[Congressional Record Volume 144, Number 115 (Thursday, September 3, 1998)]
[Senate]
[Pages S9901-S9903]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        PATIENTS' BILL OF RIGHTS

  Mr. BREAUX. Mr. President, I wish to make some comments this morning 
on the issue of the Patients' Bill of Rights which we have had so much 
discussion and dialogue about in recent months.
  As we all know in this body, the House of Representatives has 
actually passed a Patients' Bill of Rights. The fact that one chamber 
has passed legislation is the encouraging news. That is the good news. 
The bad news is that the Senate may not do anything about it. I think 
that would be unfortunate for all Americans who are concerned about 
making sure that their families, their children, have adequate access 
to quality health care in this country.
  The Patients' Bill of Rights, as I said, is now pending in the 
Senate. The battle now becomes: Do we bring it up? How do we bring it 
up? What happens to it? Are we going to let election year politics 
determine the fate of this very important piece of health care 
legislation?
  All of this reminds me of something we just went through not too long 
ago. For 4 or 5 weeks the Senate debated a tobacco bill. Do we all 
remember that? Do we all remember what happened to it? It never passed. 
It never passed because both sides were not able to get together and 
bridge the gap between what I consider to be relatively minor 
differences between the various pieces of legislation and we started 
blaming each other for its failure. So now we are arguing about whose 
fault it is that it failed instead of debating the issue of who should 
get credit for getting it passed.

[[Page S9902]]

  I think it is incredibly more important politically and for the good 
of this country to be able to argue about success and argue about who 
should get the credit for accomplishing something rather than arguing 
about failure and whose fault it is that nothing got done. I have a 
feeling that we are moving in that same direction when it comes to the 
Patients' Bill of Rights. Are we all going to go home and blame each 
other for failure? Or are we going to be able to go back home and say 
we got together and got something accomplished? I think the latter 
course of action is much better.
  I was disturbed reading the Washington Post yesterday. There was a 
short article entitled ``Plans to Regulate HMOs Unlikely to Reach a 
Vote in the Senate.'' That is very disturbing, I think, for all Members 
who come here in order to pass legislation and do what is appropriate 
and proper for their constituents.
  Even with the little time remaining this session, I think there is a 
way out of this logjam. I think that many of the issues in the various 
Patients' Bill of Rights are things that we can reach an agreement on 
if we are serious about getting a bill passed this year. We need to 
talk about the information that patients should have and the 
disclosures health plan should make. We can work that out. We need to 
talk about access to specialists and pediatricians and direct access 
for women to their ob/gyn. We can work that out. There are differences 
in those areas but we should be able to find some common ground on 
them.
  We need to talk about a prudent layperson standard for patients who 
seek care in emergency rooms: When a person goes to the emergency room 
thinking they're having a heart attack and they find out it is not that 
bad, should the insurance company be allowed to deny payment? We can 
work that out by discussing a prudent layperson standard that ensures 
that managed companies have to pay for that treatment. If the patient 
thought their health was in serious jeopardy, the health insurance plan 
should, in fact, have to pay for that treatment.

  We need to talk about an end to gag rules which prohibit doctors from 
telling their patients all of the treatment options that are available 
to them. We should put an end to gag rules once and for all. We can 
work that out.
  It seems to me that the most controversial obstacle right now is the 
issue of whether to expand the right of patients to sue their health 
plan in state court. One side says we don't want to open up the courts 
to more litigation. Most of our Republican colleagues have taken a 
position that patients in ERISA plans should not have a right to sue 
their managed care plans for damages in state court.
  On the other hand, there are others who say, no, you have to have 
access to a state court, you have to have the right to litigate if a 
patient is denied coverage or is otherwise harmed by a decision their 
plan makes. Principally people on my side of the aisle have taken that 
position.
  While there are differences on many provisions in the various 
Patients' Bill of Rights, the liability issue seems to be the biggest 
bottleneck that is preventing this bill from even being considered 
after it already passed the House. That is unfortunate. If we don't 
break that logjam, we will go home arguing about whose fault it is that 
nothing was passed. We can argue about whose fault it was tobacco 
didn't pass. We can argue about whose fault it was the Patients' Bill 
of Rights didn't pass. We can argue about whose fault it was 
appropriations bills weren't passed. We will go home arguing about who 
should be blamed for failure and not getting anything done for the 
people who sent us here.
  I suggest that there is a way of bridging the gap with a realistic 
compromise that gets the job done for people concerned about patients' 
rights. I think the approach I suggest makes a great deal of sense.
  There are some managed care plans now, such as Ochsner Health Plan in 
Louisiana, the largest HMO in the state, that have an external review 
process for patients who disagree with a plan's decision. There are 
some plans around the country that do that already for their managed 
care patients. They have voluntarily established--there is no law that 
requires it, but they have voluntarily established a procedure where 
you have an external review if the patient is denied coverage by a 
health plan. It works very well. But private health plans are not 
required to have an internal and external appeals process available to 
their enrollees and most don't.
  However, when you talk about the right to sue as being the solution, 
I really question that. Suppose you are a patient and your health plan 
says we will not pay for a bone marrow transplant, so someone says, all 
right, you have the right to sue. The patient will be dead and gone and 
buried before the litigation is completed, in many cases. That right to 
sue does not help a person who is in an emergency situation and needs a 
decision right away. For the vast majority of patients, having access 
to an internal and external appeals process would prevent the need to 
go to court in the first place. An external appeals process in 
particular would give patients the right to have their case heard by an 
independent, outside panel of experts who have no financial or other 
connection to the health plan.
  I suggest that a compromise can be found by looking at the appeals 
process that already exists for Medicare beneficiaries in HMOs. About 6 
million of the 38 million people in Medicare are in some form of 
managed care. There is a procedure already established by Congress for 
these beneficiaries when they are denied coverage by their HMO. There 
is a procedure in place that works. It has been called the gold 
standard of the appeals process. It is not perfect. Sure, there are 
problems with the system such as monitoring and enforcement. Even with 
a good appeals system in place, patients have to know that an appeals 
process is available to them, how it works and how to access it. I've 
recently asked the GAO to review Medicare's internal and external 
appeals processes to determine whether it needs to be improved. But the 
Medicare appeals process that Congress put in place works well for 
beneficiaries overall. I suggest that in an effort to bring this 
Patients' Bill of Rights to the floor and get something passed, to 
resolve the impasse between no right to sue and absolute right to sue, 
we should look for a middle ground by taking what we have in Medicare 
and using it as model for private health plans. We can do that very 
simply. In fact, I have an amendment drafted that, if a bill comes up, 
I would like to offer what I think could bridge the gap on this issue.

  Here is generally how the Medicare appeals process works: Health 
plans have 14 calendar days to make an initial coverage determination 
for routine matters. If it is an emergency, a real emergency, the 
Medicare HMO has to make a determination within 72 hours. That is the 
first step the insurance company must take in this process. If the plan 
decides to pay for the treatment, that is the end of it, the patient 
gets the care. But if a patient is denied coverage after this initial 
decision made by the company, then the beneficiary or his doctor can 
request an internal review, and it is an internal review by the 
company. If it is an emergency, they have to reconsider their decision 
within 72 hours. If it is a nonemergency, they have 30 days to 
reconsider their original decision. If they reverse their original 
decision, that is it, no more appeal, the patient is covered. If a 
patient is still denied coverage after the internal review by the 
company, then the patient can access an external appeals process. The 
external appeals process is done by a panel of outside experts, not by 
the company. These outside experts are people who have no financial 
interest in the decision and who look at the case and make a decision. 
If it is an emergency, the external reviewers have to render a decision 
within 72 hours. If it is a nonemergency, they have 30 days in which to 
decide. This is an external review--not by the insurance company, not 
by the carrier, not by anybody who has a financial interest in the 
outcome of this decision. Outside, independent experts make that 
decision. If they find in favor of the patient, that is it. There is no 
further appeal by the health plan.
  If the external reviewers find against a patient and say, no, the HMO 
does not have to pay for that treatment, that patient still has step 4, 
which is an administrative appeal. That is an appeal to an 
Administrative Law Judge at the Social Security Administration.

[[Page S9903]]

The Administrative Law Judge then can make a decision based on what 
they think the plan provides, whether it is covered or whether it is 
not covered. If the Administrative Law Judge rules against the Medicare 
beneficiary, the beneficiary can appeal the decision to the 
Departmental Appeals Board at the Social Security Administration.
  Then, there is a fifth step in the process if the Administrative Law 
Judge or Appeals Board finds in favor of the plan and against the 
beneficiary. If the patient is denied coverage by the Administrative 
Law Judge, that patient still has the right to judicial review in U.S. 
district court where he can push his case and plead that the procedure 
be covered. He can't sue for damages; he can't sue for punitive 
damages, or compensatory damages, but he can sue for coverage. If it is 
a bone marrow transplant, he could sue for the cost of that procedure, 
or an MRI, or whatever the procedure would be. This is what we do for 
Medicare. This is what Congress has helped establish for the 15 percent 
of Medicare patients who are now in HMOs. It is already in existence 
and in statute and it works.
  A good thing about this, in addition to the fact that it is already 
there and we know how it works, is that it prevents most of the cases 
from ever having to go to court in the first place. Either the first, 
second, or the third level of review solves the problem, and it is done 
in a timely fashion. Does anybody think they can go to court and get a 
decision within 72 hours? You could not even file the papers within 72 
hours. You would have depositions, hearings, a trial, an appeal, and 
then it gets kicked back down, and the patient has died, and you are 
still litigating whether they should be covered or not. That is not 
necessarily a good procedure.
  What I am suggesting to those who say, ``Don't allow suits'' and to 
those who say, ``You have to have suits in this Patients' Bill of 
Rights,'' is that there is a middle ground that makes sense. I ask all 
of my colleagues just to consider that we are so close to the end of 
this session and neither side is going to get everything it wants; it 
is just not going to happen. If we hold out for everything we want and 
not try to compromise, we are going to go home and argue about failure 
because nothing will pass. There is a better way to serve the people 
and that is, I suggest, to say on this question of what rights to give 
patients when they are denied coverage, let's take what we already do 
in the Medicare Program and establish that as the procedure to be used 
for managed care plans in the private sector. While it needs some fine-
tuning, it works; it has a proven track record. It is not perfect, but 
it certainly is better than what patients have right now because, in 
most cases, patients do not have the right to any kind of internal or 
external appeal if coverage is denied. I suggest that this makes a 
great deal of sense and could help resolve part of this problem. We can 
bring this bill up to the floor next week, adopt this amendment, and 
then ultimately send this to the President, who I think would be 
certainly willing to sign something that may not be 100 percent what he 
wants, maybe not 100 percent of what anyone wants, but it is 100 
percent more than we are going to get if we do nothing. This is a 
suggestion that I hope our colleagues will seriously consider.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. DeWine). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. KENNEDY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Hutchinson). Without objection, it is so 
ordered.
  The Senator from North Dakota has 30 minutes reserved. Is it that 
time that the Senator would intend to use?
  Mr. KENNEDY. The Chair is correct. I thank the Chair.
  The PRESIDING OFFICER. The Senator is recognized.

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