[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.
______