[Congressional Record Volume 144, Number 119 (Thursday, September 10, 1998)]
[House]
[Pages H7562-H7567]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              {time}  1845
           MAJOR DIFFERENCES EXIST IN HEALTH CARE LEGISLATION

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 7, 1997, the gentleman from Iowa (Mr. Ganske ) is recognized 
for 45 minutes as the designee of the majority leader.
  Mr. GANSKE. Mr. Speaker, I am glad to join my colleagues this evening 
to discuss managed care legislation. Yesterday the House returned from 
the August district work period when Members were scattered across the 
Nation for the past month, and yesterday Judge Starr delivered his 
report to Congress. I would hope that we will be able to get some work 
done in this Congress besides just dealing with the Starr report before 
we leave for the year.
  When Members were back in their districts, they had the opportunity 
to speak with constituents at countless county and state fairs, town 
hall meetings and other gatherings, both formal and informal. It was an 
opportunity for us to communicate what we have done and for the voters 
to tell us what they would like Congress to do.
  I suspect that my colleagues had experiences similar to mine. It was 
almost impossible to pick up a newspaper or hold a town meeting without 
hearing another story about how a managed care plan had denied someone 
lifesaving treatment. No public opinion

[[Page H7563]]

poll can convey the depth of emotion about this issue as well as movie 
audiences around the country, who spontaneously clapped and cheered 
Helen Hunt's obscenity-laced description of her HMO.
  Mr. Speaker, I rise today to offer some thoughts on what sorts of 
meaningful managed care reforms Congress must pass before adjourning 
for the year. At the end of July, the House approved a Republican bill 
which was advertised as addressing consumer complaints about HMOs. But, 
Mr. Speaker, I think an examination of the fine print is in order, 
particularly when we compare it to the Patients' Bill of Rights, a 
bipartisan proposal that I and the gentleman from New Jersey (Mr. 
Pallone) support, which has been endorsed by close to 200 national 
groups of patients and providers, including now the Patient Access to 
Responsible Care Act Coalition, the PARCA coalition, as well.
  A year ago, Congress and the President were able to reach agreement 
on a plan to save Medicare from bankruptcy. Included in that package 
were several provisions to protect seniors enrolled in Medicare HMOs. 
One of the most important parts was language to ensure that health 
plans pay for visits to emergency rooms.
  We had heard frequent complaints that health plans were denying 
payment if the individual was found after the evaluation not to have a 
serious condition. The best example is a man who experiences crushing 
chest pain. The American Heart Association says that is a sign of a 
possible heart attack and urges immediate medical attention. 
Fortunately, there are other causes of crushing chest pain besides a 
heart attack. But seniors, whose EKG tests were normal, were then being 
stuck with a bill for the emergency care, since in retrospect the HMO 
said, ``See, the EKG was normal. You did not need the treatment after 
all.''
  Well, the Medicare law that we passed last year took care of that 
problem by ensuring that plans paid for emergency room services if a 
``prudent layperson" would have thought a visit to the ER was needed. 
This prevented the sort of 20-20 hindsight coverage denials that 
consumers had complained about from their HMOs.
  The Patients' Bill of Rights that I support would have extended the 
same protections to consumers in all HMO's that we passed for senior 
citizens. Instead, the Republican bill passed by the House contains a 
watered-down version of the prudent layperson rule.
  Last month, the New York Times published an excellent article by 
their noted health reporter, Robert Pear. In it Mr. Pear outlined just 
how different the protections in the Republican bill are from those we 
passed last year for Medicare and Medicaid. A key difference is exactly 
how much patients will have to pay for emergency care.
  The Patients' Bill of Rights, which I and my colleague, the gentleman 
from New Jersey supported, provides that patients could not be charged 
more money if they seek care in a non-network emergency room. By 
contrast, the Republican bill allows the health plan to impose higher 
costs on those who are so careless as to allow emergencies to befall 
them in places not close to a network hospital.
  Mr. Speaker, consider what this means: HMOs require enrollees to use 
certain hospitals because the plan has a financial arrangement with 
those hospitals. But when a young child splits open his head by falling 
down a flight of stairs, I fail to see that any good is served by 
requiring that little child to delay timely care until his parents can 
get him to one of the HMO's emergency rooms.
  Consider the case of James Adams, age six months. At 3:30 in the 
morning his mother, Lamona, found James hot, panting and moaning. His 
temperature was 104 degrees. Lamona phoned her HMO and was told to take 
James to the Scottish Rite Medical Center. ``That is the only hospital 
I can send you to,'' said the HMO nurse.
  ``How do I get there,'' Lamona asked? ``I don't know,'' the nurse 
said. ``I am not good at directions.'' Well, about 20 miles into their 
ride they passed the Emory Hospital, a renowned pediatric center. They 
passed two more of Atlanta's leading hospitals, Georgia Baptist and 
Grady Memorial, but they did not have permission to stop there.
  So they drove on. They had 22 more miles to travel to get to the 
Scottish Rite Hospital. And while searching for Scottish Rite, James's 
heart stopped.
  When James and Lamona finally got to Scottish Rite, it looked like 
the little boy would die. But he was a tough little guy, and, despite 
his cardiac arrest due to the delay in treatment by his HMO, he 
survived. However, the doctors had to amputate both of his hands and 
both of his feet because of resulting gangrene. All of this is 
documented in this book, ``Health Against Wealth.'' As the details of 
baby James' HMO's methods emerged, the case suggests that the margins 
of safety in HMOs can be razor thin. In James' case, they were almost 
fatal, leaving him without hands and without feet for the rest of his 
life.
  Think of the dilemma that places on a mother struggling to make ends 
meet. In Lamona's situation, under the Republican bill if she rushes 
her child to the nearest emergency room, she could be at risk for 
charges that average 50 percent more than what the plan would pay for 
for in-network care; or she could hope that her child's condition will 
not worsen as they drive past other hospitals, an additional 20 miles, 
to get to the nearest ER affiliated with their plan. And woe to any 
family's fragile financial condition if this emergency occurs while 
they are visiting relatives in another state.
  Mr. Speaker, the other bill, the Patients' Bill of Rights, would 
ensure that consumers would not have to make that potentially 
disastrous choice.
  A second key difference between the Republican bill and the 
protections already enacted for Medicare is that the Republican bill 
does not require any payment for services other than an initial 
screening. After that, payment must be made only for additional 
emergency services if ``a prudent emergency medical professional'' 
would deem them necessary. Moreover, the GOP bill added a new burden on 
emergency room doctors, requiring them to certify in writing that such 
services are needed.

  Talk about bureaucracy. Robert Pear's New York Times article quoted 
John Scott of the American College of Emergency Physicians. Mr. Scott's 
comments bear repeating, because I think they illuminate the weakness 
in the Republican bill. ``We have more than a century of common law and 
court decisions interpreting the standard of a prudent layperson, or 
reasonable man, as it used to be called. But this new standard of a 
prudent emergency medical professional was invented out of thin air. It 
creates new opportunities for HMOs to second-guess the treating 
physician and to deny payment for emergency services.''
  Mr. Pear's article also takes a hard look at the difficult issue of 
medical records privacy and concludes that, ``On this issue too, the 
details have provoked a furor'' in the Republican bill. He noted that 
privacy advocates were amazed to learn that the Republican task force 
bill authorizes the disclosure of information without an individual's 
consent for a broad range of purposes, including risk management, 
quality assessment, disease management, underwriting and more.
  The Republican bill considers disclosure for ``health care 
operations'' as permissible. This is a term so broad that many critics 
say it would allow the transfer of patient information to companies 
marketing new drugs.
  Commenting on these flaws in the Republican bill, noted privacy act 
expert Robert Gellman said the Republican 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.''
  Mr. Speaker, I will include the entire text of the Robert Pear 
article for the Record at this point.

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

             Common Ground on Patient Rights Hides a Chasm

                            (By Robert Pear)

       Washington, Aug. 3.--It has been clear that there are major 
     differences to be worked out between the Democratic and 
     Republican bills on patient rights.
       But a look at the details of the House Republican 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.

[[Page H7564]]

       At first, it appeared that members of Congress agreed that 
     health maintenance organizations should be required to pay 
     for emergency medical care. And they seemed to 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 Republicans 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.''

  Mr. Speaker, these are but two examples of flaws that may not be 
apparent on a quick read of the Republican bill, but which become 
apparent on closer examination. I wish I could say that those are the 
only two provisions in the House-passed Republican managed care reform 
bill, which, to borrow from an old TV ad, may taste great, but it is 
certainly less filling.
  I think every Member would agree that the best health care bill is 
one that allows people to get the services they need, when they need 
them. Remedies such as internal and external appeals and access to the 
courts are needed backdrops, but our first goal should be to require 
that HMOs provide needed care. On that count, there is no comparison 
between the two bills.
  Here is a partial list of protections contained in the Patients' Bill 
of Rights which are not included in the Republican bill. First and 
foremost, the Republican bill could actually make the situation worse 
by creating what are called association health plans, which would be 
beyond the reach of state regulation.
  For years, states have shown themselves able to craft workable 
consumer protections for health insurance, but thanks to a 25-year-old 
Federal law known as ERISA, millions of Americans are in health plans 
that are beyond the reach of state consumer protections.
  Instead of giving consumers more control over health care, the 
Republican bill actually places more people into ERISA regulated health 
plans. Does this solve our health care problems? Certainly not. Does it 
add to them by denying people the protections of state law? Definitely.
  Instead of improving access to insurance, these proposals would have 
the exact opposite effect. By exempting multiple employer welfare 
arrangements, otherwise known as MEWAS, from a range of state insurance 
regulations, the Republican bill makes it more difficult for states to 
fund high risk pools and other programs that actually help keep health 
insurance more affordable.
  The National Association of Insurance Commissioners and the National 
Conference of State Legislatures are concerned that these GOP 
provisions could ``undermine recent efforts undertaken by states to 
ensure that their small business communities have access to affordable 
health insurance.''
  Take a look at this little boy, born with a cleft lip. In many 
states, HMOs are required to pay for coverage to give this little boy a 
normal face. But, Mr. Speaker, I would guess that many of my Republican 
colleagues would be very surprised to learn that because a cleft lip is 
considered a condition, rather than a disease, plans serving these 
HealthMarts in the Republican bill would not be required to cover 
needed treatments for this deformity.
  This is not just my interpretation of the Republican bill. The 
Committee on Commerce staffer who helped draft this provision confirmed 
to me that HealthMarts would not be bound by state laws to require 
coverage of cleft lips and pallets and similar birth defects. If the 
Republican bill becomes law, I think it will be very difficult for 
Members to explain to parents of a child like this why Congress 
exempted HealthMarts from that state law protection.
  Second, the Republican bill does not help doctors and nurses to serve 
as advocates for their patients. Both bills ban what are known as gag 
rules for some health plans that some health plans have used to limit 
discussions between patients and their health care

[[Page H7565]]

providers. But the Patients' Bill of Rights recognizes that doctors and 
nurses need to be advocates for their patients as well. It prevents 
health plans from taking action against those doctors and nurses for 
speaking up for their patients at internal and external reviews or for 
alerting public health authorities to safety concerns.

                              {time}  1900

  These protections are not present in the Republican bill, and they 
should be.
  A third key difference between the Republican bill and the bipartisan 
Patients' Bill of Rights relates to the way in which they deal with 
drug formularies. For reasons which may have more to do with financial 
discounts than quality medical care, many health plans have limited 
their coverage of prescription drugs to those on a formulary. For many 
conditions and diseases, patients can be given different formulations 
of a drug, whether brand names or generic, without harm. But that is 
not always the case. A patient may need a particular formulation of a 
drug. That is especially true for drugs for which there is a very 
narrow window between that which works and that which harms, and 
switching patients from brand name to generic drugs or vice versa can 
have serious health consequences.
  The bill I support, the Patients' Bill of Rights, recognizes that by 
ensuring that physicians and pharmacists have input into the creation 
of that plan's, that HMO's formulary. Moreover, the bill ensures that 
there is a way for patients to get a drug that is not on the formulary 
if their physician determines that it is medically indicated.
  By contrast, the Republican bill merely provides enrollees with 
information of the extent to which a drug formulary is used, and a 
description of how the formulary is developed. More specific 
information as to whether a particular drug is on the formulary is 
available only to those who ask.
  A fourth key difference is that the Patients' Bill of Rights 
guarantees access to clinical trials, something that the Republican 
bill does not do. For patients with some diseases, the only hope for a 
cure lies in cutting edge clinical trials. The Patients' Bill of Rights 
would allow individuals with serious or life-threatening illnesses for 
which no standard treatment is effective to participate in clinical 
trials if participation offers a meaningful potential for significant 
benefit. This does not require the health plan to pay all of the costs 
of those clinical trials. In fact, all that the Patients' Bill of 
Rights requires is that a plan cover the routine costs they would 
otherwise be required to pay. They are not forced to assume any of the 
added costs of participation in a clinical trial.
  The Republican managed care bill, by contrast, contains no similar 
protections. That can be a major difference for somebody with a life-
threatening illness who would rather use his strength to battle his 
cancer, not to battle the insurance company for coverage of the 
clinical trial that might save his life.
  A fifth important distinction between the competing proposals is that 
the Republican proposal does not provide for ongoing access to 
specialists for chronic conditions. Many chronic conditions, such as 
multiple sclerosis or arthritis, require routine care from specially 
trained physicians like neurologists or rheumatologists. It is one 
thing to ask an enrollee to get a referral for an isolated visit to a 
specialist, but those with chronic conditions need a standing referral 
to those specialists, or to be able to designate the specialist as 
their primary care provider. This protection is not in the Republican 
bill.
  A sixth distinction between the 2 is that the Patients' Bill of 
Rights does more to ensure that individuals are able to see the doctor 
of their own choice. Both bills have a point-of-service provision that 
allows individuals to see health care providers not in their plan's 
closed panel. But the Republican bill contains a loophole that renders 
that protection a hollow one for millions of Americans.
  Under the Republican bill, a health plan would not have to offer 
employees a point-of-service option if they could demonstrate that the 
separate coverage would be more than 1 percent higher than the premium 
for a closed panel, and this needs only to be a theoretical increase. 
The bill allows HMOs to provide only actuarial speculation that the 
costs would increase, and then they are relieved of having to offer 
employees the option. Perhaps even more amazing is the fact that that 
exemption is triggered even if employees selecting a point of service 
option would pay all of the costs of the improved coverage themselves.
  Under the Republican bill, employees who are willing to pay the 
entire added cost for the ability to obtain out-of-network care can be 
denied access to this benefit if the employer is able to speculate that 
the costs might be higher. That is the ultimate in paternalism. The 
bipartisan bill I support, the Patients' Bill of Rights, lets the 
employees decide for themselves if they want to purchase that enhanced 
coverage.
  A seventh key difference between the 2 bills is that the Patients' 
Bill of Rights ensures that health plans not place inappropriate 
financial incentives on providers to withhold care. Medicare 
regulations very explicitly limit the type of financial arrangements 
that HMOs can have with providers and protect seniors from providers 
who may get a financial windfall by delivering less care. That was in 
the bill that we passed for Medicare. The Patients' Bill of Rights 
would extend that protection to other HMOs and other health plans, 
because patients should never have to wonder if their doctor might lose 
money by giving additional medical services. The Republican bill is 
silent on that point. It does not even extend that Medicare protection 
to other Americans.
  An eighth key difference exists in the external appeals process. 
Virtually everyone who has looked at the problems in managed care 
recognizes the need to ensure a nonbiased, external review of decisions 
to deny care, and both bills have external appeals provisions, but they 
differ on key details. The Republican bill does not make external 
appeals decisions binding on the plan. If an outside body agrees that 
the plan should pay for care, it is not binding on the HMO. The bill I 
support, the Patients' Bill of Rights, has a binding external appeal.
  An additional and more troubling difference is the scope and conduct 
of the external review. The Republican bill does not have any provision 
for the enrollee to participate or to have experts testify on their 
behalf. The better bill, the Patients' Bill of Rights, ensures that the 
enrollee has an opportunity to testify and to have witnesses appear on 
his behalf if he appeals a denial. And this dovetails with an issue 
that I raised earlier about gag rules and disclosing safety issues to 
appropriate authorities.
  The Patients' Bill of Rights prevents health plans from taking action 
against providers who advocate for their patients in the grievance and 
appeals process. There is no similar protection under the Republican 
bill. But I guess since they are not even guaranteed an opportunity to 
testify, I suppose they do not need that protection in the first place.
  Another distinction in the appeals process is that the Patients' Bill 
of Rights guarantees a review on the merits by outside experts as to 
whether a service or treatment is medically necessary. Under the 
Republican bill, the outside review is limited to determining whether 
the plan followed its own definition of medical necessity. That is an 
enormously important point.

  During testimony before the Committee on Commerce 2 years ago, a 
former medical reviewer for an HMO described how health plans can 
monkey with the definition of ``medical necessity'' in order to exclude 
virtually any expensive treatment. She called that medical necessity 
issue the ``smart bomb'' of care denials. I think it is exceedingly 
troubling that the Republican bill would prevent the external appeal 
from being a real review on the merits. In fact, that limited review 
could actually preempt more protective State laws.
  Finally on the issue of external reviews, the Republican bill 
actually throws up a hurdle to working families. Under the Republican 
bill, HMOs can require that enrollees pony up as much as $100 just to 
obtain the limited external appeal. That could pose an unreasonable 
burden on many Americans most in need of care and should not be in the 
legislation.

[[Page H7566]]

  A ninth key difference in the bills is timing. The Patients' Bill of 
Rights would have to be considered superior to the Republican bill 
because its protections are effective immediately. By contrast, the 
Republican bill delays the effective date until at least January 1, the 
year 2000, and if the bill is not signed into law until early next 
year, the protections are not effective until the year 2001.
  Finally, the bill I support, the Patients' Bill of Rights, 
establishes State ombudsmen to help consumers better understand and 
obtain care from their health plans. They can help prospective 
enrollees make meaningful comparisons of their options and they can 
help patients navigate through the plan's utilization review system as 
well as internal and external appeals.
  How important is it to have someone knowledgeable on your side? Well, 
ask this young woman, Jackie Lee. She fell off a 40-foot cliff while 
hiking in the Shenandoah mountains. She fractured her pelvis, her 
skull, her arm; she was airlifted to a nearby hospital for care. After 
getting first class medical care, she also got a first class runaround 
from her health plan, from her HMO, who refused to pay her hospital 
bills. They said she had not phoned ahead for prior authorization. I 
mean, what was she supposed to do after she fell off this 40-foot 
cliff, wake up from her coma, pull her cellular phone out of her pocket 
with her nonbroken arm, phone the HMO on a 1-800 number and say hey, 
guess what, I just fell off a cliff? I mean, come on. At wit's end, she 
contacted the Maryland State Insurance Commissioner, and that office 
was able to help Jackie get the coverage to which she was entitled.
  Today this young woman is in an ERISA regulated plan. If the same 
accident would befall her today, the HMO would be beyond the reach of 
State insurance commissioners, and that is why the Patients' Bill of 
Rights creates a health insurance ombudsman. The Republican bill, 
sadly, has no comparable provision.
  In summary, Mr. Speaker, the GOP bill is not even half a step 
forward. In fact, it may be a full step backwards in that it would 
negate many States' efforts to fix HMO problems.
  So I am going to make a few suggestions to make the Republican bill 
live up to its claims, and here they are. The bill should be amended to 
include the emergency room protections that we have already enacted for 
Medicare and Medicaid. The privacy protection should be tightened to 
prevent inappropriate disclosures of medical records and to leave 
intact stronger State laws. The provisions on association health plans, 
which expand the pool of people in ERISA health plans, should be 
removed. The same is true of health marts which would deny people the 
protections of some State benefit laws. The bill should prevent health 
plans from punishing providers who speak up for patients in the appeals 
process, or who raise safety concerns to appropriate regulatory 
authorities.

                              {time}  1915

  The bill should give providers input into the plan's drug formulary 
and ensure that drugs not on the list can be prescribed when medically 
necessary. The bill should be amended to allow patients access to 
clinical trials when it offers them the best hope for a cure.
  The Republican bill should not allow those with chronic conditions 
like cancer or arthritis to not have a standing referral to a 
specialist. It should allow them to have a standing referral to a 
specialist who can treat that chronic condition.
  The point-of-service provision should be strengthened, particularly 
by deleting the ability of plans to cancel coverage if they speculate 
that the premium to employees might increase by more than 1 percent.
  The bill should have language, like in Medicare, to ensure providers 
are not given inappropriate financial incentives by HMOs to deny 
medical care.
  The appeals process should be strengthened to allow a new review on 
the merits, not on whether the plan followed its own definition of 
medical necessity. Patients and providers should be able to testify 
without fear of retribution. The outcome of the external review should 
be binding on the plan, and employees should not have to pay up to $100 
for that review.
  The bill should include an ombudsman program to help consumers 
understand their rights. These protections should be made available as 
soon as possible, and group health plans must be made more accountable 
for the consequences of their negligence. This is an important point.
  Because of a Federal law known as ERISA, patients injured because 
their HMO delayed or denied treatment have very limited remedies. The 
Patient Bill of Rights would permit States to set their own rules for 
such actions.
  The Republican bill passed by the House tinkers with but does not 
really fix this problem. The desperate need for legislation to fix 
ERISA was outlined in the decision of Federal District Court Judge for 
the Southern District of Mississippi, Judge Charles Pickering, Senior, 
in the 1994 case Suggs v. Pan American Life Insurance Company.
  Judge Pickering's opinion contained an exhaustive review of the 
history and interpretation of the ERISA statute: ``Despite this clearly 
stated objective of ERISA to protect employees from abuse, with so many 
State laws and/or remedies having been preempted, employees obviously 
have less protection in the field of health insurance today than they 
had before ERISA was passed in 1974. It cannot be said that 
congressional intent has been followed when the results are so clearly 
to the contrary.''
  Judge Pickering went on to observe that ERISA ``has preempted from 
application to most group health insurance policies a volume of State 
laws and remedies developed over many years of experience that 
protected insureds. ERISA has not been interpreted to replace preempted 
State remedies.''
  In a section of the opinion entitled ``Part VII. Frustration,'' Judge 
Pickering lamented, ``Something is wrong when the law designed to 
protect employees leaves victims of fraud without a remedy. Either 
Congress is incapable of writing legislation to accomplish what they 
plainly say is their intent, or the courts lack the ability to 
interpret the statute to do what Congress plainly says it intended to 
do, or both, or a mixture. In any event, the system fails.''
  Judge Pickering went on to remark that, ``There is no way of knowing 
how many Americans today are without health insurance, or have had to 
take bankruptcy, or how many have simply given up trying to enforce 
their health insurance policy because they do not want to or cannot 
afford to come to Federal court to litigate claims that involve so 
little, and that, by all reason, should be resolved in the lowest State 
forum available, where costs and expenses and time do not equal that of 
the Federal judiciary.''
  Summing up his consternation over the operation of the ERISA statute, 
Judge Pickering noted that the history of cases before his court shows 
that ERISA has not protected employees, but has, instead, denied them a 
remedy for valid grievances.
  ``There has not been a single case that has been filed before this 
court by an employee coming into Federal court saying, `I want to 
protect my pension or my benefits under the broad terms of ERISA.' 
Every single case brought before this court has involved insurance 
companies using ERISA as a shield to prevent employees from having the 
legal redress and remedies they would have had under longstanding State 
laws existing before the adoption of ERISA. It is indeed an anomaly 
that an act passed for the security of employees should be used almost 
exclusively to defeat their security and leave them without remedies 
for fraud and overreaching conduct.''
  Judge Pickering's thoroughly researched and well-reasoned opinion 
demonstrates the compelling need for Congress to fix the problems 
created by ERISA. I was disappointed that this was not included in the 
rule, and hope this will be addressed in a positive way in whatever 
managed care reform bill finally gets passed by the House and Senate 
and sent to the President.
  If these changes are eventually made to the Republican bill, then it 
will begin to deserve its name: The Patient Protection Act. If not, 
then the bill is a fig leaf. I look forward to working with my 
colleagues to help make the final bill one which gives all Americans 
the protections they need.

[[Page H7567]]

  Mr. Speaker, a large number of Republicans want to pass meaningful 
legislation. Ninety Republicans were cosponsors of a much stronger 
patient protection bill than that that passed the House in July. Most 
of these Republicans did not have sufficient time to examine the GOP 
bill before voting on it because it was rushed to the floor to provide 
political cover.
  But Mr. Speaker, those Republicans who want to see signed into law a 
bill that is really a step forward should demand of our leadership the 
type of changes I have outlined. If there is a will, there is still 
plenty of time to get a bipartisan agreement on HMO reform.
  However, Mr. Speaker, opponents of strong patient protection 
legislation may succeed in preventing reform legislation from passing 
this year. But I guarantee Members, Mr. Speaker, this issue will only 
get hotter in coming years if Congress does not act to truly curb the 
abuses of some HMOs.
  Mr. Speaker, as Abe Lincoln said, ``You can't fool all of the people 
all of the time.''

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