[Congressional Record Volume 144, Number 91 (Friday, July 10, 1998)]
[Senate]
[Pages S7925-S7927]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      THE PATIENTS' BILL OF RIGHTS

  Mr. KENNEDY. Mr. President, on another item, I want to just take a 
few moments to bring the Senate and those who are watching up to date 
about where we are on our battle for debate and discussion on the issue 
of the Patients' Bill of Rights.
  As we have pointed out, that issue, which is of fundamental 
importance to the American people, is a rather basic and fundamental 
issue. It comes down to this very simple concept--that medical 
decisions ought to be made by doctors and patients and not by insurance

[[Page S7926]]

agents, and that too often in America today managed care means 
mismanaged care. We have a responsibility to address the abuses that 
are taking place in our health care system.
  That is what this whole discussion is really all about. Those of us 
who believe these issues are important have been denied the opportunity 
to address them. Some of us have introduced and supported legislation 
to address these abuses more than 1\1/2\ years ago, and, more recently, 
we have done so with the excellent bill that our leader has provided, 
Senator Daschle. We are in strong support of it. We have been trying to 
get time to debate that issue here on the floor of the U.S. Senate. We 
were blocked out of consideration in our committees. We were blocked 
out of consideration of even getting legislation on the calendar. We 
have been blocked out of consideration here on the floor of the U.S. 
Senate, and we have been resolute in our determination that this issue 
would be debated and discussed and acted on in this session.
  We have seen, I think, as of yesterday, a list of so-called 
principles from our Republican leadership on their version of a 
Patients' Bill of Rights. I will just take a moment or two to reflect 
on their particular principles, and the hollowness of their commitment 
to meaningful rights will be clear.
  I ask unanimous consent to have printed in the Record at the 
conclusion of my remarks their complete document, the Republican Health 
Care Principles.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See Exhibit 1.)
  Mr. KENNEDY. Let me just go through them very quickly. This is on 
page 1.
  Republicans believe all consumers have the right to: Receive 
accurate, easy-to-understand information about what their health plans 
provide, including information about out-of-pocket expenses and 
information about health care providers.
  Then, if you read through the pages of their document and go to the 
last page, it talks about the information that will not be provided; 
that is, it lists, for example, that insurance plans will not have to 
provide information on treatment outcomes. They will not have to 
provide information on patient satisfaction. They will not need to 
report on the quality of the care they deliver. It seems to me that 
consumers ought to understand the satisfaction level of patients in a 
particular HMO. It seems to me that we should also have an opportunity 
to know the outcomes of various treatments in various insurance plans.
  So, on the one hand, you see on page 1 various information is going 
to be made available. Then you turn around on page 3 and it lists all 
the things they are not going to provide, including many of the 
essential elements that every consumer group and every patient group 
and every employer understands are essential if patients and consumers 
are going to be able to make informed judgments on their health care.
  Now, returning to the Republican leadership's list, it goes on to say 
that consumers should be able to ``hold their health plans accountable 
through a fair and expeditious appeals process.'' That sounds good. 
But, the word that should have been in there is ``independent.'' 
Patients need an independent appeal process. What does ``a fair and 
expeditious appeals process'' mean? If they had said it will be 
``independent,'' or to an ``external body review for fair and 
expeditious appeals''--then we would be on our way toward agreement on 
something. But, oh, no, this again refuses to be specific or even 
indicative that patients will have fair-minded, independent, outside 
external review and accountability.

  Furthermore, the so-called principles say consumers will be permitted 
to ``communicate openly with their doctors about their treatment 
options.'' That sounds like we are lifting the gag rules, like this 
list might include lifting the gag rules that still exist in some HMOs. 
But, the fact is that most HMOs and insurance plans have the ability to 
fire doctors without cause. And they also have the ability to make 
financial arrangements with doctors, and those financial arrangements 
can be adjusted and changed by the HMO, to discourage provision of 
necessary medical care. So, while it sounds good to say you are 
promoting open communication, unless you are also going to guarantee 
that doctors can practice medicine unfettered by the insurance 
companies' accountants, you are really not doing very much. It might 
sound good, but in fact it is not doing very much. This is really a 
very, very weak commitment.
  Then their list goes on. The consumer should:

       Know that their medical care is based on the best 
     scientific information available, not on political 
     considerations.

  Patients need and deserve the best health care treatment. They are 
not worried about the political considerations. They are worried about 
the financial considerations--profit considerations of insurance 
companies--that drive medical decisions. Do we understand this? Our 
Republican colleagues do not even commit in their statement that they 
are going to have the decisions involving health care being made by the 
doctors on the basis of health considerations. All they say is they 
will have it ``not on political considerations.'' They don't eliminate 
the clear, fundamental problem driving this debate, which is that 
health treatments are being based on the financial considerations of 
the insurance companies.
  The Republican leadership's list continues. Consumers should have:

       Access to their medical records and the right to know that 
     their medical information will be used only to provide better 
     health care.

  This would suggest privacy protections. This is very interesting. 
Senator Leahy, our colleague from Vermont, has been a leader in this 
whole area. He introduced a bill more than a year ago, which I have 
cosponsored, and we can't get the majority to report out a bill in our 
committees, either in the Judiciary or in our Labor and Human Resources 
Committee, or get the Republican leadership to be willing to schedule 
it on the floor. Here they are, talking about all the kinds of 
guarantees in terms of privacy, but they have historically been 
unwilling to address it in a meaningful way.
  Mr. President, just before the Fourth of July recess Speaker Gingrich 
issued his principles. The Gingrich plan fails in three very important 
areas. First, it refuses to commit the Republican leadership to HMO 
reform that says that medical decisions will be made on the basis of 
medical concerns rather than insurance company concerns. Second, it 
does not guarantee access to specialists. What person in this Chamber 
would want to have either his wife or child who had been stricken by 
cancer be denied immediate access to an appropriately qualified 
oncologist or pediatric surgeon who can provide the best in terms of 
treatment? The Gingrich proposal simply does not provide the kind of 
guarantee of specialist access which is critically important for 
protecting consumers.
  Third, it does not provide the ultimate protection of accountability. 
This will be an issue we will debate here. I cannot wait to find out 
how the Senate is going to vote on the issue of accountability. Just 
last month, the Senate voted by two-thirds that we were going to still 
hold the tobacco industries accountable for their actions. Are we going 
to reverse that with regards to the insurance companies on health care? 
Why can't our Republican leadership say, at least on that issue, given 
where the Senate has voted on tobacco, that we believe that the 
insurance industries that are dealing with health care also should not 
be free from liability? Why? Because the Republican leadership is in 
the pockets of the special interest groups who fear being held 
accountable for their actions. I would like someone to explain the 
inconsistency of this position, given the recent vote on immunity for 
tobacco companies. How can they oppose holding accountable those whose 
abusive actions can result in immediate injury or death? Who is going 
to look out after that? Mr. President, we want to make sure we are 
going to have accountability and that it is going to be an essential 
issue we are going to debate.
  I call this Senate Republican proposal ``Gingrich Lite.'' Gingrich 
Lite. They don't even go as far in the Senate as they went in the House 
of Representatives, which was lacking.
  Finally, the Republican leadership's principles fail to meet the 
following

[[Page S7927]]

very basic considerations and protections. I am waiting for Republicans 
to describe why they are opposed to any of these protections. I will 
just mention them again very quickly.
  Patient information--it is interesting, as we list all of these 
protections in this particular chart, to note where we got these 
recommendations from.
  In each and every case of protections that are guaranteed in the 
Patients' Bill of Rights, they have also been recommended either by the 
President's recent quality commission, which was a blue-ribbon non-
partisan group of experts, or they have been in effect for a number of 
years under Medicare, or they have been recommended by the States' 
insurance commissioners, which is a bipartisan group, or it has been 
recommended by the American Association of Health Plans, which is the 
HMO trade association.
  If you look down at guarantees that are included in our Patients' 
Bill of Rights, you will see that they have been recommended or been in 
effect for a number of years. This is a commonsense--commonsense--
proposal based upon thoughtful consideration of the types of rights 
that are currently being guaranteed to many, but not all, Americans.
  Mr. President, we welcomed the opportunity this week to have the 
measure before the Senate. It was there very, very briefly, but quickly 
taken away by the Republican leadership. No debate. No discussion.
  This issue is a priority for the American people, and, even though we 
have only 44 days left in this Congress, we are going to be resolute 
and committed to bringing this issue up so that we in this body are 
going to be able to debate these matters on the floor of the U.S. 
Senate and vote to provide patients across the country with meaningful 
protections.
  There are 44 days left, Mr. President, in order for us to take 
action--44 days left. Today is July 10. There are 44 days left to 
debate this issue and to take action, and the American people deserve 
action, and they will receive it, because we are strongly committed to 
it. I yield the floor.

                               Exhibit 1

                   Republican Health Care Principles

       Republicans will demand that HMOs play by the rules and 
     provide access to patient-centered care. Many consumers fear 
     that their health care plans will not give them access to 
     care when they need it most, that they will be denied the 
     benefits they've paid for and been promised, and that their 
     health plans care more about cost than they do about quality. 
     These are real fears of unacceptable conditions and HMOs must 
     do better.
       Republicans believe that all consumers have the right to:
       Receive accurate, east-to-understand information about what 
     their health plans provide, including information about out-
     of-pocket expenses and information about health care 
     providers;
       Receive the benefits they have paid for and been promised;
       Hold their health plans accountable through a fair and 
     expeditious appeals process;
       Communicate openly with their doctors about their treatment 
     options;
       Know that their medical care is based on the best 
     scientific information available, not on political 
     considerations; and
       Access to their medical records and the right to know that 
     their medical information will be used only to provide better 
     health care.
       Republicans support expanding health care coverage to more 
     Americans by enhancing its affordability. We will not adopt 
     legislation that will make health insurance more costly or 
     drive businesses--especially small businesses--to drop 
     coverage of their employees. While CBO has not completed its 
     analysis of PARCA or the ``Patients Bill of Rights,'' a 1997 
     Milliman and Roberts study of PARCA found that the 
     legislation would increase health care premiums by an average 
     of 23 percent. To the average family, that's an annual 
     premium hike of $1,220, or more than $100 per month. That 
     study, significantly, did not take into account the 
     additional costs that would be imposed by the liability 
     provisions.
       Higher health care costs mean more uninsured people. 
     According to a 1997 study by Lewin, for every 1 percent 
     increase in premiums, 400,000 people lose their health 
     insurance coverage. Congress should not pass legislation that 
     would cause hundreds of thousands and perhaps millions of 
     people to become uninsured.
       Republicans believe in expanding choice. We will not force 
     every American into an HMO. Extensive new federal 
     requirements included in the so-called Patients Bill of 
     Rights will force all health plans to resemble HMOs. 
     Ironically, many of the bills which claim to expand choice 
     actually would limit choice. Rather than expanding regulation 
     and forcing a ``one-size-fits-all'' approach to health care, 
     Congress should focus efforts on reforming the tax rules 
     which limit and in some cases prohibit consumer's choices.
       Republicans believe that health resources should be used 
     for patient care, not to pay trial lawyers. Medical 
     malpractice laws have led doctors to practice defensive 
     medicine, making health care more costly without improving 
     patient outcomes. Expanding malpractice liability will 
     exacerbate these problems. Moreover, health plans are likely 
     to micromanage clinical decisions in order to protect 
     themselves against costly lawsuits. Congress should not pass 
     legislation on the assumption that people can sue their way 
     to health care quality.
       Republicans believe the private sector is more capable of 
     keeping pace with the rapid changes of health care. The 
     government is not the best caretaker of health care quality. 
     Republicans agree with leading physicians such as Dr. Bob 
     Waller of the Mayo Clinic, who warned that increased federal 
     regulation of health care quality, by freezing in place 
     standards that will quickly become obsolete, will actually 
     diminish the quality of care that patients receive. Who also 
     agree with the approach taken by the President's own hand-
     picked Commission on Quality which did not recommend 
     legislation or regulation. Instead, the President's 
     Commission--which he has conveniently disavowed--recommended 
     voluntary implementation of consumer protections.
       Republicans believe consumers have the right to a health 
     system driven by the best scientific evidence available--not 
     one hamstrung by political considerations. Congress should 
     not practice medicine. Over the past several years, Congress 
     has imposed a number of ``body part'' mandates on health 
     insurance plans. These mandates, though well-intentioned, are 
     often misguided. For example, the Journal of the American 
     Medical Association last year published a study which 
     concluded that maternity length-of-stay requirements do not 
     improve health outcomes for mothers or their babies and may 
     do more harm than good. Congress should not magnify and 
     repeat past errors by imposing new body part mandates on 
     health plans.
       The federal government should focus on a system which will 
     give providers and physicians more time with patients and 
     less time on paperwork. Bills that impose extensive 
     information disclosure requirements on health plans will 
     force those plans to impose extensive paperwork requirements 
     on providers. Instead of simply filing claims information 
     with insurers--as providers in fee-for-service and PPOs do--
     doctors will have to supply insurance companies with 
     information about their patients, the care their patients 
     receive, treatment outcomes, and patient satisfaction, among 
     other things. This will require doctors to spend more time 
     filling out forms and less time treating their patients.
       Republicans will not politicize or simplify an issue as 
     important as health care quality. Many on the other side are 
     willing to jeopardize insurance coverage for millions of 
     Americans for a political ``slam dunk.'' Republicans will not 
     exploit the fears of Americans in order to enjoy a political 
     victory. The issues surrounding the quality of our nation's 
     health care deserve to be debated responsibly and cautiously. 
     We will not pass legislation which increases the number of 
     uninsured, makes health care unaffordable, and diminishes 
     rather than enhance health care quality.

  Mr. BUMPERS addressed the Chair.
  The PRESIDING OFFICER (Mr. Roberts). The Senator from Arkansas.
  Mr. BUMPERS. Mr. President, rather than ask later, let me ask now. I 
ask unanimous consent that I be able to proceed for up to 15 minutes.
  Mr. WARNER. Mr. President, reserving the right to object, can I ask 
what the standing order is.
  The PRESIDING OFFICER. The standing order is 10 minutes.
  Mr. WARNER. I certainly want to accommodate the Senator, but there 
are others of us who are waiting. If that is what the Senator desires, 
then I withdraw the objection. But knowing my dear friend--15 minutes, 
fine. I thank the Chair.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from Arkansas is recognized.
  Mr. BUMPERS. I thank the Chair.
  (The remarks of Mr. Bumpers and Mr. Warner pertaining to the 
introduction of S. 2289 are located in today's Record under 
``Statements on Introduced Bills and Joint Resolutions.'')
  (The remarks of Mr. Warner and Mr. Ford pertaining to the 
introduction of S. 2288 are located in today's Record under 
``Statements on Introduced Bills and Joint Resolutions.'')
  The PRESIDING OFFICER. The distinguished Senator from North Dakota is 
recognized for up to 10 minutes.

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