[Congressional Record Volume 144, Number 83 (Tuesday, June 23, 1998)]
[House]
[Pages H5053-H5061]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              MANAGED CARE

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 7, 1997, the gentleman from New Jersey (Mr. Pallone) is 
recognized for 60 minutes as the designee of the minority leader.
  Mr. PALLONE. Mr. Speaker, tonight I would like to talk again about 
the issue of managed care reform, and I have said before on the floor 
that this issue, without question, has become one of the most important 
on the minds of Americans, not only in my district but I think 
throughout the country.
  The reason that it has become so important is because patients are 
being abused within managed care organizations. Patients often lack 
basic elementary protections from abuse, and these abuses are occurring 
because insurance companies and not doctors are dictating which 
patients can get what services under what circumstances.
  Within managed care organizations or HMOs, the judgment of doctors is 
increasingly taking a back seat to the judgment of insurance companies. 
Medical necessity is being shunted aside by the desire of bureaucrats 
to make an extra buck, and people are literally dying because they are 
not getting the medical attention they need and, ironically enough, are 
in theory paying for through their premiums.
  This is not an exaggeration. Myself and the gentleman from Iowa (Dr. 
Ganske), who will be joining me tonight, and other colleagues on both 
sides of the aisle have told numerous stories about people throughout 
the country who have been negatively impacted by managed care.
  As I mentioned before, because of the importance of this issue, there 
are a number of legislative proposals that have been introduced to give 
patients the protections they deserve from managed care organizations. 
And working with the Democratic Caucus' Health Care Task Force, which I 
co-chair, the gentleman from Michigan (Mr. Dingell) introduced 
legislation which would provide patients with a comprehensive set of 
protections from managed care abuses.
  His bill, the Patients Bill of Rights, is not an attempt to destroy 
managed care. It is an attempt to make it better. To emphasize that 
point, supporters of managed care reform want just that, reform, not a 
dismantling of managed care.
  The Patients Bill of Rights would help bring about that reform by 
putting medical decisions back where they belong, with doctors and 
their patients. I have to mention that this is also a bipartisan bill, 
with 7 Republican cosponsors, including my colleague the gentleman from 
Iowa (Dr. Ganske).
  Unfortunately, though, the Patients Bill of Rights does not enjoy the 
support of the Republican leadership. It is not clear exactly where 
they stand on the issue of managed care reform. There is still a task 
force that the Republicans have put together and has been meeting, but 
so far the Republican leadership has not allowed any managed care 
reform bill to be heard in committee or to be marked up in committee or 
to come to the floor, and I believe that that is because of the power 
of the insurance industry that that has not happened so far.
  Mr. Speaker, tonight I just wanted to say that there have been some 
recent important developments on this issue. I am going to let my 
colleague, the gentleman from Iowa (Dr. Ganske) go into some of this, 
but I just wanted to say that legislation was introduced today by the 
gentleman from Iowa (Dr. Ganske) and the gentleman from Michigan (Mr. 
Dingell), again on a bipartisan basis, to try to bring the Patients 
Bill of Rights and possibly other managed care reform to the floor 
through what we call a discharge petition. Basically a discharge 
petition is necessary when the House leadership will not allow a bill 
to come to the floor through the normal committee process.
  I just wanted to say how much I appreciate the efforts of my 
colleague from Iowa, not only in introducing this discharge petition 
today with the gentleman from Michigan (Mr. Dingell) but also because 
the gentleman from Iowa (Dr. Ganske) has been an outspoken champion and 
leader of the movement here in the House to bring the Patients Bill of 
Rights to the floor, and I think he deserves a tremendous amount of 
credit for that reason.
  The only thing I also wanted to mention today about this discharge 
petition is that I believe that there is a tremendous amount of support 
for this. As my colleague knows well, we have been working closely with 
over 150 groups that support the Patients Bill of Rights. I think the 
Patients Bill of Rights now has 192 cosponsors.
  Another bill on managed care reform which the gentleman from Iowa 
(Dr. Ganske) has supported, the PARCA bill, has even more cosponsors, 
from what I understand, so I do not think it is going to be difficult 
to get support for this discharge petition.
  The last thing that I did want to mention though, before yielding to 
the

[[Page H5054]]

gentleman, is that we are going to push for this discharge petition 
over this week and during the congressional recess so that when we come 
back, we hopefully will get enough signatures so that we can bring the 
Patients Bill of Rights to the floor.
  I am still very concerned that the Republican leadership is going to 
try to produce a watered-down managed care reform bill. As we know, the 
Speaker has already rejected one proposal by the GOP task force because 
it had too many patient protections in it. There are reports now that 
some patient protections have crept back into the GOP plan and that the 
task force will come forward with a bill this week or sometime in the 
future. But I think we need to watch out that it is not legislation 
that is substantially weaker than the Patients Bill of Rights or the 
PARCA bill or some of the other strong legislation that we have been 
pushing. Obviously, we are going to keep a careful eye on that as we 
proceed over the next few weeks.
  With that. Mr. Speaker, I yield to the gentleman from Iowa (Dr. 
Ganske).
  Mr. GANSKE. Mr. Speaker, I appreciate the remarks of my colleague 
from New Jersey. Once again, here we are on the floor addressing our 
colleagues about abuses in managed care as they relate to a Federal law 
that was passed some 25 years ago called ERISA, Employee Retirement 
Income Security Act, which basically gave legal immunity to health 
plans that are health plans for self-insured employer plans.
  I think without that prior Federal legislation, we would not need to 
be here tonight. But because the majority of people who get their 
insurance from their employer are now in HMOs versus the traditional 
type of indemnity insurance, and because so few of them have a true 
choice in terms of the health plan that they choose, many employers now 
will only offer an employee one plan, take it or leave it, so that if 
you are talking about choice in the health care marketplace, you are 
really talking about having to change your job before you have a 
choice.
  I do want to address the issue of the resolution that I introduced 
today along with Mr. Dingell. Nothing would please me more than to hear 
my Republican leadership say before August recess we are going to have 
a full and fair debate on the floor on managed care. After all, we have 
two bills, the Patients Bill of Rights, Patient Access to Responsible 
Care Act, with broad bipartisan support. I think it is well recognized 
that if there is debate on the floor, one of these bills could easily 
pass with much more than a majority.

                              {time}  1945

  There is significant sentiment in the Republican Conference for a 
patient protection legislation. So it would please me greatly if my own 
Republican leadership would come out and say, do you know what, we 
agree with 9 out of 10 Americans that we should pass Federal 
legislation with federally enforceable standards for quality 
protection.
  We are going to bring this to the floor in a fair manner, not with 
the type of rule that we have seen with campaign finance reform, which 
is death by 1,000 amendments, but a fair rule giving both sides of the 
issue a chance to debate this issue on the floor, to talk about the 
abuses in the industry, how to fix them, how to provide protections for 
the average American similar to the type of protections that we have 
already passed for Medicare patients and the balanced budget act. We 
will go into that in a little bit more detail.
  So nothing would please me more than to have the leadership not make 
a discharge petition a necessity. Unfortunately, we have seen over the 
last 3 months, one delay after another from the Republican Health Care 
Task Force.
  We are told that tomorrow we will hear about some principles of 
legislation coming out of the task force, but we are also told that a 
bill is not available to look at. In fact, there may not be a bill 
available until after the Fourth of July recess.
  As everybody knows, we are looking at a shortened legislative 
session. And I think it is fair to say from conferences I have had with 
my colleagues that there are some Members of the House and of the 
Senate that want to delay this legislation and delay it and delay it; 
delay it until we get into October, and then all of a sudden, gee whiz, 
we have to adjourn so we can go home and campaign for the fall 
elections. It is just too bad that we did not get to this issue.
  I do not think that that is the right way to go, and so I am looking 
forward to the Republican leadership responding to the majority of the 
House bringing this forward for a full debate in a fair way with a fair 
rule, time-limited fashion, prior to August recess. If that is the 
case, there will not be any need for a discharge petition.
  But I would just like to talk a little bit, before yielding back to 
my colleague, about why we need this legislation. We could come here to 
the floor every night, and we could give case after case of an abuse in 
the managed care in the industry. But I want to just read one story 
written by the patient about how he was treated by his HMO.
  This is related by a fellow by the name of Edward Mycek, and these 
are his words:

       In November of 1997, I found out that I had prostate 
     cancer. After discussing treatment and recovery options, my 
     doctor advocated surgery to remove the prostate. I decided to 
     get another opinion.
       After consulting with the new doctor at Loma Linda 
     University Medical Center, I decided on proton and 3-D 
     conformational radiation treatment. The new physician and his 
     staff concluded that I was an excellent candidate for the 
     treatment for a number of reasons.
       The doctors at Loma Linda Medical Center then contacted my 
     insurer, which said that it would pay for the full 
     treatments. In fact, my insurer called back to inform me that 
     the insurance policy covered these treatments, and they would 
     notify the medical center that the procedure had been 
     authorized. The authorization never arrived at the medical 
     center.

  So, Mr. Mycek continues:

       Worried about the delay of my care, I called my insurer, 
     who told me that they had reversed the decision. The company 
     claimed that this treatment, this radiation treatment was 
     `experimental and investigational.' Loma Linda, then faxed 
     factual information to my insurer which explained that the 
     procedure was not experimental or investigational.

  In fact, I as a physician have known about this treatment for a long 
time. It is a commonly accepted type of treatment for prostate cancer.
  The medical center doctor also wrote a letter that discussed the 
differential recovery rates. The radiation had a recovery rate of 98 
percent versus 83 percent for surgery.
  Mr. Mycek continues:

       After several stressful weeks, I was still denied hope. I 
     asked my insurer what other treatments were covered. They 
     responded by saying they could not say. After being passed 
     back and forth like a ping-pong ball, I could not wait any 
     longer.
       On February 17, 1998, after paying up front himself, I 
     began my first of 44 radiation treatments. This is a 
     financial burden on our family. Today I have completed all 44 
     radiation treatments, and I am due for a checkup.
       After all is said and done, Mr. Mycek continues, I still 
     feel that I have been denied needed care by an agent 3,000 
     miles away, seated at a desk and appointed by the company to 
     decide the quality of care I receive. I have worked for this 
     well-known company for almost 32 years, and this was the 
     first major claim I ever made.
       Because my insurer is protected by ERISA, I can recover no 
     damages from them. I do not have the resources to pressure my 
     insurer to provide better care. Is this ERISA law a fair and 
     just medical insurance law to employees,

  Mr. Mycek continues. Not by any means.
  Well, this is just one example of thousands that we could bring to 
the floor to discuss why we need to have legislation like this.
  I keep hearing from my colleagues, my conservative Republican 
colleagues, and I should point out that I have one of the more 
conservative voting records in the House, that, gee whiz, you know, 
this organization could interfere with free markets.
  I would just like to point out an article that appeared in the June 
26 issue of Human Events. Human Events is one of the more conservative 
newspapers in publication. It is published by Eagle Forum. One of the 
more conservative columnists is a fellow by the name of M. Stanton 
Evans.
  Mr. Evans wrote this article: HMO Rationing Threatens Patients: Why 
and How Conservatives Should Support PARCA Reform.
  Mr. Evans says,
       Once seen as a magic cure for rising health costs, managed 
     care has become a serious problem in its own right.

  Remember, this is a very conserv- 

[[Page H5055]]

ative columnist for one of the most conservative weeklies in the 
country.
  He continues:

       Reports of care denial, quicker and sicker release of 
     patients, charges of wrongful death, and suffering are now 
     familiar items. But lobbyists for business, free market think 
     tanks, editorialists with leverage on the GOP, have charged 
     forth defending HMOs from this type of legislation, arguing 
     that a crackdown on managed care would be an intolerable 
     interference with `the market.'

  Mr. Stanton continues:

       However, as previously noted in this column, such arguments 
     are totally off base. HMOs and managed care are not free 
     market in any serious meaning of the term. It is worth 
     repeating the neglected point that HMOs resemble in their 
     basic structure the so-called global budgets of 
     collectivist systems overseas in which a certain fixed 
     amount of money is allocated to pay for everyone's free 
     care. And doctors get the dirty job of denying treatment. 
     They do things this way abroad because there is no market.

  Then Mr. Stanton Evans continues:

       The bottom line of this repressive sequence is that HMOs 
     are rationing machines in a government-spawned nonmarket 
     setting, which means the market plea of protecting them from 
     PARCA or a patient bill of rights fizzles.

  Finally, Mr. Stanton Evans continues, and he summarizes:

       A more sensible position on the topic might look 
     approximately as follows: First, so long as HMOs are called 
     on to ration care in a nonmarket framework, PARCA or 
     something like it should be adopted and amended so as to 
     distinguish between legitimate indemnity insurance on the one 
     hand and top-down health care denial on the other.
  I would just like to point out this is a very conservative 
publication. There is broad bipartisan support across the ideologic 
spectrum for a patient bill of rights type of legislation. This is 
something that we ought to move forward on and pass and at least have a 
debate on the floor of Congress on this issue.
  Mr. PALLONE. Mr. Speaker, I appreciate the gentleman's remarks, and I 
think that there is no question that these patient protections are 
needed. We will get into more of them.
  Mr. Speaker, I would just like to continue along the line of what the 
gentleman from Iowa (Mr. Ganske) mentioned. We said over and over again 
the type of patient protections that we are seeking either with the 
patient's bill of rights legislation or the PARCA bill is really 
nothing more than a commonsense approach, the type of protections that 
I think most Americans would think that they already have with their 
health plan or with their health insurance but, unfortunately, they do 
not.
  I just wanted to get into two provisions of the patient's bill of 
rights and give two examples again similar to what the gentleman from 
Iowa (Mr. Ganske) did. One is the important access, if you will, to 
specialty care. The bill, the patient's bill of rights, establishes 
certain standards to ensure hassle-free access to appropriate specialty 
care.
  What it says basically is that plans must have a process for 
individuals to access specialty care if they need it. If the plan does 
not have an appropriate specialist in the network, it must provide an 
outside referral to such a specialist, at no additional cost to the 
patient.
  I had an example. There is a group called Consumers for Quality Care 
that actually put out what they call ``Casualty of the Day.'' Every 
week, they put out some examples of patients who suffered casualties 
from abuse by HMOs.
  This one I think applies very well to this issue of specialty care or 
lack of access provided by the HMO or the managed care organization to 
specialty care. If I could just use it as an example. This is Judith 
Packevicz from Saratoga Springs, New York. Actually, that is a 
different example I want to give for another one. I apologize.
  The example I want to give with regard to the specialty care is 
Francesca Tenconi, who is an 11-year-old girl from Oakland, California. 
Again, this is from Consumers for Quality Care. She suffers from, and 
the gentleman from Iowa (Mr. Ganske) probably will be able to help me 
with this better, pemphigus foliaceous.
  Mr. GANSKE. Mr. Speaker, will the gentleman yield?
  Mr. PALLONE. I yield to the gentleman from Iowa.
  Mr. GANSKE. I believe it is pemphigus foliaceous.
  Mr. PALLONE. I am not pronouncing it, but I thank the gentleman for 
the help. This is an autoimmune disease in which the body's immune 
system becomes overactive and attacks the protein which adheres to the 
top layer of skin to the body.
  Her parents had to battle with their HMO to insist upon appropriate 
diagnosis and medical care. According to Donald Tenconi, Francesca's 
father, her medical insurance ordeal began in December 1995 when, at 
the age of 11, she developed what was diagnosed as a skin rash.
  By March, the condition had spread and become worse. By late April, 
the condition was so bad she could not attend school. During this 
period, several requests were made for referrals to specialists outside 
the HMO, and these were all denied.
  Finally, on May 8, 1996, almost 6 months after the first appearance 
of symptoms, the HMO sent biopsies to out-of-network doctors and 
finally obtained an accurate diagnosis. The diagnosis was the disease 
that I mentioned and that the gentleman from Iowa (Mr. Ganske) 
translated for me.
  Even after receiving the diagnosis, the Tenconis' HMO still insisted 
on treating the disease primarily with its own doctors, in-network 
doctors. It was not until February of 1997, over 1 year after the 
symptoms first appeared, that the HMO finally agreed to allow Francesca 
to receive care at Stanford Medical Center, which possessed the doctors 
capable of providing the best care available in the San Francisco Bay 
area.
  Explaining the prolonged and unnecessary pain of lying down without 
skin on your back for over 1 year, Donald said, this is her father 
again, ``If you feel this pain, you will shed tears of pain, the same 
pain that Francesca shed night after night, week after week for many 
months.''
  Again, I mention it because I think that it is necessary to have the 
patient protection that provides access to specialty care outside the 
network when the in-network doctors do not have the ability to take 
care of the individual.

                              {time}  2000

  Under the Patients' Bill of Rights, not only is that the case that 
they have to allow you to go outside of the network if there is not 
someone inside who has that specialty ability, but also patients with 
serious ongoing medical conditions are able to choose a specialist to 
coordinate their primary and specialty care. So if you have a chronic 
illness that requires this kind of specialty care over a long period of 
time, essentially your specialist becomes something like your primary 
care provider so you do not have to constantly go back and get these 
referrals.
  The other example I wanted to mention, again one of the other major 
protections that we talk about is that decisions about provision of 
medical care should be based on what is medically appropriate for the 
patient. They should not be based on the cost considerations of an 
accountant or bureaucrat. The Patients' Bill of Rights prohibits health 
plans from arbitrarily overriding medical decisions by your physicians 
when these decisions are made according to generally accepted 
principles of medical practice. Again that refers to length of stay in 
the hospital, equipment, a particular type of surgery that may be 
required, that this is supposed to be done based on what is medically 
appropriate based on the decision of your doctor rather than the 
bureaucrats.
  Again, I think the gentleman from Iowa mentioned the other day an 
example of somebody who needed a liver transplant. I do not know if 
this is exactly the same example, but I would just like to mention it 
again if I could. This is the case I mentioned before, Judith Packevicz 
from Saratoga Springs, who suffered from a rare form of cancer of the 
liver. The HMO refused to pay for a liver transplant which was 
recommended by her oncologist with the support of all her treating 
physicians. Again, a decision that was made based on what the doctors 
felt was appropriate under the circumstances to have this liver 
transplant, but because it cost an estimated $345,000, the HMO, of 
course, refused to have it done and did not really give an explanation 
about why. I will say here it was undoubtedly the cost of it. Again 
they made a decision to deny her this liver transplant

[[Page H5056]]

even though her son, Thomas Dwyer, was a willing and able donor. There 
were 13 other friends of Judith who volunteered to donate a part of 
their liver. So she had somebody willing, able, would not do it because 
of the cost undoubtedly, and she actually had to bring suit, again 
under ERISA. She cannot recover damages, only the cost of the procedure 
that was denied in the first place, and although it is possible that 
she ultimately would get the liver transplant, there was no way for her 
really to sue for any damages that would result because of the issue 
that you brought again which is that the HMO basically cannot be sued 
for damages.
  Mr. GANSKE. If my colleague would yield, for the reasons that we have 
outlined tonight and in previous special orders, there is broad support 
by a number of organizations for this. I have eight pages here in fine 
type of endorsing organizations for both the Patients' Bill of Rights 
and the Patient Access for Responsible Care Act. With your indulgence, 
I will just read through a few of these. These are all organizations 
that have endorsed this type of legislation:
  The Alzheimer's Association, the American Academy of Child 
Psychiatry, the American Academy of Emergency Medicine, the American 
Academy of Pediatrics, the American Association of Respiratory Care, 
the American Association of Nurse Anesthetists, the American 
Association of Pastoral Counselors. I am obviously not hitting all of 
these organizations on this list, just selecting a few, so for those 
that I do not mention, forgive me.
  The American Association of Retired Persons, AARP, the American 
Association of Mental Retardation, the American Cancer Society, the 
American Dental Association, the AFL-CIO, the American Federation of 
Teachers, the American Heart Association, the American Lung 
Association, the American Medical Association, the American Nurses 
Associations, the American Public Health Association, Catholic 
Charities, Children's Defense Fund, Consumer Federation of America, 
Consumers Union, Families USA, even companies like Genzyme, League of 
Women Voters, Meals on Wheels of Lexington, National Association of 
Rural Mental Health, National Association of Children's Hospitals, 
National Association of Public Hospitals, National Consumers League, 
National Council of Senior Citizens, National Multiple Sclerosis 
Society. These are all organizations. Let me continue.
  NETWORK: A National Catholic Social Justice Lobby; Service Employees 
International Union, United Cerebral Palsy. Mr. Speaker, I submit these 
lists for the Congressional Record, as follows:

   Organizations Supporting the Patient's Bill of Rights Act of 1998

     ABC for Health, Inc.
     Access Living
     AIDS Action
     AIDS Law Project of Pennsylvania
     Alamo Breast Cancer Foundation and Coalition
     Alcohol/Drug Council of North Carolina
     Alliance for Rehabilitation Counseling
     Alzheimer's Association Greater Richmond Chapter
     Alzheimer's Association NYC Chapter
     American Academy of Child and Adolescent Psychiatry
     American Academy of Emergency Medicine
     American Academy of Neurology
     American Academy of Pediatrics
     American Academy of Physical Medicine and Rehabilitation
     American Association for Marriage and Family Therapy
     American Association for Psychosocial Rehabilitation
     American Association for Respiratory Care
     American Association of Children's Residential Centers
     American Association of Nurse Anesthetists
     American Association of Pastoral Counselors
     American Association of Private Practice Psychiatrists
     American Association of Retired Persons
     American Association of University Women
     American Association on Mental Retardation
     American Autoimmune Related Diseases Association
     American Board of Examiners in Clinical Social Work
     American Cancer Society
     American College of Emergency Physicians
     American College of Obstetricians-Gynecologists (ACOG)
     American College of Physicians
     American Counseling Association
     American Dental Association
     American Federation for Medical Research
     AFL-CIO
     American Federation of State, County, and Municipal Employees
     American Federation of Teachers
     American Gastroenterological Association
     American Group Psychotherapy Association
     American Heart Association
     American Lung Association
     American Medical Association
     American Medical Rehabilitation Providers Association
     American Music Therapy Association
     American Network of Community Options and Resources
     American Nurses Association
     American Orthopsychiatric Association
     American Psychiatric Association
     American Psychiatric Nurses Association
     American Psychoanalytic Association
     American Psychological Association
     American Public Health Association
     American Speech-Language-Hearing Association
     American Therapeutic Recreation Association
     Anxiety Disorders Association of America
     Arc of Washington State
     Asian and Pacific Islander American Health Forum
     Association for the Advancement of Psychology
     Association for Ambulatory Behavioral Health Care
     Association of Behavioral Health Care Management
     Bazelon Center for Mental Health Law
     Brain Injury Association
     California Advocates for Nursing Home Reform
     California Breast Cancer Organizations
     Catholic Charities of the Southern Tier
     Center for Patient Advocacy
     Center for Women Policy Studies
     Center on Disability and Health
     Children and Adults with Attention Deficit Disorders
     Child Welfare League of America
     Children's Defense Fund
     Clinical Social Work Federation
     Coalition of Wisconsin Aging Groups
     Colorado Ombudsman Program--The Legal Center
     Communication Workers of America--Local 1039
     Consortium for Citizens with Disabilities Health Task Force
     Consumer Federation of America
     Consumers Union
     Corporation for the Advancement of Psychiatry
     Crater District Area Agency on Aging
     Dekald Development Disabilities Council
     Delta Center for Independent Living
     Disabled Rights Action Committee
     Eastern Shore Area Agency on Aging/Community Action Agency, 
         Case Management Department
     Epilepsy Foundation of America
     Families USA Foundation
     Family Service America
     Family Voices
     Federation for Children With Special Needs
     Florida Breast Cancer Coalition
     Gay Men's Health Crisis
     Gazette International Networking Institute (GINI)
     General Clinical Research Center Program Directors 
         Association
     Genzyme
     Glaucoma Research Foundation
     Health and Medicine Policy Research Group
     Human Rights Campaign
     Independent Chiropractic Physicians
     International Association of Psychosocial Rehabilitation 
         Services
     League of Women Voters
     Mary Mahoney Memorial Health Center
     Massachusetts Association of Older Americans
     Massachusetts Breast Cancer Coalition
     Meals on Wheels of Lexington, Inc.
     Mental Health Association in Illinois
     Mental Health Net
     Minnesota Breast Cancer Coalition
     National Abortion and Reproductive Rights Action League
     National Alliance for the Mentally Ill
     National Association for Rural Mental Health
     National Association for the Advancement of Orthotics and 
         Prosthetics
     National Association of Children's Hospitals
     National Association of Development Disabilities Councils
     National Association of Homes and Services for Children
     National Association of Nurse Practitioners in Reproductive 
         Health
     National Association of People with AIDS
     National Association of Protection and Advocacy Systems
     National Association of Psychiatric Treatment Centers for 
         Children
     National Association of Public Hospitals and Health Systems
     National Association of Public Hospitals
     National Association of School Psychologists
     National Association of Social Workers
     National Black Woman's Health Project
     National Breast Cancer Coalition
     National Caucus and Center on Black Aged, Inc.
     National Consumers League
     National Council for Community Behavioral Healthcare
     National Council of Senior Citizens
     National Hispanic Council on Aging
     National Marfan Foundation
     National Mental Health Association
     National Multiple Sclerosis Society
     National Parent Network on Disabilities
     National Partnership for Women & Families
     National Patient Advocate Foundation

[[Page H5057]]

     National Therapeutic Recreation Society
     NETWORK: A National Catholic Social Justice Lobby
     Nevada Council on Developmental Disabilities
     Nevada Council on Independent Living
     Nevada Forum on Disability
     Nevada Health Care Reform Project
     New York City Coalition Against Hunger
     New York Immigration Coalition
     New York State Nurses Association
     North Carolina State AFL-CIO
     North Dakota Public Employees Association--AFT 4660
     Oklahoman for Improvement of Nursing Care Homes
     Older Women's League
     Ombudservice
     Oregon Advocacy Center
     Paralyzed Veterans of America
     Permanency Planning Services, Inc.
     Physicians for Reproductive Choice and Health
     President Clinton
     Reform Organization of Welfare (ROWEL)
     RESOLVE
     Rhode Island Breast Cancer Coalition
     Rockland County Senior Health Care Coalition
     San Diego Federation of Retired Union Members (FORUM)
     San Francisco Peakers Senior Citizens
     Service Employees International Union
     Service Employees International Union--Local 205
     Service Employees International Union--Local 585, AFL-CIO CLC
     South Central Connecticut Agency on Aging
     Southern Neighborhoods Network
     The ARC
     Tourette Syndrome Association, Inc.
     United Automobile, Aerospace & Agricultural Implement Workers 
         of America (UAW)
     United Cerebral Palsy Association
     United Church of Christ, Office for Church in Society
     Vermont Public Interest Research Group
     Voluntary Action Center
     Volunteer Trustees of Not-For-Profit Hospitals
     West Side Chapter NCSC
     Western Kansas Association on Concerns of the Disabled
     Women in Touch
                                  ____


 Groups Endorsing H.R. 1415, the Patient Access to Responsible Care Act

     Academy of General Dentistry
     American Academy of Child and Adolescent Psychiatry
     American Academy of Emergency Medicine
     American Academy of Nurse Practitioners
     American Association of Children's Residential Centers
     American Association of Marriage and Family Therapy
     American Association of Nurse Anesthetists
     American Association of Oral and Maxillofacial Surgeons
     American Association of Pastoral Counselors
     American Association of Private Practice Psychiatrists
     American Association of Psychiatric Services for Children
     American Association of Psychosocial Rehabilitation
     American Chiropractic Association
     American College of Emergency Physicians
     American College of Nurse-Midwives
     American College of Radiology
     American Counseling Association
     American Dental Association
     American Federation of Home Health Agencies
     American Group Psychotherapy Association
     American Mental Health Counselors Association
     American Occupational Therapy Association
     American Optometric Association
     American Orthopsychiatric Association
     American Physical Therapy Association
     American Podiatric Medical Association
     American Psychiatric Association
     American Psychiatric Nurses Association
     American Psychoanalytic Association
     American Psychological Association
     American Society of Radiologic Technologists
     American Speech-Language-Hearing Association
     American Student Dental Association
     Anxiety Disorders Association of America
     Association for Ambulatory Behavioral Healthcare
     Association for the Advancement of Psychology
     Association of Behavioral Healthcare Management
     Center for Patient Advocacy
     Children and Adults with Attention Deficit Disorder
     Clinical Social Work Federation
     Cooperation for the Advancement of Psychiatry
     Family Service America
     Home Health Services and Staffing Association
     International Association of Psychosocial Rehabilitation 
         Services
     Medical Association of Georgia
     National Alliance for the Mentally Ill
     National Association for Home Care
     National Association for Rural Mental Health
     National Association of Protection and Advocacy Systems
     National Association of Psychiatric Treatment Centers for 
         Children
     National Association of Social Workers
     National Community Pharmacists Association
     National Council for Community Behavioral Healthcare
     National Federation of Societies for Clinical Social Work
     National Kidney Foundation
     National Mental Health Association
     National Mental Health Association
     Opticians Association of America
     Partnership for Recovery
     Betty Ford Center
     Hazelden Foundation
     Valley Hope Association
     Research Institute for Independent Living

  Mr. Speaker, people say, what is in this legislation? We have already 
addressed some of this. The funny thing about it when we are looking at 
all of the opponents to this legislation is that the majority of the 
Members of Congress have already voted for the majority of items that 
is in this legislation.
  I have here, Mr. Speaker, a side-by-side comparison of the items in 
Medicare Plus Choice that this House passed last year as it relates to 
internal appeals, external appeals, access to care, information 
disclosure, gag rules, advance directives, provider incentives, 
nondiscrimination, confidentiality of medical records, provider 
protections, quality measurement, utilization review, health quality 
boards, and ERISA. I have a side-by-side comparison on this. It is an 
interesting thing when we talk about the liability issue. A Medicare 
person who chooses a Medicare Plus Choice plan has the ability to 
legally redress malpractice, but somebody who is not a Medicare patient 
cannot under ERISA. This is a side-by-side comparison. Mr. Speaker, I 
include this comparison for the Congressional Record, as follows:

COMPARISON OF PROTECTIONS IN MEDICARE+CHOICE V. PATIENTS' BILL OF RIGHTS
------------------------------------------------------------------------
                                                      Patients' Bill of 
            Issue                Medicare+Choice           Rights       
------------------------------------------------------------------------
Internal Appeals............  Requires plans to     Plans must establish
                               have procedures for   procedures to allow
                               reconsideration of    ``appealable       
                               adverse decisions.    decisions'' to be  
                                                     appealed.          
Time for Review.............  Appeal must be        Normal appeals must 
                               decided within 60     be completed within
                               days of receipt.      15 days (with      
                                                     extension for up to
                                                     an additional 10   
                                                     days).             
Expedited Appeals...........  Generally must be     Same.               
                               decided within 72                        
                               hours.                                   
Qualifications of reviewer..  Must be a physician   Review by a         
                               or appropriate        ``clinical peer,'' 
                               specialty not         who can be selected
                               involved in           by the plan but who
                               original decision.    must not have      
                                                     participated in the
                                                     original decision. 
Notice of Decision..........  Patients must be      Patients and        
                               sent a notice of      provider must be   
                               decision and          notified of        
                               reasons for it.       decision and       
                               Also must be told     reasons for it and 
                               of rights to a        told of any further
                               hearing if amount     appeal rights.     
                               in controversy is                        
                               greater than $100.                       
External Appeals............  External Appeals      Plans must have a   
                               process must be       process for        
                               available after all   external appeals if
                               internal processes    decisions          
                               are exhausted.        jeopardize a       
                                                     patient's health or
                                                     exceed a           
                                                     ``significant      
                                                     threshold.''       
Who conducts................  The Secretary must    Plans must be done  
                               contract with         by independent and 
                               outside groups to     qualified third    
                               handle these          parties. There can 
                               appeals.              be no financial    
                                                     incentives for     
                                                     these groups to    
                                                     affirm the plan's  
                                                     original denial.   
Procedure and timeframe.....  Appeals are first     The external appeal 
                               sent to HCFA, which   must hear the issue
                               hears the appeal.     de novo. Decisions 
                               If the appeal is      must be made in 60 
                               again denied, the     days, except       
                               patient may have      exigent appeals (72
                               rights to a further   hours). Patients   
                               hearing before an     may have rights to 
                               administrative law    further appeals in 
                               judge or a U.S.       state court if the 
                               district court.       plan prevails on   
                                                     appeal.            
Review body qualifications..  No provision........  Standards for       
                                                     external reviewers 
                                                     include: no        
                                                     conflict of        
                                                     interest, review by
                                                     clinical peers,    
                                                     entity must have   
                                                     legal and medical  
                                                     expertise. Entity  
                                                     must be certified  
                                                     by the State or by 
                                                     HHS.               
Costs.......................  No provision........  Plan must bear the  
                                                     costs of the       
                                                     appeal.            
                                                                        
                             ACCESS TO CARE                             
                                                                        
General provisions..........  Requires plans to     Plan must have      
                               ensure benefits are   sufficient mix and 
                               accessible with       distribution to    
                               reasonable            deliver all        
                               promptness.           benefits.          
Point of service............  Plans may offer       Enrollees must have 
                               enrollees a point     the option to      
                               of service option.    purchase a point of
                                                     service plan unless
                                                     the insurance is   
                                                     provided through   
                                                     more than one      
                                                     issuer or two or   
                                                     more coverage      
                                                     options are        
                                                     offered.           
Choice of specialist........  Plans must have       Plans must allow    
                               appropriate access    enrollees to select
                               to specialty care.    the specialist of  
                                                     their choosing from
                                                     the list of        
                                                     participating      
                                                     doctors, unless the
                                                     plan clearly       
                                                     notifies enrollee  
                                                     of limitations on  
                                                     choice.            
Ob-gyn care.................  No provision........  Enrollee may        
                                                     designate ob-gyn as
                                                     primary care       
                                                     provider. Plans may
                                                     not require pre-   
                                                     authorization for  
                                                     routine ob-gyn     
                                                     care.              
Standing referrals..........  No provision, but     Enrolless with      
                               plans must make all   conditions that    
                               care available with   require on-going   
                               reasonable            specialty care may 
                               promptness.           get standing       
                                                     referrals.         
Clinical trials.............  No provision........  Plans may not       
                                                     discriminate       
                                                     against patients in
                                                     approved clinical  
                                                     trials and must    
                                                     cover their routine
                                                     costs.             

[[Page H5058]]

                                                                        
Prescription drugs..........  No provision........  Plans that use      
                                                     formularies must   
                                                     involve M.D.s and  
                                                     pharmacists in its 
                                                     selection; must    
                                                     disclose formulary 
                                                     to patients; and   
                                                     have a process for 
                                                     patients to get non-
                                                     formulary drugs    
                                                     when medically     
                                                     necessary.         
Emergency care..............  Prudent lay-person    Similar provision.  
                               standard, etc.                           
                                                                        
                         INFORMATION DISCLOSURE                         
                                                                        
General.....................  Secretary must mail   Plans must provide  
                               to beneficiaries      information in a   
                               information helpful   timely manner to   
                               in selecting plans.   enrollees. Should  
                                                     be done in a       
                                                     uniform way to     
                                                     allow people to    
                                                     compare different  
                                                     plans.             
Specific information that     Covered benefits,     Same.               
 must be disclosed.            liability for non-                       
                               covered services,                        
                               and coverage of                          
                               emergency services.                      
Other disclosures...........  Beneficiary cost-     Same, plus          
                               sharing, caps on      availability of    
                               out of pocket         ombudsman          
                               spending, balance     assistance.        
                               billing                                  
                               protections,                             
                               description of                           
                               appeal and                               
                               grievance rights.                        
Information available upon    Number of grievances  Same, plus drug     
 request.                      and their aggregate   formulary          
                               disposition.          information.       
Comparative information.....  Plans must--to the    Summary quality data
                               extent possible--     on patient         
                               give enrollees        satisfaction,      
                               comparative data on   disenrollment, and 
                               patient               the plan's loss    
                               satisfaction and      ratio. On request, 
                               outcomes. Also give   plans must provide 
                               disenrollment rates.  information on how 
                                                     they keep          
                                                     information        
                                                     confidential.      
Network characteristics.....  Plans must give       Plans must provide  
                               enrollees; the        information on: the
                               number and mix of     service area of the
                               providers, out of     plan, out of area  
                               network coverage,     coverage, the      
                               any point of          extent to which    
                               service option, any   benefits from out- 
                               other availability    of-network         
                               of care through out-  providers is       
                               of-network            available, how     
                               providers. Plans      enrollees select   
                               must also give HHS    providers, any     
                               enough data to        point of service   
                               ensure they are in    option, and the    
                               compliance with       types of financial 
                               physician incentive   payments made to   
                               (capitation) rules.   providers.         
                              On request, the plan  Same.               
                               also must provide a                      
                               general description                      
                               of physician                             
                               payment                                  
                               arrangements.                            
Utilization review..........  Plans must inform     Plans must provide  
                               enrollees about how   information on any 
                               utilization review    prior authorization
                               procedures work.      or review          
                              Upon request, the      requirements that  
                               plan must notify      could result in non-
                               enrollees of their    coverage or non-   
                               procedures to         payment.           
                               control utilization                      
                               of services and                          
                               expenditures.                            
Provider credentials........  No provision (focus   Upon request, plans 
                               is on plans, not      must make available
                               providers).           information on     
                                                     provider           
                                                     credentials and a  
                                                     list of            
                                                     participating      
                                                     providers.         
Gag Rules...................  Bans them, subject    Goes further, as it 
                               to conscience         contains a broader 
                               clause.               definition of      
                                                     medical            
                                                     communication and  
                                                     protects speech to 
                                                     others within the  
                                                     plan (and also to  
                                                     the public in the  
                                                     whistleblower      
                                                     provision).        
Advance Directives..........  Plans must have       No provision.       
                               policies on advance                      
                               directives, such as                      
                               living wills and                         
                               durable powers of                        
                               attorney.                                
Provider Incentives.........  Plans must follow     Similar provisions. 
                               federal law                              
                               requirements on                          
                               physician incentive                      
                               plans and must                           
                               provide HHS with                         
                               data to ensure they                      
                               are in compliance.                       
Non-Discrimination..........  Plans may not         Similar provision.  
                               discriminate                             
                               against individuals                      
                               based on age, sex,                       
                               health status                            
                               (except ESRD                             
                               status), genetic                         
                               information, etc.                        
Confidentiality of medical    Plans must establish  Similar provisions. 
 records.                      procedures to                            
                               protect the privacy                      
                               of individually                          
                               identifiable                             
                               enrollee                                 
                               information. Also                        
                               requires them to                         
                               have procedures to                       
                               ensure accuracy of                       
                               the records.                             
Ombudsman...................  No specific           Federal grant       
                               provision, but        program for the    
                               other provisions of   creation and       
                               law authorize         operation of state 
                               states to establish   Ombudsman programs 
                               programs to provide   to help consumers  
                               counseling and        choose their plans 
                               assistance to         and to deal the    
                               Medicare              grievances and     
                               beneficiaries with    appeals.           
                               their health                             
                               insurance coverage.                      
                               Funded through a                         
                               user fee on                              
                               Medicare+Choice                          
                               plans.                                   
                                                                        
                          PROVIDER PROTECTIONS                          
                                                                        
Contracting procedures......  Plans must have       Similar provisions. 
                               reasonable           Also requires plans 
                               procedures for        to consult with    
                               physician             physicians         
                               participation         regarding the      
                               including notice of   plan's medical     
                               participation         policies and       
                               rules, written        procedures.        
                               notice of adverse                        
                               participation                            
                               decisions, and a                         
                               process for                              
                               appealing those                          
                               decisions.                               
Non-discrimination in         Prevents              Similar provision,  
 selection of providers.       discrimination        plus a general     
                               based on class of     prohibition on     
                               licensure.            discriminating in  
                                                     selection based on 
                                                     race, color, sex,  
                                                     sexual orientation,
                                                     age, etc.          
Whistle blower..............  No provision........  Prohibits           
                                                     retaliation against
                                                     providers who      
                                                     disclose           
                                                     information to     
                                                     appropriate        
                                                     authorities after  
                                                     exhausting internal
                                                     procedures.        
                                                                        
                           QUALITY MEASUREMENT                          
                                                                        
General provisions..........  HHS must disseminate  Plans must collect  
                               information on plan   and share          
                               quality, including    information in     
                               performance data,     uniform manner,    
                               disenrollment         including:         
                               rates, and enrollee   aggregate          
                               satisfaction.         utilization,       
                                                     demographics of    
                                                     participants,      
                                                     mortality and      
                                                     morbity rates,     
                                                     enrollee           
                                                     satisfaction,      
                                                     grievance and      
                                                     appeals data, etc. 
                                                     Allows HHS to waive
                                                     these requirements 
                                                     based on variations
                                                     in the types of    
                                                     delivery systems.  
Internal quality improvement  Medicare+Choice       Plans must have     
                               plans must have a     ongoing quality    
                               quality assurance     assurance programs,
                               program that          with written       
                               stresses health       procedures for     
                               outcomes and          systemic review of 
                               provides for          the quality of     
                               ongoing measurement   health care        
                               of the quality of     provided and its   
                               high volume and       consistency with   
                               high risk services    good medical       
                               and the care of       practice. Must have
                               acute and chronic     a process for      
                               illnesses.            providers and      
                                                     patients to report 
                                                     possible quality   
                                                     concerns. The      
                                                     program must review
                                                     the plan's drug    
                                                     utilization        
                                                     program.           
                                                    Further provides    
                                                     that these         
                                                     requirements can be
                                                     met through        
                                                     accreditation by a 
                                                     national           
                                                     accrediting group  
                                                     that the Secretary 
                                                     of HHS says has    
                                                     standards as       
                                                     stringents as those
                                                     in the bill.       
                                                    The Secretary may   
                                                     provide for        
                                                     variations as      
                                                     needed to reflect  
                                                     differences in plan
                                                     design.            
External quality improvement  Medicare+Choice       No provision.       
 program.                      plans must have                          
                               external review of                       
                               the quality of                           
                               inpatient and                            
                               outpatient care and                      
                               of their response                        
                               to consumer                              
                               complaints of poor                       
                               quality care.                            
                                                                        
                           UTILIZATION REVIEW                           
                                                                        
General provisions..........  No provision, but     Plans must do       
                               plans must meet       utilization review 
                               rules for initial     in accordance to   
                               determination of      written procedures 
                               care.                 developed with the 
                                                     input of           
                                                     appropriate        
                                                     physicians.        
                                                    Retrospective UR may
                                                     not revise or      
                                                     modify pre-        
                                                     authorized         
                                                     determinations.    
                                                    Qualified health    
                                                     professionals must 
                                                     oversee review     
                                                     decisions and      
                                                     review a sample of 
                                                     adverse clinical   
                                                     decisions.         
                                                     Prohibits financial
                                                     incentives to UR   
                                                     agents that result 
                                                     in inappropriate   
                                                     denials.           
                                                    Requires toll-free  
                                                     access of peer     
                                                     review personnel   
                                                     during business    
                                                     hours.             
                                                    Providers and       
                                                     patients           
                                                     dissatisfied with a
                                                     UR decision must   
                                                     have an opportunity
                                                     to discuss the     
                                                     decision with the  
                                                     plan's medical     
                                                     director (who has  
                                                     the authority to   
                                                     reverse the        
                                                     decision).         
                                                    Prior authorization 
                                                     decisions must be  
                                                     made within three  
                                                     days of receipt. UR
                                                     of continued and   
                                                     extended care must 
                                                     be made within one 
                                                     business day.      
                                                    Retrospective review
                                                     of services must be
                                                     completed within 30
                                                     days. Notice of an 
                                                     adverse action must
                                                     be writted and     
                                                     included the       
                                                     reasons for the    
                                                     denial and the     
                                                     process for        
                                                     appealing that     
                                                     decision.          
Health Care Quality Board...  No provision........  Directs the         
                                                     President to       
                                                     establish an       
                                                     advisory board to  
                                                     provide information
                                                     on issues relating 
                                                     to quality         
                                                     monitoring and     
                                                     improvement. The   
                                                     board shall        
                                                     identify, update,  
                                                     and share measures 
                                                     of group health    
                                                     plan quality,      
                                                     advise on the      
                                                     proper minimum data
                                                     set and            
                                                     standardized       
                                                     formats for        
                                                     information on     
                                                     group health plans.
Mastectomy Stay.............  No provision........  Plans may not limit 
                                                     in-patient stay to 
                                                     less than 48 hours 
                                                     for mastectomy and 
                                                     less than 24 hours 
                                                     for lymph node     
                                                     dissection. The    
                                                     patient is free to 
                                                     leave sooner if she
                                                     decides to, but the
                                                     plan may not       
                                                     provide any        
                                                     incentives to      
                                                     patient and        
                                                     provider to avoid  
                                                     these protections. 
Breast Reconstruction.......  No provision........  Plans that provide  
                                                     breast surgery as a
                                                     covered benefit    
                                                     must provide       
                                                     coverage for       
                                                     reconstruction     
                                                     resulting from a   
                                                     mastectomy.        
Adequate Reserves...........  Plans must be         No provision.       
                               licensed under                           
                               state law and meet                       
                               state solvency                           
                               requirements.                            
                               Establishes a                            
                               temporary waiver                         
                               process for PSOs                         
                               under certain                            
                               circumstances.                           
ERISA.......................  No provision (though  Amends ERISA to     
                               ERISA does not pre-   allow state causes 
                               empt a Medicare       of action to       
                               beneficiary from      recover damages    
                               suing a               resulting in       
                               Medicare+Choice       personal injury or 
                               plan for acts of      death. The employer
                               negligence.           cannot be sued     
                                                     unless they        
                                                     exercise           
                                                     discretionary      
                                                     authority to make  
                                                     medical decisions. 
------------------------------------------------------------------------

  

  Mr. Speaker, to continue, I will not go through every single item on 
here, except to point out that, time for review, Medicare Plus Choice, 
60 plus days, except that today the President shortened that period. 
Patients' Bill of Rights, 15 days for a normal appeal, with an 
extension up to 10 days. Notice of decision. Who conducts the external 
appeals. Review of qualifications. These are all things that are in 
Medicare Plus Choice that we hear some of our colleagues oppose. I 
cannot understand how they could have voted for all of these provisions 
for Medicare Plus Choice and yet they oppose these items in a Patients' 
Bill of Rights as being, quote, too bureaucratic. I think that

[[Page H5059]]

we need patient protections, the Patients' Bill of Rights for all 
citizens, not just for the ones that we have already voted on for 
Medicare or for Medicaid.
  Mr. PALLONE. Again, I may be being cynical, but I think the reality 
is that when we put most of those patient protections in the Medicare 
legislation, in our own Committee on Commerce which both the gentleman 
and I are a Member of, the bottom line is that when those came to the 
floor, because of the widespread clamor, if you will, by senior citizen 
organizations and groups that these protections should be part of the 
Medicare program, and rightly so, I think the leadership, the House 
Republican leadership and most of the Members were unwilling to not 
support that because they were concerned about the power, if you will, 
and the clout of the senior vote, that they did not want to be denying 
senior citizens, who vote often and regularly, those kinds of patient 
protections. A thank-you is due to the seniors and the power of the 
senior vote and the senior organizations to make sure that that 
happened, but at the same time it is not fair to deny those protections 
to everyone else who is under 65 or who happens to not have the benefit 
of a Medicare program. That is really what we are about here. We are 
saying that those kinds of patient protections should be available to 
anyone who has health insurance, who is in a managed care organization 
or an HMO.
  I am glad that you brought this out. It again points out that these 
are not really anything radical, these are not anything unusual, we 
have already adopted them for the largest Federal health insurance 
program, Medicare.
  I just wanted to go back, if I can, because I know that the gentleman 
from Iowa has put a lot of emphasis on the ability to sue and recover 
costs that is denied now under ERISA, and I talked a little bit about 
the patient protection with regard to specialty care. I know that, at 
least from the reports that I have been reading in the various 
publications that we get on Capitol Hill that those are two areas that 
the House leadership seems to be reluctant to deal with. It may not 
actually be part of anything that the Republican leadership ultimately 
puts together.
  Mr. GANSKE. If the gentleman will yield, as a Republican, I have been 
in favor of legal reform. I have voted for securities litigation 
reform, I voted for medical malpractice reform. I have voted for 
product liability reform. But I think we have a problem with ERISA, 
because we have given basically total legal immunity to health plans. 
We have not given that legal immunity to any other industry in the 
country.
  When I as a physician am treating a patient, I would never argue that 
I should have immunity from malpractice. I might argue for some 
reasonable changes, but I would never argue that I should not have any 
legal responsibility for malpractice. That is why physicians, nurses, 
other practitioners carry medical malpractice insurance. And so I think 
that it is a basic principle of American law that responsibility for 
decisions should lie where the decision is made. If an HMO is making 
medical decisions and that results in malpractice, then they ought to 
be legally liable for that.
  In fact, on the front page of last Friday's USA Today, the very front 
page center story was exactly on this issue. What most American 
citizens do not realize is that quite frankly when their HMOs if they 
are through their employer are making decisions, their HMOs do not have 
any legal responsibility. In my opinion that is wrong, and, quite 
frankly, I think the vast majority of the House if they would vote on 
this issue would feel the same way. Would you want to be on the record 
as voting for legal immunity for an HMO when the HMO has made a 
malpractice decision?
  Mr. PALLONE. Absolutely not.
  Mr. GANSKE. I do not think I would want to be and I do not know too 
many of my Republican colleagues who would want to be on the record for 
giving an HMO legal immunity for causing somebody's death or 
disfigurement.
  Mr. PALLONE. If I could recapture my time, this was done, as the 
gentleman pointed out, years ago when HMOs and managed care 
organizations were not the vehicle for most Americans to get their 
health insurance. Now this loophole which was there has grown into a 
tremendous loophole that exists actually for most Americans. I do not 
know what was being thought of at the time when this was voted on, but 
the bottom line is the circumstances have changed now, because so many 
more Americans are impacted by this loophole.
  I just wanted to say briefly, if I could, I am not sure that everyone 
understands when we talk about this inability to sue or this exemption, 
if you will, from liability, exactly what we mean. The problem is that 
you can only sue to recover the costs of whatever procedure was needed 
but denied. You cannot sue for damages. In other words, I will use an 
example. If you lose, say, an arm or a leg or an eye and you end up 
victimized for the rest of your life because your HMO denied you the 
care that could have saved the limb or the eye, you cannot sue for 
anything other than the cost of what the medical procedure to save the 
limb or the eye would have been. You cannot sue for losing the body 
part or for the deterioration of your health condition. So basically 
you are able to recover a very, very limited amount that does not help 
you to deal with the problem and the damages that you have suffered. 
That is really what we are talking about.
  Mr. GANSKE. If the gentleman would yield, the opponents to this 
legislation would say, well, if you pass legislation on this, it would 
increase the cost of premiums, and, therefore, some employers would 
choose not to insure their employees.
  A recent survey by Kaiser Family and Harvard interviewed 800 small 
business executives exactly on this issue. They found that even if 
there were a mild increase in the cost of a premium related to this, 
that only 1 to 3 percent of those employers would change their 
coverage. But the interesting thing was that something like two-thirds 
of those small business owners and executives agreed with the need for 
legislation to close that loophole. You might ask, why is that? It is 
because they are also covered by HMOs. More than 50 percent of them 
have said, we have seen abuses by HMOs either in our employees or in 
our own families, and we think there should be a remedy for that.

                              {time}  2018

  But I would just like to continue on something else that we are 
likely to hear about tomorrow, and that is that hopefully the 
Republican Health Task Force will at least enunciate some principles to 
legislation, even if we will not see any specifics written in the form 
of a bill. And one of those things that the GOP task force is looking 
at is the idea of health marts, and this is basically where you gather, 
you would extend ERISA to multiple employer working associations, 
otherwise known as MEWAs, or other groups, so it is an extension of the 
ERISA exemption.
  And I have here a letter from Therese M. Vaughan, the commissioner, 
the State Insurance Commissioner from the State of Iowa, and she says:

       Dear Representative Ganske: We want to alert you to 
     proposed legislation currently being discussed called 
     HealthMarts. HealthMarts pose a serious concern on several 
     levels . . . A few of our concerns are listed below for your 
     review: The impact of State insurance markets.

  She goes on in some detail. Several provisions would allow a health 
mart to cherry pick to ruin the risk pools. There are problems with 
Federal enforcement of State law. There are conflicts of interest.
  I have a similar letter from Consumers Union on the problems related 
to health marts. Health marts, if you will remember, are very close to 
what the Clintons proposed in 1993 with regional groups. So when 
opponents to our Patient Bill of Rights have accused us of being 
``Clinton Care'', I would sincerely hope that Republicans would not 
come up with a proposal that is much, much closer to the Clinton plan.
  And finally let me say I have a letter here from Blue Cross/Blue 
Shield and the Health Insurance Association of America that says:

       Dear Representative Ganske: We are writing to express our 
     opposition to proposals that would exempt certain health 
     insurance arrangements, such as association health plans and 
     multiple employer welfare arrangements, from State insurance 
     law and regulatory authority.


[[Page H5060]]


  Mr. Speaker, insert these 3 letters into the Congressional Record.
  The letters referred to are as follows:
                                                   Iowa Department


                                                  of Commerce,

                                     Des Mones, IA, June 18, 1998.
     Re HealthMarts.

     Hon. Greg Ganske,
     United States Representative, Washington, DC.
       Dear Representative Ganski: We want to alert you to 
     proposed legislation currently being discussed called 
     ``HealthMarts.'' HealthMarts pose a serious concern on 
     several levels. These concerns are similar to those we have 
     expressed in the past regarding other proposals that would 
     exempt certain health insurance arrangements (such as 
     association health plans (AHPs) and multiple employer welfare 
     arrangements (MEWAs)), from state law and regulatory 
     authority.
       A few of our concerns are listed below for your review.
       1. The impact of state insurance markets. HealthMarts would 
     undermine state health reforms by fragmenting the health 
     insurance marketplace. Recent reforms guarantee small 
     employers access to health insurance markets. While insurers 
     selling through HealthMarts would still have to pay premium 
     taxes, other state pooling laws and requirements would be 
     preempted. States require many different types of pooling 
     arrangements. These arrangements are primarily designed to 
     help spread risks through such mechanisms as reinsurance 
     pools, medically indigent pools, and high risk pools. Since 
     HealthMarts only have to meet the rating requirements of the 
     state in which the HealthMart is organized, a HealthMart 
     could organize itself in the state with the least restrictive 
     requirements in order to sell a particular benefit package at 
     a lower rate in a state with more restrictive requirements.
       2. Cherry picking. Several provisions would allow a 
     HealthMart to choose which risks it wanted to accept.
       A HealthMart is allowed to determine what geographic area 
     it will serve. This will allow a HealthMart to operate in 
     areas that contain healthier populations.
       A HealthMart may market selectively within its geographic 
     limits, thus exacerbating the conditions established by 
     allowing the HealthMart to choose its own geographic 
     location.
       With state mandated benefit requirements preempted, a 
     HealthMart would be allowed to design its own benefit 
     package. Benefit package design determines who will be 
     interested in purchasing a particular product.
       3. Federal enforcement of state law. HealthMarts continue 
     to allow state officials to approve product offerings of 
     licensed insurance entities. If an insurance commissioner 
     denies the sale of a product offerings and the insurer, 
     selling through a HealthMart, disagrees with the decision of 
     the commissioner, the insurer could appeal to a federal 
     regulatory authority. The federal agency would then review 
     state law and determine if the insurance commissioner 
     properly interpreted her own state law. If, in the view of 
     the federal agency, the insurance commissioner did not make 
     the correct decision, the federal agency would allow the sale 
     of that product and enforce state law regarding that product. 
     This creates the unique situation where the federal 
     government enforces state law.
       4. Conflict of Interest. Allowing sellers on the board of 
     an entity intended to act as broker between seller and buyer 
     creates a conflict of interest. HealthMarts will be accepting 
     bids from all insurers within a certain geographic location. 
     The insurers on the board will have access to those bids and 
     may also have access to proprietary information on how the 
     bids were put together. Board insurers would be able to 
     underbid those insurers who do not serve on the board.
       HealthMarts undermine the recent efforts undertaken by 
     states to ensure their small business communities have access 
     to affordable health insurance. Iowa's success over the past 
     7 years in the area of health care reform will be greatly 
     diminished if this legislation is enacted.
       We have supported purchasing pools through state 
     legislation that protects the consumer by providing coverage 
     within rate restrictions. We would be happy to work with you 
     on the development of legislation to continue to enhance the 
     ability of individuals and small groups to obtain adequate 
     and meaningful health care coverage.
       If you have any questions, please do not hesitate to 
     contact me or my staff. We look forward to working with you 
     on any issues you may have concerning health insurance 
     coverage.
           Sincerely.
                                               Therese M. Vaughan,
     Commissioner.
                                  ____

         Blue Cross and Blue Shield Association, Health Insurance 
           Association of America.
                                                     June 4, 1997.
     Hon. Greg Ganske,
     United States House of Representatives, Washington, DC.
       Dear Representative Ganske: We are writing to express our 
     opposition to proposals that would exempt certain health 
     insurance arrangements, such as association health plans 
     (AHPs) and multiple employer welfare arrangements (MEWAs), 
     from state insurance law and regulatory authority.
       We remain very concerned about proposals to preempt state 
     regulation of federally certified association health plans, 
     including many MEWAs (e.g. H.R. 1515/S. 729). These proposals 
     would undermine the most volatile segments of the insurance 
     market--the individual and small group markets. AHPs could 
     siphon off the healthy (e.g., through selective marketing or 
     by eliminating coverage of certain benefits required by 
     individuals with expensive illnesses), thus leading to 
     significant premium increases for those who remain in the 
     state-regulated pool. The ultimate result: an increase in the 
     uninsured and only the sickest and highest risk individuals 
     remaining in the states' insured market.
       We have similar concerns regarding a proposal to create a 
     new type of purchasing entity, called HealthMarts, which has 
     not been reviewed via the committee hearing process. This 
     proposal would exempt health plans offered through a 
     HealthMart from state benefit standards and requirements to 
     pool all small groups for rating purposes. As with AHPs, this 
     proposal raises serious concerns regarding market 
     segmentation and the ability of states to protect their 
     residents. The combination of these two proposals could lead 
     to massive market segmentation and regulatory confusion.
       Moreover, these proposals, over time, would lead our nation 
     toward increased federalization of health insurance 
     regulation. Preemption of state regulatory authority would 
     create a regulatory vacuum that would necessitate an 
     exponential increase in federal bureaucracy and federal 
     regulatory authority.
       As representatives of the health insurance and health plan 
     community, we are concerned about the issue of access to 
     health coverage for small firms. However, we urge legislators 
     to avoid legislation that unravels the market by helping a 
     limited group of small employers at the expense of other 
     individuals and small groups.
       We look forward to an opportunity to work with you 
     regarding proposals that expand coverage without damaging the 
     small group and individual markets.
           Sincerely,
     ------ ------
                                  ____

                                    Congress of the United States,


                                     House of Representatives,

                                     Washington, DC, June 4, 1998.

   Blue Cross/Blue Shield and HIAA Oppose Republican ``HealthMart'' 
                                Proposal

       Dear Colleague: It's not often that I think the advice from 
     HIAA and Blue Cross/Blue Shield bears repeating, but this 
     time they got it right.
       In a letter to Chairman Bliley of the Commerce Committee, 
     the Blue Cross/Blue Shield Association and the Health 
     Insurance Association of America have made clear their 
     opposition to the ``HealthMart'' proposal being circulated by 
     Rep. Bliley as a potential component of the upcoming 
     Republican health reform proposal.
       Their letter states that the HealthMart proposal ``would 
     exempt health plans offered through a HealthMart from state 
     benefit standards and requirements to pool all small groups 
     for rating purposes.'' For those reasons, HealthMarts raise 
     ``serious concerns regarding market segmentation and the 
     ability of states to protect their residents.''
       They conclude their letter by urging ``legislators to avoid 
     legislation that unravels the market by helping a limited 
     group of small employers at the expense of other individuals 
     and small groups.''
       I urge my colleagues to heed their advice.
           Sincerely,
                                                       Pete Stark.

  There are a number of proposals that I am concerned will be in the 
GOP Health Task Force plan that are not well-thought-out, that are even 
opposed by the industry, at least as much as some of the patient 
protection legislation. I am afraid that if you add a number of these 
additional controversial items to a patient bill of rights type 
protection, that they will in effect act as poison pills and ensure the 
defeat of this legislation.
  And I would not gainsay anyone's motives on this, but I would simply 
ask my Republican colleagues to be aware of this potential problem when 
they put forth their GOP task force.
  Mr. PALLONE. Again, if I could ask you to elaborate a little more on 
this, one of the concerns that I expressed earlier this evening is that 
the Republican Task Force would come out with patient protections that 
are less than what is in the Patient Bill of Rights or the PARCA bill, 
and that is still a concern. But I think what you are voicing now is an 
additional problem which is not only the possibility of not including 
some of these patient protections that we would like to see, but also 
the possibility of adding other things unrelated to patient protections 
that would sort of muddy the water, if you will, and maybe confuse what 
goes on here and take away from this issue of patient protection which 
we are trying to bring forward.
  And I know that one of the things I believe you mentioned was the 
medical malpractice cap, I guess, that we have

[[Page H5061]]

discussed in the past, and that is something that would.
  Mr. GANSKE. If the gentleman would yield, I have argued on the floor, 
I have encouraged my colleagues, Republican and Democrat, to vote for 
medical malpractice reform. In fact, the House of Representatives 
passed that legislation in the last Congress, but we found out that we 
could not get that through the Senate, and the administration is 
opposed to it. To put that into a Patient Bill of Rights, a consumer 
protection bill, would be to realize fully that that bill could not 
pass, it could not become law.
  I continue to be in favor of that legislation, but what I want to see 
is, I want to see a Patient Bill of Rights passed and become law this 
year. I think most of the major medical organizations, including the 
American Medical Association, recognize by loading up other issues into 
a Patient Bill of Rights you are working to defeat a Patient Bill of 
Rights, not to advance it.
  Mr. PALLONE. Did not the AMA, which has been the biggest supporter of 
this medical malpractice reform, even say at one point that they did 
not want to deal with it this year in the context of the patient 
protections for the exact reason that you just cited, which is very 
amazing to me because this was always their biggest, one of their 
biggest, concerns.
  Mr. GANSKE. I cannot speak. I am not a representative for that 
organization. All I can say is I am sure that that organization would 
like to see those provisions become law at some point in time, but the 
recognition is there that on this piece of legislation that will be 
considered a poison pill. We have broad bipartisan consensus and 
support for a limited Patient Bill of Rights like is in the Patient 
Bill of Rights bill, 3605, or Patient Access to Responsible Care Act.
  It is not like you have to reinvent the wheel. These bills have been 
out there for some time. They already have broad bipartisan support. It 
is simply a matter of bringing them to the floor for a debate under a 
fair rule in a timely fashion before this session runs out.
  Mr. PALLONE. Can I just ask you one more thing about the health 
marts, because I was not sure I understood.
  You said that your concern is that ERISA exemptions would be expanded 
beyond what they already are now to cover health marts? In other words, 
we would actually have to deal with this exemption from liability in an 
even broader fashion?
  Mr. GANSKE. That would be my understanding, and let me just read from 
this letter from Blue Cross/Blue Shield Association and the Health 
Insurance Association of America.
  ``As representatives of the health insurance and health plan 
community, we are concerned about the issue of access to health 
coverage for small firms. However, we urge legislators to avoid 
legislation that unravels the market by helping a limited group of 
small employers at the expense of other individuals and small groups.''
  And I can assure you, as somebody that speaks to a number of 
insurance companies located in my own district that still provide 
insurance to individuals outside of the employer market, that if you 
created this health mart idea, what you would be doing is you would be 
taking the healthy individuals out of that individual market, thereby 
making the individual market more sick. That would, therefore, have the 
effect of raising the premiums significantly for those who still 
purchase their own health insurance.
  And there are a lot of people like that; farmers, for example. I 
represent a lot of farmers.
  So I would certainly advise the GOP Task Force not to include this 
type of proposal in their health care legislation, but simply to stick 
with the gentleman from Georgia (Mr. Norwood) who has worked on that 
task force so strongly in terms of a Patient Bill of Rights.
  And you need to remember also that there are a number of HMOs that 
are trying to do an ethical, good job on providing care for their 
constituents, and many of them have already called upon Congress to 
pass Federal legislation for a Patient Bill of Rights. We have Kaiser, 
for instance, or the Health Insurance Plan, HIP, and others. They see a 
benefit in having some federally-enforceable minimum standards.
  It is very similar to what we see if you were buying an automobile. 
Gee, I mean when you buy an automobile, you know that you are getting 
headlights that work, brakes that work, turn signals, a seat belt. 
Those are all a product of Federal and State law for minimum safety 
standards, and yet there continues to be a great deal of competition in 
the auto industry. By having some uniform rules on that, we certainly 
have not moved to a nationalized auto industry any more than by passing 
a Patient Bill of Rights and having some uniform safety standards would 
we ever be moving towards a nationalized health insurance system. It is 
just a matter of common sense.
  Mr. PALLONE. I think there is no question that, you know, what we are 
really talking about here are just basic protections, common sense 
protections, and as the gentleman has pointed out, the not-for-profit 
HMOs actually from the very beginning of this year when the President 
first came out with his patient bill of rights in, I guess it was in 
his State of the Union address, and there were I think 18 points at 
that stage or 18 types of protections that were being discussed by the 
White House, and actually we had many of the not-for-profit HMOs 
supporting those principles because they are really a floor. They are 
just a floor of basic protections.

  And what happens is, and again I think you mentioned this at some 
point in the past, is that if the not-for-profit or the good HMOs, 
whatever their characterizations would be, adhere to these patient 
protections and then the other ones that are for-profit or for whatever 
reason do not, it basically creates a noncompetitive situation, becomes 
cheaper, if you will, for the ones that are not providing the 
protections to operate.
  Mr. GANSKE. And if the gentleman would yield, we have our July 4th 
recess coming up soon. I would hope that organizations like some of the 
ones that I have read tonight, all the other organizations that are 
signed on to passing this type of legislation this year would contact 
their Congressman and Congresswoman back in their districts and express 
to them the importance and how this affects real people a lot of the 
time and how Congress should do something about this this session and 
not allow this legislation to be bottled up.
  Mr. PALLONE. And following up on your comments, and I guess I will 
close with this:
  We know that during this 2-week recess that many Members, including 
myself, will be having town meetings and forums at which time there 
will be opportunities for groups or individuals to go to those town 
meetings and express to their Member of Congress their support and ask 
them to support the Patient Bill of Rights, or actually ask them to 
support the discharge petition that you and the gentleman from Michigan 
(Mr. Dingell) have now introduced. We need to get as many Members as 
possible on this discharge petition because, if we can get a majority 
on the discharge petition by the time we come back or soon after that 
in the weeks that follow, we can finally bring the Patient Bill of 
Rights or the PARCA bill, these types of managed care reforms, to the 
floor.
  And again I just want to commend you for your effort in moving in 
that direction because this is the time. If we are not going to pass 
this now when there is so much support for it, we are never going to 
pass it, and we have got to try and get more and more of our colleagues 
on board.
  Mr. GANSKE. If the gentleman would yield, I appreciate the courtesy 
of being able to do these special orders with you. As I said before 
earlier in this special order, I would sincerely hope that a discharge 
petition is not necessary, that the Republican leadership in the House 
would set a date certain for bringing this legislation to the floor and 
make sure that it is with a rule that is fair and not a rule similar to 
the one that we have seen on campaign finance reform.
  Mr. PALLONE. Mr. Speaker, I agree with the gentleman and thank him 
again.

                          ____________________