[Congressional Record Volume 144, Number 121 (Monday, September 14, 1998)]
[House]
[Pages H7685-H7688]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          MANAGED CARE REFORM

  The SPEAKER pro tempore (Mr. Brady). Under the Speaker's announced 
policy of January 7, 1997, the gentleman from New Jersey (Mr. Pallone) 
is recognized for 60 minutes as the designee of the minority leader.
  Mr. PALLONE. Mr. Speaker, let me say this evening that I will be 
talking about HMO reform and the need to address that issue before this 
House adjourns in about four weeks, or at least is tentatively 
scheduled to adjourn after the first week in October. I am concerned 
that over the next four weeks that time will not be spent on the issues 
that the American people want addressed in this Congress, health care 
reform, HMO reform, education concerns, Social Security, environmental 
issues. There are so many issues that need to be addressed, and I am 
only going to talk about one of them tonight but I wanted to mention 
that the Democrats as a party are united behind a strong and a bold 
agenda which addresses the real challenges that face working families. 
I am very concerned that the Republican leadership is not going to 
address these issues. We need to strike out and say that these issues 
need to be addressed before we adjourn.
  The one that I would like to talk about tonight and that I think 
really is the most important because this is the one that I hear the 
most about from my constituents is HMO or managed care reform. Too many 
of my constituents at town hall meetings or at my district offices tell 
me about the horror stories, and there are many, where they have been 
denied necessary care because their HMO, their insurance company, has 
refused to pay for it. The President and the Democrats have put forward 
a bill, we call it the Patients' Bill of Rights, that is a real, not a 
fig leaf political bill designed to cover the health insurance 
industry. We need patient protection legislation that returns medical 
care to doctors and patients instead of leaving those decisions to 
health insurance company bureaucrats.
  Let me just mention a few key elements of this Democrat real patient 
protection act, or HMO reform. It includes guaranteed access to needed 
health care specialists, access to emergency room services, continuity 
of care protections, access to timely internal and external appeals 
process if you have been denied care by your HMO or by your insurance 
company; limits on financial incentives to doctors. We know that too 
often now the HMOs give the doctors financial incentives, bonuses, if 
you will, if they do not spend a lot of money or require a lot of 
services for their patients. Also assuring doctors and patients that 
they can openly discuss treatment options. Many people do not know that 
many HMOs now put their physicians within their HMO network under a gag 
rule that they cannot talk about legitimate medical options, operations 
or other procedures if the HMO will not cover it because they do not 
want the patients to know that those procedures exist because they are 
not going to pay for them. We should not allow those kind of gag rules. 
They should be prohibited. The Democrats' Patients' Bill of Rights 
would prohibit those kinds of gag rules. Also, the Democratic bill, the 
Patients' Bill of Rights, assures that women have direct access to an 
OB-GYN; and there is also an enforcement mechanism that ensures 
recourse for patients who were maimed or die because of health plan 
actions. So not only do we allow you to go through a procedure, an 
appeal externally before a board, before you have to go to court where 
the insurance company cannot influence that appeal, but also we allow 
you to go to court and sue for damages if you have suffered severe 
damages as a result of the denial of care.
  I just want to talk a little bit more if I can about the positive 
aspects of the Democrats' Patients' Bill of Rights and why we need to 
get this legislation, or something like it, passed before we adjourn 
this Congress in another four weeks. Greater choice of doctors. A lot 
of my constituents point out that they feel there should be some sort 
of option that you can go outside the HMO network if you want to, even 
if you have to pay a little extra. What the Democratic Patients' Bill 
of Rights says is it requires that individuals enrolled in HMOs be 
offered a greater choice of doctors under what is called point of 
service. Employers must provide employees with the option of choosing a 
doctor outside the company health plan. What that means is that when 
your employer offers you a health plan, he can give you the choice of 
an HMO but he also has to give you the option of having the HMO and 
letting you go outside the HMO network for a little extra if you decide 
to do so. You get that option when you first sign up for your health 
insurance. Most important, in the Patients' Bill of Rights, the 
Democratic bill, medical decisions are made by doctors and patients 
based on medical necessity, not by insurance company bureaucrats. The 
bill ensures that treatment decisions, in other words, what you need, 
what is medically necessary for your care, those treatment decisions 
such as how long a patient should stay in the hospital after surgery, 
what type of procedures are appropriate, that these decisions are made 
by the doctor in consultation with the patients. They are not made by 
the insurance company. Again, we have an example of that which we did 
last year, or in the previous Congress with regard to pregnant women, 
that the length of stay provision for pregnant women, when they go to 
have the child, that they are guaranteed that they can at least stay in 
the hospital 48 hours for a normal delivery or four days for a C-
section. That is exactly the type of guarantee that we will be 
including in this Democratic bill when we say that the doctor and the 
patient decide what is medically necessary rather than the insurance 
company.
  Access to specialists. I want to spend a little more time on that 
because it is so important to so many of my constituents. Our bill 
allows patients to see an outside specialist at no additional cost 
whenever the specialist in their plan cannot meet their needs. So if 
there is a specialist in the HMO network who can take care of you, 
fine, but if there is not because they do not have that particular 
specialization, then they have to allow you to go outside the network 
to see another doctor. The bill also lets women select obstetricians 
and gynecologists, as I have said, as their primary care provider.
  Enforcing patient protections. I think everybody knows, most 
Americans realize that if you have a right or you have a protection, it 
does not do you much good unless you can enforce it. What our bill does 
is it holds managed care plans accountable when their decisions to 
withhold or limit care injure patients. Unfortunately in court cases 
around the country, HMOs have not been held accountable. Currently 
patients may not have the right to sue their HMO in court if they are 
in certain circumstances. The Democrats' Patients' Bill of Rights 
removes the exemption under current Federal law that prevents HMOs from 
being sued in certain circumstances. It also establishes an independent 
system for processing complaints and appealing adverse decisions with 
expedited procedures for life-threatening situations. What this means 
is that if you have been denied a particular operation, not only do you 
get an external review board which is not influenced by the insurance 
company that you can go to to appeal the insurance company's decision 
and it would be enforceable, but also if it is life-threatening, that 
has to be done very quickly. Otherwise it is not very useful to you. 
What this guarantees is that decisions on care are based on medical 
appropriateness or necessity, if you will, not cost, because obviously 
what the HMOs do in many cases is make their decisions based on cost.

  What I wanted to talk about a little more tonight, I have given you 
some idea I think about what the Democrats are trying to do with our 
Patients' Bill of Rights but I also have to point out tonight that the 
Republican alternative which passed the House in August before the 
August recess not only does not provide the types of guarantees that I 
am talking about but actually takes us back. It creates an even worse 
situation, even less guarantees in my opinion for the American people. 
The House hastily, and I say hastily because this Republican bill was 
just

[[Page H7686]]

brought to the floor without any committee action or without any 
hearings, just brought to the floor right before the August recess and 
passed and the Democrats' Patients' Bill of Rights, of course, was 
defeated only by five votes, so we still have a chance to resurrect it. 
What the Republican leadership was trying to do when they brought their 
own version, if you will, of HMO reform to the floor in August was to 
get something passed so that they could go back to the voters at their 
August town hall meetings or their other venues and say, ``Oh, we've 
accomplished something.'' But their plan, I assure you, was a sham. It 
is essentially a managed care bill that is better for managed care 
organizations, and they are not going to be able to or should not be 
able to pawn it off as a good piece of legislation. The bottom line is 
that the Republican leadership is not willing to pass a real managed 
care reform bill because it does not want to offend the insurance 
industry.
  Let me say, Mr. Speaker, that based on what my constituents voiced to 
me during the various town hall meetings I have had in the last few 
weeks is that the Republican plan was essentially a bust. They 
repeatedly told me that when it comes to managed care that they want 
three things above everything else.

                              {time}  1945

  They want medical decisions to be made by doctors and their patients, 
they want direct access to specialists, and they want HMOs to be held 
accountable for the decisions they make. And my constituents were 
emphatic in their belief that none of the protections under 
consideration in this Republican bill are worth a dime because they 
cannot be enforced, and there is basically one of the best ways to 
enforce patient protections is to have the right to sue, which of 
course is not expanded under the Republican bill.
  Let me point out why I think that this Republican HMO bill makes 
current law worse and essentially why all the things that they mention 
would be corrected, if you will, by the democratic bill.
  The first of the three aspects I mentioned is, and perhaps the best 
indicator of just how bad the Republican managed care bill really is, 
and this is with regard to the necessity of medical treatment or the 
appropriateness of medical treatment because this really lies at the 
very heart of the managed care debate. The Republican managed care bill 
addresses this question of medical necessity by essentially locking the 
status quo into place. It does so by allowing HMOs to define what is 
medically necessary. Under the Republican bill, if your doctor's 
recommendation does not match your HMO's definition of medical 
necessity, you are out of luck. So, as you can see, if you have to have 
a particular operation or you want to stay a certain length of time in 
the hospital and the HMO decides through its own definition that that 
operation is not medically necessary, it does not matter what your 
doctor tells you, because the final word is that they have defined it 
as not medically necessary. So, if you allow the insurance company to 
define what is medically necessary which is what the Republican bill 
does, then the whole idea of shifting the decision back to the doctor 
and the patient and away from the insurance company as to whether or 
not you have a particular type of care coming to you is essentially 
lose.
  Now, of course I mentioned before that our democratic bill, the 
Patient Bill of Rights, corrects this problem and lets the medical 
professional, the doctor, decide what is medically necessary. The 
Republicans are trying to pull the same kind of scam, if you will, with 
access to specialists. The GOP bill would allow women to go directly to 
the OB/GYN, but it would not give women the right to designate the OB/
GYNs as their primary caregivers. And of course the democratic Patients 
Bill of Rights would do that. So basically also the Republican bill 
would also allow children to go directly to pediatricians so they give 
that right but not without strings because under the Republican bill 
your child may be guaranteed access to a pediatrician, but if your 
child gets cancer and needs speciality care, there is absolutely no 
guarantee that he or she will have access to, for example, a pediatric 
oncologist, a specialist within the pediatric field. So under the 
Patients Bill of Rights however that child will get that guarantee, so 
again what we are saying is if the OB/GYN is not the primary care 
provider, then that person is not going to be the person that gives you 
a referral to another specialist. And again, if you are allowed to see 
a pediatrician, that pediatrician does not have the right to send you 
to a specialist for your child in a particular area that he or she may 
need the specialist. Then essentially you again are limited in the 
choices that you have for a physician or your access to specialty care.
  Let me give you another example, if you will, with a cardiologist. If 
you have a heart problem and you need to see the cardiologist, the 
Republicans would have you jump through hoops to try to get there, and 
you could still fail. The democratic bill directly opens the 
cardiologist's door. So if you have asthma, you can see the asthma 
specialist and down the line. In other words again, you may through the 
Republican bill be able to see a cardiologist, but if you need a 
speciality care or reference for a particular type of cardiologist, you 
would not have that access, and the same with asthma and other kinds of 
sub specialities.
  What I found at the town meetings that I had is that person after 
person basically stood up and communicated the belief that patient 
protections are meaningless without a means of enforcement, and so I 
would like to talk a little bit about the enforcement issue now as well 
when you have been denied care.
  The only way to enforce protection, a lot of my constituents said, is 
to give the right to sue when their HMO denies them care and their 
health suffers as a result. And I know some people say, oh, you cannot 
give patients the right to sue when the HMOs deny them care because 
that is just going to result in more lawsuits.
  Well, I was not getting that from my constituents at the town hall 
meetings. They were not worried about the fact that there would be too 
many loses. They were worried about the fact that if they were denied 
care, they could not sue for rights under the law, and that is the way 
it should be. People should be able to go to court if they have been 
damaged as a result of denial of care.
  What we do, what the law is right now, unfortunately, is that if you 
are in a HMO or a managed care organization that comes under Federal 
protection, what we call ERISA because the employer is self insured, 
then you are denied the right to sue for damages, and we would correct 
that and eliminate that loophole and say that all HMOs or managed care 
companies can be sued regardless of whether you are under ERISA and 
under Federal protection.
  And I also mention this external appeals process, too, as another 
means of enforcement where right now under the current law and also 
under the Republican bill a number of people would only be able to 
appeal the HMO's decision with regard to denial of care through an 
internal review process which basically still gives the HMO the right 
to decide what care should or should not be provided. The democratic 
bill insists on external appeals for all purposes, and those external 
appeals are basically judgment calls made by people appointed who are 
not under the sway of the insurance company.
  Now I have to say, Mr. Speaker, that my biggest concern right now is 
that even though we have passed this, what I consider bad Republican 
bill in the House, that the Senate may not take up any legislation 
tall, and I am really saying tonight that the most important thing is 
that the other body at least move on HMO reform, certainly not on the 
Republican bill, but at least take up the issue so there is some fair 
debate and some opportunity to hear from the senators on both sides of 
the aisle what their constituents are telling them.
  Before I conclude tonight I would like to do two things. First of all 
I would like to give some examples, real life examples that have been 
brought to my attention, of people that have been denied care or 
suffered from some of the problems that I pointed out this evening that 
would be corrected by the Democrats Patients Bill of Rights, and then I 
would like to go over a few sections of a letter that the President 
wrote to Trent Lott, the majority

[[Page H7687]]

leader in the Senate, asking that we move on this debate because I 
think that is the most important thing, that we move on this debate in 
the 4 weeks that we have left before this Congress is scheduled to 
adjourn.

  Let me give my colleagues some examples though, and I may have used 
some of these before on the floor, but I want to use them again 
tonight. Some of them, I think, are totally new because I think they 
best illustrate why we need the Patients Bill of rights.
  This example is from a newspaper dated January 21, 1996, and it talks 
about a 27-year-old man from central California who was given a heart 
transplant and was discharged from the hospital after only 4 days 
because his HMO would not pay for additional hospitalization, nor would 
the HMO pay for the bandages needed to treat the man's infected 
surgical wound. The patient died.
  Well, again I use the example with the drive-through deliveries. We 
did pass in the first effort to deal with these problems, we did pass 
in the last couple of years legislation that eliminated drive-through 
deliveries so that, if a woman is pregnant, she goes to a hospital, 
have the baby, she is guaranteed at least 48 hours for a normal 
delivery, and 2 days for normal delivery, 4 days for a C-section 
because many of the HMOs were forcing women out of the hospital within 
24 hours.
  Now this case that I just mentioned with the heart transplant, under 
the Patients Bill of Rights the decision about whether or not the 
patient would be able to stay a few extra days in the hospital would be 
decided by the physician in consultation with the patient and the HMO 
would not be allowed to deny those extra few days that the physician 
thought was necessary.
  Another example; this is from the same year from Long Island. Well, 
this is from the Long Island News Day I should say, but it is about a 
mother in Atlanta who called her HMO at 3:30 a.m. to report that her 6-
month-old boy had a fever of 104 and was panting and limp. The hotline 
nurse told the woman to take her child to the HMO's network hospital 42 
miles away, bipassing several closer hospitals. By the time the baby 
reached the hospital he was in cardiac arrest and had already suffered 
severe damages to his limbs from an acute and often failed disease. 
Both his hands and legs had to be amputated. Now that may have been the 
example that my colleague, the gentleman from Iowa (Mr. Ganske), gave 
last week when we were talking about the same issue on the floor.
  Again I had not talked much about emergency care tonight, but what 
the Patients Bill of Rights does, what the democratic bill does, and I 
call it a democratic bill, but the Patients Bill of Rights has 
Republican supporters, too. Mr. Ganske from Iowa is, in fact, the chief 
sponsor of the bill. So it really truly is bipartisan, but the 
Republican leadership basically has opposed it. So even though there 
are some Republicans that support it, the leadership is opposed to it.
  And what our bill would do is it would say that the decision about 
going to an emergency room and going to the closest hospital as opposed 
to some hospital further away is based on the average citizen's 
analysis; you know, what we call a prudent lay person's analysis of 
what is an emergency. And so if you have the situation where your 6-
month-old baby had this fever and was panting and limp, the average 
person would say, well I cannot wait to go to a hospital 42 miles away, 
I have got to go to the hospital next door or within a few minutes of 
my house, and therefore the HMO would have to pay because average 
citizen would understand that that is necessary, and you cannot wait to 
go to a hospital 42 miles away which is absurd. I think most people 
have no idea that their HMOs put these kind of restrictions in, but 
then they find out when it is too late.
  Let me give you another example. This is from the Minneapolis Star 
Tribune, March 23, 1996. A 15-year-old girl with a serious knee injury 
was taken by her parents to a PPO orthopedic surgeon. The surgeon said 
there were 2 kinds of surgery for such an injury, traditional scapel 
surgery and state-of-the-art laser surgery which is considered the most 
effective method. The insurer would not pay for the more expensive 
lasar surgery. A company claim supervisor was quoted as saying we are 
not obligated contractually to provide Cadillac treatment, but only a 
treatment.
  Well there again we go back to who is going to define what is 
medically necessary. Under the Republican bill that decision is made by 
the insurance company which is the way it is now under the current law. 
Under the democratic Patients Bill of Rights that decision is made by 
the doctor in consultation with the patient. So, if the doctor in this 
case said that the most effective method is the state-of-the-art laser 
surgery, that is what the insurance company would have to pay for.
  This kind of illustrates, this also illustrates, the gag rule example 
as well. Now fortunately in this case the HMO apparently did not have a 
requirement that the physician not tell the patient about the better 
method, but there are many circumstances where the HMO will actually 
say to the physician that he cannot mention the alternative, the better 
alternative, in this case the state-of-the-art laser surgery so that 
the patient would not even know that there is a better alternative, and 
that is another thing that we are eliminating with the Patients Bill of 
Rights.
  Let me mention a couple of other examples, and then I will conclude 
with this letter that President Clinton sent. This is in Oklahoma. It 
is from the Washington Post, March 12 of 1966, and this is the case in 
Oklahoma where a neurologist performed a cat scan on a patient 
suffering headaches revealing an abnormality in the brain. The doctor 
recommended a magnetic resonance arteriogram which required a one night 
stay in the hospital. The patient's HMO denied payment on the grounds 
the test was investigative. The doctor wrote the patient saying I still 
consider that a magnetic resonance arteriogram is medically necessary 
in your case. The HMO wrote to the doctor:
  I consider your letter to the member to be significantly 
inflammatory, the HMO's medical director wrote. You should be aware 
that a persistent pattern of pitting the HMO against its member may 
place your relationship with the HMO in jeopardy.
  So here, because the physician refused to abide by a gag rule and 
said that he was going to tell his patient what needed to be done even 
though the HMO would not cover it, now he is in trouble, and he is 
likely to be penalized or perhaps thrown out of the network because he 
told the truth.
  Well, what kind of a society do we live in where we advocate freedom 
of speech yet we would deny the physician to speak out and tell his 
patient what is best based on his own medical opinion? Well, once again 
that would be corrected by the democratic Patients Bill of Rights not 
only because the physician would be allowed to say what he had to 
without any repercussions from the HMO but also because the procedure 
that was recommended, they would have to pay for it.
  What a lot of the HMOs do, they get around paying for a particular 
type of surgery or operation or procedure by saying it is 
investigative, et cetera, speculatory, it is something that has not 
received enough attention.

                              {time}  2000

  What we find is that oftentimes a procedure that really is needed by 
the patient is not reimbursed or not paid for on those grounds.
  Let me just give one final example, if I could. This is from the New 
York Post, September 19, 1995, and this is a 12-year-old girl who had 
to wait half a year for a back operation to correct a severe scoliosis. 
The HMO rejected the parents' bid to have a specialist perform the 
procedure, insisting instead on an in-network surgeon. After taking 6 
months to determine that no one in its own network was capable, the HMO 
relented.
  Now, there again, that goes back to what I mentioned before. Under 
the Democratic Patients' Bill of Rights, if, within the network, there 
is not a specialist who can deal with the particular problem or the 
health care need that one has, then one is entitled to go outside the 
network and the HMO has to pay for the specialist in that circumstance, 
and that would clearly cover this case.
  I could go on and on and mention a lot more examples, and we 
certainly will over the next few weeks in an effort to make sure that 
this issue comes

[[Page H7688]]

to the attention of the Senate and that we have action in the Congress 
as a whole, and we send a bill to the President before we adjourn in 
October.
  The President, in responding to a letter to Trent Lott, the majority 
leader in the Senate earlier, this month, and I think we entered this 
letter into the Record last week, so I am not going to go into all of 
the details; but he spells out the problems that he has with the 
Republican bill that is proposed in the Senate and has a lot of 
similarities, in a negative way, to the House Republican bill.
  But I do want to point out what the President is talking about in 
terms of the need to move the agenda. He says that, ``Since last 
November, I have called on the Congress to pass a strong, enforceable 
and bipartisan Patients' Bill of Rights. During this time, I signed an 
executive memorandum to ensure that the 85 million Americans in Federal 
health plans receive the patient protections they need, and I have 
indicated my support for bipartisan legislation that would extend these 
protections to all Americans. With precious few weeks remaining before 
the Congress adjourns, we must work together to respond to the Nation's 
call for us to improve the quality of health care Americans are 
receiving.''
  Mr. Speaker, I want to point out that not only has President Clinton 
been talking about the need for the Patients' Bill of Rights for over a 
year, started very emphatically in the State of the Union address last 
January, but he has signed these executive orders that actually expand 
the types of patient protections that I talked about tonight to those 
within Federal health plans. Also, last year, the Congress passed and 
sent to the President, and he signed, the Balanced Budget Act, which 
also included a lot of these protections in Medicare and Medicaid 
programs. Not all of them, but a lot of them.
  So the President has done his part, really, to not only bring this 
issue to the attention of the Congress and the American people, but 
also through administrative methods to try to include it in any plan 
that comes under the aegis of the Federal Government. However, none of 
these things apply, or at least are required under Federal law, for 
anyone who has private health insurance. That is not fair. Clearly, if 
these things are good enough for the Federal Government, for Federal 
employees, for those who are in Medicare and Medicaid, it should apply 
to everyone equally, the same way.
  More needs to be done, of course, because a lot of the things are not 
covered even under the Federal plans because the President does not 
have the authority to expand all of the patient protections to those 
plans, so we need the patient protections that I mentioned tonight, not 
only to make it fair for those who have private plans, but also to 
cover all of the public plans as well.
  The last thing, the other thing that I wanted to point out that the 
President says in his letter to the majority leader in the Senate, he 
says, ``I remain fully committed to working with you, as well as the 
Democratic leadership, to pass a meaningful Patients' Bill of Rights 
before the Congress adjourns. We can make progress in this area if, and 
only if, we work together to provide needed health care protections to 
ensure Americans have much-needed confidence in the health care system. 
I urge you to make the Patients' Bill of Rights the first order of 
business for the Senate.''
  The President has indicated, and all of the Democrats have indicated, 
that we want to work with the Republicans in a bipartisan way to get 
the Patients' Bill of Rights, or something like it, passed. So far we 
have not been getting that cooperation from the Republican leadership, 
even though we do get support from some Republican Members 
individually.
  So I would urge tonight, we only have less than 4 weeks left really, 
and I would urge my colleagues to put pressure on the Republican 
leadership, in the Senate primarily, and ultimately in both Houses of 
Congress, to get this managed care reform agenda moving. Let us have 
debate in the Senate, let us get something that both houses can agree 
on, and let us send it to the President before the October recess. We 
owe this to the American people, because so many people are suffering 
now when they are denied health care that they should have as 
Americans.

                          ____________________