[Congressional Record Volume 145, Number 90 (Wednesday, June 23, 1999)]
[Senate]
[Pages S7496-S7499]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        PATIENTS' BILL OF RIGHTS

  Mr. DASCHLE. Mr. President, I will take just a few moments to share 
with my colleagues where we are with regard to our negotiations, and 
then talk a little bit about the bill itself, the Patients' Bill of 
Rights.
  Senator Lott and I have had a number of discussions this morning. We 
are trying to find a way to proceed. I think it is fair to say that we 
are continuing to lose precious time in an effort to try to resolve our 
procedural differences. I am hopeful we might be able to reach some 
agreement. I am not wedded to the latest proposal I have shared with 
the majority leader, but we do need a time certain for consideration of 
this bill in the very near future. We certainly need to have the 
assurance that the amendments we will offer will be considered and 
voted upon by the Senate.
  Those are our two principles: No. 1, a time certain for consideration 
of this bill; No. 2, some assurance that we will have the opportunity 
to debate amendments and have votes.
  We recognize that with 45 Democrats we may not have the necessary 
votes to win a contest with our Republican friends on a comprehensive 
bill. However, we do know there are a good number of Senators who have 
expressed their support for various issues in our bill. We hope we can 
work through those issues and have the assurance we can have a good 
debate and good votes.
  We cannot agree to any time certain for final passage if we cannot 
agree that we will have at least an opportunity to debate these 
amendments and have votes.
  Again, our two principles: A date certain, and an opportunity to have 
up-or-down votes, or even tabling votes, on the amendments we want to 
offer.
  I am hopeful we can work through those two principles and find a way 
that is mutually acceptable. The majority leader, as always, is 
attempting to be as responsive as he can. I appreciate the cooperative 
spirit with which we have been undertaking these discussions over the 
last 24 hours.
  One of the reasons we feel so strongly about amendments is that they 
cause the Senate to focus on what it is we are talking about when we 
say the words ``Patients' Bill of Rights.'' I don't know that a lot of 
people fully understand the magnitude of those words. What does 
``Patients' Bill of Rights'' actually mean? We want to be able to spell 
out what it means.
  I want to give one example, because it will be an amendment if we 
can't get an agreement. Our first amendment will deal with medical 
necessity. Medical necessity simply suggests that

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medical decisions ought to be made by medical professionals, not 
bureaucrats. Our amendment would prevent arbitrary interference by 
insurers regarding treatment decisions such as hospital length of stay. 
It also would establish a fair definition of medical necessity. Medical 
necessity, in our judgment, should simply be an opportunity to use 
good, professional, medical judgment about the course of action 
involving a patient. That is what we mean by medical necessity.
  I will read for our colleagues two other definitions of medical 
necessity that are currently in insurance policies for HMOs. I must 
add, I am not making this up. The first is from a Missouri insurance 
contract. I will read the definition of medical necessity taken right 
from the insurer's policy.

       The company will have the sole discretion to determine 
     whether care is medically necessary. The fact that care has 
     been recommended, provided, prescribed or approved by a 
     physician or other provider will not establish that care is 
     medically necessary.

  Let me just make sure everybody understands what this says. It says 
we do not care whether a doctor or a nurse or any kind of provider has 
recommended, provided, prescribed, or approved a given treatment. We 
are going to be the ones to make the decision about medical necessity, 
not them. Could it be any more blatant than that?
  Mrs. BOXER. Will the Senator yield for a question on that, just to 
make sure I understand it? And I am so happy to hear my leader on the 
floor on this issue.
  Mr. DASCHLE. I am happy too.
  Mrs. BOXER. For example, a doctor examined a child and determined 
that child had a rare form of cancer. I had a constituent with this 
circumstance. It was a rare form of cancer, say, of the kidney, which 
happened to be the case, and she needed immediate surgery by a 
specialist who had done this operation before, because, by the very 
nature of it, it is a very dangerous operation, and the doctor said 
this is the only way this child could live.
  Is my friend saying in that particular situation the bureaucrats and 
the businessmen in the HMO could essentially say: That is very 
interesting, but the child will have to go see the cancer doctor who is 
in our plan, and she may not go and see this specialist who actually 
could, in fact, save her life because he or she has done this operation 
before? Is that the essence of it?
  Mr. DASCHLE. That is the essence of it. The Senator from California 
has put her finger on it precisely. What it is saying is, we as an 
insurance company or we as a HMO will override whatever decisions are 
made by doctors, by nurses, by nurse practitioners, by any kind of 
provider, if we find it is in our financial interest to do so.
  Mrs. BOXER. What my friend is saying, further, is that in the 
Democratic Patients' Bill of Rights, we were going to offer an 
amendment as soon as we could on this--and that would be our first 
amendment--to ensure that the definition of what is medically necessary 
is made by the physician and health care professionals, not by the 
business people with the green eyeshades who have no degree in 
medicine. Is that correct?
  Mr. DASCHLE. The Senator is absolutely right. Let me just say, she 
asks exactly the right question because there is a followup requirement 
here which we will deal with in another amendment. What happens if 
there is a dispute? Right now, the insurance company holds all the 
cards.
  The insurance company says: In the case of a dispute, we will make 
the decision about whether the patient is right or wrong. Our bill 
says: No, wait a minute; we are going to have a fresh review of the 
facts by an outside authority. They will make the decision as to 
whether the procedure was medically necessary or not. There has to be 
somebody outside the insurance company making that decision, or what 
good is it for us to guarantee these very important rights to all 
patients?
  But I really appreciate the Senator from California making that 
point.
  I yield to the Senator from Illinois.
  Mr. DURBIN. I thank the minority leader for coming to the floor.
  For those who have been following this debate for the 10 days or more 
now that we have tried to focus the attention of the Senate on this 
Patients' Bill of Rights, this is the health insurance issue which 
American families are focused on already. We have talked about a lot of 
things on Capitol Hill, but it is time to talk about the things that 
are important to them.
  In the example the Senator from South Dakota and the Senator from 
California addressed, about a doctor being overruled, is it not also 
the case that in some of these same insurance policies the doctor 
cannot even tell the patient that he has been overruled by an insurance 
company, that, in fact, it is not his best medical judgment, but, in 
fact, the judgment of some bureaucrat in an insurance company that is 
going to dictate the treatment the patient receives?

  Mr. DASCHLE. The Senator is absolutely right. In fact, in response to 
the good question posed by the Senator from Illinois, let me read the 
second statement of policy by another insurance company regarding this 
very question. Here is the statement of policy relating to medical 
necessity of a second insurance company.
  Again, my colleagues, I am not making this up. We did not write this. 
This is written by the insurance company:

       Medical necessity means the shortest, least expensive or 
     least intense level of treatment, care or service rendered, 
     or supply provided, as determined by us, to the extent 
     required to diagnose or treat an injury or sickness.

  This is actually out of the policy:

       Medical necessity means the shortest, least expensive or 
     least intense level of treatment, care or service rendered, 
     or supply provided, as determined by us. . . .

  Do we need a Patients' Bill of Rights, when you take this right out 
of a health insurance manual: Medical necessity is determined by the 
shortest or least expensive way with which to provide service to a 
patient?
  It doesn't end there:

       The service or supply must be consistent with the insured 
     person's medical condition at the time the service was 
     rendered, and it is not provided primarily for the 
     convenience of the injured person or doctor.

  No wonder people go nuts when they talk about insurance policies 
today and what is going on out there, when they combat an insurance 
company that includes a provision like this. They may not have read all 
the fine print, but when a company says we are going to determine 
medical necessity by what is the shortest or least expensive--the 
Senator from Illinois is exactly right --this overrides everything.
  Mr. DURBIN. I ask the Senator from South Dakota, the Democratic 
leader, to yield for this question. This is clearly an interesting and 
important debate on health insurance and protection for American 
families. What is stopping the Senate from engaging in this debate?
  Mr. DASCHLE. I must say, some of our colleagues on the other side 
tell us they would rather not have to vote on this. They do not want to 
have to vote on amendments about medical necessity. That is what is 
stopping it right now. We are at an impasse because we believe this is 
such an important issue that votes and amendments on questions like 
medical necessity ought to be a part of any legitimate debate on a 
Patients' Bill of Rights. That is why we are not in agreement today. We 
feel those amendments are required if we are going to have a good 
debate. Our colleagues have at least today refused to allow them.
  Mr. DORGAN. I wonder if the Senator from South Dakota will yield?
  When he talks about medical necessity, I am reminded of two specific 
issues. One, the doctor who testified at a hearing before the Congress 
who worked for a managed care organization, who said: I caused the 
death of a man. She said it to a near-empty hearing room when the 
television cameras were gone. She was the last witness of a day.
  I caused the death of a man, she said. I wasn't reproached for that. 
I wasn't issued any sanctions. In fact, my employer really felt quite 
good about it. I was rewarded for it. I withheld treatment that could 
have saved that person's life.
  She was dealing at that point as an employee of an HMO, and a patient 
apparently needed some kind of heart procedure that was very expensive. 
The HMO said it was not a medical necessity. The patient died. This 
lady left her employment and later testified before the Congress and 
said it was a matter of dollars and cents. I caused the death of a man, 
but I was lauded for that by my employer because, to

[[Page S7498]]

them, it was a matter of dollars and cents. So that relates to medical 
necessity. What is necessary?
  The second item I was thinking about, I know the Senator from South 
Dakota was at an event one day; the Senator from California, Mrs. 
Boxer, was at the same event. Dr. Ganske, a Member of the House of 
Representatives, who is a Republican and has been a strong supporter of 
the Patients' Bill of Rights, held up a poster, a colored picture of a 
young boy. That young boy had no upper lip and no structure beneath his 
nose--a giant gaping hole. He was born with a very severe birth defect. 
It looked awful. One was hardly able to look at that young boy's face 
and not immediately say what incredible disfigurement this young boy 
has.
  Dr. Ganske, who was speaking that day, said: The HMO said there was 
not a medical necessity for this young boy to receive repairs. In 
dollars and cents, the repair of that horrible disfigurement did not 
make any sense to the HMO. But then he showed a picture of this young 
boy having gone through reconstructive surgery, and you saw a face, a 
wonderful face of a young boy which had been repaired and now that 
young boy had hope. One could sense the smile in that picture, and that 
is what medical necessity is.
  It is not convenience. It is not just dollars and cents. It is 
investments in human beings, giving hope to a young boy.
  I have one other person, if I may, whom I want to mention and whom I 
have mentioned before. He is a young boy born with horrible problems. 
The doctors said he would have a 50-percent chance of walking by age 5 
if he had a certain kind of therapy.
  The HMO said: A 50-percent chance of walking by age 5 is 
``insignificant,'' which means that in dollars and cents they withhold 
the therapy and the young boy is not able to walk. He doesn't have the 
chance to learn to walk.
  That is dollars and cents versus medical necessity. That is what is 
at issue. What is at issue is the ability to empower patients with the 
opportunity to get needed medical treatment, not necessarily the 
cheapest treatment, but the best treatment, not necessarily the 
treatment that someone in an insurance office a thousand miles away 
thinks might or might not be necessary, but what the doctor in the 
doctor's office thinks is necessary for that young boy's life, such as 
the reconstructive surgery of that boy's face.
  That is what I think about when the Senator speaks about medical 
necessity. This is not theory. It is not some abstract term. It is an 
important part of lives, and that is why the Patients' Bill of Rights 
is so critically important and why the difference between what we are 
talking about and others are talking about is so stark.
  We adopt the title, Patients' Bill of Rights, and then they say: We 
have one, too. Sure you have one. It is like picking up a turtle shell 
without a turtle in it. It is a shell. It does not mean anything. It 
does not provide the guarantees for people. That young boy would not 
have had his reconstructive surgery. The other young boy would not have 
had a chance to walk. And the list goes on. That is why these 
differences are so important.
  Medical necessity, guaranteed emergency room treatment, the gag rule, 
understanding all your medical options for treatment, not just the 
cheapest--all of these things are critical differences, and it is why I 
believe they do not want to allow the Senator from South Dakota to 
bring the bill before the Senate. We need to vote on these things, if 
not in total, then one by one, to find out where do my colleagues stand 
on it. Do they stand for the right of emergency room treatment? Do they 
stand for the right of reconstructive surgery for that young boy? Where 
do they stand on these specific issues?
  That is what is going to happen in the coming days. Like it or not, 
we are going to force them to face that, because the American people 
deserve the opportunity to have a Patients' Bill of Rights passed by 
this Congress empowering them.
  Mrs. BOXER. Will the Senator yield for 30 seconds before he responds?
  Mr. DASCHLE. I yield to the Senator from California.
  Mrs. BOXER. In 30 seconds, I want to put a bigger picture on it. I 
had the pleasure of being at a press conference with the Senator from 
Maryland, Ms. Mikulski, and she made a point. She said this century has 
been the greatest century known to humankind for finding new options 
for care, new research, gene research. We know more now than we ever 
knew before, and how ironic it is that at a point in time, going into 
the next century, when we know more than any other nation in the world, 
in this country HMOs are denying our people access so they cannot 
benefit from this research.

  As the Senator from South Dakota talks about medical necessity, if he 
can weave that into his comments, I will be very interested in his 
response.
  Mr. DASCHLE. The Senator from California makes a very important 
point. It is our research and the extraordinary benefits that have come 
from it that have made a difference in people's lives all over the 
world. How ironic, after the American people spend valued tax dollars 
in support of research which is changing the quality of life for 
millions of people, that there are insurance companies denying patients 
the opportunity to benefit from research today.
  What happens? The benefits of that research goes abroad. It goes to 
Europe. It goes to Asia. It goes to Latin America. Thank goodness it 
does. But why should it go there and not be allowed here?
  We use the term ``clinical trials.'' It is a technical term. I like 
to get away from it, because I am not sure people understand what 
clinical trials are. Basically, when we talk about clinical trials, we 
talk about the right to ensure we benefit from innovative research. We 
should encourage experimental treatments when they are in the interest 
of the patient, and the doctor recommends them. That should be part of 
a Patients' Bill of Rights. But there is a chasm between Republicans 
and Democrats on that issue. Our Republican colleagues said: No, oh, 
no, that ought to be a decision the insurance company makes, not the 
doctor, not the patient.
  I hope we keep talking about research and who benefits and how 
preposterous it is that in this country, even though we have these 
fundamental and extraordinary new possibilities to improved lives, 
there are insurance companies at this very moment that have just denied 
somebody access to that research.
  The Senator from North Dakota is always so eloquent and so compelling 
in his comments. Again this morning he demonstrated why he enjoys the 
extraordinary respect of Senators on both sides of the aisle. One 
cannot talk in human terms, in personal terms very long, as he did, and 
not understand the importance of this issue. You can talk legalisms all 
you want. But if you put it in human life terms, as the Senator from 
North Dakota did--he put it in terms of life and death; he put it in 
terms of helping a young child--all of a sudden the light comes on and 
you understand why, when an insurance company actually has the audacity 
to write, ``Medical necessity means shortest, least expensive, or least 
intense level of treatment,'' why that young boy did not get his facial 
problems fixed. It certainly did not fit ``shortest, least expensive, 
or least intense level.''
  That case probably is expensive. It is not a short recovery. It is 
intense. It is the absolute reverse of the definition this particular 
company uses for medical necessity. Of course, it was medically 
necessary if that young boy's life meant anything. Of course, it was 
required if our society is going to be responsive at all. But for any 
company to say, we don't care what the doctor says, we don't care how 
inappropriate it may be to override a decision made by a doctor and his 
or her patient, we are going to decide the medical necessity of a 
treatment based on how short it is, how inexpensive it is or how much 
it lacks intensity, that says in spades why this debate is important. 
It says why we will not give up our rights to offer amendments to 
ensure that issues like this are properly addressed. We will not walk 
away from this debate.
  We must have an opportunity to have a good debate with good 
amendments on issues as important as this, and we can do it. There is a 
way to work through this procedure. This can be a win-win situation. I 
want to find a way with which to ensure we can get a lot done in the 
next 10 days, and yet accomplish what we believe so strongly

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must be a part of the Senate's agenda in this session of Congress. I 
yield the floor.
  Mr. DORGAN. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SPECTER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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