[Congressional Record Volume 144, Number 135 (Thursday, October 1, 1998)]
[Senate]
[Pages S11272-S11275]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PATIENTS' BILL OF RIGHTS
Mr. KENNEDY. Mr. President, the matter that I want to address, again,
is the issue of the Patients' Bill of Rights. It is time for our
Republican leadership to stop the blocking of the Patients' Bill of
Rights. It is time for them to stop protecting the insurance company
profits and start protecting the parties. It is time for them to stop
manipulating the rules of the Senate to deny the American people the
protections they deserve.
It is clear what is going on here. It is clear to every Member of the
Senate. It should be clear to the American people. The American people
want Congress to pass strong, effective legislation to end the abuse by
HMOs, the managed care plans, and the health insurance companies.
The Patients' Bill of Rights, sponsored by Senator Daschle and Senate
Democrats, provides the needed and long overdue antidote to the
festering and growing abuses. Our goal is to protect patients and see
that insurance plans provide the quality care they promise but too
often fail to deliver.
Two hundred groups of patients, doctors, nurses, and families have
announced support for our bill and are begging the Republican
leadership to listen to their voices. I have the list of the various
groups supporting our legislation. They represent virtually all of the
major doctor and nurse organizations and consumer groups, starting with
the American Medical Association, the various cancer societies, the
National Breast Cancer Coalition, and all of the American nursing
associations. The supporters also include those groups that are most
interested in the health care of children including the Children's
Defense Fund and the American Academy of Pediatrics. These groups also
represent our senior citizens including the National Council of Senior
Citizens. The bill is also supported by groups that are most interested
in mental health, the Mental Health Association, and those groups most
concerned about disability policies including the Multiple Sclerosis
Society, United Cerebral Palsy, the American Academy of Neurology, and
the Center on Disability and Health.
This, Mr. President, is only one page of a series of pages of
different groups where it can be said, without contradiction, that
every major medical association in our country supports the Daschle
proposal which is sponsored by the Democrats. Virtually every single
doctors organization, every single nurses organization, every single
consumer organization, every organization that has represented children
in our society, every association that represents cancer victims, every
association that represents the disability community--every one of
those organizations, plus many others, support our particular proposal.
There is not one organization, not a single organization, that supports
the alternative Republican proposal. We have asked day in and day out
for them just to find one organization representing any of the doctors
or nurses, children's groups, women's groups, cancer victims groups,
disability groups, any of those groups in our society, and all we have
is silence.
This isn't a matter that we are advocating because of our particular
interest. We are advocating on behalf of all of these organizations and
all of the various patients and all of the various families that are
part of this central concern about how we best can protect the families
in this country. The best way those families can be protected is, at
least, through debate on a Patients' Bill of Rights and, I believe, by
the enactment of this legislation.
As we have said on many different occasions, these are commonsense
solutions to the kind of problems that are real problems out there and
that are being faced by families every single day. If a child is sick
and the parents of that child belong to one HMO, that ambulance has to
drive by the nearest emergency room and go to an emergency room across
town because it is on the list of that HMO. When that child is in an
emergency situation, they ought to be able to go to the nearest
hospital--that is one of our bills' protections. It is listed right
here. We believe that child ought to have the opportunity to go to the
nearest emergency room and have the kind of immediate attention, but
also the follow-up attention that they need.
That right would be guaranteed under our Patients' Bill of Rights. We
want to debate that issue. That is a commonsense proposal. It is a
commonsense proposal that any family can understand. If there is going
to be an emergency affecting a child, it makes no sense to drive them
by the nearest emergency room and take them clear across town to a more
distant emergency room if that child needs immediate medical attention.
That is common sense. That protection is here. We ought to be able to
debate that particular issue, but we are denied that opportunity. We
ought to be able to get to it. I believe it wouldn't take a great deal
of time.
The list goes on. Our bill was introduced in March. But, the Senate
has taken no action because the Republican leadership has been using
every trick in the procedural playbook to prevent a meaningful debate.
The Republican leadership is abusing the rules of the Senate so that
the health insurance companies can continue to abuse patients. That
happens to be the fact.
We have too many instances of reports from patients that say, every
single day we fail to provide these guarantees, members of their family
are put at risk. Every day we continue to deny women who have breast
cancer the opportunity to be involved in clinical trials at places like
the Lombardi Center, we are putting those particular women at risk.
As I mentioned yesterday, out at the Lombardi Center they have eight
professional individuals whose only job is to argue with the HMOs to
permit the parties involved, access to the clinical trials their
doctors say are necessary but that the HMO will not permit them access
to.
Our bill provides these kinds of protections. It is common sense.
Without these kinds of protections, we are endangering the lives of
those individuals who ought to be a part of the clinical trials. That
is a very important protection.
Every day, we are denied that kind of debate and resolution, but we
still find that patients are abused by too many of the HMOs. The
Republican leadership wants to gag the Senate so that HMOs can continue
to gag the doctors who tell patients about needed treatments that are
too expensive for the HMO balance sheet.
I use those words ``gag the Senate'' because all we have had on the
other side is the proposal that you can have one, two, or three
amendments but no other. You can't have any others. We are not going to
take the time of the U.S. Senate to do it, although we did find time to
have a debate on the issue of salting; we had time to debate that
issue. We had time to debate the issues on the Vacancies Act. We have
had time to debate issues like bankruptcy which affects 1.2 million
people. But our patient protections bill, which affects tens of
millions of our fellow citizens, we evidently, haven't got the time to
debate that.
The Republican leadership wants to deny a fair debate on the
Patients' Bill of Rights so HMOs can continue to deny the needed
patient care. The Republican leadership wants to avoid accountability
in the U.S. Senate so that managed care plans can avoid accountability
with their unfair decisions, when their unfair decisions kill or injure
patients. The Republican leadership has found time to call up the
Vacancy Act, the salting bill, the Child Custody Act, the Bankruptcy
Act, and the Internet tax bill. So it is clear that
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protecting patients from abuse by HMOs and health insurance companies
is a priority for American families, but not for the Republican
leadership.
How else can that be explained? How else can you explain the fact
that the Republican leadership has called up these different pieces of
legislation, but denies us the opportunity to debate this issue, which
is of essential importance?
Listen to this, Mr. President. The Republican leadership, just
yesterday, agreed to a unanimous consent agreement on the Internet tax
bill that would have allowed all relevant amendments--no limitation on
the number of amendments, no limitation on the time to debate each
amendment, and no limitation on the time for the overall debate. We
should have the opportunity to do that on the Patients' Bill of Rights,
but, oh, no, we can't do that with the Patients' Bill of Rights--even
though the failure to provide these protections puts at risk so many
fellow citizens every single day.
But no, the Republican leadership said instead we will have a consent
agreement on the Internet tax bill. I wonder how many people here in
the Senate, let alone those who are watching, would feel that
particular issue is of more importance than the Patients' Bill of
Rights. We have moved ahead now on the questions of that particular
legislation, and I intend to support it. It is important legislation,
particularly for a State like mine, Massachusetts, with a lot of high
tech and similar kinds of issues. But, Mr. President, to put this bill
on the same level as what we are talking about with the Patients' Bill
of Rights, it just shouldn't be.
Senator Daschle asked Senator Lott for a similar agreement on the
Patients' Bill of Rights on June 25. He asked him for an agreement on
July 29. He asked him on September 1, and he asked him on September 9.
Each time, Senator Lott, the Senate Republican leader, said no. Do we
understand that, Mr. President? On June 25, on this legislation--the
Patients' Bill of Rights, Senator Daschle asked for the same kind of
agreement made yesterday by the Republican leadership on the Internet
tax bill. He asked for it on July 29. He asked for it September 1. He
asked for it on September 9. Each time, Senator Lott and the Senate
Republicans said no.
Senator Daschle also offered to agree on May 12 and on July 16, to a
far more restrictive agreement, limiting the number of amendments, but
Senator Lott and the Republicans said no. Senator Lott and the Senate
Republicans are perfectly willing to agree to essentially unlimited
debate on the Internet tax bill, but they are not willing to allow any
reasonable opportunity to debate, amend, and vote on the Patients' Bill
of Rights. This record of abuse should be unacceptable to the Senate,
and it certainly is unacceptable to the American public.
What does our legislation do, and why is the Republican leadership so
anxious to prevent its consideration? Our bipartisan Patients' Bill of
Rights takes insurance company accountants out of the practice of
medicine and returns decisionmaking to patients' doctors, where it
belongs. That is it. When you come right down to it, there it is. When
you are going to the emergency room, an accountant can say, ``No, you
can't go there, you have to go across town.'' Our bill says if you have
an emergency, go to the nearest one. If you need access to a specialist
and the primary care physician says go to a specialist, you can go to a
specialist. Or if you need a pediatric specialist, where a child has
cancer--you can go to an oncology specialist for children. These are
common sense protections. It is the doctors, the patients, the medical
professions making the decision, not the accountants. That's the bottom
line.
Mr. President, when we say these are commonsense solutions, I daresay
that 99 percent of the American people would agree that doctors and
nurses ought to make the decisions with regard to health care issues
for your family and for your children, not accountants. That is what we
are trying to do and that is at the heart of this debate. But we are
denied the opportunity to have that debate because once you go and say
you are going to have the medical decisions affecting your family
decided by doctors and trained medical professionals, it somehow may
threaten the profits of the health delivery system, the HMOs. Those
HMOs have layers of different individuals that say ``no.''
I am reminded of when President Clinton said just a week ago, ``You
never find an accountant in an HMO that loses his job for saying `no.'
They don't get fired. The ones that get fired are the ones that say
`yes.' '' Yes, they need to go to a specialist; yes, they need
additional kinds of important types of prescription drugs; yes, they
need to have the kind of care that may be more costly, but, more
importantly, may save the life of that individual; and, yes, it may
very well be if those people get better, it would be less costly to the
HMO over a long period of time. That is the issue, Mr. President. That
is the bottom line.
Our program simply guarantees people the rights that every honorable
insurance company already provides, and provides an effective and
timely means to enforce these rights. The good, honorable insurance
companies do that, Mr. President, and so do some of the HMOs. But, many
of them do not. And what happens is they obviously have the competitive
advantage over the good ones. That is wrong. They have the competitive
advantage because they shortchange the protection of their consumers,
and that is what is at the heart of this whole debate. The protections
we provide, as I mentioned, are commonsense components of good health
care that every family believes they were promised when they purchased
their health insurance and paid the premiums. Virtually all of the
protections in this legislation are already available under medical
care.
As I mentioned, of these 15 protections which are at the heart of our
legislation, over half of them are already in the law under Medicare.
Over half of them have been unanimously recommended by the President's
bipartisan commission--not in legislation, but recommended as being
essential in terms of good health care. And we know that many of them
have been recommended by various health care plans, and many have even
been recommended by the insurance commissioners that have
responsibility--made up of Republicans and Democrats alike.
You cannot find on this list a single one of these commonsense
protections that haven't been recommended by at least one of those four
groups. And most of them have been recommended by two, or even three,
of those groups. These aren't off-the-wall kinds of protections. These
are commonsense protections. They are recommended by those who
understand what the opportunity and the problems are in terms of health
care delivery by HMOs. That is it. Why don't we have the opposition
saying, ``Where did you find 5, or 6, or 7, or 10 of those various
recommendations? Where in the world did they come from? Who thought
those up?'' That isn't an argument that is made. All 15--are either
recommended by the bipartisan President's commission, the health plan
agencies themselves, Medicare, or the insurance industry themselves.
That is why, when we say these are common sense, they are, Mr.
President.
If you are not going to find the various health plans responding to
these recommendations and enforcing them, at some time you are going to
have to go ahead with this. I daresay that the very good HMOs are
complying with this now. They have nothing to fear. That is why many of
the HMOs endorse this, because they are already doing it. The good ones
are already doing it. The good ones have absolutely no fear about it.
It is just the other ones. Those are the ones that result in the kinds
of tragedies that have been listed by so many of our colleagues over
the preceding weeks and months. These are commonsense rights that
provide access to the appropriate specialists when the patient's
condition requires specialty care. They allow people with chronic
illnesses and disabilities to have referrals to the specialists that
they need on a regular basis. They provide for a continuity of care so
the people will not have to interrupt their course of treatment and
find another doctor because their health plan drops their physician or
because their employer changes health plans in the middle of a
treatment, for example.
When a member of the family is being treated with chemotherapy and
has to have a combination of treatment over 6 or 12 months, or 18
months,
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to find out in the middle of that, after 5 months, with all the kinds
of anxieties that people are affected by, that the particular company
has changed HMOs and suddenly that doctor and the nurse and the
treatment are pulled out from underneath you, we think that family
ought to be protected. That individual who is going through that
particular chemotherapy, or specialized care, ought to be able to
complete that particular treatment.
Is that such a radical idea, when you have an individual who has had
all of these kinds of concerns--not just financial concerns, but the
emotional, the pain, and the suffering--and finally to have what is so
important, the doctor-patient relationship, the trust and confidence in
that doctor, and then, because some bureaucratic decision is made to
pull that doctor away from that particular patient--we think there
ought to be a guarantee that there can at least be the continuation of
care for that particular incidence of care.
Is that so dramatic? Is that so unreasonable? Is that so outrageous?
It seems to me that is common sense.
No patient with symptoms of a stroke should be forced to delay
treatment to the point where paralysis and disability are permanent
because a managed care accountant does not respond promptly and
appropriately.
Patients with serious illnesses, like cancer, Alzheimer's,
osteoporosis, or rheumatoid arthritis, who cannot be helped by standard
treatment, should have the right to participate in the quality clinical
trials that can help find a cure or offer the hope of improvement.
Traditionally, insurance has allowed patients this opportunity. But,
no; managed care is saying no to both the patients and medical
personnel. Now, too many of the managed care companies are saying no to
both. Patients and medical research are suffering.
It was unthinkable 5 years ago that when a doctor recommended that a
child participate in a clinical trial, the insurance wouldn't cover
them. They all did. It has only been in the most recent times where it
is becoming a pattern and practice of too many HMOs that say no, we are
not going to permit you to participate, even though a doctor believes
that it is in the health interests of the individual to participate in
those particular clinical trials.
Mr. President, the thing that is really so shocking is that we are
now seeing extraordinary breakthroughs--every single week there are new
medical breakthroughs. Particularly in the areas of cancer, there are
new medical breakthroughs, and specifically in the area of breast
cancer.
Look at all of the work that has been done in terms of the mapping of
the human gene and isolating the various DNA through research. Look at
the extraordinary work that is being done out at NIH and a few of the
other great research centers, and the new kinds of opportunities that
are available through research that are targeting these kinds of
illnesses and diseases. I personally believe that the next century is
going to be the century of the life sciences. Just at a time when we
have the greatest opportunity for cures of the most dreaded disease, we
are closing down the opportunities for participating in these clinical
trials. It is just extraordinary.
In the testimony that we have seen, it is clear that there isn't
really any additional cost to the various HMOs, because all they are
asking for is continuity of care for the patient, and just to continue
to pay the outlay--not for the particular analysis of the various
clinical trials, not for the new kinds of medications that might be
rare and expensive, not to do summations, or pay, or participate in
terms of these other kinds of studies. Absolutely not. All the HMO has
to do is the continuity of care--just provide the kind of care that
they would otherwise be providing.
That is the amazement of some of the top researchers who appeared
before our forums, who were in charge of some of the most important
clinical trials in this country, because they say it really doesn't
cost the HMO any more. The fact is, if the patients participate, they
may very well and so often do get much better, and it saves the HMO a
great deal of resources and funding. That is why there is an absolute
disbelief on the part of so many of the top researchers.
They pointed out that not only were we disadvantaging so many
individuals, particularly in the area of cancers, and specifically in
the area of breast cancer and clinical trials, but also that the
research progress was being hurt here in the United States because of
the failure of participation of many of these patients.
As I mentioned just a moment ago, in all of the various forums that
we had, there were many different facts that stood out. But when you
have the top clinicians say that at the Lombardi Clinical Research
Center, here within the shadow of the Nation's Capitol, they have eight
highly professional people who are spending all of their time all day
long wrestling with HMOs based on the fact that doctors have
recommended that their patients participate in these clinical trials,
but yet still have to spend all of their time arguing with the HMO to
permit those individuals to actually participate in these clinical
trials. It is absolutely beyond belief to me, absolutely beyond belief.
Mr. DURBIN. Mr. President, will the Senator yield for a question?
Mr. KENNEDY. I am glad to yield for a question.
Mr. DURBIN. If I understand, the statement is that before we go home
we need to address the Patients' Bill of Rights. It appears that there
is a wide public sentiment in support of this. It isn't a partisan
issue, by a long shot. All the polls suggest that the voters, almost
uniformly--Democrats, Republicans, independents--believe that this is a
critical and important issue.
When I brought this issue to the State of Illinois and visited a
hospital with a doctor, he told me a story of a woman bringing her son
in complaining of headaches on the left side of his head. The doctor
thought that a CAT scan was indicated to see if a tumor was present.
Before he told the mother, he called the insurance company. They said
they would not pay for it. The doctor had to go back into his office
and tell the mother that he thought they didn't need to do anything. He
was prohibited by the terms of his contract with the insurance company
from even telling the mother that he had been overruled by the
insurance company. Think of that--if you are bringing your son or
daughter into a doctor, that you could be treated that way.
What Senator Kennedy is suggesting, and many of us believe is
important before we go home, before we address other issues on the
floor: We should take up the Patients' Bill of Rights for that mother
and the millions of others like her across America who are counting on
us to do something substantive before we leave.
I fully support the Senator.
Mr. KENNEDY. If I could just add to what the Senator has pointed out,
would you believe that in the Republican proposal, for example, any
medical procedure that wasn't over $1,000 could not be appealed? And so
for the kind of situation that the Senator is talking about, under the
Republican proposal, they say, oh, look, we have taken care of that,
except if that medical procedure is less than $1,000. Then there is no
opportunity for appeal. So, effectively, you are saying there are no
MRIs for any child who falls off a bicycle, gets hit playing football,
falls down or has an accident playing hockey. And the Senator from
Illinois knows families as I do that deny their children the
opportunity to play sports because they haven't got health insurance or
because they are not going to be able to get any kind of coverage for
sickness or illness.
As bad as it is, as the Senator has pointed out, we ought to have an
opportunity--would the Senator not agree, to debate this sort of phony
protection advanced by the Republicans, saying we will guarantee some
opportunity for appeal but not if it was under $1,000.
Patients should have the right to appeal decisions of their plans to
independent third parties. Today, if a health plan breaks its promise,
there is no remedy that can provide relief in time to save a life or
prevent a disability.
Independent review was recommended unanimously by the President's
Commission. It has worked successfully in Medicare for over thirty
years. Families deserve the basic fairness that only an impartial
appeal can provide. Without such a remedy, any ``rights'' of patients
exist on paper
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only--and they are often worth no more than the paper on which they are
printed. When the issues are sickness and health--and often as serious
as life and death--no health insurance company should be allowed to be
both judge and jury.
In addition, when the misconduct of managed care plans actually
results in serious injury or death, patients and their families should
be able to hold the plans liable in court. Every other industry in
America can be held responsible for its actions. Why should health
plans, whose decisions truly can mean life or death, enjoy this unique
and unfair immunity?
Under current law--the Employee Retirement and Income Security Act--
patients whose lives have been devastated or destroyed by the reckless
behavior of their health plan have no right to go to court to obtain an
appropriate remedy under state law. ERISA ``preempts'' all state
remedies. Patients are limited to the narrow federal remedy under
ERISA, which covers only the cost of the procedure that the plan failed
to pay for. You can be crippled for life by cancer because your plan
refused to authorize a test costing a few hundred dollars to detect the
cancer in its early stages--and all you can get back to help support
your family is the cost of the test you failed to get.
During the debate on the tobacco legislation, Republicans and
Democrats alike voted overwhelmingly to support the principle that no
industry in America should be exempt from accountability for its
actions. Because of ERISA preemption, one industry alone--the health
insurance industry--enjoys this protection today. That is wrong--and
the Senate should say it's wrong.
During the debate on welfare reform, many on the other side of the
aisle spoke strongly in favor of the need for individuals to take
responsibility for their actions. It is ironic that some of those who
spoke most strongly for responsibility for poor single mothers are
opposed to responsibility for a powerful industry that earns tens of
billions of dollars in profits every year.
What most Americans do not know--and what the opponents of change
ignore--is that ERISA pre-emption does not apply to state and local
employee health plans. Employees of the city government or state
government, whose health benefits are provided by taxpayers, can hold
their health plan accountable in court if it kills or injures them. But
equally hardworking families down the street are defenseless--because
they happen to work for private industry.
Our legislation is truly a Patients' Bill of Rights that will provide
these protections and more. It is a moderate, responsible, and
effective response to the widespread problems patients and their
families face every day. That is why it is supported by a broad and
diverse coalition of doctors, nurses, patients, and advocates for
children, women, and working families. That is why it enjoys bi-
partisan support from members of Congress on both sides of the aisle,
including a courageous physician, Dr. Greg Ganske, a Republican
Congressman from Iowa, who has seen the abuses of managed care first-
hand.
The Republican leadership plan, by contrast, is not supported by any
group of doctors or nurses or patients. It has no bi-partisan support.
It is an industry profit protection program, not a patient protection
program. It is not a Patients' Bill of Rights. It is a Patients' Bill
of Wrongs. That is why we need a full debate--so that it can be amended
and improved until it provides the protections patients need.
If the Majority Leader will stop abusing the rules of the Senate and
allow this debate to proceed, I believe that the Senate will pass
strong reforms that will be signed into law by the President. The
American people deserve real reform, and I believe that when the Senate
votes in the clear light of day, it will give the American people the
reforms they deserve. This issue is a test of the Senate's willingness
to put a higher priority on the needs of families than on the profits
of special interests. And it is time for the Senate to act.
The choice is clear. The Senate should stand with patients, families,
and physicians, not with the well-heeled special interests that put
profits ahead of patients.
The American people know what's going on. Movie audiences across the
country erupt in cheers when actress Helen Hunt attacks the abuses of
managed care in the film ``As Good As It Gets.'' Helen Hunt won an
Oscar for that performance, but managed care isn't winning any Oscars
from the American people. Everyone knows that managed care today is not
``as good as it gets.''
Too often, managed care is mismanaged care. No amount of distortions
or smokescreens by insurance companies can change the facts. The
Patients' Bill of Rights can stop these abuses. Let's pass it now,
before more patients have to suffer.
I thank the Chair. I thank the Senator.
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