[Congressional Record Volume 144, Number 94 (Wednesday, July 15, 1998)]
[Senate]
[Pages S8248-S8251]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mrs. FEINSTEIN (for herself, Mr. D'Amato, and Mr. Ford):
  S. 2315. A bill to amend the Public Health Service Act, Employee 
Retirement Income Security Act of 1974, and titles XVIII and XIX of the 
Social Security Act to require that group and individual health 
insurance coverage and group health plans and managed care plans under 
the medicare and medicaid programs provide coverage for hospital 
lengths of stay as determined by the attending health care provider in 
consultation with the patient; to the Committee on Labor and Human 
Resources.


                  hospital length of stay act of 1998

  Mr. FEINSTEIN. Mr. President, today Senator D'Amato, Senator Ford and 
I are introducing a bill to require health insurance plans to cover the 
length of hospital stay for any procedure or illness as determined by 
the attending physician, in consultation with the patient, to be 
medically appropriate.

  This bill will return medical decision-making to medical 
professionals because it is time to stop insurance plans' interference 
into this important area of physician decision-making.
  It is endorsed by the American Medical Association, the American 
College of Surgeons, the American College of Obstetricians and 
Gynecologists, the American Academy of Neurology and the American 
Psychological Association. Only a physician, taking care of the patient 
who understands the patient's history, medical condition and needs, can 
make a decision on how much hospital care a person needs. Physicians 
are trained to evaluate all the unique needs and problems of each 
individual patient. Every patient is different and the course of 
illness has great variation.
  Lengths of stay should not be determined by insurance company clerks, 
actuaries or non-medical personnel. It is the attending physician, not 
a physician or other representative of an insurance company, that 
should decide when to admit and discharge someone.
  Professional physician organizations develop practice guidelines that 
guide them in determining medical necessity. These are intended as 
guidance and are medical judgments made by qualified medical people. 
Physicians know what medical necessity and generally accepted medical 
practice are.
  We are introducing this bill because we have had a virtual parade of 
doctors come to us and in essence say, ``We are fed up. We spend too 
much of our time trying to justify our decisions on medical necessity 
to insurance companies. Insurance company rules have supplanted doctor 
decision making.''
  Donna Damico, a nurse in a Maryland psychiatric unit of a hospital, 
told National Public Radio on October 1, 1997:

       I spend my days watching the care on my unit be directed by 
     faceless people from insurance companies on the other end of 
     the phone. My hospital employs a full-time nurse whose entire 
     job is to talk to insurance reviewers. . . . The reviewer's 
     background can

[[Page S8249]]

     range anywhere from high school graduate to nurse, social 
     worker or even actual physicians.

  A number of examples have come to my attention:
  In 1996, we addressed the problem of ``drive-through'' baby 
deliveries, insurance plans covering minimal hospital stays for 
newborns and their mothers because of examples like this: One 
California new mother was readmitted after a Caesarean section because 
of severe anemia from excessive blood loss. She didn't know how much 
blood loss was normal after a delivery. Two California women were 
readmitted after vaginal deliveries with endometritis, an infection of 
the uterus.
  We've had examples of ``drive-through'' mastectomies, insurance plans 
shoving women out the door to deal on their own with drainage tubes, 
pain and disfigurement. S. 249, which I introduced with Senator D'Amato 
last year, addresses that abuse and we are trying to get it passed.
  A California pediatrician told us of a child with very bad asthma. 
The insurance plan authorized 3 days in the hospital; the doctor wanted 
4-5 days. He told us about a baby with infant botulism (poisoning), a 
baby with a toxin that had spread from the intestine to the nervous 
system so that the child could not breathe. The doctor thought a 10-14 
day hospital stay was medically necessary for the baby; the insurance 
plan insisted on one week.
  A California neurologist told us about a seven-year-old girl with an 
ear infection who went to the doctor feverish. When her illness 
developed into pneumonia, she was admitted to the hospital. After two 
days she was sent home, but she then returned to the hospital three 
times because her insurance plan only covered a certain number of days. 
The third time she returned she had meningitis which can be life 
threatening. The doctor said that if this girl had stayed in the 
hospital the first time for five to seven days, the antibiotics would 
have killed the infection and the meningitis would never have 
developed.
  A 27-year-old man from central California had a heart transplant and 
was forced out of the hospital after 4 days because his HMO would not 
pay for more days. He died.
  Nurses in St. Luke's Hospital, San Francisco, say that women are 
being sent home after only two nights after a hysterectomy and two 
nights for a Caesarean section delivery, both of which are major 
abdominal surgeries, even though physicians think the women are not 
ready to go home..
  Just last week Lisa Breakey, a San Jose speech pathologist, came to 
my office and told us that she is providing home healthcare for stroke 
patients she used to see in the hospital. She sees patients in their 
homes who have G tubes in their stomachs for feeding and trach tubes in 
their throats for breathing. The trach tubes have an inflated balloon 
or cuff which a family members must deflate and inflate by using a 
needle. Family members are supposed to suction the patient's mouth and 
throat before they deflate the cuff. Families, she stressed, are 
providing intensive care, for which they are unprepared and untrained. 
Bedrooms have become hospital rooms.
  Another California physician told us about a patient who needed total 
hip replacement because her hip had failed. The doctor believed a 
seven-day stay was warranted; the plan authorized five.
  Rep. Greg Ganske, a physician serving in the House, told the story of 
a six-year-old child who nearly drowned. The child was put on a 
ventilator and it appeared that he would not live. The hospital got a 
call from the insurance company, asking if the doctor had considered 
sending the boy home because home ventilation is cheaper.
  These cases can be summarized in the comments of a Chico, 
California, maternity ward nurse: ``People's treatment depends on the 
type of insurance they have rather than what's best for them.''

  As these cases illustrate, premature discharges can increase 
readmissions and medical complications. During the ``drive-through 
delivery'' debate, we heard about babies who were jaundiced and 
dehydrated and had to come back to the hospital.
  Similarly, as reported in American Medical News on March 23, 1998, 
according to Dr. David Phillips, ``a shift toward outpatient treatment 
actually has come at quite a high price . . . an increased loss of 
lives.'' This University of California study found that medication 
errors are 3 times higher among outpatients than inpatients; that 
medications side effects provides limited oversight by medical 
personnel and that the patient-physician relationships is compromised.
  Ms. Damico said, ``Patients return to us in acute states because 
their insurance will no longer pay the same amount for their outpatient 
treatment . . . [They] deteriorate to the point of suicidal thoughts or 
attempts and need to return to the hospital.'' She cited the example of 
a suicidal woman whose plan denied a hospital admission requested by 
her physician. After the doctor told her of the denial, she took twenty 
50-milligram tabs of Benadryl, was then admitted, and the plan then had 
to pay for hospital care, an ambulance and emergency room fees.
  So not only do premature discharges compromise health, they 
ultimately cost the insurer more.
  Physicians say they battle daily with insurance companies to give 
patients the hospital care they need and to justify their decisions on 
medical necessity.
  An American Medical Association review of a managed care contract 
(Aetna US Healthcare) found that the contract gives ``the company the 
unilateral authority to change material terms of the contract and to 
make determinations of medical necessity . . . without regard to 
physician determinations or scientific or clinical protocols . . . .,'' 
according to the January 19, 1998 American Medical News.
  A study by the American College of Surgeons found that guidelines 
published by Milliman and Robertson and used by many insurers represent 
a minimum length of stay, compared with surgeons' estimates.
  A study by the American Academy of Neurology found that the Milliman 
and Robertson guidelines on length of stay are ``extraordinarily short 
in comparison to a large National Library of Medicine database . .. And 
that [the guidelines] do not relate to anything resembling the average 
hospital patient or attending physician . . . .'' The neurologists 
found that these guidelines were ``statistically developed,'' not 
scientifically sound or clinically relevant.
  A study in the April 1997 Bulletin of the American College of 
Surgeons found that surgeons stated that the appropriate length of stay 
for an appendectomy is zero to five days, while insurance industry 
guidelines set a specific coverage limit of one day.
  According to 134 interviews reported in the March 15, 1998 Washington 
Post, 7 in 10 physicians said, in dealing with managed care plans, they 
have exaggerated the severity of an patient's condition to ``prevent 
him or her from being sent home from a hospital prematurely.'' Dr. 
David Schriger, at UCLA Medical Center in Los Angeles, said that he 
routinely has patients, such as a frail, elderly woman with the flu, 
who is not in imminent danger, but could encounter serious problems if 
she is sent home during the night. He told the Post, ``At this point I 
have to figure out a way to put her in the hospital. . . And typically, 
I'll come up with a reason acceptable to the insurer,'' and orders a 
blood test and chest x-ray, to justify admission.
  The Post article also cited Kaiser Permanente's Texas division which 
``warned doctors in urgent care centers not to tell patients they 
required hospitalization, as one Kaiser administrator recalled. ``We 
basically said [to] the UCC doctors, `If you value your job, you won't 
say anything about hospitalization. All you'll say is, I think you need 
further evaluation . . . .'''
  Ms. Damico, the psychiatric nurse interviewed on NPR said, ``Our 
utilization review nurse gives all of us, including the doctors, good 
advice on how to chart so that our patients' care will be covered . . . 
We all conspire quietly to make certain the charts look and sound bad 
enough.''
  The American College of Surgeons wrote: ``We believe very strongly 
that any health care system or plan that removes the surgeon and the 
patient from the medical decision-making process only undermines the 
quality of that patient's care and his or her health and well being . . 
. . specific, single numbers [of days] cannot and should not be used to 
represent a

[[Page S8250]]

length of stay for a given procedure.'' (April 24, 1997) ACS on March 5 
wrote, ``We believe very strongly that any health care system or plan 
that removes the surgeon and the patient from the medical decision 
making process only undermines the quality of that patient's care and 
his or her health and well being.''
  The American Medical Association wrote on May 20, 1998, ``We are 
gratified that this bill would promote the fundamental concept, which 
the AMA has always endorsed that medical decisions should be made by 
patients and their physicians, rather than by insurers or legislators . 
. . We appreciate your initiative and ongoing efforts to protect 
patients by ensuring that physicians may identify medically appropriate 
lengths of stay, unfettered by third party payers.''
  The American Psychological Association, on March 4, 1998 wrote me, 
``We are pleased to support this legislation, which will require all 
health plans to follow the best judgment of the patient and attending 
provider when determining length of stay for inpatient treatment.''
  Americans' faith in their medical system has plummeted as almost 
daily we hear of more horror stories of care denied and HMO hassles. 
Arbitrary insurance company rules cannot address the subtleties of 
medical care. A March 1998 U.S. News and Kaiser Family Foundation 
survey found that three in four Americans are worried about their 
health care coverage and half say they are worried that doctors are 
basing treatment decisions strictly on what insurance plans will pay 
for.
  The bill we introduce today begins to address some of these problems. 
I am also a cosponsor of the Patient Bills of Rights (S. 1890) and the 
Patient Access to Responsible Care Act (S. 644), bills proposing 
comprehensive reforms.
  I hope these initiatives will send a strong message to the health 
insurance industry and return medical decision-making to those medical 
professionals trained to make those decisions.
  Mr. President, I ask unanimous consent that a summary of the bill and 
letters in support be printed in the Record.
  There being no objection, the items were ordered to be printed in the 
Record, as follows:

           Summary of the Hospital Length of Stay Act of 1998

       Requires plans to cover hospital lengths of stay for all 
     illnesses and conditions as determined by the physician, in 
     consultation with the patient, to be medically appropriate.
       Prohibits plans from requiring providers (physicians) to 
     obtain a plan's prior authorization for a hospital length of 
     stay.
       Prohibits plans from denying eligibility or renewal for the 
     purpose of avoiding these requirements.
       Prohibits plans from penalizing or otherwise reducing or 
     limiting reimbursement of the attending physician because the 
     physician provided care in accordance with the requirements 
     of the bill.
       Prohibits plans from providing monetary or other incentives 
     to induce a physician to provide care inconsistent with these 
     requirements.
       Includes language clarifying that--nothing in the bill 
     requires individuals to stay in the hospital for a fixed 
     period of time for any procedure; plans may require 
     copayments but copayments for a hospital stay determined by 
     the physician cannot exceed copayments for any preceding 
     portion of the stay.
       Does not pre-empt state laws that provide greater 
     protection.
       Applies to private insurance plans, Medicare, Medicaid and 
     Medigap.
                                  ____



                                 American Medical Association,

                                                     May 20, 1998.
     Hon. Dianne Feinstein,
     U.S. Senate, Washington, DC.
       Dear Senator Feinstein: On behalf of the American Medical 
     Association (AMA), we would like to express our support for 
     your draft legislation the ``Hospital Length of Stay Act of 
     1998''. We hope you introduce this legislation that would 
     require coverage of an inpatient's hospital stay to the 
     extent determined medically appropriate by the attending 
     physician in consultation with the patient.
       We are gratified that this bill would promote the 
     fundamental concept, which the AMA has always endorsed, that 
     medical decisions should be made by patients and their 
     physicians rather than by insurers or legislators. As you may 
     know, on several occasions the AMA has supported legislative 
     initiatives that would require coverage on a diagnosis by 
     diagnosis basis for medically appropriate minimum lengths of 
     stay. While those bills have moved us in the right direction, 
     this legislation would take us where we want to be.
       We appreciate your initiative and ongoing efforts to 
     protect patients by ensuring that physicians may identify 
     medically appropriate lengths of stay, unfettered by third 
     party payors. We offer you our assistance in helping to enact 
     this legislation.
           Sincerely,
                                                   Lynn E. Jensen,
     Interim Executive Vice President.
                                  ____



                                 American College of Surgeons,

                                                    July 15, 1998.

           Statement: Postoperative Lengths of Hospital Stay

     Edward R. Laws, Jr., MD, FACS,
     Member of the Board of Regents,
     American College of Surgeons.
       On behalf of the American College of Surgeons, I would like 
     to commend Senator Feinstein for her continuing concern for 
     high-quality patient care. In particular, I want to praise 
     her and her cosponsor, Senator D'Amato, for their most recent 
     effort to protect patients by introducing legislation to ban 
     the practice of imposing arbitrary coverage limits on 
     hospital length of stay--a practice that is currently being 
     used by some third-party payers.
       The issue of ``drive-through'' maternity care, followed 
     more recently by the issue of outpatient mastectomy 
     operations, clearly illustrate the patient care problems that 
     are created when third-party payers set a specific number of 
     days as the appropriate length of stay for a given procedure. 
     For some maternity and breast cancer patients, the outpatient 
     setting may well be medically appropriate and personally 
     preferred, but for many others this certainly is not the 
     case. As many state and federal legislators have come to 
     realize, each of these patients has her own set of unique 
     medical problems and related issues, and it is inappropriate 
     to expect them to conform to cost containment goals that were 
     designed with the ``optimum'' patient in mind.
       What few people seem to recognize, however, is that these 
     problems are not limited to new mothers and breast cancer 
     patients. Indeed, thousands of patients whose illnesses do 
     not occupy a high profile on the nation's health care agenda 
     face the same dilemma. A variety of factors--such coexisting 
     illnesses, the optimum treatment method selected, 
     complications arising during the operation, and differences 
     in response to the treatment--can vary significantly among 
     individual patients, making it impossible to accurately or 
     precisely predict the appropriate length of stay for a given 
     procedure. Such factors may also determine the appropriate 
     site for performing a particular operation or procedure. 
     Despite these important considerations, efforts to restrain 
     growth in spending for health care services, although a 
     legitimate concern, are coming into conflict with individual 
     patient needs.
       We need to view the issue of length-of-stay coverage limits 
     from a broader perspective than we have in the past. 
     Congress, state legislatures, and the managed care industry 
     have acted on a procedure-specific basis in response to 
     concerns raised about coverage limits placed on maternity 
     care and mastectomy operations. But, it is time to take the 
     next step.
       Senator Feinstein's legislation, the ``Hospital Length of 
     Stay Act'' would take this step by proposing to protect 
     medical decisionmaking on behalf of all patients. The 
     legislation specifies that decisions about the medical 
     appropriateness of a hospital length of stay should be 
     determined by the attending physician, in consultation with 
     the patient. Further, the legislation would prohibit health 
     plans from penalizing patients, physicians, or hospitals for 
     following through on these medical decisions.
       The American College of Surgeons believes strongly that, 
     for all surgical patients, the responsibility for making the 
     decisions to operate, what type of operation the patient 
     should have, and how long the patient stays in the hospital 
     following the operation must rest with the surgeon and the 
     patient. The College has always encouraged its members to 
     keep their patients' length of stay as short as possible. 
     However, we do believe very strongly that any health care 
     system or plan that removes the surgeon and the patient from 
     the medical decision-making process only undermines the 
     quality of that patient's care and his or her health and 
     well-being.
       Once again, we congratulate Senator Feinstein and Senator 
     D'Amato for their courageous efforts on behalf of quality 
     patient care. The College looks forward to working closely 
     with them and their colleagues in the House of 
     Representatives, including Congressman Tom Coburn and 
     Congresswoman Rosa DeLauro, to ensure swift passage of this 
     important legislation.
       The American College of Surgeons is a scientific and 
     educational organization of surgeons that was founded in 1913 
     to raise the standards of surgical practice and to improve 
     the care of the surgical patient. The College is dedicated to 
     the ethical and competent practice of surgery. Its 
     achievements have significantly influenced the course of 
     scientific surgery in America, and have established it as an 
     important advocate for all surgical patients. The College has 
     more than 62,000 members and is the largest organization of 
     surgeons in the world.
                                  ____

  



                                 American College of Surgeons,

                                                    March 5, 1998.
     Hon. Dianne Feinstein,
     U.S. Senate, Washington, DC.
       Dear Senator Feinstein: On behalf of the 62,000 Fellows of 
     the American College of

[[Page S8251]]

     Surgeons, I want to commend you for introducing the 
     ``Hospital Length of Stay Act of 1998.'' Your legislation 
     will contribute significantly to the effort to educate 
     Congress and the public about the practice of imposing 
     arbitrary coverage limits on hospital length of stay that do 
     not take into account an individual patient's unique health 
     care needs.
       For all surgical patients, the responsibility for making 
     the decision to operate, the type of operation, and how long 
     the patient stays in the hospital following the operation 
     must rest with the surgeon and the patient. The College has 
     always encouraged its members to keep their patients' length 
     of stay as short as possible. However, we believe very 
     strongly that any health care system or plan that removes the 
     surgeon and the patient from the medical decisionmaking 
     process only undermines the quality of that patient's care 
     and his or health and well being.
       Once again, we appreciate your continuing concern, and 
     congratulate you on introducing legislation that acknowledges 
     the importance of preserving the surgeon-patient relationship 
     and ensuring that they are able to exercise their 
     responsibility for making medical treatment decisions.
           Sincerely,
                                                    Paul A. Ebert,
     Director.
                                  ____



                    American Academy of Neurology',

                                                   April 22, 1998.
     Hon. Dianne Feinstein,
     Attn: Glenda Booth and Ann Garcia, Washington, DC.
       Dear Senator Feinstein: The American Academy of Neurology, 
     an association of over 15,000 neurologists, has been in the 
     forefront of discussions and debate concerning the necessary 
     protections that should be afforded our patients in a health 
     care environment increasingly dominated by corporate and 
     managed care structures. We believe that it is imperative 
     that patients, who often feel powerless in today's health 
     care environment, be protected through the implementation of 
     basic health care standards including such protections as 
     appropriate health plan disclosure, adequate choice of plans 
     and providers, and appropriate grievance processes.
       Your bill, the Hospital Length of Stay Act of 1998, 
     contains many of the elements that we deem important, 
     especially its fundamental premise to protect and preserve 
     the patient and provider relationship. Physicians need to be 
     allowed to exercise their decision-making without obstruction 
     when they consult with their patients concerning the 
     appropriate treatment or care for their health care 
     condition.
       A survey by the National Coalition on Health Care found 
     that 80% of Americans believe that their quality of care is 
     often compromised to save money. Many Americans feel insecure 
     about their health care plan and question whether or not the 
     plan will take care of them when they really need it such as 
     when they become hospitalized. It is out of this demonstrated 
     national concern that the President of the United States as 
     well as several leading medical societies, such as the 
     Academy, are now calling on members of Congress to implement 
     national health care standards or more commonly known as 
     consumer ``bill of rights''.
       The Academy applauds and endorses your bill as a bill of 
     rights component and we hope that this is one of many steps 
     that will be taken by you and your colleagues in helping us 
     to be able to confidently tell our patients that their health 
     care plan will take care of them when they are sick or are in 
     need of health care.
       I have included a copy of the Academy's patient protection 
     statement that I hope you will review and consider as the 
     debate on this important issue continues throughout this 
     legislative session.
           Sincerely,
                                                 Steven P. Ringel,
     President.
                                  ____



                           American Psychological Association,

                                                    March 4, 1998.
     Senator Dianne Feinstein,
     Washington, DC.
       Dear Senator Feinstein: On behalf of the American 
     Psychological Association, I am writing to thank you for your 
     sponsorship of the Hospital Length of Stay Act of 1998. We 
     are pleased to support this legislation, which will require 
     all health plans to follow the best judgment of the patient 
     and attending provider when determining length of stay for 
     inpatient treatment.
       We appreciate your sensitivity to our concerns over the 
     reality that psychologists in many states are attending 
     providers under their state license and scope of practice. 
     Accordingly, your bill extends this quality of care 
     protection to the patients of psychologists as well as 
     ``physicians'', as did the Coburn-Strickland amendment to the 
     House Commerce Committee version of the Balanced Budget Act 
     last year.
       There is obviously enormous public interest in having 
     Congress act this year to pass enforceable federal standards 
     of consumer protection in managed care. Our members are also 
     supportive of a bill that you have cosponsored, the Patient 
     Access to Responsible Care Act (S. 644), and we are very 
     appreciative of your visible involvement in this issue. The 
     Hospital Length to Stay Act addresses another important issue 
     that should be addressed in this debate and we commend you 
     for taking it on.
           Sincerely,

                                          Marilyn S. Richmond,

                                  Assistant Executive Director for
                                             Government Relations.
                                 ______