[Congressional Record Volume 145, Number 90 (Wednesday, June 23, 1999)]
[Senate]
[Pages S7486-S7489]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        PATIENTS' BILL OF RIGHTS

  Mr. KENNEDY. Mr. President, last evening Senator Daschle was prepared 
to offer an amendment to the agricultural bill that was at the heart of 
the Patients' Bill of Rights. I believe that will be offered shortly on 
behalf of the Senator from California, Senator Feinstein. We will have 
an opportunity to get into that discussion and debate.
  I am hopeful, as are others, that we can work out a process and 
procedure by which we can have a full discussion and debate on this 
issue, and where we can have an orderly way of disposing of various 
amendments on the Patients' Bill of Rights. I am, however, somewhat 
distressed and disturbed by some of the comments I have read this 
morning on the AP relating to my friend from Oklahoma, Senator Nickles, 
the Republican assistant majority leader.
  He said he was willing to vote on the issue if the Democrats would 
agree to limit debate, but he said he was worried that Democrats will 
pressure some Republicans into supporting amendments that will increase 
the cost of health care, and therefore the number of Americans without 
any insurance. He also said he was worried the Democrats will force 
votes that can be misconstrued for political purposes. He would rather 
allow a yes or no on the entire package with only a handful of 
amendments.
  I have more confidence than the assistant majority leader in our 
colleagues' ability to make discerning decisions about the merit of 
these various amendments, and that having been elected by the people, 
we are charged to make judgments on these measures. This is a new 
reason for not bringing legislation to the floor. Apparently, one of 
the leaders is concerned the members of their party would not be able 
to exercise a balanced and informed judgment in the best interests of 
the particular States the Senators represent. Of course, if that is 
going to continue to be the position of the leadership, it does not 
bode well for a full discussion and debate on this issue.

  We have seen for the last 2 years a policy of delay and denial of the 
ability to debate the issues that we referred to yesterday and on other 
occasions, and which we will have an opportunity again to debate today. 
But it is out of frustration that Senator Daschle has used the unusual 
procedure of offering this legislation on an appropriations bill, in 
the hopes we can work out an orderly process or procedure. I certainly 
support that process, since we have effectively been closed out from 
any opportunity to debate this issue.
  It is a simple, fundamental, basic issue: whether decisions relating 
to the health of patients in this country are going to be decided by 
the health care professionals who have the training and skill and 
competency to make those judgments and decisions, or whether the 
decisions will be made by accountants in the insurance companies or the 
HMOs. That is really the basis of this whole debate and discussion. 
That is why virtually every leading health care organization, virtually 
every major professional health organization--the spokesmen and 
spokeswomen for children, for women's health, for the disabled, and for 
the patients' coalitions--has universally supported our proposal.
  It is not, certainly, because it says ``Democrat'' on it. These 
organizations support measures on the basis of the merits, whether they 
are proposed by Democrats or Republicans.
  There is uniformity among the various groups and organizations that 
the basic, fundamental issue of who decides what is medically necessary 
is really at the heart of the whole debate. It is reflected in 
different ways, as we illustrated in the course of the discussion over 
the past few days and today, but that is basically what is at the core 
of this proposition.
  The Democratic leader indicated that if we took up the Republican 
proposal that was passed out of committee on a party-line vote--even 
though we had more than 20 amendments at that time dealing with the 
substance of the issues--we would limit our side to 20 amendments. He 
indicated he would be willing to limit discussion of these various 
amendments to a reasonable time period, expecting the opposition would 
have similar amendments.
  Frankly, though, if the Republicans have the opportunity to put their 
bill before the Senate, I do not understand why they would need a great 
many more amendments. They already have their bill. If we had our bill 
before the Senate, we would not have to have a great many amendments 
because it is our bill. I think we can all understand the logic of 
that. If we have a particular proposal before us, we ought to be able 
to debate the changes that may be offered from the other side.
  The other side has the right, their right as the majority, to lay 
their bill down. So when we say we need 20 amendments and they say they 
will need 20 as well, I do not quite follow that. But so be it.
  I think we will find from the discussions taking place at the 
leadership

[[Page S7487]]

level, and I heard the exchanges last evening, I heard from our leader 
he was prepared to move ahead. He urged there be cooperation by all 
Members. That certainly would be the case, I know, for those who are 
most involved in the Patients' Bill of Rights. They would be willing to 
expedite consideration of various appropriations bills with the 
understanding we will have an opportunity to debate this issue in a 
reasonable period of time with a chance to offer amendments.
  We will hold the Senate accountable to answer the questions that 
parents have about their children and medical care: Will you will be 
able to get specialty care when a child has special needs, or just be 
given access to a general pediatrician? Will you get a pediatric 
oncologist if the child has cancer? What about access to new 
prescription drugs? Will children and others have access to the 
clinical trials?

  The opposition fails to mention that gap in their program. The most 
they do about it is to include a study about clinical trials. I think 
most American families understand the importance of clinical trials in 
their family's life experience or their health care. They may not have 
been part of a clinical trial themselves--although my family has, my 
son has, and very successfully, I will add. But I doubt if there is a 
family that does not have a member of their extended family who has not 
been involved in those programs.
  Patients need to have access to necessary prescription drugs. This is 
so important to many different groups in our society: those challenged 
with mental illness, those with disabilities or other chronic 
conditions. There are many in our communities who require those 
essential prescriptions drugs. We do not see those guarantees in the 
Republican plan. There was reference to those: They will get access to 
those--but at exorbitant prices. They didn't mention that. They said: 
We'll make sure they have access to those drugs--but the plan can 
charge exorbitant prices.
  We will have an opportunity to come back to the issue on prescription 
drugs, though probably not on this piece of legislation. But there are 
important guarantees which we provide in our Patients' Bill of Rights. 
We will come back to those measures. They are important.
  I will say a few words now about the subject matter that will be 
included in the amendment offered by the Senator from California. It 
will deal with medical necessity. This is an interesting concept, 
because it reaches the heart of this issue, this debate. When consumers 
sign up for health care coverage, they assume, I think--it is not 
presumptuous to assume this--they assume they will be able to get from 
their doctors and their health care facilities the best care that the 
medical profession has to offer. Right? Wrong. Our bill will ensure 
that the best care is given. Their bill does not.
  You say: I do not understand that. Let me clarify it. The Republican 
legislation that was reported out of the Health committee permits the 
HMO to decide what is medically necessary. They let the HMOs decide 
what is medically necessary. Then, when you have a certain illness and 
your doctor believes you should receive X, Y, or Z treatment, but the 
HMO defines ``medical necessity'' in a particular way, your doctor is 
restricted in the kind of treatment they can give you to whatever it 
says in the particular contract.
  I do not think most consumers, when they sign up for health 
insurance, look into or read the various definitions in those 
contracts. You have scores of different definitions, each allowing for 
abusive actions that can have devastating effects on the health of 
patients across the country.
  We have one included in here from a HMO that happens to be in 
Missouri. This is what it says: X company, I will not mention the name 
here, will have the sole discretion to determine whether care is 
medically necessary. Here it is--a small provision in the contract that 
an individual may never see.
  If they came in and said: The doctor says you may very well need to 
have this kind of treatment.
  And then the HMO says: Oh, no, they do not need that treatment, it is 
too expensive.
  And the patient says: Why? Is that in my best interests of my best 
health?
  Maybe the doctor will say: Yes.
  Then the person says to the HMO: My doctor says it is in the best 
interest of my health to have that treatment.
  Then the HMO says: Let me tell you something. Our definition of what 
is medically necessary for you is in the sole discretion of our HMO. We 
say you don't need that treatment. You signed that contract, and that 
is what you are going to get.
  Then the person says: I appeal. I appeal this. I appeal. I want the 
best.
  Under the Republican proposal--listen to this--the HMOs will decide 
who will listen to that appeal. They will also decide that appeal on 
the basis of what the contract says. That person gets an appeal, and 
then it goes to their HMO. The appeal officer looks at this and says: 
Here it is, it is their sole discretion whether care is medically 
necessary. And that is it; you are out.
  Then that person says: Maybe I will bring a case. Let's get this out 
into the courts. This is absolutely outrageous. It is violating the 
basic, common law of good medical treatment.
  The patient does not get to the courts. It is nonappealable under the 
Republican proposal. You are stuck there, your child is stuck there, 
and your wife may be stuck there. A member of your family is stuck 
there.
  What does our bill do? It says that plans must use the best evidence 
and practices to determine what is medically necessary. It uses the 
best up-to-date scientific information or, if that is not available, 
clinical practices.
  At a hearing in our committee earlier this year, there was some 
question about the definition and the use of various words in our 
proposal. We said: You develop the words. We have tried to take those 
words, which have been recommended by the best practitioners and by the 
medical associations, and put those in the bill. If the opposition has 
better words, we welcome them, we will embrace them, we will include 
them. Work with us, and we will work with you. Do they understand what 
we are trying to get at? We want to ensure that any individual who 
signs up with a plan is going to get what professionals in a particular 
field believe is in their best interest.
  I have in my hand 30 definitions of what is medically necessary, 
depending on the HMO. Why should American citizens play roulette, and 
allow their health care to depend on which HMO they are a member of? 
That is what is happening.
  Is this such a revolutionary idea? It is not. This basic concept has 
been supported not only by the medical societies, the medical 
associations, nurses associations, but countless other patient groups 
and others. The only people who oppose it are those who seek to 
preserve the status quo. It is similar to what is used to treat our 
parents and our grandparents under Medicare, and we do not hear any 
complaints about it.
  I ask any Member on the other side to bring in a single letter which 
demonstrates how that best standard of medically necessary is either 
being abused or not effective for those people under Medicare. Bring 
them in. Shouldn't that be the answer? Mr. President, 39 million 
Americans are being treated that way. Bring in the examples. I will 
give my colleagues examples on the other side. Let's debate that issue. 
Let the Senate decide. I will give my colleagues examples.
  If my colleagues want to take a little time, I will go right through 
these and let the Senate hear this debate.
  They may say on the other side: Is that some new idea, some crazy 
Democratic concept? We know it is being used today to treat our 
parents. They welcome it. It is good and sound.
  We want to make sure people are protected. That is what we are 
concerned with. That is why this issue reaches the heart of the whole 
debate and why the whole question of medical necessity is of such 
importance.
  If that is not a core factor, if we do not have the best judgments 
guiding what is medically necessary, and if we do not have the 
assurance this is going to protect the doctor to make that judgment, 
then this legislation is not worth the paper on which it is written.

  We can name any bill a Patients' Bill of Rights. But if it has a 
medical necessity definition that is so construed as to deny people 
adequate protection or that and they are able to question the doctor 
giving the best information on the best medical process and procedure,

[[Page S7488]]

we are not giving those assurances that the consumers of this country 
need and deserve, and we will not avoid the human tragedies which we 
have heard mentioned day after day in the Senate. We hear instance 
after instance where timely treatment is being denied because doctors 
are not able to practice what is medically necessary.
  This is the heart of this debate today. I can mention some other 
definitions. I see other colleagues in the Chamber who want to address 
the Senate. I am going to come back and review with the Senate some 
other definitions that have been included in the HMOs and how they have 
worked in ways which have been tragic to the medical profession.
  I have a definition from another major HMO, one of the largest in the 
country. I am not interested in using names, but I will be glad to if 
Members are questioning this issue. This is their definition in use 
today:

       Health care services that are appropriate and consistent 
     with the diagnosis in accordance with accepted medical 
     standards and which are likely to result in demonstrable 
     medical benefit and which are--

  Listen to this--

     the least costly of alternatives.

  There it is, ``least costly of alternatives.'' Not what is in the 
best interest of the patient, not what can save that person's life, not 
what can reduce pain and suffering and offer the best hope and 
opportunity for the future but which is least costly.
  Here is another HMO. This is the definition of medical necessity in 
another very prominent HMO:

       . . . the shortest, least expensive or least intensive 
     level of treatment, care or services rendered or supplies 
     provided.

  How many Americans, when they go in to look at their HMOs and sign 
that contract, say: Look, I have a health insurance proposal. Look what 
it's going to do. It's going to cover me and going to cover my family 
and going to cover my children, and going to cover my wife. This is 
what it's going to cost. This is what the drug benefit is.
  How many are going to look at the fine lines and look into ``medical 
necessities'' and are going to wonder whether they are using the most 
modern and comprehensive care for ``medical necessity.'' Virtually none 
of them are going to. That is why we have so many examples of the kinds 
of tragedies that have been mentioned. We will talk about those later 
in the day.
  I see my friend and colleague from California. We all look forward to 
hearing from her on the amendment she will be proposing.
  Mr. President, I yield the floor.
  Mr. REID addressed the Chair.
  The PRESIDING OFFICER. The distinguished Senator from Nevada is 
recognized.
  Mr. REID. How much time is remaining for Senator Kennedy?
  The PRESIDING OFFICER. The Senator from Massachusetts has 7 minutes 
30 seconds.
  Mr. REID. The Senator from Massachusetts has 7 minutes. There are 
three of us. Will the Senator yield his time to the three of us to 
divide equally?
  Mr. KENNEDY. I yield it to the leadership here, Senator Reid, to 
allocate in whatever way he desires.
  Mr. REID. Would the Chair advise the Senator when he has used 2\1/2\ 
minutes?
  The PRESIDING OFFICER. The Chair would be delighted.
  Mr. REID. Mr. President, the question always arises as to whether we 
have sufficient time in this body to take care of all the business 
before us, especially the appropriations bills, and still have time to 
properly handle the Patients' Bill of Rights? The obvious answer is 
yes.
  We have had a number of bills brought before this body this year. We 
have had, for example, the military bill of rights with 26 amendments, 
the Education Flexibility Act with 38 amendments, the supplemental 
appropriations bill with 66 amendments, the first budget resolution 
with 104 amendments, and the budget process reform bill with 11 
amendments. We are asking for 20 amendments. Certainly we have the 
opportunity to do that.
  I agree with my friend, the Senator from Massachusetts, that we are 
talking about real people's problems. He has spent a great deal of time 
emphasizing the importance of the access to specialists.
  I have a letter from a girl from Minden, NV, by the name of Karrie 
Craig. She wrote:

       . . . my mother found out she had cancer [in] November 
     1997. After about two years of going in circles with her 
     primary care physician, she was [finally] admitted to a 
     urologist.

  I ask unanimous consent the letter be printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

Excerpt of a Letter to Senator Reid Dated 1/11/99 From Karrie Craig of 
                               Minden, NV

       . . . my mother found out she had cancer November of 1997. 
     After about two years of going in circles with her primary 
     care physician, she was admitted to a urologist. Her primary 
     care doctor had prevented this visit with a specialist until 
     my mom was very sick. I believe that the HMO company looked 
     down upon specialized doctor visits, as they are more 
     expensive. What my mother found out was she needed an 
     operation for a small growth, left in her bladder from birth. 
     Actually, after surgery they realized she had advanced 
     bladder cancer that only a sooner visit to urologist would 
     have prevented. Within five months my mother died.
       The only good thing about the HMO services was they 
     provided us with Hospice services the last week and a half of 
     my mom's life. I feel that HMO's policies of primary care 
     physicians and the negative feelings they portray about 
     specialists causes more problems that it solves. In the end, 
     my mother cost the company more money than if she would have 
     been permitted to see a specialist earlier.

  Mr. REID. In short, this letter says that after the 2 years passed, 
it was too late. Had her mother received permission to see a specialist 
early on, she may still be alive today. By the time she was referred to 
the specialist, a tumor had developed. It was later determined that she 
had advanced bladder cancer that a sooner visit to the urologist could 
have prevented. Her mother died. This is a real-life case that 
illustrates the importance of access to specialty care.
  I hope the majority will allow us to go to the Patients' Bill of 
Rights at the earliest possible date. This is something we need the do.
  I yield to my friend from Illinois 2\1/2\ minutes.
  Mr. DURBIN. I thank the Senator from Nevada for yielding to me.
  This debate really gets down to some very fundamental and basic 
questions about whether, when you go into your doctor's office and 
present yourself with an illness, you can trust that your doctor is 
going to be honest with you, tell you what is best for you or your 
family, or whether you have to worry about the fact that there may be 
some insurance company bureaucrat involved in this decision.
  When it comes down to these basic life or death situations for a 
member of a family, there is enough emotional strain on an individual 
in trying to keep their wits about them, trying to keep their family 
together; but to think that you not only have to battle those things in 
your own mind but then, on a daily basis, battle the insurance company 
bureaucrats, that, to me, is the worst part of what we are debating.
  I want to show you a photograph of a great little boy. He is 11 
months old. His name is Roberto Cortes. He is from Elk Grove Village, 
IL--a cute kid, but a kid who has a serious problem, spinal muscular 
atrophy. He is currently on a home ventilator, as you can see in this 
photograph.
  That is enough of a strain on any family--to try to make sure this 
little fellow has a chance to live a good life. But the sad part of 
this debate is that the parents of this little boy are self-employed. 
They have a little business.
  The Republican Patients' Bill of Rights provides no protection 
whatsoever to self-employed people. Roberto Cortes and his family would 
not be protected at all by the Republican version of the Patients' Bill 
of Rights.
  The Democratic version, supported by over 200 groups, representing 
doctors and hospitals and consumers and labor and businesses across 
America, would provide protection to the Cortes family. That is how 
basic this is.
  When the Republicans tell us: We don't have time to debate this 
issue; we don't have time to debate whether or not you have a fighting 
chance when it comes to your health insurance, they are just wrong.
  You are going to hear a lot about this issue from Members on the 
Democratic side. We are not going to quit until we get a chance to have 
this debate.

[[Page S7489]]

  Since I see my colleague from California is here, and I know she has 
an important contribution to make to this discussion, I yield the floor 
back to the Senator from Nevada.
  Mr. REID addressed the Chair.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. I ask unanimous consent that this side be granted an 
additional 15 minutes in morning business.
  The PRESIDING OFFICER. Is there objection?
  Acting in my capacity as an individual Senator from the State of 
Kansas, I object.
  Mr. REID. I ask unanimous consent that the minority be granted 15 
minutes of additional time in morning business and the majority be 
granted 15 minutes additional time in morning business.
  The PRESIDING OFFICER. Is there an objection?
  Acting in my capacity as an individual Senator from the State of 
Kansas, I object.
  Mr. REID. Mr. President, how much time is left for the Senator?
  The PRESIDING OFFICER. Two minutes 30 seconds.
  Mrs. FEINSTEIN addressed the Chair.
  The PRESIDING OFFICER. The Senator is recognized.
  Mrs. FEINSTEIN. I thank the Chair, and I thank the Senator from 
Nevada.
  Mr. President, when we return to the bill, it will be my intention to 
offer an amendment to the agriculture appropriations bill. I think that 
my amendment will deal with one of the most fundamental concerns in 
health care today; that is, the restoration to the physician of the 
basic right of patient care, patient treatment, and to be the 
determinator of patient care and the length of hospital stay.
  I think one of the things we have seen emerge in health care 
throughout the United States in the past 2 to 3 years is the 
development of the so-called green eyeshade of an HMO determining what 
is appropriate patient care, regardless of the physical condition of an 
individual patient.
  The amendment I will offer essentially says that a group health plan 
or a health insurance issuer, in connection with health insurance 
coverage, may not arbitrarily interfere with or alter the decision of 
the treating physician regarding the manner or setting in which 
particular services are delivered, if the services are medically 
necessary or appropriate for treatment or diagnosis to the extent that 
such treatment or diagnosis is otherwise a covered benefit. In other 
words, if you have coverage for a treatment in your plan, the physician 
determines that treatment based on you, based on your needs, based on 
your illness--not based on the calculation of a green eyeshade in a 
health insurance plan.
  My father was a surgeon. He was chief of surgery at the University of 
California. My husband, Bert Feinstein, was a neurosurgeon. I grew up 
and lived a good deal of my life in a medical family. In all of that 
time, the doctors determined the appropriateness of care, the doctors 
determined the length of hospitalization, the doctors determined 
whether a particular treatment was suitable for an individual--not an 
arbitrary HMO, not physicians out of context of an individual physician 
and patient.
  Every person sitting in this gallery today is different, one from the 
other. They are different in how they react to drugs. They are 
different in how they react to radiation--
  The PRESIDING OFFICER. The time allotted to the distinguished Senator 
from California has expired.
  Mrs. FEINSTEIN. If I may finish my sentence.
  Mr. NICKLES. If I might just interrupt. I apologize. I was not on the 
floor earlier.

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