insurance Plan of Greater New York, denounced the 
     rules, saying they would force the companies to rewrite 
     contracts with tens of thousands of doctors. HMOs said the 
     government did not understand the importance of financial 
     incentives in a fast-moving, competitive industry.
       The rules do not flatly prohibit such incentives, but limit 
     the amount of money that a doctor can lose on any one patient 
     or patients with very high medical costs.
       The rules would require HMOs to disclose details of these 
     incentives to patients and the government.
       Health plans say they establish such financial incentives 
     to deter inappropriate and unnecessary care. But critics say 
     the rewards have led to the denial of needed services.
       Mark Hiepler of Oxnard, a lawyer who has successfully sued 
     several HMOs, said the incentives created conflicts of 
     interest and put a wedge between doctor and patient.
       ``The more a doctor treats a patient, the less money he 
     gets,'' Hiepler said. ``The less he treats a patient, the 
     more money he gets.''
       The incentives take several forms. In many cases, a group 
     of internists or family doctors receives a flat payment--say 
     $70 a month--to manage all the care required by a Medicare 
     patient. If the patient needs tests or speciality care, the 
     physician group must provide it or pay for it. This might 
     encourage the group to minimize the referral of patients to 
     specialists.
       In addition, doctors may receive cash bonuses if they meet 
     certain goals for controlling the use and cost of care. Or 
     the health plan may withhold a portion of the doctors' pay 
     and distribute it at the end of the year if spending was less 
     than projected.
       In their comments on the new rules, HMOs said it is common 
     to make more than 25 percent of potential payments to doctors 
     contingent on the physicians' success in controlling the use 
     and cost of care, including referrals.
       When the Clinton administration issued the rules limiting 
     such incentives March 27, Secretary of Health and Human 
     Services Donna Shalala declared: ``No patient should have to 
     wonder if their doctor's decision is based on sound medicine 
     or financial incentives. This regulation should help put 
     Americans' minds at rest.''
       The rules were supposed to take effect May 28, but the 
     Clinton administration has pulled them back for further 
     review, without any notice to consumers.
       In a brief memorandum mailed to HMOs on May 28, the 
     administration said, ``We realize this compliance date is 
     unrealistic.'' The memo added that the government would not 
     take any enforcement actions before Jan. 1, 1997.
       Bruce Fried, director of the Office of Managed Care at the 
     Federal Health Care Financing Administration which supervises 
     Medicare and Medicaid, said, ``It would have been overly 
     burdensome are probably impossible'' for HMOs to comply 
     sooner. ``We were overly ambitious,'' he said in an 
     interview.
       But the American Medical Association, medical specialty 
     groups and consumer organizations said that the rules were a 
     good first step in protecting patients and that the 
     government should impose even more stringent restrictions on 
     the use of financial incentives to limit care.
       When the rules were first proposed in December 1992, 
     federal health officials solicited comments, and they tried 
     to address the concerns expressed by HMOs and the public in 
     the final regulations issued this year. The officials said 
     they were surprised by the vehement objections expressed by 
     HMOs in the last three months.
       When the final rules were issued in March, federal 
     officials said few HMOs would be affected. The protests by 
     HMOs suggest that they make much greater use of bonuses and 
     other financial rewards than federal officials had assumed.
       The U.S. District Court in Nashville expressed concern in a 
     recent case, saying HMOs had ``pecuniary incentives'' to deny 
     care to Medicaid recipients in Tennessee.
       Rep. Pete Stark, D-Calif., the author of the 1990 law, said 
     its purpose was ``to protect patients from being killed by 
     denial of medical care.''
       Stark said he was dismayed to read comments on the new 
     rules by HMOs and their lobbying organization, the American 
     Association of Health Plans. ``Their opposition speaks 
     volumes about what is wrong with managed care in America 
     today,'' he said.
       Stark asserted that the industry's comments showed ``no 
     regard for the care of patients'' and were ``designed to 
     derail the regulations.''
       Karen Ignagni, president of the American Association of 
     Health Plans, rejected the criticism. ``Any suggestion that 
     we don't support beneficiary protections or government 
     regulation of the quality of care is just plain wrong,'' she 
     said.
       But Ignagni said the new rules ``are impractical and 
     unrealistic and do not reflect

[[Page H7151]]

     recent developments in the market,'' where many doctors are 
     eager to share financial risks with HMOs.
       More than 4 million Medicare beneficiaries and 12 million 
     Medicaid recipients are in HMOs and other managed-care plans, 
     and enrollment is rapidly increasing.
       The rules place limits on the financial incentives that 
     HMOs may give to doctors. First, they say, ``No specific 
     payment of any kind may be made directly or indirectly under 
     the incentive plan to a physician or physician group as an 
     inducement to reduce or limit medically necessary services'' 
     to a specific patient under Medicare or Medicaid.
       The rules also say that if doctors stand to lose more than 
     25 percent of their pay because of the use of medical 
     specialists or other factors, the HMO must provide insurance 
     to the doctors to limit their financial losses.

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