Congressional Record, Volume 144 Issue 95 (Thursday, July 16, 1998)

[Congressional Record Volume 144, Number 95 (Thursday, July 16, 1998)]
[House]
[Pages H5730-H5733]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

MANAGED CARE REFORM

The SPEAKER pro tempore. Under the Speaker's announced policy of
January 7, 1997, the gentleman from New Jersey (Mr. Pallone) is
recognized for half the time until midnight as the designee of the
minority leader.
Mr. PALLONE. Mr. Speaker, tonight, once again, I would like to take
up the issue of managed care reform and particularly to draw a contrast
which I think is very important between the Democratic bill, the
Patient's Bill of Rights introduced by the gentleman from Michigan (Mr.
Dingell) and the proposal that has been put forward by the Republican
task force both here in the House and another one in the Senate.
The Republican health care task force here in the House is supposed
to release the language for their so-called managed care reform bill
tonight or possibly tomorrow. We know from what the task force has
already released publicly that this bill is essentially a response to
polling that the Republicans have asked for and requested that shows
that they will lose the majority in November if they do not address the
issue of managed care reform.
But their proposal is essentially a cosmetic fix, a farce, that lacks
some of the most important patient protections that are included in the
Democratic Patient's Bill of Rights.
I also would mention that in the Senate, the Senate Republicans have
responded to this overwhelming outcry by the American people for
managed care reform, but they have responded with, again, with a
rhetoric-laced, partisan proposal that places the interests of insurers
far above the needs of patients.
I think that the American people simply do not want a bill that does
not measure up on the issue of managed care reform. They want an
approach that is endorsed by not only most Americans but by the health
care professionals, the doctors, the nurses, the Democratic proposal,
the Patient's Bill of Rights that takes health care decisions away from
insurance company bureaucrats and gives them back to doctors and
patients where they belong.
Let me just mention some of the faults in the Republican proposal and
then give you some idea, if I can, of what is in the Democratic
Patient's Bill of Rights.
The Republican plan that has been announced, and we have not seen the
language yet, but it lacks an enforcement mechanism. It denies patients
the right to sue an HMO when they are denied needed care and actually
expands the ERISA liability that does not allow those who are now in
self-insured plans to sue the HMO.
It expands this liability exemption to health insurance pools,
private health insurance, that will now have the same basic liability
exemption that now exists for self-insured organizations under ERISA.
In addition, the Republican plan does not provide access to
specialists. It allows insurance companies, not doctors and patients,
to make medical decisions. And the Republican proposals contain several
poison pills. In other words, these are added provisions unrelated to
managed care reform but which are included because the Republican
leadership knows that if they are included, a managed care reform bill
will never pass and never get to the President's desk.
These poison pills include medical malpractice damage caps and also
an expansion of the medical savings accounts, two issues that are very
controversial and could very easily lead to a situation where we do not
get a bill, a managed care reform bill passed this session of Congress.
Let me just mention some of the valuable patients protections that
are in our Democratic Patient's Bill of Rights. This will apply to the
majority of Americans, everyone who has health insurance, who has any
kind of health insurance.
The patient protections include the return of medical decisionmaking
to patients and health care professionals, not insurance company
bureaucrats. That would be, for example, the length of stay in the
hospital or whether or not you would have access to certain procedures.
Those decisions would be made by the patient and the doctor, not by the
insurance company.
The Democratic bill also includes access to specialists including
access to pediatric specialists for children, includes coverage for
emergency room care so that you can go to any emergency room when the
need arises. It also eliminates the gag rule by saying that doctors and
nurses can talk freely about every medical option. And it also includes
an appeals process and real legal accountability for insurance company
decisions.
In other words, the Democrats would allow you to sue the HMO. They
would allow a procedure where you could appeal your decision to an
unbiased arbiter. It also, the Democratic proposal puts an end to
financial incentives for doctors and nurses to limit the care that they
provide. Today the CBO, the Congressional Budget Office, put out a
study which I thought was very interesting, because many of my
colleagues, I should say the Republican leadership and my colleagues on
the Republican side that oppose the Democratic Patient's Bill of
Rights, have talked about the cost and suggested that somehow patient
protections are going to be very costly.
The Congressional Budget Office released a report today or an
analysis that says that the Democratic bill, the Patient's Bill of
Rights, would have only a minimal effect on premiums with most
individuals paying only $2 per month. In actuality, the cost would be
even less than $2 per month for the many fortunate Americans enrolled
in a responsible health plan that has already provided most of the
patient protections. Again, cost is not a factor here. Even if it is as
much as $2 a month, most Americans would not find that objectionable in
order to have the valuable patient protections that increasingly they
are demanding.
I just wanted to mention, and then I would like to yield to my
colleague from Texas who has joined me many times on this issue on the
floor and talked about our own States where we have already enacted
some of the Patient's Bill of Rights, yesterday we had a very important
hearing of our House democratic task force on health care reform. And I
would stress that the reason that we have to have Democratic hearings
is because the Republican leadership that controls the process in the
House has refused to have hearings on managed care reform, refused to
have a bill brought up and marked up or considered in committee and
refused so far to bring any bill to the floor. So the only way that we
can hear the horror stories and the abuses from the American people and
from some of our constituents is if we have our own hearings and hear
from some of the people that have had problems.
I will not mention too many of the witnesses that we had yesterday,
but there were a couple that I think that were particularly important,
I thought.

[[Page H5731]]

I will just mention two of the witnesses who were physicians. One was
a doctor, Tom Self, who is a pediatric gastroenterologist from San
Diego, California. He won a lawsuit against a managed care group that
fired him for refusing to curtail patient visits, for limiting
diagnostic tests.
They fired him because he refused to do these things, refused to
curtail patient visits, refused to limit diagnostic tests, and required
him to abide by a gag rule whereby he would not disclose recommended
treatments to his patients.

{time} 1100

But despite more than 28 years of experience and excellent
credentials, the medical group attacked Dr. Self's reputation by
fabricating charges of poor medical practice. Employees for the medical
group told Dr. Self's patients he had left town and was no longer
practicing, when in fact he had set up his own practice across the
street. This is after they had fired him. Well, he won his lawsuit and
he is now practicing again. But that is an example of the kinds of
things HMOs do for practicing physicians.
One other physician, Dr. Boyle, a trained emergency room physician
from San Antonio, Texas, the home state of my colleague. He currently
serves as the attending staff physician for Texas Trauma Rehabilitation
Associates. He was treating a 49-year-old auto mechanic with a strong
history of hypertension who had been rushed to the emergency room.
After lengthy unsuccessful arguing with the HMO's utilization review
physician, Dr. Boyle informed his patient that his HMO would not
authorize his admission into the hospital. And despite his extreme
condition, the patient left after hearing his care would not be
covered. He then suffered a stroke on his way home that resulted in
permanent paralysis and medical costs totaling more than $75,000 that
the HMO had to later pay. But the patient can no longer work and
survive on Social Security payments.
Mr. Speaker, we can give endless stories and we already have about
people that had been negatively impacted and abuses that many HMOs have
actually committed on individuals as well. But I have to say that my
concern tonight is that the Republicans will bring their sham managed
care reform proposals to the floor next week.
In fact, even though we do not have the language to the House bill,
the Republican House bill, they have already noticed the bill to come
to the floor at the end ever next week. And by noticing it and not
allowing hearings, not allowing committee markups, not allowing really
the American public to speak out on this legislation, what they are
trying to do is simply railroad and bring up this cosmetic sham
proposals for so-called managed care reform to the House and have this
vote on it and be done with it.
And what we have to do as Democrats, and we have some Republicans
also who have joined us, is we have to demand that the Democratic
proposal, which is really a bipartisan proposal now, the Patients' Bill
of Rights, be considered on the floor of the House of Representatives
next week at the same time as the Republican alternative.
We have asked and we have I think well over maybe close to 200
Members now who have agreed to sign a discharge petition next week that
would allow the Patients' Bill of Rights to come to the floor when the
Republican proposal alternative also comes to the floor. And I would
simply urge my colleagues over the next few days and once this
discharge petition is available this coming Monday to sign the
discharge petition. Because we must allow a real managed care reform
bill, the Patients' Bill of Rights, to be considered by the House of
Representatives. The American people deserve no less.
Let me yield now to my colleague the gentlewoman from Texas (Ms.
Jackson-Lee) who has done such a wonderful job in bringing this issue
to the attention of the American people.
Ms. JACKSON-LEE. Mr. Speaker, I thank the gentleman from New Jersey
(Mr. Pallone) for yielding.
And, likewise, I think that it is very important to explain to the
American people that the health task force, which I have worked with
him on, to be one of the key elements to being able to draw these real
issues and concerns about patients' rights and a Patients' Bill of
Rights. We would have wanted to have had a process that went through
the normal committee channels where hearings were open and that issues
were addressed seriously.
I think it is important the tone that we raise this issue so that it
becomes what the American people want to hear and that is a nonpartisan
debate but one that is full of passion. And I believe rightly the
willingness to fight. Because we will have a fight on our hands, not
for political purposes but because so many of us have gone into our
districts and have heard some of the crises that our constituents are
facing.
One of the important points I think that was made this morning and
this afternoon and I was delighted to join my colleague and join the
gentleman from Michigan (Mr. Dingell) and to join the gentleman from
Iowa (Mr. Ganske) and Steve Forbes, the president, so many
representatives from the health profession.
One of the points that was made was that this is not an attempt to
indict all HMOs, that in fact when we began to assess this problem in
1993, I had not come to Congress then, we knew that we had a system
that was broken, that needed repair on many fronts.
One of the reasons even earlier than that that the HMOs rose to
prominence, of course, was everyone collectively said, let us try to
bring health care costs into reality. We all joined on that issue. At
least all of us, including consumers, said that we thought we needed to
work on the question of health care costs hospitals physicians.
But what happened was that all of a sudden the route that was being
taken got misdirected. It either got accelerated on a high-speed chase,
with HMOs way out front, and the consumers chasing after some good
health care. The HMOs started to dominate. And the question was not
making sure that we were responsibly economically or containing the
cost. It began to be, we are going to make a huge, huge profit. We have
no other concerns but a huge, huge profit. So the consumer got left
behind.
And I hope that, as we have this discussion, albeit soon but not in
the context where we want it, I hope some HMOs will stand up and be
counted and be recognized that as a parent tells a child, you
brought this on yourself. Because the American public was not anti-HMOs
to the extent that just because they were. They were for it. They were
supporting it.

But just like a good friend of mine who was a prominent member of my
community rushed to an emergency room with a massive heart attack of
which that person did not realize they were having, because there are
times, as I understand, you can walk of your own abilities, what
happened at the emergency room? They were checked at the door while
they were checking for their HMO and their insurance.
I need not say the great tragedy that occurred to that dear soul.
When rather than taking care of his immediate emergency need, the
question was, where is your card? And primarily because hospitals
themselves find that they are under enormous pressure not to keep
people in, not to take people in because of the fact of cost.
So we have a situation that the American public has told us we need
to fix this. And now we come to a point when we could have done this in
a bipartisan manner we could have answered the American public's
concern. But what do we have to do now? Rather than move in that
direction, we have got to put the American people on notice buyer
beware of the Republican plan.
Read between the lines and read the fine print. For with, I
understand, some grouping of HMOs that have now risen to the occasion
of supporting the Republican bill, all with scenes from the same page
and verse, singing beautiful music, would it not be great if they were
singing the music that the American people could likewise join in?
But, unfortunately, we have to sound the chord of not only confusion
but opposition. And the reason being is the Republican plan does not
answer the question. And what was most noteworthy of the idea of what
we are planning and proposing. And someone offered to my friend from
New Jersey

[[Page H5732]]

(Mr. Pallone) offered a question and said, ``well, you were
presenting,'' when I say ``you,'' the Democrats and the President of
the United States presented their proposal today, ``well, the
Republicans will be in front of a hospital tomorrow.''
Well, let me tell my colleagues who was joining Democrats today.
Nurses and medical professionals and physicians, the American Medical
Association were the ones that we were standing with. So standing in
front of hospitals is not the answer the American people want.
In fact, unfortunately, as I said earlier, many of those doors are
closed. What the American people would like is a reemphasis of the
physician-patient relationship, and that is what the Democratic bill
ensures. They want to reemphasize of the right of women to select as
their primary caretaker their OB/GYN. They want the right for
physicians to tell the truth about their medical condition and to
provide them with the opportunity to seek care from specialists.
The Republican bill does not do any of that. And frankly, no, most of
us do not want to be in the courthouse. And when it comes to a loved
one, I can assure my colleagues that anyone would more apt to or let me
just say they would choose the life and love of that loved one than to
be in a courthouse for some faulting, some finding of fault and that
loved one not be with them.
For anyone to even dare suggest that our bill's anchor is something
about lawsuits, it is something about enforceability and
accountability. Because when the tragedy of that individual that my
colleague mentioned that we all heard present their presentation from
one illness to a stroke because they were denied, when the woman who
was flying in or had to fly in from Hawaii that the gentleman from Iowa
(Mr. Ganske) so eloquently and passionately discusses when she could
have been cared for in Hawaii but was required by her HMO to fly all
the way to Chicago and then because of that tragedy lost her life. Or
when, as the doctor explained to us about the cleft palate and all of
us viewed that tragedy of that kind of birth that so many American
children and of course children across the world are born with. And do
my colleagues believe that an HMO would then tell that poor baby, who
deserves the right to have a full and happy life, that that subsequent
surgery on that cleft palate is cosmetic?

{time} 1110

The terminations being made by individuals who, as someone described,
and would green eye shades. Again, this is not an overall attack or
get-you on HMOs.
I would simply say to them: Come go with us, come stand on the side
of physicians and nurses, health care providers, health technicians,
visiting nurses, home health care providers.
You full well know that we had a problem and we re-did the Medicare
provisions that venipuncture, of going home, on home care was being
eliminated. All of that comes from the managed care problems, that they
thought it was not necessary to provide that kind of home-care testing.
It was the over burden, if you will, on some of the in putting into
Medicare that you are not able to have all of this managed care, these
HMO over hang. It is clouding what we should be about in this country,
and that is good health care.
And I have asked the gentleman this question because I think it is
extremely important to emphasize. The Republicans say that they have a
health care bill. I really do not understand how you can have a health
care bill with all of the huge cry that we have heard from across
America, and the figures suggest that the Republican plan that they
will unveil tomorrow and that they have alluded to will only cover 50
million people when right now we are looking at 140 million plus that
our bill takes care of. And so there is already a 90 million plus gap.
And I ask the gentleman because I think it is important to bring the
facts to the table.
Mr. PALLONE. Well, the gentlewoman has brought up and highlighted, I
think, the biggest gimmick of all with regard to this Republican bill.
Essentially my understanding is that at least on the Senate side, if
not on the House side, that the Republican bill only applies to ERISA
plans, and of course ERISA plans are those that are preempted by the
Federal Government because they are self-insured essentially, and these
are the very ones that we discussed earlier where there is no
enforcement because the patient cannot sue the HMO if they have denied
care.
So what you have here is hollow patient protections. Not only does
the Republican bill limit the patient protections and not include some
of the most important ones that the Democrats have talked about, like
access to specialty care, for example, but, in addition, by limiting
the patient protections to ERISA plans they guaranteed that the patient
protections would never be enforced, because if you are in ERISA, you
will have the patient protections, albeit limited, but you will not be
able to sue so there will be no guarantee of the patient protections.
If you are outside of ERISA, you can theoretically sue, but you do not
have the patient protections.
So they have essentially guaranteed that the whole thing is a fraud
by narrowing it, the patient protections, to ERISA where this is no
effective enforcer mechanism.
The other things that you brought up and spoke so well about:
You mentioned the emergency room situation. Again there the
democratic proposal uses what we call in legal terms a prudent lay
person standard. In other words, the HMO cannot say that you can only
use an emergency room at a particular hospital or that you have to have
prior authorization to use the emergency room, which of course that, as
you point out, is absurd. How can it be an emergency? I think most
people would not believe that that is the case, and they are probably
shocked if they go to an emergency room to think they need prior
authorization.
Our bill says that you can have access to emergency care, any
emergency room, without authorization if a reasonable person would
assume that it is an emergency. Even if it is not, if you can assume
that based on your injury or whatever.
The other thing that you mentioned with regard to the cost and how so
many HMOs are simply prioritized cost savings without any reference to
quality of health care, that was brought out so vividly in one of the
other witnesses that I did not mention tonight but who testified
yesterday before our Health Care Task Force hearing, and this was one
of two individuals who had to disguise their voice. We just saw them
over the TV monitor with their words sort of disrupted, if you will, so
they could not be recognized because the HMO would retaliate against
them if they knew that they were testifying.
And this one woman, if I could just mention her, was announced as
Case Manager X, and she is a mental health therapist for the mid-
Atlantic region, my region, with more than 10 years experience. In her
role as a case manager she was forced to deny approval for mental
therapy even though she knew it was medically necessary.
Basically the document, the contract, for the HMO said that you would
have 10 to 26 visits for a patient who needed some kind of mental
health therapy, but they told her, the higher-ups in the insurance
company, that she should not authorize any more than 3 to 5 visits.
Sometimes they said 3, sometimes they said 5. And I asked her the
question. I said:
Well, you know, theoretically, because maybe I am being naive, but
theoretically, you know, they must have some sort of theory as to why
they are giving you only 3 to 5 visits, even though the contract
requires 10 to 26. I mean how do they justify that?
And she said:
Oh, they came up with a model for mental health treatment known as
ultrabrief therapy and told the case managers they should resign if
they did not agree with this treatment policy.
So because they wanted to save money, they came up with a new mental
health therapy theory called ultrabrief therapy, and the theory was
that that is all you needed was the 3 or 5 days because, if we did it
this way, you would still have the same amount of therapy or the same
impact on your mental health.
Of course there is no clinical evidence to support the theory of
ultrabrief therapy. It was just made up.

[[Page H5733]]

And she said that the reason why the HMO was really totally getting
out of hand was because for the last 6 months they knew that there was
a possibility of being bought out by a larger HMO, and so they wanted
to prove that, you know, they were really cost-conscience and they were
really cutting costs so that the larger HMO would buy them out.
So you talk about cost cutting, that was the only thing that was
motivating this agent.
Ms. JACKSON-LEE of Texas. If the gentleman would yield, these are the
kinds of ludicrous, everyday examples that everyday people experience,
and I think that is the distinction between the Republican bill which
plays, if you will, at patients bill of rights and plays more with the
HMOs and insuring their rights than what the Democrats have offered,
and let me say this, what in a bipartisan way we have offered I am very
proud of and very pleased with the bipartisan support that this
legislation has garnered and, I expect, will garner even more because
one key element that the President made very clear today: this is an
American issue. And for your example you add to that insult, if you
will, the whole idea that mental health has suffered in terms of parity
issues anyhow, and for those who suffer from mental illness, mental
dysfunctions, you tell those families that they can get the necessary
care and that concept of abbreviated care of 3 days or free treatment
time frame, and you have them tell you the truth.

{time} 2320

Just have them look at you in outrage or complete amazement. But the
fact that it is utilized shows in greater evidence than we could ever
manage to show that clearly it is a question of cost.
I have another example of a gentleman I have mentioned, a veteran who
I had the pleasure of providing him assistance and helping to secure,
along with our United States military, one of his lost medals.
He was a participant, a fighter in World War II. He marched the
Japanese death walk, the episode of a march when they had captured the
Americans and they were held in Japanese prison camps. So he was
recently awarded one of his medals.
He was involved, in a plan, in a health system. He is an elderly
gentleman. Because of some paperwork snafu, when he left his house on a
hot, hot, hot Texas day to go and pick his prescription up at the place
where he needed to pick it up, he did not get a positive response such
as, ``Let's go find your medication.'' It was, ``You don't have the
right paperwork.''
``Well, I sent the paperwork in.''
``Well, you don't have the right paperwork.''
Everyone operates in such fear. I would think that a very logical
response would have been, he is 77, he has been documented for the
eight years preceding in this particular plan with his paperwork,
``because care is more important to us than cost right now, we will
work on the cost element. We will allow him to get his prescription
that he needs to survive.''
Well, that constituent of mine was sent home, and not in a very
friendly manner. He went home to suffer alone, and by some means that
it came to our office's attention. But it was the intervention of an
office that has nothing to do with HMOs or health care, but working on
it from a constituent perspective, where this gentleman was restored
his prescriptive rights, if you will, or the right to get the
prescription, and it was acknowledged that a mistake had been made.
This is an isolated incident that is reflective of incidents
happening all over the country, where, many circumstances like this,
there is no intervention, none, no intervention, and you have cited
some of those where they have resulted in someone's death.
Mr. PALLONE. I just wanted to mention again, because the gentlewoman
brings up these cases, and you stated it, these are not isolated
incidents. When we had the hearing yesterday, again, we asked each of
the health care professionals who testified, whether they were the case
managers or the physicians, the kinds of stories you tell us, how often
do they happen?
Generally they would say at least once a week. Once a week each of
these individuals, whether they were a doctor or a caseworker who was
detailing, working for the HMO, had to face a situation where they felt
there was clear abuse and the patient was going to suffer.
So we are not talking about a few horror stories, we are talking
about things that occur on a regular basis throughout the country, and
that is the reason I think why so many people now all over the country
are demanding the kind of reform that the Democrats are putting
forward.
I agree with the gentlewoman, it is bipartisan. I do not mean to
suggest that we do not have Republicans with us. We have the gentleman
from Iowa (Mr. Ganske), and we have quite few people with us on the
other side. But it is the Republican leadership that refuses to bring a
good bill it to the floor, actually refused to bring any bill to the
floor.
Now we hear they are willing to bring up their sham bill and have
that voted on as possibly as early as next week. But it is their
control of this house and their unwillingness, if you will, to bring up
the Democratic proposal, the Patient Bill of Rights, that I think we
have to continue to speak out against, because I believe, I am
optimistic, and I know the gentlewoman is, if we keep demanding that
the Patient Bill of Rights come to the floor, and if we get enough
people to sign the discharge petition, we will have the opportunity to
vote on that bill.
I just want to say one last thing, because I think we are almost out
of time. The gentlewoman mentioned the enforcement again. Again, I do
not want people to think the distinction between these two approaches,
Democrat versus Republican, is based on litigation and the ability to
sue, because it is not.
There are many differences, important differences. But the ability to
sue is an important part of the ability to enforce your rights, and if
you have patient protections, but you do not have ultimately the right
to bring suit for damages, then you know that the HMOs are not going to
be held accountable. They will say that is fine that these rights
exist, but what do we care if you cannot enforce them ultimately in a
court of law?
So, again, we are not trying to be litigious or whatever, but we have
to demand that ultimately there is some way for the people to enforce
these patients' protections. Otherwise they are false, they do not
exist, and are not real.
Ms. JACKSON-LEE of Texas. Mr. Speaker, the gentleman has aptly
brought us to a close this evening, and I appreciate very much the
long, arduous journey I think that we have traveled on to bring this
issue to a head.
The devastation of what we see in the landscape of health care is so
overwhelming that something has to be done. As we were deliberating
over this legislation, I really felt we were moving to a point where we
would have the entire House embracing this one issue as a bipartisan
issue, because the stories are not respecting whether you are a
Democrat or a Republican.
So I would simply say the gentleman is so right, we should emphasize
this idea of enforcement. But it is not the anchor of this bill. The
anchor of this bill is patient protection.
The last point that I think is extremely important, as our Chairman
of the American Medical Association said, Dr. Smoke, doctors were
rising up around the Nation, in State capitals all over the Nation,
arguing for the Patient Bill of Rights on the patient-doctor
relationship. I think that should be a signal as to which direction
this house should go in voting for a real bill that protects those who
cannot speak for themselves.
Mr. PALLONE. Mr. Speaker, I thank the gentlewoman for her
participation in this special order.

____________________