[Congressional Record Volume 144, Number 108 (Tuesday, August 4, 1998)]
[House]
[Pages H7002-H7003]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     PATIENT PROTECTION LEGISLATION

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 21, 1997, the gentleman from Iowa (Mr. Ganske) is recognized 
during morning hour debates for 5 minutes.
  Mr. GANSKE. Madam Speaker, a week ago we had a debate on the floor of 
Congress here concerning patient protection legislation. It has been 
clear all along that there were major differences that needed to be 
worked out between the Patient Bill of Rights, the bill that I 
supported, a bipartisan bill, sometimes referred to as the Democratic 
bill, and the Republican bill, the Patient Protection Act. But it 
seemed as if at least there was some consensus on some of the basic 
fundamentals. For instance, a layperson's definition of emergency; or, 
for instance, provisions related to privacy.
  However, as I warned several of my GOP colleagues, be careful in 
voting for the Republican bill, the Patient Protection Act. We may find 
that it is a pig in a poke because of the legislative language.
  Today I would draw my colleagues' attention to an article in The New 
York Times by Robert Pear: ``Common Ground on Patient Rights Hides a 
Chasm.'' Looking at the details of the House Republican plan shows that 
there are major differences even in areas where it seemed as if the two 
sides were in agreement. For instance, both sides were saying we are 
for a layperson's definition for emergency care; we both agree in the 
privacy of patient records.
  When Members start to read the details of the Republican plan, I 
think they are going to be surprised. For instance, it would have 
seemed easy to have achieved consensus on a layperson's definition of 
an emergency. After all, this Congress passed a year ago, or in the 
104th Congress, a provision on the layperson's definition for Medicare, 
a Federal health program that provides for 38 million people. But when 
we read the fine print of the House Republican's bill, the Patient 
Protection Act, which was introduced by the gentleman from Georgia (Mr. 
Gingrich) and passed 8 days later by a vote of 216-to-10, we find out 
that there are some significant differences.
  The Patient Bill of Rights would require HMOs and insurance companies 
to cover emergency services for subscribers ``without the need for any 
prior authorization,'' regardless of whether the doctor or hospital was 
affiliated with the patient's health plan.
  Emergency services as defined in the bill include a medical screening 
examination to evaluate the patient and further treatment that may be 
required to stabilize that patient's conditions. The HMO would have to 
cover those services if ``A prudent layperson who possesses an average 
knowledge of health and medicine could reasonably expect an absence of 
immediate medical attention to cause serious harm.''
  By contrast, the House and Senate Republican bills would establish a 
two-step test. An HMO or insurance company would have to cover the 
initial screening examination if a prudent layperson would consider it 
necessary. But, the health plan would have to pay for additional 
emergencies only if ``A prudent emergency medical professional'' would 
judge them necessary. And under the GOP bill, the Patient Protection 
Act, the need for such services must be certified in writing by ``an 
appropriate physician.''
  The Speaker said the Republican bill would guarantee coverage for 
``anyone who has a practical layman's feeling that they need emergency 
care.'' But that is not what is really in the bill.
  That bill was rushed through at the last minute, there were no 
hearings on the bill, and so what we have is a situation where the 
provisions that we passed in Medicare for a layperson's definition have 
been significantly watered down. There is no guarantee in the 
Republican bill that the cost ultimately for a patient going to the 
emergency room with crushing chest pain, severe pain, would, in the 
end, be covered by their HMO.
  The Congressional Budget Office estimates that the Patient Bill of 
Rights would require HMOs to pay for emergency room visits in half the 
cases where they now deny payment. It says, the charge for emergency 
care outside the HMO is typically 50 percent higher than hospitals in 
the HMO network. Remember, when we look at the details of the GOP plan, 
there is a provision in there that says, one has to go to the HMO 
hospital or else one could be left with a large, large bill.
  Look at the details, I say to my colleagues, and let us try to fix 
this in the long run.

                [From the New York Times, Aug. 4, 1998]

             Common Ground on Patient Rights Hides a Chasm

                            (By Robert Pear)

       Washington, August 3.--It has been clear that there are 
     major differences to be worked out between the Democratic and 
     Republic bills on patient rights.
       But a look at the details of the House Republic plan shows 
     that there are also major differences in important areas on 
     which the two sides had seemed to agree.
       The disagreements are illustrated in two areas: emergency 
     medical services and the privacy of patients' medical 
     records.
       At first, it appeared that members of Congress agreed that 
     health maintenance organizations should be required pay for 
     emergency medical care. And they seemed to

[[Page H7003]]

     agree on a standard, promising ready access to emergency care 
     whenever ``a prudent lay person'' would consider it 
     necessary. After all, that was the standard set by Congress 
     last year for Medicare, the Federal health program for 38 
     million people who are elderly or disabled.
       But the consensus dissolved when emergency physicians read 
     the fine print of the House Republicans' bill, the Patient 
     Protection Act, which was introduced on July 16 by Speaker 
     Newt Gingrich and passed eight days later by a vote of 216 to 
     210.
       Since 1986, the Government has required hospitals to 
     provide emergency care for anyone who needs and requests it. 
     But the question of who should pay for such care has provoked 
     many disputes among insurers, hospitals and patients.
       The Democratic bill would require H.M.O.'s and insurance 
     companies to cover emergency services for subscribers, 
     ``without the need for any prior authorization,'' regardless 
     of whether the doctor or hospital was affiliated with the 
     patient's health plan. Emergency services, as defined in the 
     bill, include a medical screening examination to evaluate the 
     patient and any further treatment that may be required to 
     stabilize the patient's condition.
       The H.M.O. would have to cover these services if ``a 
     prudent lay person, who possesses an average knowledge of 
     health and medicine, could reasonably expect the absence of 
     immediate medical attention'' to cause serious harm.
       By contrast, the House and Senate Republican bills would 
     establish a two-step test. An H.M.O. or an insurance company 
     would have to cover the initial screening examination if a 
     prudent lay person would consider it necessary. But the 
     health plan would have to pay for additional emergency 
     services only if ``a prudent emergency medical professional'' 
     would judge them necessary. And under the House Republican 
     bill, the need for such services must be certified in writing 
     by ``an appropriate physician.''
       Mr Gingrich said the Republicans' bill would guarantee 
     coverage for ``anybody who has a practical layman's feeling 
     that they need emergency care.''
       But Representative Benjamin L. Cardin, Democrat of 
     Maryland, said the bill ``is not going to do what they are 
     advertising.''
       One reason, Mr. Cardin said, is that the bill was rushed 
     through the House. ``There have been no hearings on the 
     Republican bill,'' he said. ``It did not go through any of 
     the committees of jurisdiction for the purpose of markup or 
     to try to get the drafting done correctly.''
       Under the Democratic bill, H.M.O. patients who receive 
     emergency care outside their health plan--whether in a 
     different city or close to home--may be charged no more than 
     they would have to pay for using a hospital affiliated with 
     the H.M.O. There is no such guarantee in the Republican 
     bills. And the cost to patients could be substantial.
       The Congressional Budget Office estimates that the 
     Democratic bill would require H.M.O.'s to pay for emergency 
     room visits in half the cases where they now deny payment. 
     And it says that the charge for emergency care outside the 
     H.M.O. is typically 50 percent higher than at hospitals in 
     the H.M.O. network.
       John H. Scott, director of the Washington office of the 
     American College of Emergency Physicians, said the 
     protections for patients were much weaker under the 
     Republican bills than under the Democratic bill or the 1997 
     Medicare law.
       ``We have more than a century of common law and court 
     decisions interpreting the standard of a prudent lay person, 
     or reasonable man, as it used to be called,'' Mr. Scott said. 
     ``But this new standard of a prudent emergency medical 
     professional was invented out of thin air. It creates new 
     opportunities for H.M.O.'s to second-guess the treating 
     physician and to deny payment for emergency services. It 
     would introduce a whole new level of dispute.''
       Dr. Charlotte S. Yeh, chief of emergency medicine at the 
     New England Medical Center in Boston, said, ``The Republicans 
     performed some unnecessary surgery on the `prudent lay 
     person' standard, to the point that it's hardly recognizable 
     as the consumer protection we envisioned.''
       The Senate adjourned on Friday for its summer vacation 
     without debating the legislation, but leaders of both parties 
     said they hoped to take it up in September. Senate 
     Republicans intend to take their bill directly to the floor, 
     bypassing committees, which normally scrutinize the details 
     of legislation.
       There was, and still is, plenty of common ground if 
     Republicans and Democrats want to compromise. Both parties' 
     bills would, for example, require H.M.O.'s to establish 
     safeguards to protect the confidentiality of medical records.
       But on this issue too, the details have provoked a furor. 
     When privacy advocates read the fine print of the House 
     Republican bill, they were surprised to find a provision that 
     explicitly authorizes the disclosure of information from a 
     person's medical records for the purpose of ``health care 
     operations.'' In the bill, that phrase is broadly defined to 
     include risk assessment, quality assessment, disease 
     management, underwriting, auditing and ``coordinating health 
     care.''
       Moreover, the House Republican bill would override state 
     laws that limit the use or disclosure of medical records for 
     those purposes.
       The House Republican bill says patients may inspect and 
     copy their records. But it stipulates that the patients must 
     ordinarily go to the original source--a laboratory, X-ray 
     clinic or pharmacy, for example--rather than to their health 
     plan for such information.
       Representative Bill Thomas, the California Republican who 
     is chairman of the Ways and Means Subcommittee on Health, 
     said the bill ``prohibits health care providers and health 
     plans from selling individually identifiable patient medical 
     records.''
       Still, privacy advocates say the bill would allow many uses 
     of personal health care data without the patients' consent.
       Robert M. Gellman, an expert on privacy and information 
     policy, said: ``The House-passed bill gives the appearance of 
     providing privacy rights. But it may actually take away 
     rights that people have today under state law or common 
     practice.''

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