[Congressional Record Volume 144, Number 100 (Thursday, July 23, 1998)]
[Senate]
[Pages S8881-S8886]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PATIENTS' BILL OF RIGHTS
Mr. KENNEDY. Mr. President, on February 25, 1997, a number of us
introduced the Patients' Bill of Rights. Since that time, the
Republican leadership has sought to delay and deny action. The
leadership and Senator Gramm have made it very clear that they are not
yet willing to allow a free and fair debate.
Mr. LOTT. Mr. President, will the Senator yield?
Mr. KENNEDY. I yield without losing my right to the floor.
Mr. LOTT. I would like to say to the Senator that we would be glad to
agree to have this debate and go forward with the Patients' Bill of
Rights issue. I would like to begin thinking in terms of what we could
work out as a unanimous consent agreement. Going back to June 18,
originally it was suggested that Senator Kennedy's bill be up and we
have an alternative, and that we have a good debate and vote. That is
fine. Let's do that. Then I suggested, well, if we could get some time
agreements on when we could complete it, with some limited amount of
amendments, we could do that. I don't think 40 would be considered
reasonable.
But I am saying to the Senator that I would like to work something
out. I am hoping that next week, Wednesday or Thursday, we are going to
get to this and get it done before we go home for the August recess
period.
I just want to say that we are ready. We would like to do this.
Beginning next week, I am going to start asking unanimous consent
requests to actually get it done, because we are ready to go to a vote.
But we also have other things. And Senator Kennedy has been
cooperative. We have been working to get issues done. We need to try to
do that and allow time for a full and fair debate on this issue. We
would be glad to do that.
I just wanted to make sure he was aware that we are willing to do
that.
Mr. KENNEDY. Mr. President, I have heard that same explanation, with
all respect, by the majority leader for some period of time.
I want to just review, since the majority leader is on the floor at
the present time--we had the budget resolution. We had 7 days of
debate. We had 105 amendments. Defense authorization, we had 6 days of
debate, 150 amendments; Internal Revenue Service restructuring, 8 days
of debate, 13 amendments. We had tobacco, 17 days and scores of
amendments; agriculture, 5 days of debate and 55 amendments. The
Senator now is saying, Well, we will bring it up next week, just before
we get out, and have a vote on your amendment or the Daschle bill and/
or the Republican proposal.
Mr. President, I just wonder why we can't have a full debate on the
comparison between the emergency room provisions of the Republican
guarantees and those in the Patients' Bill of Rights.
I intend to talk about those--now I have the floor. I have the floor.
I am glad to yield--but when I inquired of the leader on other
occasions, he gave us that other little answer about, ``We are going to
come to this sometime when we are ready to come to it, some other time,
next week, and maybe Wednesday, or Thursday, just before we go out we
will have some proposal.'' We are just spelling out now what has been
included in these different bills and why it is important to have a
full and fair debate on them.
We have seen and we know what the leadership's position has been
until the very recent days, and that has been to refuse to permit us to
have a markup in our committee, refused us to be able to even have
scheduling. I have seen the list of the Republican leadership, and it
never was on the list of the Republican leadership in terms of
priorities.
Now we are glad that last Friday there was the publication of the
``Republican Bill of Rights.'' That was last Friday. But I want to just
review, since the leader mentioned the proposal that was put forward by
the leader. This was, I believe, the June proposal that was put forward
by the majority leader.
I ask unanimous consent that prior to the August recess
[June 18, that was 4 weeks before, June 18] prior to the
August recess, the majority leader, after notification to the
minority leader, shall turn to the consideration of a bill to
be introduced by the majority leader [no information about
what that is] or his designee, regarding health care [and
further] I ask the Senate to proceed to its immediate
consideration; and that, following the reporting . . . by the
clerk, Senator Daschle, or his designee, be recognized to
offer a substitute to the text of S. 1891 as introduced on
March 31.
That isn't our bill.
Now, it goes on. It does not include the right to hold the plans
accountable. It does not include protecting people who buy their own
insurance policy.
Let me just go on.
I further ask that during the consideration of the health
care issue it be in order for Members to offer health care
amendments in
[[Page S8882]]
the first and second degree. I further ask unanimous consent
that the Chair not entertain a motion to adjourn or recess
for the August recess prior to a vote on or in relation to
the majority leader's bill and the minority leader's
amendment, and that following those votes it be in order for
the majority leader to return the legislation to the
calendar.
Even if we win the vote, the majority leader has the ability to send
it to the calendar--not send it over to the House of Representatives,
send it to the calendar, even if we win that proposal.
Now, it continues.
Finally, I ask unanimous consent that it not be in order to
offer any legislation, motion or amendment relative to health
care prior to the initiation of the agreement and following
the execution of the agreement.
Not be in order to offer any legislation, motion or amendment to
health care.
Well, there it is, Mr. President. We are scared in the Senate. After
we have some vote, even if we survive, the majority leader can put it
back on the calendar, and under the consent agreement we can't even
talk about health care for the rest of the session; for the rest of the
session. That is what it says here, the rest of the session.
Now, that is the consent agreement that is referred to. ``I want to
remind the Senator from Massachusetts we keep asking the Democrats for
proposals on it.''
I don't know how long it took to reject that particular proposal, but
there it is. In all the time I have been in the Senate, this is really
the most preposterous proposal, consent agreement I have ever heard,
that if you are going to be successful and win, instead of sending the
bill over to the House, you put it right back on the calendar, and you
cannot have a vote on the legislation. And then after that, you can't
bring up any issue relating to health for the rest of the session--
nothing on privacy, nothing on expanding the whole Medicare system in
terms of purchasing, the possibility for elderly citizens to buy into
the Medicare system, no way. Nothing dealing with any of the issues
dealing with health care. That is the proposal and that is what we are
supposed to say, ``Oh, what a fair proposal this is.''
And so we have the Republican proposal that was introduced last
Friday. Now, we have no interest in delay of the legislation. We have
been asking for action for 18 months. We insist on a fair debate on
accountability. That is what we are asking, fair debate on
accountability. We have had scores of amendments and days of debate on
other legislation, and we are entitled to fair debate on accountability
on these measures.
There are dramatic differences on these measures. I will take a few
moments to get into some of those.
Senator Daschle made a series of formal offers on July 16th, asking
for a debate beginning on July 21 with 20 amendments on a side. It is
almost a week later and all we have is that maybe sometime Wednesday or
Thursday next week we may have time to have a debate on an issue which
is of paramount importance for the parents and families of the people
of this country.
So this is not an unreasonable request given the importance of this
bill and the large number of loopholes in the Republican proposal which
will be the bill in the Chamber.
We had, as I mentioned, days of debate on the budget resolution, 6
days of debate on defense authorization, 150 amendments. We had 8 days
of debate on the Internal Revenue bill, just concluded 5 days of debate
and 55 amendments on the agricultural appropriations bill.
This is the most important health care bill that this Congress will
consider, and we are now told by the majority leader that maybe
sometime next week he will make a request that we deal with this in 2
days. We had 8 days, as I mentioned, on the Internal Revenue bill, and
5 days of debate, as I mentioned, on agriculture. Now, the majority
leader and Senator Gramm are insisting the only way they will debate
the issue is up or down on their bill and one vote and that is it.
The American people deserve to know where their Members stand on a
number of critical issues that are essential to patient protection. The
Senate deserves an opportunity to amend and improve the Republican
bill. It is not unreasonable to ask Members where they stand on whether
protections should apply to all 161 million privately ensured Americans
or leave 100 million out. The Republican proposal leaves out more than
100 million Americans. Now, maybe they have good reason to do so. Their
answer is the States are doing it. Well, we ought to have an
opportunity to find out and discuss what the States are doing and how
much they are doing and how effective it is, given the kinds of
concerns that patients have. Let's have a debate on that. But, oh, no.
No, no, we don't have time to get into the fact of whether their
measure will just cover 48 million and exclude 110 million, or cover
all of them. It is a pretty important issue, it seems to me, Mr.
President.
Is it unreasonable to ask Members where they stand on allowing a sick
child with rare cancer access to a specialist to treat that particular
disease?
We had very powerful testimony this morning from a very outstanding
oncologist, a specialist who has been operating primarily on women with
breast cancer, and she was, with tears in her eyes, talking about the
various patients she is treating now who come to her with these various
tumors in their breasts. And she looks at the first part of the chart
and finds out what the size of that particular tumor was when it was
first diagnosed and then what it is on the day that she is there called
upon to operate.
She says the time that lapses between the first discovery of those
biopsies, which demonstrate that the tumors are cancerous, to the time
she gets to see them is often the difference between life and death and
more often than not, as she looks over the various files that she gets
of various women, the ones with the largest gaps are the ones who are
part of HMOs and the procedures that have been denied.
Or listen to the doctor who was talking today about a particular
procedure that was going to be necessary for a child who was having
constant headaches, and the doctor said, ``What we need is an MRI,''
and the HMO turned that down. Under the Republican bill, since the cost
of that MRI was $750, that decision would not be able to be appealed.
It was less than $1,000. This was a family of five, income of $30,000.
The difficulty of that family was having the $750.
And do you know what the family did? They went down to the county
hospital--the county hospital. After a period of time, they were able
to get that MRI in the county hospital to find out about the needs of
that particular child. You know something. The taxpayers picked up the
tab for that. And the bottom line of that HMO looked better and better
because they didn't have to pay for that important service which the
subscriber had effectively paid for when they signed on for the health
care coverage.
Mr. President, we ought to be able to talk and debate about what is
going to happen, what kind of protections are we going to give doctors
when they speak out for their patients in the HMO system. Are they
going to be under the Republican program which still permits doctors to
be fired if they object to prescribing certain procedures to patients
that are not desired or approved by an HMO? Shouldn't we provide
protections for doctors that are looking out for their patients? It is
not in the Republican bill. Shouldn't we have a time to debate that
issue out here to find out about it?
What about the independent and timely third party review? Do the
Members know that on the independent review, under the Republican
program, those who are going to be paid to review the various
procedures which are being reviewed and appealed are going to be paid
for by the HMO, the same HMO? Do they know the restrictions in the
Republican proposal in terms of the limitations for the types of
procedures that can be appealed? We don't want to debate that?
I can understand why the Republican leadership doesn't want to debate
it. Because it is indefensible. It is indefensible. We ought to debate
it.
And access to clinical trials, an enormously important issue,
particularly for individuals who have some of the most serious
illnesses in our society, we are going to say or give assurance to
those who may have breast cancer--are we going to exclude them from
participation in those clinical trials? It is an important distinction
between the
[[Page S8883]]
Republican proposal and our Patients' Bill of Rights.
We have the continuity of care. When a family has a doctor they are
seeing and that doctor is dropped from a particular program, under our
proposal we provide that there is going to be a continuity of care.
Perhaps it is an expectant mother who is going to deliver and, for one
reason or another, that doctor is dropped from the particular plan. We
give assurances.
So does the Republican program. Listen to this. If the employer,
however, makes a judgment to change the plans in the middle of the
year, and that doctor is treating this same patient, under the
Republican program there is no longer continuity of care. Both programs
show continuity of care. You have to read the small print; you have to
understand what the small print says. Shouldn't we have an opportunity
to debate that issue?
The whole question of accountability is something that demands an
opportunity to debate that issue. We are talking about the protection
that is given to 23 million Americans, county and State employees; 11
million Americans who have private insurance companies. There is no
indication there is any escalation of their costs in their program,
nothing showing that has been introduced here in the Senate. Some have
tried to represent these as extraordinary escalations of cost, but
there is no indication, nothing has been put in the Record. What has
been put in the Record is these 23 million Americans. In CalPERS, in
California, they have this system with accountability and liability
built in so they can hold the HMOs accountable, and there is no
apparent increase in the cost of those programs.
Basically, what we are saying is very simple, a very simple concept
at the heart of our proposals and which I believe the Republicans have
to be able to defend, because it is lacking in their proposal and it is
worthy of debate. That issue alone is worth hours of debate here in the
U.S. Senate, with the American people watching, because we believe that
ultimately the judgment and decision on medical decisions ought to be
made by the doctors and the patients, and not by accountants of
insurance companies for the profits of those particular insurance
companies. That is a basic and fundamental core difference. We ensure
that is going to be the case with a number of different protections in
our bill. That kind of assurance is lacking in the Republican bill.
There will be those who say, ``No, it is not lacking.'' We ought to
have a chance to debate, so the American people can make up their own
minds and find out whether it is lacking. We can get the legislation
out and show where it is lacking. But that is something basic and
fundamental.
We also believe we ought to be able to leave it up to the States to
make those judgments and decisions on calling the tune on the issues of
accountability and liability. We hear a great deal around this body
about ``one size does not fit all,'' that all knowledge is not in
Washington, DC, or on the floor of the U.S. Senate; that the States
have some awareness and understanding about these issues and problems.
How many times have we heard that speech? You have heard the speech,
but you will not hear it when we are debating the Patients' Bill of
Rights. You will not hear it because our proposal leaves it up to the
States to be able to enforce the issues of accountability. We leave it
up to the States to be able to do so. Not the Republican leadership
program. They effectively preclude the States from having any voice--
shut them out, shut out the States.
I hope we don't hear that argument about the importance of all
knowledge failing to be in the U.S. Congress and Senate, so let the
States decide. That is not going to be an argument you will hear,
because under the Republican proposal they will not let the States
decide.
What is the issue we are talking about? We are talking about a
medical decision that is made by the doctor and the patient, which is
overruled by the HMO and causes grievous injury to that individual--
maybe life or serious illness; maybe a mother or father, trying to make
sure those children and the members of the family are not just going to
be left homeless, without any kind of compensation for the decision
that is being made for the profits of that particular industry
overriding the clear medical decisions. There has to be accountability.
There has to be accountability.
We have seen effective programs which we have built into programs on
appeals, internal appeals and external appeals, that also have
accountability. It works. We improve and strengthen the quality of
those programs. We have 11 million Americans--11 million Americans--who
have independent insurance programs that have this kind of
accountability. It works for them.
So we have 34 million Americans who have this kind of protection, but
we are asked to exclude it, to deny the States from even letting those
citizens who live in that State who want it from having it. That is
part of the Republican program. Don't we think that is worthy of a
debate? Do you want to muzzle us from having some kind of debate and
discussion on that particular issue? That just does not make sense.
Mr. President, when the leadership wants to go ahead on these
appropriations, I am glad to yield the floor so the Senate can move
ahead on Senate business. But I want to just make a final few comments.
Mr. President, I believe the Republicans have abandoned their 16-
month-long pattern of stonewalling our Patients' Bill of Rights. Now
they have produced a plan that borrows the name of our legislation and
nothing else. The Senate Republican plan is not a bill of rights, it is
a bill of wrongs. The Senate Republican plan is even weaker than the
House Republican plan. It is a ``Gingrich lite.'' It protects industry
profits instead of protecting patients, and it is so riddled with
loopholes, it is a license for continued abuse. It allows insurance
company accountants to continue to make medical decisions, and not
doctors and patients.
It is very interesting that 170 organizations that represent doctors,
patients, and nurses support our program. And who supports the
Republican program? The insurance industry and the HMOs. Does that tell
you something? Does that tell you something? Mr. President, on this
issue it tells us a great deal. This is not a question where we have
some ideas, and half the doctors in the country and half the patients'
organizations say this is a better idea, and our colleagues on the
other side have half of them, and people can say, ``Why don't you get
together?''
They don't have them. They don't have them. They don't have the
principal organizations. I will be glad to hear any organizations
representing health professionals or patients groups that they have.
We still haven't heard. I can't believe if you didn't have them, they
wouldn't have them out there. We have them. They support our program.
They support the real Patients' Bill of Rights.
But they do have the health insurance industry and they have the HMO
organizations, the trade organizations that represent HMOs--they
support their program.
Mr. President, we believe that patients with cancer and heart disease
and other serious illnesses will not have timely access to specialists
and the treatment they need. It immunizes managed care plans from
liability for abuses that injure or even kill a patient. No other
industry in America has this immunity from any liability which the
health insurance industry has and which is protected in the Republican
program, and the managed care industry doesn't deserve it either.
Most of the minimal protections in the Republican leadership plan do
not even apply, as I mentioned, to the majority of Americans. Two-
thirds of the people with private insurance, more than 100 million
Americans, will not benefit from the Senate Republican plan. The HMOs
are effectively exempt from regulation under their plan because most of
their standards apply only to employer-based, self-funded plans. Let me
repeat that. Most of the standards in the legislation do not even apply
to the HMOs, only to employer-based, self-funded plans covering about a
third of privately insured Americans.
Even if the Senate Republican leadership plan was passed, 100 million
Americans would be left out. This is unacceptable to the American
people and should be unacceptable to the Senate.
The Senate leadership introduced their legislation on Friday. I
reviewed
[[Page S8884]]
the print over the weekend, and the sum total of what is not in their
plan at all is staggering. The fact that these minimal protections only
apply to a third of the people who need help is shocking. But the
disinformation campaign does not end there. Even the protections they
claim to have provided turn out, in most cases, to be less than half a
loaf.
In my time, I have seen special interest protection programs
masquerading as consumer protection programs many times, but I have
never seen anything as indefensible as this. The Republican plan does
not include many key protections.
There is no provision to prevent health plans from arbitrarily
interfering with the decisions of the doctors.
There is no provision to guarantee access to necessary speciality
care.
There is no provision to allow individuals killed or injured by plan
abuse to hold the plans liable.
There is no provision to allow participation in clinical trials.
There is no provision to allow access to prescription drugs not on a
plan formulary.
There is no provision for continuity of care when an employer
switches plans.
There is no effective ban on plan practices which gag physicians; no
limits on improper incentive arrangements.
We were looking to address this issue of gagging the physician. They
say, ``Oh, yes, we have that; we have a provision that says we will not
gag physicians.'' The problem is, unless you address the firing clauses
of the HMOs that permit the heads of the HMOs to fire doctors whenever
they want, then the gag provisions are meaningless, because they can
say, ``OK, you can go out and talk all you like, but you're not coming
in to work tomorrow.'' Let's get real on this, Mr. President. That is
effectively what the Republican program does.
It has no prohibitions against these financial incentives for
doctors. It won't publish financial incentives for doctors so that the
public, in reviewing a plan, can find out if a doctor has financial
incentives for providing certain kinds of treatment and not providing
others, which is happening today. We have given examples of those types
of procedures. There are no protections for that.
It does not include a requirement for comparative plan quality
information. You cannot find out about the consumers', the patients',
satisfaction. You can't find that out. If you ask to find that out,
they say, ``Well, that's going to be too bureaucratic; that is going to
require too much paperwork; that is going to be a rule or regulation,
it is going to be a Federal Government rule or regulation, that is
going to raise costs for these particular programs.''
What we are talking about is patient satisfaction, patients staying
in these programs: Are they satisfied with these programs? Good ones
provide that, Mr. President. These are the elements that are left out
of the Republican plan entirely, but even those essentially included
are full of loopholes.
The Republicans say they protect you if you need emergency room care,
but they have included less than half of the protections provided by
the Democratic plan or even the protections that are already included
in Medicare. I wonder how many of our colleagues know that the
protection that they have indicated on the prudent layperson, prudent
layman standard is an entirely different one from the one that is in
Medicare. Who would have known that?
Mr. BIDEN. Will the Senator yield for a question?
Mr. KENNEDY. I will be glad to yield.
Mr. BIDEN. I know the Senator knows a great deal about this, but I
watched the press conference our Republican colleagues held hailing
their Patients' Bill of Rights. You just went through and will continue
to go through all the things they left out. I find it very curious the
things they say are in their bill, which, in fact, are not in their
bill.
One, they say that a woman can pick as a primary care physician an
ob/gyn. Second, they advertise that this means you have access to the
emergency room. Third, they talk about continuity of doctors so they
say you can choose your doctor. And fourth, they say no gag rule. This
is the party of gag rule, and now they say no gag rule. I kind of
respected them when they were just flat out saying they were just
against any of this.
Does the Senator have an explanation as to why they would pick the
four most often stated complaints of the American public and suggest
that their bill covers those things? It just seems strange to me that
the party of the gag rule says they want an antigag rule, and yet there
still is no antigag rule; that the party that said when they were going
after Clinton's health plan, you should be able to choose your own
doctor, will not allow you to choose a specialist or choose the doctor
you need; that the party that suggested the costs of the Clinton plan
were too high and everyone could just go to the emergency room are not,
in fact, providing access to emergency room care the way in which the
American public is looking at it. Why did they pick these four things
to say they were for and not any of the rest? Is there some strategy
here I am missing?
Mr. KENNEDY. Those happen to be the ones that have shown the highest
in the polls. I am not saying that is the reason they selected them
necessarily. As the Senator was going over them, I was writing them
down. Those are the ones that are the top in terms of the polls.
I say to the Senator, what I would like to ask him is, here the
Republicans talk about the market forces, that we ought to let people,
consumers, make judgments on the basis of information. Under our
proposal, we have tried to have information so that people can make the
judgment and decisions with regard to their health care plan. Patient
satisfaction, for example. Patient satisfaction--not very difficult.
Most of the good ones show that in any event.
Absolutely not, they point out, and say: We are not going to provide
or support any of that additional information because that is a
bureaucratic ruling; it is going to cost the HMO more to require that;
therefore, we cannot support even that particular proposal.
But the Senator is quite right. They use these words, ``speciality
care,'' ``emergency room,'' and the ``gag rule.''
The spokesperson for the College of Emergency Physicians visited with
us today. I think the Senator was there at the time. She reviewed
instance after instance after instance where just the words, ``the
protections of access to the emergency room,'' were vacant and empty
and without the protections that are included in the Patients' Bill of
Rights and resulted, in one instance, in the loss of a leg of a young
child, the horrific condition of a young girl who had a serious
dislocation and her vital signs dropped dramatically and was in real
danger of death, and other instances that were taking place in the
emergency room.
Mr. BIDEN. Well, let me say to the Senator that I, quite frankly,
admired--disagreed, but admired--my Republican colleagues when they
made no bones about the fact that they did not want any interference in
any way by the Government to do anything about HMOs. At least theirs
was a principled stand. They said, ``Look, the insurance companies, in
driving down costs, are more important than all these other factors.
We're not going to do anything.''
What bothers me--and this is me; you are not saying this, I know it,
but I am saying it--what bothers me is the apparent cynicism of picking
four items which most often my constituency speaks to, to say they are
covered, and nothing else. And even when you look into those four
items, they are not really covered.
They are going to be going around--and the insurance companies are
spending tens of millions of dollars in ads--saying, ``We want you to
have the right to choose a doctor.''
Wait a minute. That is what they said before. But under the
Republican bill, the American people can't choose their doctor, if the
doctor they happen to need is a specialist, if the doctor they happen
to need is in an emergency room and they don't meet the standard that
the HMO sets.
I have not been nearly as involved in this debate as my friend from
Massachusetts. And as the old joke goes: He has forgotten more about
health care than I am going to learn. But I would
[[Page S8885]]
feel better about what is going on here if the Republicans said what
they truly believe, ``Hey, look, we're not changing our position. We
don't think you should be able to choose your own doctor. We don't
think there should be an antigag rule. We don't think you should change
the requirements to get emergency room access. We don't think that a
woman should be able to choose her gynecologist as her primary
physician.''
Let me tell you what I think they figured out. I know of no wrath
like that of the wrath of a woman who says, ``I can't go to the doctor
that I need and trust the most.'' And so they seem to be yielding only
in places--and only in part--where the loudest cries are coming from.
But, there are so many, many, many, many loopholes in what they say
they are doing, and so much they leave out.
I kind of yearn for the day when they just stood up on the floor like
they do on guns and say, ``Hey, look, guns are not bad. You know, guns
don't kill people. People kill people.'' I kind of like that. I admire
it. But this, I don't know.
There will be a multimillion-dollar campaign we are all going to
endure, and you do not have to be a rocket scientist to figure out
where this is going before this is all over. And I expect I am going to
hear your name mentioned a couple hundred thousand times before this is
over, too. But at any rate, I thank you for answering my question.
Mr. KENNEDY. I thank the Senator for his interest and also his strong
advocacy in terms of the people in his State on this issue. We want you
to know that we are still committed to trying to get something worked
out. This matter is too important for the reasons that the Senator has
outlined. We still want to try and get something worked out. We had
been taking a long time before we could get even the recognition of a
bill on the other side. Now we ought to go about what is in the best
interest of the patients in this country.
I just mention, finally, to the Senator, what I was just talking
about: Every doctors organization, every nurses organization, every
health professional and patients organization supports our proposal. We
have not got a single one on the other side except the health insurance
companies and the HMO plans on it. So we want to try and work this out.
We are going to do the best that we can. But we are not going to yield
in terms of protecting the interests of the consumers.
I thank the Senator.
Mr. BIDEN. I thank the Senator.
Mr. KENNEDY. I want to take just a few moments to review this very
moving testimony in terms of the emergency rooms. These are comments
made by Dr. Charlotte Yeh, who is the Chair of the Federal Government
Affairs Committee for the American College of Emergency Physicians. And
these are comments that she made.
In Boston, a boy's leg was seriously injured in an auto
accident. At a nearby hospital, emergency doctors told the
parents he would need vascular surgery to save his leg and a
surgeon was ready and available in the hospital.
Unfortunately, for this young man, his insurer insisted he
be transferred to an ``in-network'' hospital for the surgery.
His parents were told if they allowed the operation to be
done anywhere else, they would be responsible for the bill.
They agreed to the move. Surgery was performed three hours
after the accident. But by then, it was too late to save his
leg.
These are not episodes from the TV program, ``ER.'' These
are not anecdotes. They are real people with real lives.
A bipartisan majority in the Congress has called for
enactment of standards that will put an end to episodes like
the ones I just described. Last year, the Congress adopted
the prudent layperson standard and other protections for
Medicare and Medicaid patients seeking emergency care. We
thought there was a consensus on this issue!
There was consensus on this issue, Mr. President.
Just a few weeks ago, we were delighted to see that
Republican Task Forces in both the House and Senate had
decided to include the ``prudent layperson'' standard in
their respective protection measures.
But we are very disturbed about the way in which the
emergency services protections were drafted in the Republican
``Patient Protection Act.'' As a physician, it seems that a
little unnecessary surgery was performed on the ``prudent
layperson'' standard to the point where it is barely
recognizable as the consumer protection we envisioned.
What is the difference between the real ``prudent
layperson'' standard included in the ``Balanced Budget Act''
and the Democratic ``Patients' Bill of Rights'' and the
``imposture'' that has been included in the GOP ``Patient
Protection Act''?
The GOP Patient Protection Act would establish a weaker
coverage standard for privately insured patients than what
exists for Medicare and Medicaid patients.
It gets back to what they are talking about. The name of the
legislation--Senator Daschle--they take the various code words going
down the line. They took the ``prudent layperson'' definition, and then
they altered and changed it. These are the emergency physicians that I
am reading from.
The GOP Patient Protection Act establishes a weaker coverage standard
for privately insured patients than for the Medicare and Medicaid
patients. The Democratic bill will provide the same protections for all
patients.
The GOP Patient Protection Act establishes a two-tiered
test for coverage of emergency services and guarantees
coverage only for a ``screening examination.''
The Democratic bill would require that health plans cover
all services necessary to evaluate and stabilize the patient
to anyone who meets the prudent layperson standard--no
questions asked!
The GOP Patient Protection Act sets no limits on the amount
of cost-sharing the managed care plans would be allowed to
charge patients who seek emergency services from a non-
network provider.
You get it? They have a prudent layperson. They further define it to
mean less in terms of health care protections. And then they include
copays. So if they go there, they are going to have to pay up through
the nose for it.
Don't you think we ought to be able to discuss that on the floor of
the U.S. Senate, to see which way this body wants to go on that
particular protection for emergency rooms, for consumers of this
country? No. We can't--evidently, no. No. We haven't got time. We
haven't got time to be able to ask our Republican friends, Why did you
do it this way? Why did you change it? Why did you change it?
Well, I think it is quite clear why they changed it, because the
insurance industry wanted them to change it. The GOP Patient Protection
Act sets no limits on the cost-sharing.
The Democratic bill would protect patients who reasonably seek
emergency services to protect their health from being charged
unreasonable copays and deductibles.
We protect the consumer.
The GOP Patient Protection Act sets no guidelines for the
coordination of poststabilization care, making it possible for
emergency physicians to coordinate and obtain authorization for
necessary follow-up care with the managed care plans.
The Democratic bill would require the health plans to
adhere to new Federal guidelines that require managed care
plans to be available to coordinate poststabilization care,
instead of just permitting the managed plan to turn off the
phone at 5 o'clock.
Obviously--
And I continue now with her statement:
we are very troubled by the changes to the ``prudent
layperson'' standard in the ``Patient Protection Act.''
Our assessment is that this legislation--
Now, these are the emergency room physicians. There isn't a family in
this country that does not have some concern--they have children or
parents; loved ones--about the importance of having an emergency room
that is going to look after an emergency, that is going to affect the
family. And there isn't a person that is listening to this program,
watching it, that has not had to spend time in an emergency room
themselves or their loved ones in a family.
It is very important. And what is happening out there with regard to
HMOs, in too many instances, is that they are putting the interests of
the insurance industry ahead of the emergency needs of the
patient. That isn't what I am saying, although it is what the emergency
room doctors are saying.
This is their final assessment:
Our assessment is that this legislation--
[1.] Will provide less protection for privately insured
patients than for Medicare and Medicaid patients.
[2.] Will lead to more coverage disputes, not less. [Do we
hear that--will lead to more coverage disputes, not less.]
[3.] Will create even more barriers, not fewer.
[4.] Will create new loopholes for managed care plans to
deny coverage of emergency services.
These are the doctors who are dedicated and committed to providing
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emergency services to the people. That is their assessment, and we are
not going to be permitted to debate and discuss the impact of the
Republican bill on the patients of this country as compared to our
Patients' Bill of Rights. We are going to be denied that opportunity,
Mr. President?
In four years, we have come so far, but we cannot support
these provisions in their current form. We will do everything
in our power to ensure the ``prudent layperson'' standard
that is enacted will be consistent with the meaningful
protections that Congress enacted for Medicare and Medicaid
beneficiaries. Hard-working Americans who pay their premiums
deserve no less.
Now, Mr. President, I will conclude in just a moment. I want to sum
up where I think we are in this whole experience. During recent years,
we have seen a very dramatic shift from the indemnity health care
provisions to the HMOs. We have seen the ERISA provisions that were
developed in the early 1970s which exclude liability protections for
American consumers. Those particular provisions were developed to
protect pensions--it wasn't really thought about in terms of the
application of these provisions of the law in terms of health care
plans. If you go back and read the discussion and the debate, it wasn't
really considered. It was there to protect pensions, and it has worked
reasonably well to protect pensions.
It hasn't worked to protect the patients in these programs.
Nonetheless, we have seen the growth of the HMOs. And we have some
outstanding health maintenance organizations. We have some of the best
in my own State of Massachusetts. The basic concept behind the HMOs was
to try to create the financial incentive for keeping people healthier
so that the various health organizations would encourage the preventive
health care measures, and by keeping people healthier, on what we call
a ``capitation'' program--that is, that the HMO gets a certain payment
for an individual; if they keep them healthier, then the HMO's
financial situation improves. That made a good deal of sense.
In the better HMOs it works, and it works effectively. The problem is
you have many at the lower end that are reflecting the kinds of abuses
we have talked about here today. They have to be corrected. They should
be corrected.
Legislation has been introduced, and we have been excluded from the
opportunity of having it scheduled. Now we have, finally, the
Republican leadership's provisions, which were introduced in the Senate
last Friday, and we still have no time that has been set aside.
When you look over the range of different provisions in this
legislation and the importance of this, we need to have a reasonable
opportunity to debate and discuss these measures. The best we were able
to get out of the Republican leadership initially was that, ``We are
not going to schedule what we don't want to schedule.'' That is what I
heard on the floor of the U.S. Senate about 2 weeks ago. Then we heard
that, ``We are developing a program and will schedule this when we want
to schedule it.'' Then we see the legislation that has been introduced.
Now we are told, ``We may or may not get to that in the day or two
before the designated recess.''
There is not a measure that affects families in this country that is
more important than the Patients' Bill of Rights. It deserves full
debate and discussion and thoughtful consideration. It deserves the
best judgment of all of the Members, and it deserves a bipartisan
resolution at the end to try to see that we do something that is
meaningful to provide protections for families. What will be
unacceptable is some kind of a toothless piece of legislation that
picks up the buzzwords but fails to provide the protections for the
American people.
I hope we can get about the business of having this debate and having
this result. Every day we delay, we fail to protect our fellow
citizens. This issue is not one that is getting better; it is one which
cries out for action. It cries out for action now. The earlier, the
better.
I yield the floor.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. NICKLES. Will the Senator yield?
Mr. SHELBY. I yield to the distinguished Senator from Oklahoma.
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