[Congressional Record Volume 144, Number 59 (Tuesday, May 12, 1998)]
[Senate]
[Pages S4644-S4651]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
WOMEN'S HEALTH AND CANCER RIGHTS ACT
Mr. D'AMATO. I yield 10 minutes to the Senator from California,
Senator Feinstein.
The PRESIDING OFFICER. Is there objection?
Mr. BAUCUS addressed the Chair.
The PRESIDING OFFICER. The Senator from Montana.
Mr. D'AMATO. Regular order. I believe under the regular order I
control up to an hour.
The PRESIDING OFFICER. The Senator is correct.
Mr. BAUCUS. Mr. President, I make a point of order.
Mr. D'AMATO. Mr. President, I yield to the Senator from California,
for up to 10 minutes, for a question.
Mr. FORD. Mr. President, take charge and give direction to these
Senators.
The PRESIDING OFFICER. The Senator from New York has been recognized
under the regular order. The Senator from New York does not control the
floor. If he seeks to yield time, that requires a unanimous consent.
Is there objection to yielding time?
Mr. D'AMATO. Mr. President, my colleague from California has a
question. I would like to yield for a question to the Senator from
California.
Mrs. FEINSTEIN addressed the Chair.
The PRESIDING OFFICER. The Senator from New York has a right to yield
for a question. The Senator from California.
Mrs. FEINSTEIN. Mr. President, I would like to ask the Senator from
New York a question.
As I recall, we introduced this amendment as a bill on January 30,
1997. That was 16 months ago. The Patients' Bill of Rights, I believe,
was introduced on March 31st of this year. Is that not correct?
Mr. D'AMATO. Would the Senator----
Mrs. FEINSTEIN. My question about when we introduced this bill, a
bill that would give a woman and her physician the right to determine
the length of a hospital stay when she has a mastectomy, and quite
possibly a radical mastectomy. The length of stay in the hospital would
be the decision of her physician, not the HMO; we introduced this bill
16 months ago. Correct? The Patients' Bill of Rights was introduced in
March of this year. Is that not correct?
Mr. D'AMATO. That is correct. The Senator is correct. We introduced
this on January 30, 1997.
Mrs. FEINSTEIN. And, am I correct in that the Senate Finance
Committee held a hearing on our bill on November 5, 1997?
Mr. D'AMATO. That is also correct. And the Senator testified--the
Senator from California came and gave some very cohesive and forceful
testimony as to the need for this legislation.
Mrs. FEINSTEIN. Is it not true that we have filed this bill to be
considered by the Senate two times and you offered it in the Finance
Committee two times? On March 16, we filed it as an amendment to H.R.
2646, the Parent and Students Savings Account Plus Act. Is that not
correct?
Mr. D'AMATO. Absolutely. The Senator is absolutely correct.
Mrs. FEINSTEIN. On May 6, we filed it as an amendment to H.R. 2676,
the IRS restructuring bill. Is that not correct?
Mr. D'AMATO. That is absolutely correct.
Mrs. FEINSTEIN. And on March 31 and on February 10 of this year, did
my colleague not offer it as an amendment in the Finance Committee?
Mr. D'AMATO. I did. I did. My colleague is right. We brought it to a
vote.
Mrs. FEINSTEIN. Is it not true that the Senator has been unable to
get the Finance Committee to move this bill to the floor?
Mr. D'AMATO. Absolutely true. Again, procedurally this is raised,
just as an analogy, as is being done here--there they raised
germaneness, and, unfortunately, they kept the women of America from
having the opportunity to have this bill considered at that time. That
is correct.
Mrs. FEINSTEIN. Is it not true that the D'Amato-Feinstein mastectomy
bill has 21 cosponsors, including a bipartisan group of women
Senators--Senators Snowe, Moseley-Braun, Hutchison, Mikulski, and
Boxer?
Mr. D'AMATO. Absolutely. It is a bipartisan effort. It has been that
way. I applaud my colleague from California for her leadership in this
matter. We have done this and conducted this in a manner that has
sought to eliminate politics and think about the women of America and
the families of America, because we are talking about a disease and
procedures that are hurting, harming the families of America.
Mrs. FEINSTEIN. I would like the Senator from New York to know that I
am a cosponsor, also, of the Patients' Bill of Rights Act. I understand
the importance of this bill. I would very much welcome floor time to
consider this bill as well.
However, I did indicate in our Democratic caucus that absent that
opportunity, and because women all across this Nation are going through
some of the same events that two women who brought this to my attention
3 years ago in California went through, and that is to show up to have
a radical mastectomy at 7:30 in the morning, and then to be pushed out
on the street at 4:30 that afternoon with drains in them, the effects
of anesthetics still upon them, really unable even to walk--is it not
true that what we strive to do is make a simple reform and say that no
woman without the permission of her physician will be subject to this
kind of treatment ever again in the United States of America?
Mr. D'AMATO. The Senator from California is absolutely correct.
Let me say that we worked long and hard on this. We have many of our
colleagues who, because of their commitment to deal with this--it is
tragic when it hits a family it has so much of an impact--said you have
to have at least 48 hours. In other words, 72 hours. And we finally
have been working with the people in the medical community, and I must
say we built a consensus where we recognize that we should not put any
time limitation whatsoever.
If I might, Mr. President, we have the Senator from Montana who is
waiting to make a statement. Might I propound a unanimous consent
request that he be permitted to speak for up to 3 or 4 minutes as if in
morning business, and that might we also have an additional 5 minutes
then--we started late--so that he could make his statement, and then
without my losing the right to continue and to hold the floor and
continue our discussion with respect to this?
Mr. KENNEDY. Reserving right to object, I don't want to object. I
would like to have a very brief time to be able to respond. I think, as
I understand it, at 11 o'clock under the consent agreement we are going
to the agricultural matter.
Mr. D'AMATO. That is why I asked for an additional 5 minutes.
Mr. KENNEDY. I would like to see if we could have, say, 15 minutes to
be able to respond to that time.
Mr. D'AMATO. Unfortunately, I am not in a position to agree to that.
Let me say this to Senator Kennedy. Let's say that in one-half hour we
would yield to the Senator from New York 10 minutes. Is that fine?
Mr. KENNEDY. That would be very generous.
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Mr. D'AMATO. Could Senator Baucus' remarks be contained in morning
business without interrupting the debate for up to 5 minutes?
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Mr. BAUCUS. Mr. President, I thank all Senators very much for
accommodating me.
First of all, I hope that the bill to be offered by the Senator from
California and the Senator from New York will be brought up quickly and
passed. I think every Member of the Senate does. I very much favor it.
At the same time, I very strongly believe the Patients' Bill of Rights,
the basic protection bill, we have to pass that. It is very
regrettable, frankly, that we are at loggerheads. We need to get that
bill passed. I think we should work that out fairly soon. Frankly, it
is in the interest of the American people we get this passed very
quickly. But it is not going to be resolved right now.
By unanimous consent, the remarks of Mr. Baucus pertaining to
``Montana Pole Vaulters'' are printed in today's Record under ``Morning
Business.''
Mr. D'AMATO. Mr. President, might I ask unanimous consent that
Senator Johnson from South Dakota be given 3 minutes to speak on this
issue?
Mr. DORGAN. Mr. President, reserving the right to object, my
understanding is that the order by unanimous consent at 10 o'clock
required that Senator D'Amato be recognized to propound a unanimous
consent request; not that Senator D'Amato be recognized between 10 and
11 o'clock. I am wondering. Am I correct on that?
Mr. D'AMATO addressed the Chair.
The PRESIDING OFFICER. The order provides for the recognition of
Senator D'Amato of New York.
Mr. D'AMATO. I believe I was going to be recognized, and indeed I am
attempting to accommodate this. I could speak for this 1 hour. I am
attempting to accommodate the needs of my colleagues. That is why I
yielded 10 minutes. I am prepared to yield 10 minutes to Senator
Kennedy. The time is clicking off here.
Mr. DORGAN. I will not object. But my understanding of the UC was
that the Senator from New York would be recognized to propound a
unanimous consent request at which point the floor would be open. I
guess I understand the Senator from New York intends to retain the
floor until 11 and simply by consent allow others to speak for a
certain amount of time.
Mr. D'AMATO. Yes.
Mr. DORGAN. He certainly has that right. Under the unanimous consent
agreement he has the right of recognition. So I will not object.
The PRESIDING OFFICER. The Senator from South Dakota.
Mr. JOHNSON. Mr. President, I thank the Senator from New York and the
Senator from California for their extraordinary work on this important
legislation.
Mr. President, frankly, I have to share a great level of frustration,
and to be candid, anger at where we find ourselves this morning: unable
to move forward with the breast cancer legislation for which there is
broad bipartisan support and little controversy. I have more than
simply a public policy concern about this issue. I have a personal
concern in my own family, having gone through my wife's breast cancer
challenge over the past 2 years. She is doing very well. But we had a
situation where she remained in the hospital for one night following
surgery. She went home with the drains, and the other complications. We
were able to do that all right because we don't have small children at
home. We had no complications. But I know of other women in my State of
South Dakota who have small children at home who cannot take a great
amount of time from work, who have no extra help, who have extra
complications, and who have all sorts of matters that are debilitating
that cause complications. And 24 hours for many of them is simply not
adequate. We have an opportunity here to correct that problem. This
doesn't correct everything.
I share the support of the Senator from California for the Patients'
Bill of Rights. I am frustrated, as well, that we haven't made greater
progress there. I hope that before this session is over we will in fact
deal with the more comprehensive health care reform legislation.
I applaud Senator Daschle's leadership on the Patients' Bill of
Rights legislation. But I do not want to make the perfect the enemy of
the good. What we have here is a piece of legislation which we should
be able to pass this very day.
It is certainly my hope, while we have the continued discussion about
a more comprehensive approach to managed care and ensuring the rights
of all patients, that before this session of the 105th Congress
expires--and we are running out of time quickly--that, in fact, we get
this breast cancer bill to the floor and deal with it in an expeditious
fashion.
Again, I simply want to applaud the leadership of the Senators from
California and New York on this issue, one that we really should not
allow to be delayed longer than it already has.
I yield my time.
Mr. D'AMATO addressed the Chair.
The PRESIDING OFFICER. The Senator from New York.
Mr. D'AMATO. Mr. President, I ask unanimous consent that the time be
extended until 11:05, because we did not start nearly on time, and I
further ask unanimous consent that Senator Kennedy be recognized now
for up to 10 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KENNEDY. Mr. President, I yield myself 7 minutes.
Mr. President, let me be clear: I am all in favor of Senator
D'Amato's bill. Its provisions are included in the Patients' Bill of
Rights. I was an original cosponsor of Senator Daschle's legislation,
which preceded the legislation authored by my colleague from New York,
that guaranteed breast cancer patients a minimum length of stay in the
hospital following a mastectomy. And I worked with the breast cancer
community--patients and providers--to write and introduce a bill that
would require plans that cover mastectomies to also cover
reconstructive surgery, prostheses and treatment for lymphedema, a
complication of the surgery. In fact, Senator D'Amato modified his
original bill, which covered only reconstructive surgery, to conform it
more closely to mine. We share a commitment to this legislation.
But his proposal does not include other provisions that are in our
bill and which are equally important to breast cancer patients, their
families and their doctors. The following protections, all of which are
in the Patients' Bill of Rights remain unaddressed in the legislation
proposed by Senator D'Amato:
It does not guarantee access to specialists--provisions that would
allow an oncologist to act as a cancer patient's care coordinator, or
would allow a patient to see an oncologist directly, without first
making an unnecessary visit to a so-called ``gatekeeper.''
It does not ensure for a smooth transition between new and existing
doctors for breast cancer patients and survivors whose employers change
plans or whose plans change providers in the network.
It does not include access to and coverage of participation in
clinical trials, which can so often mean the difference between life
and death for patients with nowhere else to turn.
It does not establish the right to an independent and timely appeal--
a critical feature for those times when coverage decisions fall into a
grey area.
It does not create access to prescription drugs that are not on the
formulary, if they are medically indicated in the case at hand.
It does not guarantee that emergency care will be covered, provided a
layperson believed they were in an emergency.
With the limited exception for post-mastectomy length-of-stay
determinations, it does not fully restore the doctor-patient
relationship by returning treatment decisions to the attending
physician.
Finally, it does not allow patients to hold health plans accountable
for their medical decision-making.
Clearly, the problems are not with what is in the bill, but with what
is not in the bill.
We are effectively precluded from including these particular
provisions in the D'Amato proposal. And that is why these matters are
linked, Mr. President. The items contained in our Patient Protection
Act are critically important to breast cancer patients and
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survivors. Our bill has the broad support from virtually all the
various cancer groups and breast cancer groups. But, if we move forward
on only those included in the D'Amato proposal, we effectively preclude
movement on the rest of the provisions.
One can say, ``Well, we are still making some progress.'' I
understand, but there is no reason in the world--none, no reason--that
we cannot include these particular provisions for women today--none,
make no mistake about it.
We have had eight hearings on the issues relating to the Patients'
Bill of Rights. I introduced the original legislation on this issue
more than a year ago--over a year ago. The President's advisory
commission, which included among its members representation from the
business community and insurance industry, reported unanimously last
November about what ought to be included in a patients' bill of rights.
We have incorporated their recommendations in our bill. They are needed
today by women across this country.
All we are asking is for the opportunity to have the Senate debate
and go on record with regard to these kinds of protections. But we are
foreclosed from acting today. We are denied doing it. We cannot even
get a reasonable period of time. The Republican leadership is sitting
somewhere in this building. They could have listened to the exchange
that was done by the Democratic leader and the Senator from New York.
They know what is going on on the floor of the U.S. Senate. They can
just come out here and say, ``All right, you got it, you are going to
have an opportunity to debate this issue; we won't have a time
limitation, call the roll and let's have a debate on what is the No. 1
issue before American families.'' But, no, we are precluded from that.
You don't have to be around here a great deal of time to understand
what is going on. We are effectively excluded because of the power of
the insurance industry. Do you hear that? We are excluded from having
an opportunity to debate this because of the power of the insurance
industry. That is what is going on here. That is the issue this morning
on the floor of the U.S. Senate.
The industry does not want to provide patients with the protections
to which they are entitled and have paid for, and their allies in the
Senate are holding this up, Mr. President, by using parliamentary
techniques to deny us the chance to consider this legislation. We
cannot get a report out of our Labor and Human Resources Committee. We
cannot take it up on the floor of the U.S. Senate. It is time for
action, and we are denied an opportunity, not just today, not just
tomorrow, not just June, but anytime whatsoever--whatsoever.
We are asking the Republican leadership to give us a time. Call the
Democratic leader. Bring it up in 2 days. Bring it up in 2 weeks. Bring
it up in a month. But give us a time to bring this up. That is what
this issue is all about, and that is where we are going, Mr. President.
We will bring this issue up time in and time out, again and again. We
may be foreclosed now, but the American people are going to demand it.
Those women who have or have had breast cancer are going to understand
it and demand it as well.
I yield the remaining time to the Senator from California.
I thank the Senator from New York for granting the time.
Mrs. BOXER. Mr. President, how much time remains?
The PRESIDING OFFICER. Four minutes 15 seconds.
Mrs. BOXER. Mr. President, I say to my colleague, I will reserve 2
minutes for him.
Sometimes we set up false fights, and it is a real false fight
between those who want to ban drive-through mastectomies, which I would
guess is every single Senator in this Chamber, and those who want to go
even further and grant patients protections across the board for breast
cancer patients, prostate cancer patients, children, the elderly,
anyone who gets sick. There is no fight. Why are we having a fight? We
are having a fight because, as the Senator from Massachusetts has said,
we are unable to make this a broader bill.
I am very proud to be a sponsor of the D'Amato-Feinstein bill, and I
am going to be very excited when this bill becomes law, and it will
become law.
We need to do more, and there is no reason why the leadership of the
Senate won't give us that opportunity, except that there are many
special interests who don't want us to do more, who are pocketing--into
deep pockets--profits on a HMO system that shortchanges patients, and
that is wrong.
I was visited by a man named Harry Christie. I have told his story on
the Senate floor before. His daughter was diagnosed with a rare tumor
in her kidney. She was 9 years old. There were two doctors who had
experience operating on that type of tumor. His HMO said, ``That's too
bad, you have to go with a general surgeon.''
He said, ``This is my only child.''
And they said, ``You're out of luck.''
Fortunately, Mr. Christie was able to come up with the $50,000 he
needed, and he saved his daughter's life. Six years later, she is alive
and, yes, the HMO was fined a hefty sum by the State of California. If
Mr. Christie had listened to the HMO, he might not have his daughter
today.
All the Senator from Massachusetts and the Democratic leader are
saying is we love this mastectomy bill, we want to help you get this
bill through, but help us, help us do more. We can stop a woman from
having to go through a horrific, outrageous, demeaning, dangerous
drive-through mastectomy, and we will with this bill. But what happens
when she is out of hope a couple of years later, and she needs to get
into a clinical trial where she can have access to certain drugs
because nothing else is working? The mastectomy bill is narrow, it
doesn't address that. The broader patient rights bill addresses it.
I want to speak to the issue of the dates when these various bills
were put into the hopper, because Senator Feinstein made a good point
on that. However, Senator Kennedy had a bill that was offered before
the drive-through mastectomy bill. Others had bills that were offered
before as well. We don't need to have this argument which pits one
against the other. We should be able to pass this bill banning drive-
through mastectomies, and allow it to be amended to take up these
broader issues, so that if someone has chest pains and goes to the
emergency room, they are not going to be told by their HMO that they
can't qualify for a payment because, guess what, they didn't actually
die and have a heart attack, they actually lived. But it was a prudent
person who made that decision to walk into that emergency room. Why
should they be penalized?
I am very hopeful we will pass this drive-through mastectomy bill,
but also a broader Patients' Bill of Rights for breast cancer patients,
for prostate cancer patients, for Alzheimer's patients, for all the
patients, and let's not set up a false argument here. We can do both.
Somebody once said you should be able to walk and chew gum at the same
time. Well, we should be able to do this very narrow bill and then
debate a broader bill and give all of our patients the protection they
so richly deserve.
I yield the remaining time to Senator Kennedy.
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. D'AMATO. Mr. President, I ask unanimous consent that my colleague
from California, Senator Feinstein, be recognized for 5 minutes.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. I thank the Senator from New York.
I must say that I think what is happening here is unfortunate. I
think what we are seeing overwhelmingly all across the United States is
a state of medical care and health insurance in this country that is
becoming much more oriented toward business and much less oriented
toward medicine. And this is prompting, I think, all across this land a
terrible situation for physicians and for patients.
What prompted me to introduce this bill was two California women who
wrote to me. I want to read them to you and enter their full statements
in the Record.
One was from a woman in Newark, CA. And she wrote--and this was
almost 2\1/2\ years ago--that she had a modified radical mastectomy as
an outpatient at the Fremont Kaiser outpatient clinic. She was operated
on at
[[Page S4647]]
11:30 in the morning and was released at 4:30 that afternoon, with no
attempt made to see if she could even walk to the bathroom. She was 60
years old. And the discovery of cancer and the subsequent surgery were
extremely draining both emotionally and psychologically.
That is one case. Same day. Let me read you about another case.
My mastectomy and lymph node removal took place at 7:30
a.m., November 13. I was released at 2:30 p.m. that same day.
I received notice, the day before surgery, from my doctor
that mastectomy was an outpatient procedure at Kaiser and I'd
be released the same day. Shocked by this news, I told my
surgeon of my previous complications with anesthesia and the
fact that I have a cervical spine condition, which adds an
additional consideration for any surgery.
Then she goes on and she says:
While in a groggy, postoperative daze, swimming in pain and
nausea, I was given some perfunctory instructions on how to
empty the two bloody drains attached to my body. I was told
to dress myself and go home. My doctor's written chart
instructions for a room assignment, if I developed acute
nausea or pain, were ignored by the nursing staff.
This is the problem we are trying to stop right here and now. I
frankly am sorry that the bill isn't broader. But this is something
whose cost is small--$100 million. We know it can be accommodated. We
know we can get the job done.
This bill is simple. It requires every insurance plan in the United
States of America to cover the hospital length of stay determined by
the physician to be medically necessary. It does not prescribe a fixed
number of days. It does not set a minimum. It leaves the length of the
hospital stay for the mastectomy up to the treating physician.
Secondly, it requires health insurance plans to cover breast
reconstruction following a mastectomy.
Thirdly, it requires insurance plans to cover breast prostheses and
complications of mastectomy, including lymphedema.
And, finally, it prohibits insurance plans from financially
penalizing or rewarding a physician for providing medically necessary
care or for referring a patient for a second opinion.
This is a simple bill. It is a direct bill. It is going to directly
benefit the lives of tens of thousands of women. I regret that it isn't
more comprehensive. But we know it is doable, we know what it does, and
we know women will immediately be better off because of it.
So I am very proud to stand here with my colleague from New York and
with others in the Senate. The great bulk of women Senators are
supporting this. This is tangible; it is doable. We believe it can
become law quickly. And we say, let us seize the moment and let us
accomplish at least this for women of America.
So I thank my colleague from New York for his authorship. I was very
proud to be an original sponsor on this bill. We did have a hearing. We
have tried to get the job done before, but hopefully it will get done
this morning.
As an original cosponsor of S. 249, the Women's Health and Cancer
Rights Act, I am pleased to sponsor the amendment on mastectomy
hospital length of stay that Senator D'Amato is urging the Senate to
consider. It is time to pass it.
Senator D'Amato and I introduced this amendment as a bill on January
30, 1997, 16 months ago. The Senate Finance Committee held a hearing on
the bill, S. 249, on November 5, 1997. We have filed this as an
amendment, to be considered by the Senate, three times:
On March 16, we filed it as an amendment to H.R. 2646, the Parent and
Student Savings Account PLUS Act.
On May 6, we filed it as an amendment to H. R. 2676, the IRS
restructuring bill.
On March 31 and on February 10 of this year, Senator D'Amato offered
it as an amendment in the Finance Committee.
In sum, we have made numerous efforts to get the Senate to consider
this bill.
The D'Amato-Feinstein mastectomy bill has 21 cosponsors, including a
bipartisan group of women Senators: Senators Snowe, Moseley-Braun, Kay
Bailey Hutchison, Mikulski and Boxer.
This amendment has four important provisions: For treatment of breast
cancer:
1. It requires insurance plans to cover the hospital length
of stay determined by the physician to be medically
necessary. Importantly, our bill does not prescribe a fixed
number of days or set a minimum. It leaves the length of
hospital stay up to the treating physician.
2. It requires health insurance plans to cover breast
reconstruction following a mastectomy.
3. It requires insurance plans to cover breast prostheses
and complications of mastectomy, including lymphodemas. For
treatment of all cancers:
4. It prohibits insurance plans from financially penalizing
or rewarding a physician for providing medically necessary
care or for referring a patient for a second opinion
Let me share with you two firsthand experiences, two California women
describing their treatment by insurance companies in having a
mastectomy.
Nancy Couchot, age 60, of Newark, California, wrote me that she had a
modified radical mastectomy on November 4, 1996, at 11:30 a.m. and was
released by 4:30 p.m. She could not walk and the hospital staff did not
help her ``even walk to the bathroom.'' She says, ``Any woman, under
these circumstances, should be able to opt for an overnight stay to
receive professional help and strong pain relief.''
Victoria Berck, of Los Angeles, wrote that she had a mastectomy and
lymph node removal at 7:30 a.m. on November 13, 1996, and was released
from the hospital 7 hours later, at 2:30 p.m. Ms. Berck was given
instructions on how to empty two drains attached to her body and sent
home. She concludes, ``No civilized country in the world has mastectomy
as an outpatient procedure.''
These are but two examples of what, unfortunately, is symptomatic of
a growing trend and a national nightmare--insurance plans interfering
with professional medical judgment and arbitrarily reducing care
without a medical basis.
Premature discharges for mastectomy, with insurance plans strong-
arming physicians to send women home, are one glaring example of the
growing torrent of abuses faced by patients and physicians who have to
``battle'' with their HMOs to get coverage of the care that physicians
believe is medically necessary.
Increasingly, insurance companies are reducing inpatient hospital
coverage and pressuring physicians to discharge patients who have had
mastectomies. This is beyond the pale. It is unconscionable.
The Wall Street Journal on November 6, 1996, reported that ``some
health maintenance organizations are creating an uproar by ordering
that mastectomies be performed on an outpatient basis. At a growing
number of HMOs, surgeons must document `medical necessity' to justify
even a one-night hospital admission.''
A July 7, 1997 study by the Connecticut Office of Health Care Access
found the average hospital length of stay for breast cancer patients
undergoing mastectomies decreased from three days in 1991 and 1993 to
two days in 1994 and 1995. This study said, ``The percentage of
mastectomy patients discharged after one-day stays grew about 700
percent from 1991 to 1996.''
In the last ten years, the length of overnight hospital stays for
mastectomies has declined from 4 to 6 days to 2 to 3 days to, in some
cases, ``no days.'' The average cost of one day in a community hospital
in 1995 nationwide was $968.00. In California, in 1997, the average
cost for one day was $1,329.77. When insurance plans refuse to cover a
hospital stay, most Californians have difficulty coughing up $1,300.00.
They are forced to go home.
In 1997, over 180,000 women (or one in every 8 American women) were
diagnosed with invasive breast cancer and 44,000 women died from breast
cancer. Only lung cancer causes more cancer deaths in American women.
2.6 million American women are living with breast cancer today.
In my state, this year, 19,399 women will be diagnosed with breast
cancer and 4,585 will die. The San Francisco Bay Area has some of the
highest rates of breast cancer in the world. According to the Northern
California Cancer Center, San Francisco's 9-county area's rate of
breast cancer in 1994 was 50 percent higher than most European
countries and 5 times higher than Japan. In September 1997, the
Northern California Cancer Center gave us some mixed news: ``The good
news is we're seeing the rates go down. The bad news is we don't know
why,'' said Angela Witt
[[Page S4648]]
Prehn. But officials there say, the bottom line is that incidence rates
are still higher than national rates.
After a mastectomy, patients must cope with pain from the surgery,
with drainage tubes and with psychological loss--the trauma of an
amputation. These patients need medical care from trained
professionals, medical care that they cannot provide themselves at
home.
A woman fighting for her life and her dignity should not also be
saddled with a battle with her health insurance plan. A physician
trying to provide medically necessary care
As the National Breast Cancer Coalition wrote me on March 12, 1998:
``The NBCC applauds this effort and believes this compromise will put
an end to the dangerous health insurance practices that allow cost and
not medical evidence to determine when a woman leaves a hospital after
breast cancer surgery.''
Insurance plans also refuse to cover breast reconstruction and breast
prostheses. Our bill requires coverage.
Joseph Aita, Executive Vice President and Medical Director of
LifeGuard, was quoted in the San Jose, California, Mercury News, as
saying ``Looking normal is not medically necessary.''
Let me contradict Mr. Aita. Looking normal is medically necessary.
Breast reconstruction is important to recovery. According to Dr. Ronald
Iverson, a Stanford University surgeon, ``Breast reconstruction is a
reconstructive and not a cosmetic procedure.''
He cites a study which found that 84 percent of plastic surgeons
reported up to 10 patients each who were denied insurance coverage for
reconstruction of the removed breast. This could mean 40,000 cases per
year.
Commendably, my state has enacted a law requiring coverage of breast
reconstruction after a mastectomy. We need a national standard,
covering all insurance policies. Let's follow California's need.
Finally, our amendment prohibits insurance plans from including
financial or other incentives to influence the care a doctor's
provides, similar to a law passed by the California legislature last
year. Many physicians have complained that insurance plans include
financial bonuses or other incentives for cutting patient visits or for
not referring patients to specialists. Our bill bans financial
incentives linked to how a doctor provides care. Our intent is to
restore medical decision-making to health care.
For example, a California physician wrote me, ``Financial incentives
under managed care plans often remove access to pediatric specialty
care.'' A June 1995 report in the Journal of the National Cancer
Institute cited the suit filed by the husband of a 34-year old
California woman who died from colon cancer, claiming that HMO
incentives encouraged her physicians not to order additional tests that
could have saved her life.
Our amendment today tries to restore professional medical
decisionmaking to medical doctors, those whom we trust to take care of
us. It should not take an act of Congress to guarantee good health
care, but unfortunately that is where we are today. As the National
Breast Cancer Coalition wrote us on March 12, ''. . . until guaranteed
access to quality health care coverage and service is available for all
women and their families, there are some very serious patient concerns
that must be met. Without meaningful health care reform, market forces
propel the changes in the health care system and women are at risk of
being forced to pay the price by having inappropriate limits placed on
their access to quality health care.''
This amendment is an important protection for millions of Americans
who face the fear, the reality and the costs of cancer every day. When
any cancer strikes, it is not just the victim who suffers. It becomes a
family matter.
Today I say, enough is enough. It is time for this Senate, for this
Congress to send a strong message to insurance companies that we must
put care back into health care. Medical decisions must be made by
medical professionals, not anonymous insurance clerks.
I ask unanimous consent to have items I referred to previously
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Newark, CA, November 16, 1996.
Senator Feinstein.
Senator Boxer.
I recently called your office to express my anger at having
been forced on Nov. 4 to have a modified radical mastectomy
as an outpatient at the Fremont Kaiser Outpatient Clinic. I
was operated on at 11:30 am and was released by 4:30 with no
attempt made to see if I could even walk to the bathroom.
I am 60 years old and the discovery of cancer and the
subsequent surgery was extremely draining both emotionally
and psychologically. I feel that Kaiser completely
disregarded these feelings, along with my fear of coming home
so soon with no professional help. We received a call from
Kaiser the following morning but visit by a home health
nurse.
Any woman, under these circumstances, should be able to opt
for an overnight stay to receive professional help and strong
pain relief.
I am interested in your view of this issue. Contact me if
you want further details.
Nancy Couchot.
Sorry I am still wobbly writing.
____
[From the Los Angeles Times, Nov. 21, 1996]
Outpatient Mastectomy Surgery
My thanks to Ellen Goodman for ``The Latest HMO Outrage:
Drive-Thru Mastectomy'' (Commentary, Nov. 18). Last week I
became an uninformed victim of this inhumane practice at
Kaiser-Permanente, Los Angeles.
I want to acquaint women with my firsthand experience of
this degradation and urge my fellow HMO patients to contact
their Washington legislators.
My mastectomy and lymph node removal took place at 7:30
a.m., Nov. 13. I was released at 2:30 p.m. that same day. I
received notice, the day before surgery, from my doctor that
mastectomy was an outpatient procedure at Kaiser and I'd be
released the same day. Shocked by this news, I told my
surgeon of my previous complications with anesthesia and the
fact that I have a cervical spine condition, which adds an
additional consideration for any surgery. The pleasant doctor
assured me that I'd be admitted, for the night, if I
experienced excessive pain or nausea. This was noted in my
chart.
In the recovery room and the holding area, I felt like a
wounded soldier in a hospital tent during the Civil War. I
was surrounded by moaning patients and placed directly next
to a screaming infant. When I finally found a voice, I
shouted, ``Get me out of here!'' A nurse flitted by, shot me
a disapproving glance, and commented, ``Some folks just don't
know when to be grateful.'' This was the ultimate
humiliation.
While in a groggy, postoperative daze, swimming in pain and
nausea, I was given some perfunctory instructions on how to
empty the two bloody drains attached to my body. I was told
to dress myself and go home. My doctor's written chart
instructions for a room assignment, if I developed acute
nausea or pain, were ignored by the nursing staff. Obviously,
the reassurance had been given to placate me at the time of
my discussion with the doctor but everyone knew an overnight
stay was against Kaiser hospital rules. Everyone knew, except
me. I had no time to mourn the loss of my breast or regain a
sense of composure.
This experience was especially shocking because four years
previously, I had undergone a hysterectomy and received
excellent treatment and a four-night stay at the very same
Kaiser facility.
We women can allow ourselves to be discounted or we can
demand more from the HMOs. No civilized country in the world
has mastectomy as an outpatient procedure.
Victoria Berck.
Mrs. FEINSTEIN. I yield the floor.
Mr. D'AMATO. Mr. President, I ask unanimous consent that the Senator
from Maine, Senator Snowe, be recognized to speak for up to 5 minutes.
The PRESIDING OFFICER. The Senator from Maine is recognized.
Ms. SNOWE. Thank you.
Mr. President, I thank Senator D'Amato for yielding me such time. I
want to applaud him for his leadership on this very important issue for
women in America. And I thank my colleague, Senator Feinstein, for her
leadership as well and commitment that she has demonstrated on this
issue.
Mr. President, I regret that we have reached a point here where we
cannot pass one bill because it is being held hostage to another. No
one disagrees with the Senator from Massachusetts in terms of the
importance of some of the issues that he has raised with respect to a
Patients' bill of rights. But this legislation should not be held
hostage to that legislation.
We all know that there are many questions with respect to the
approach that he has taken--relevant questions, understandable
concerns--that should be appropriately discussed and explored in the
committee process and then ultimately here on the floor. But this
should not hold up this particular bill. And Senator D'Amato is
absolutely correct, we should move forward, because this has strong
bipartisan support.
[[Page S4649]]
There is not a Senator on the floor who would not support this
legislation. So the women of America should not be held hostage because
of internal divisions, because of parliamentary maneuvers, because of
legislative gridlock.
This legislation has the support of Democrats as well as Republicans.
We have 180,000 women every year who are diagnosed with breast cancer.
One in eight women in their lifetime will be detected with breast
cancer. We have now discovered that, in many instances, mastectomies
are being performed on an outpatient basis, and we need to take action
to prevent that. Mastectomies are very complicated surgical procedures.
There is no way that that is a decision that should be made by a
bureaucrat; but rather, the length of a woman's stay in a hospital, how
that procedure will be handled, should be determined by her as well as
her doctor. Those are the only two individuals who ought to be making
that decision. It should not be a bureaucrat's bottom line.
We have found time and time again women who have had to endure this
procedure on an outpatient basis. The physical scars left by
mastectomy, which can be complicated and difficult to care for, often
require supervision. Women prematurely released may not have the
information they need, let alone the care. And dangerous complications
have arisen hours after the operation. And all of this is occurring
within the context of a traumatic circumstance, and that is having a
mastectomy. We want to make sure that this decision is made
appropriately within the confines of medical supervision and medical
providers.
We have also found that breast reconstructive surgery is considered
cosmetic surgery. Well, it is not. Forty-three percent of women who
want to undergo breast reconstructive surgery cannot because it is
deemed cosmetic. And that is wrong. Breast reconstructive surgery is
designed to restore a woman's wholeness. Fortunately, my State has
passed legislation to guard against that and to require health
insurance companies to consider it as breast reconstructive surgery.
But unfortunately for those who are employed by those who are self-
insured, they do not receive this kind of coverage.
That is why this legislation that is offered by Senator D'Amato is so
essential. We cannot allow women to have to endure this kind of
decisionmaking under the most arduous circumstances because of the
indecision and the difficulties that have arisen here.
This legislation had a hearing back in November of 1997 before the
Senate Finance Committee. We are entitled to get this legislation
through the legislative process. In fact, the President, during his
State of the Union Address in January of 1997, had a physician in the
gallery who drew attention to the need to change the guidelines that
had encouraged outpatient masectomies. Therefore, he called on Congress
in January of 1997 to pass this legislation.
The PRESIDING OFFICER. The time of the Senator has expired.
Ms. SNOWE. I thank Senator D'Amato for his leadership. I urge the
Senate to move this legislation forward. We will have another day to
raise the issues raised by the Senator from Massachusetts.
Mr. D'AMATO. Mr. President, I ask unanimous consent that the Senator
from Alaska be recognized for 2 minutes.
The PRESIDING OFFICER. The Senator from Alaska is recognized.
Mr. MURKOWSKI. Let me commend the chairman on his efforts to bring
this to the floor. This is the second or third time he has done it. I
am certainly pleased to be a cosponsor of the Women's Health and Cancer
Rights Act.
In our State of Alaska, we have an effort relative to awareness being
put on by the Breast Cancer Detection Center of Alaska, which has
provided 25,000 women in 81 villages throughout the State an
opportunity for free mammograms. This has been done not with government
support but with private support. We have raised about $830,000 through
a series of fishing tournaments each year, which some Senators have
been a party to.
Mr. President, I think that the significance of this bill, which
means so much to so many, is that it would put an end to the ``drive-
through'' mastectomies, as we know them today. Many of my colleagues
have already spoken on this issue. The bill ensures that mastectomy
patients would have access to reconstruction surgery. Scores of women
have been denied this procedure because insurers have deemed this
procedure to be ``cosmetic.'' Far too often, breast cancer victims who
believe they have adequate health coverage have become horrified when
they learn that reconstruction is not covered.
In my State of Alaska, of the 324 mastectomies and lumpectomies
performed in Alaska in 1996, reconstruction only occurred on 11 of the
patients. That means that only 3.4 percent of the women who have a
breast removed have reconstructive surgery, compared to the national
average of 23 percent.
The reason is cost, Mr. President. And if we look at one of the
physicians in my State, Dr. Troxel, of Providence Hospital in
Anchorage, who states:
Women who are not able to receive reconstructive surgery
suffer from depression, a sense of loss, and need more cancer
survivor counseling. . . .Additionally, reconstructive
surgery can be preventive medicine--women who don't have
reconstructive surgery often develop back problems and other
difficulties.
Mr. President, one out of nine American women will suffer the tragedy
of breast cancer. It is today the leading cause of death for women
between the ages of 35 to 54.
Alaskan women are particularly vulnerable to this disease. We have
the second highest rate of breast cancer in the nation: 1 in 7 Alaska
women will get breast cancer and tragically it is the Number One cause
of death among Native Alaskan women.
Mr. President, these tragic Alaska deaths are not inevitable. Health
experts agree that the best hope for lowering the death rate is early
detection and treatment. It is estimated that breast cancer deaths can
be reduced by 30 percent if all women avail themselves of regular
clinical breast examination and mammography.
But for many Alaska women, especially native women living in one of
our 230 remote villages, regular screening and early detection are
often hopeless dreams.
For more than 20 years, my wife Nancy has recognized this problem and
tried to do something about it. In 1974, she and a group of Fairbanks'
women created the Breast Cancer Detection Center, for the purpose of
offering mammographies to women in remote areas of Alaska--regardless
of a woman's ability to pay.
Now, the Center uses a small portable mammography unit which can be
flown to remote areas of Alaska, offering women in the most rural of
areas easy access to mammographies at no cost. Additionally, the Center
uses a 43-foot-long, 14-foot-high and 26,000-pound mobile mammography
van to travel through rural areas of Alaska. The van makes regular
trips, usually by river barge, to remote areas in Interior Alaska such
as Tanana.
Julie Roberts, a 42-year-old woman of Tanana, who receives regular
mammographies from the mobile mammography van, knows the importance of
early screening:
There's a lot of cancer here (in Tanana)--a lot of cancer.
That's why it's important to have the mobile van here . . . I
know that if I get checked, I can catch it early and can
probably save my life. I have three children and I want to
see my grandchildren.
I am proud to say that the Fairbanks Center now serves about 2,200
women a year and has provided screenings to more than 25,000 Alaska
women in 81 villages throughout the state. To help fund the efforts of
the Fairbanks Center, each year Nancy and I sponsor a fishing
tournament to raise money for the operation of the van and mobile
mammography unit. After just three years, donations from the tournament
have totalled $830,000.
Mr. President, Nancy and I are committed to raising more funds for
this important program so that every women in Alaska can benefit from
the advances of modern technology and reduce their risk of facing this
killer disease.
The importance of mammography and screening cannot be stressed
enough--however, there has long been a tragic result of the disease
that Congress has either ignored or failed to recognize--and that is
the so-called ``drive-through'' mastectomy.
[[Page S4650]]
Currently victims of breast cancer who receive mastectomies are being
forced to get out of their surgery bed and vacate the hospital only
hours after their surgery. The reason? Because far too often it is the
practice of insurance companies to treat the procedure of a mastectomy
as merely an ``out-patient service.''
Here's the horror that many insurance companies cause:
Nancy Couchot, a 60-year-old woman had a radical mastectomy at 11:30
a.m. She was released from the hospital only hours later at 4:30 p.m.--
even though she was not able to walk or use the rest room without
assistance.
Victoria Berck, had a mastectomy and lymph node removal at 7:30 a.m.
and was released at 2:30 p.m. She was given instructions on how to
empty two drains attached to her body and sent home. Ms. Berck
concludes, ``No civilized country in the world has a mastectomy as an
out-patient service.''
Mr. President that is why I am proud to co-sponsor of S. 249, the
Women's Health and Cancer Rights Act. This bill would put an end to the
drive-through mastectomies.
Specifically, the Act will require health insurance companies to
allow physicians to determine the length of a mastectomy patient's
hospital stay according to medical necessity. In other words, the bill
makes it illegal to punish a doctor for following good medical judgment
and sound medical treatment.
Another important provision of this bill ensures that mastectomy
patients will have access to reconstructive surgery. Scores of women
have been denied reconstructive surgery following mastectomies because
insurers have deemed the procedure to be ``cosmetic'' and, therefore,
not medically necessary.
Mr. President, far too often breast cancer victims, who believe that
they have adequate health care coverage, become horrified when the
learn that reconstruction is not covered in their health plan.
In Alaska, the problem is even more tragic. Of the 324 mastectomies
and lumpectomies performed in Alaska in 1996, reconstruction only
occurred on 11 of the patients. That means that only 3.4% of women who
have their breast removed have reconstructive surgery, compared to the
national average of 23 percent.
The simple reason for this tragically low figure is simple: women
can't afford the procedure.
Breast reconstruction costs average about $5,000 for just the
procedure. If hospital, physician and other costs are included--the
cost averages around $15,000.
Dr. Sarah Troxel, of Providence hospital in Anchorage, states the
importance of reconstruction:
Women who are not able to receive reconstructive surgery
suffer from depression, a sense of loss, and need more cancer
survivor counseling . . . Additionally, reconstructive
surgery can be preventative medicine--women who don't have
reconstructive surgery often develop back problems and other
difficulties.
Mr. President, insurance companies commonly provide reconstructive
surgery for other types of cancers that alter or disfigure the surface
of the skin--such as melanomas and all skin cancers.
Here is why federal legislation is needed: Thirty-four states,
including Alaska have no state law requiring breast reconstruction
after surgery. And in addition, 70 million Americans receive health
benefits through federally regulated self-funded ERISA plans which are
not covered by state insurance requirements.
These issues are not partisan issues. We may have our differences
regarding managing and financing health reform, but I think we all
endorse accessible and affordable health care that preserves patient
choice and physician discretion. Cancer does not look to see the
politics of its victims.
Mr. President, I urge my colleagues to support this important
legislation.
Mr. FAIRCLOTH. Mr. President, I rise to support the efforts of my
good friend Senator D'Amato in his efforts to assure that women who
need surgery for breast cancer will be able to do so in the hospital if
that's what they desire.
I'm disturbed by the recent trend that takes choice away from
patients and their doctors in the name of cost savings.
There are some things we just can't sacrifice. Patient's rights to
seek care from specialty doctors and have access to cherished healers
is a basic right we need to protect.
Breast cancer is a traumatic enough experience for a woman and her
family to suffer through. These families need our help in gaining as
much support from our medical care system as they can get to bring them
through this terrible time in their lives.
This bill is simple. It simply guarantees a woman's right to a proper
length of time in the hospital following her surgery. It guarantees the
right to have a complete reconstruction of her breast to restore her
body and sense of self-esteem.
The bill gives every person diagnosed with cancer the right to a
second opinion, and would direct the HMO to pay for this second
opinion. Also, the bill directs HMO's to pay for a specialist even if
that doctor happens to be outside the plan.
Lastly, and most importantly, this bill prohibits HMO's from paying
doctors to reduce or limit their patient care.
This is managed care's dirty little secret. They pay doctors to limit
the time spent with their patients and pay doctors not to provide care.
I've heard from many, many, many constituents and doctors who are
frustrated with this situation. If a doctor needs to spend time with a
patient--time essential to healing--if a woman needs to be supported as
she decides what to do for her breast cancer, I say give them all the
time they need!
I rise to support Senator D'Amato's bill today. We need to support
our doctors and our women and their families.
Mr. D'AMATO. Mr. President, I believe my colleague from California
has a question.
Mrs. FEINSTEIN. Mr. President, I have a question for the author, the
Senator from New York. I believe this bill has strong support and a low
cost. Its cause is just and correct, and it would be passed by this
body overwhelmingly. When might we expect a vote on this bill?
Mr. D'AMATO. Mr. President, I am glad my colleague raised that
question. Let me say this: It is disingenuous to say that the women of
America are being denied proper health care here when something so
basic and elementary is being tied up by procedures. That is exactly
what is taking place. This legislation would stop the kind of abuse we
see taking place every day. I have women calling and saying they are
being denied reconstructive surgery, being denied the kind of health
care that everybody agrees on. We have found a methodology of paying
for this, and it is not right to tie it to something so comprehensive
and say, ``unless we get this one, we are not going to get the other.''
The women of America are being denied this. I intend to hold hostage,
with my colleagues, important legislation that moves through until we
get a vote on this--whether it is on a defense bill, a tobacco bill,
appropriations bills. When we come down to the floor and--
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. D'AMATO. I ask unanimous consent for an additional 5 minutes.
The PRESIDING OFFICER (Mr. Roberts). Is there objection?
Mr. HARKIN. Reserving the right to object, Mr. President. By
unanimous consent, yesterday, we were supposed to come up with the
research bill at 11 o'clock. We are up against kind of a time problem
here. I would like to have some idea as to how soon that will happen. I
see the chairman of the Agriculture Committee is here. We are here to
begin our debate. I wonder how much longer can we expect to wait.
Mr. D'AMATO. Mr. President, I will withdraw my request and ask that I
be given just 2 minutes, because I have yielded more time to more
people. I want to set the stage.
The PRESIDING OFFICER. Is there objection to the Senator's request?
Mr. KENNEDY. For 2 minutes?
The PRESIDING OFFICER. Yes.
Mr. KENNEDY. No.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. D'AMATO. Mr. President, let me say that we have been thwarted
time and time again, procedurally--by both sides, I might say. But now
I find what
[[Page S4651]]
took place today absolutely horrendous.
Again, it is disingenuous to suggest that we would have to consider
both when one is so clear cut, and the need is so necessary, and women
are being denied. That is what is going on here. It is wrong. So when
we have a bill that is going to be acted on, I will come to the floor--
I hope with a number of my colleagues--to offer this legislation as an
amendment and get a vote. Let the people of America see this. The
people are going to be so full of pride that we will not allow
something that is so obviously necessary that they are going to hold it
hostage, because that is what is taking place with this legislation. It
has been held hostage, and it is disingenuous to come down here and say
you have to take this great big piece of legislation or we can't even
let the women of America have freedom from the fear that they will be
denied that which they should have--reconstructive surgery and to stay
in the hospital until their doctor says now is the time to go home, not
a bean counter, someone who limits you to 24 or 48 hours.
I hope my colleagues will join with me in this endeavor, making it a
bipartisan fight to see that the women and families of America get
justice.
Mrs. FEINSTEIN. Mr. President, I certainly will. I thank the Senator
for his leadership and commitment to this issue.
____________________