[Congressional Record Volume 145, Number 90 (Wednesday, June 23, 1999)]
[Senate]
[Pages S7501-S7505]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      THE PATIENTS' BILL OF RIGHTS

  Mr. SCHUMER. Mr. President, I am here, of course, to discuss what 
many of my colleagues have discussed in the past--the need for us to 
debate totally and openly the Patients' Bill of Rights. It is an issue 
of great concern to the people of my State. Everywhere I go--urban, 
rural, suburban--people are asking: What is happening to the Patients' 
Bill of Rights?
  This is an issue many of us have discussed. I know this body debated 
it for a little while last year, but, unfortunately, things were left 
unresolved. It has not been left unresolved for the millions of 
Americans who are now having their medical policies dictated, not by 
their doctor, not by their nurse, not by their family, but rather by 
some unknown bureaucrat who has no medical education but is simply part 
of an HMO.

  When you go to hospital after hospital throughout the State of New 
York and sit with doctors, you see the frustration in their eyes as 
they tell you story after story. They have been negotiating with these 
actuaries. They say to the actuary: Are you a medical doctor? How can 
you tell me the patient does not need this type of operation or this 
type of medication? They get no good medical answers. To them, it is 
similar to going to medical school and spending years of internship and 
residency and it makes very little difference.
  For that reason, our health care system--by the way, I give good 
marks to our health care system. It has been overwhelmingly successful. 
The average age of Americans is higher than ever before. Not only do we 
live longer but we live healthier longer.
  I look at my parents. Thank God. Praise God. Just last week each of 
them had a birthday. One is 76 and one is 71. My dad has had a few 
health mishaps, but he is in good health. It is in part because of our 
medical system. But we have been losing so many of these benefits in 
the last several years, because the pendulum has swung too far in the 
direction of the HMOs. We find more people who have had no training in 
medicine overruling doctors in medical procedures, because the book of 
standard operating procedures dictates the limited number of options. 
We don't want that. Most Americans don't want it.
  That is why we need to debate this Patients' Bill of Rights. We need 
to debate its scope: Should it cover only 50 million Americans, or 
should it cover

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closer to 150 million Americans? We need to debate its provisions: How 
long a review process should there be? Should it be internal or 
external? Should an HMO be allowed to have the last word on a life-or-
death procedure that the physician believes is very much needed? Should 
there be a gag rule? Should physicians be ordered not to tell their 
patients about certain procedures or certain medications that are 
available? Should women have the right to choose their obstetrician and 
gynecologist who is often their primary care physician?
  These are all important issues. I know there are Members on the other 
side who talk about freedom of choice. People talk about costs. I don't 
agree with those arguments, but I would certainly like to debate them 
in this distinguished Chamber.
  I ran, as I know you did, Mr. President, and many others, for the 
Senate from the House because I thought that we would have the 
opportunity to debate the great issues. There was certainly no 
guarantee that we would win. There was certainly no guarantee that my 
beliefs would prevail. But I thought there was something of a 
guarantee--that the wide open debate the Senate has been known for for 
over 200 years would be guaranteed even to somebody who sits way over 
in this corner of the Chamber, which means you are a freshman at the 
bottom of the seniority pecking order. It hasn't happened.
  The reason this floor is silent right now, and the reason we are not 
debating other bills, is that many of us believe strongly we should 
debate the Patients' Bill of Rights. But we also believe the ability to 
debate issues of importance to us--that has been a hallmark of this 
body--should not be extinguished, should not be snuffed out.

  I would like to know answers to certain things. I would like to know 
answers to the kinds of examples I have heard about in my State and 
throughout the country.
  I would like to know, for instance, what happened to a woman who had 
terrible back pain and required two surgeries to repair her spine. The 
HMO denied coverage for the $7,000 for the second surgery. The doctor 
then stated to the woman that he would be committing malpractice if he 
didn't perform the second operation, because the whole procedure 
entailed two of them; the HMO said one. The patient offered to pay out 
of pocket. Both surgeries were done. But in this case the surgeon--a 
very generous person--declined to take the money from the woman. Why 
did that happen? Why did this physician believe so strongly that the 
woman needed the second surgery that was denied by the HMO?
  How about an incident where a New York man slipped and cracked his 
skull as he was getting out of the taxi? The taxi driver called 911. 
The victim was rushed to an emergency room for treatment. But this 
episode did not have prior authorization as an emergency, so the HMO 
refused to pay the bill.
  Again, what has happened here? Have we become so bureaucratic and so 
narrow in the way we practice health care in America that common sense 
has been thrown out the window?
  Another example: An HMO denied another New Yorker who suffered from 
multiple sclerosis physical therapy despite the opinion of the doctor 
and the neurologist that this was the only way this patient could 
recover.
  Another example: A mother called her HMO at 3:30 a.m. to report that 
her 6-month-old boy had a fever of 104 degrees and was panting and was 
limp. The hotline nurse told the woman to take her child to the HMO's 
network hospital 42 miles away, passing several closer hospitals. By 
the time the baby reached the hospital, he was in cardiac arrest and 
had already suffered severe damage to his limbs. As a result, both his 
hands and legs had to be amputated. The court found the HMO at fault. 
The family received a large financial settlement. As sure as we are 
here, that family would give back every nickel and pay more for that 
not to have happened.
  These are not isolated examples. There are so many that it is hard to 
go through our jobs as Senators of the 50 States without hearing when 
you go to a town hall meeting, or when you go to a veterans hall, or 
when you go to a chamber of commerce meeting that somebody makes their 
complaint about this issue.

  These examples need answers. I believe the answers in this bill, the 
Patients' Bill of Rights, are the right answers. I may be dissuaded 
from all or parts of that answer by my colleagues. If we don't debate 
the issues, we are never going to be able to determine that. If we 
don't debate the issues, we are not going to be able to move forward on 
a Patients' Bill of Rights.
  If we continue in a pro forma fashion--we vote our bill; the other 
side votes their bill; then the issue is forgotten because we know the 
bill on the other side will not become law--we are not helping our 
constituency.
  The bottom line is simple: I believe strongly we need the Patients' 
Bill of Rights or something close to it. My colleagues and I want to 
debate. We want the opportunity to debate these issues. If the other 
side changes our mind, so be it; if we change their mind, great.
  Without debate, we will have no progress, and we will continue to 
hear the stories we are hearing, much to the detriment of the health 
care of the American people.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. I thank my colleagues for their efforts on the floor to 
highlight the Patients' Bill of Rights, a bill to empower people around 
the country who rely on HMOs and other managed care programs for their 
health care needs. I join them today in enthusiastic support for badly 
needed legislation that will expand protections for patients who are at 
the mercy of managed care practices.
  I strongly support the principles of improving access, quality, and 
accountability in the delivery of managed care. I believe we can 
achieve valuable patient protections by passing a bill that ensures 
some commonsense protections, access to emergency care, access to 
specialists, and a strong internal as well as external appeals process.
  We need to keep medical decisions in the hands of doctors. We have to 
ensure that managed care entities are held legally accountable for 
administrative decisions that affect patient care and well-being. 
Protections are extremely important to restoring a sense of security 
and control to managed care enrollees and their doctors.
  The protections in this bill are being debated on the Senate floor, 
but they are also being lobbied furiously in the halls of Congress. 
Some of the most powerful and influential interest groups in this 
country have a huge stake in seeing this bill fail, while others want 
it to succeed.
  Last week, I announced on the floor that from time to time I will 
point out the role of special interest money in our legislative 
process. I call it the 800-pound gorilla sitting in this Chamber every 
day that nobody talks about, but that cannot be ignored. I said I will 
start calling attention to this gorilla more often through an effort 
that I have dubbed, ``The Calling of the Bankroll,'' where I discuss 
how much money different interests lobbying a particular bill have made 
in campaign contributions in order to influence our work in this 
Chamber.
  I can't think of a better issue than managed care and the future of 
managed care to once again call the bankroll.
  Let me give four quick examples. One, the managed care industry: What 
does it want? The managed care industry wants to prevent any further 
regulation of the industry, and it doesn't want to be held liable when 
administrative decisions and policies affect the health, or even the 
very lives, of patients.
  What did managed care give? During the last election cycle, managed 
care companies and their groups made more than $3.4 million in soft 
money, PAC and individual contributions. This is roughly double what 
they spent during the last mid-term election cycle of 1993-1994. Their 
contributions keep increasing.
  A second example is the pharmaceutical industry. What do they want? 
They have a big interest in the kind of drugs managed care patients 
have access to.
  What did they give? Behind their point of view is the weight of at 
least $10.6 million in PAC and soft money contributions. That is how 
much the pharmaceutical and medical supplies industries gave during 
1997 and 1998.
  A third example: The doctors, the AMA, what do they want? Of course,

[[Page S7503]]

doctors have an interest in seeing managed care reform. They want to 
eliminate restrictions on doctor-patient communication. More broadly, 
they want to prevent managed care companies from exerting further 
control over the way they practice medicine.
  What did they give? The AMA made significant PAC and soft money 
donations during the last election cycle, more than $2.4 million worth.
  A fourth example: Organized labor, what does it want? It is a strong 
supporter of the Patients' Bill of Rights. Unions are also major 
campaign contributors.
  What did they give? The AFL-CIO alone gave parties and candidates 
close to $2 million in 1997 and 1998.

  I am sure there are other interests that should be included on this 
list. I urge my colleagues to come to the floor and add to this list so 
there will be as full a picture as possible of the money behind and 
against this piece of legislation. I think it is relevant to what is 
happening on the Senate floor.
  Why should Americans care? While many Americans rightly worry about 
the quality of their health care, I believe the quantity of campaign 
contributions that may affect that care should also be of serious 
concern. The huge quantity of campaign contributions influences the 
very terms of the health care debate itself, how health care is 
discussed, and whether some health care issues are even discussed at 
all.
  Wouldn't it be better if the public could have confidence that we are 
deciding crucial issues such as the rights of Americans covered by 
managed care, without the shadow cast by campaign contributions, 
without the 800-pound gorilla sitting here on the floor?
  I thank my colleagues for the opportunity to call the bankroll on 
this issue. Information about campaign contributions should be easily 
available to my colleagues and to the public to clearly demonstrate the 
connection between what the wealthy interests want in Washington and 
what the average American gets on Main Street.
  It is time to debate, amend, and come to conclusion on a Patients' 
Bill of Rights. These are health care issues with real consequences for 
ordinary Americans at the doctor's office, the pharmacy, the emergency 
room, and the admitting desk.
  We have to ask: When your critically ill child needs to see a 
specialist, do you want to think that laws affecting decisions on care 
are influenced by campaign contributions or have been made based on a 
thoughtful, reasoned debate.
  I think the American people deserve better than this. Until we have 
campaign finance reform, our debate on crucial issues such as health 
care is going to be carried out under the shadow of these huge amounts 
of money and the influence that so many Americans are convinced they 
wield.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I ask unanimous consent to be recognized 
in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. I thank the Senator from Wisconsin, the Senator from New 
York, and so many others who have come to the floor this morning and 
early this afternoon to talk about the Patients' Bill of Rights. For 
those who may not be familiar with the term, it is an effort to pass 
into law protections for individual Americans and their families when 
they have to deal with an insurance company.
  The Rand Corporation tells us that 115 million Americans have had a 
bad experience with a health insurance company, or they know someone 
who has--perhaps someone in their family. Those bad experiences run the 
gamut of being denied access to the doctor you want to go to, being 
denied access to a specialist in a case where you think one is 
necessary, or medically necessary in the view of another doctor, being 
unable to go to the emergency room closest to your home because your 
policy said no, you have to go across town or perhaps to another 
location for the emergency room in another hospital, dealing with a 
doctor who may not be able, under the terms of his contract, to even 
tell you what is best for you medically, having doctors who are losing 
out in the debate with bureaucrats at health insurance companies.

  One doctor in Joliet, IL, frustrated with the voice on the other end 
of the telephone at the insurance company who kept saying no, no, no, 
every time this doctor told the insurance company what the insured 
patient needed, finally said to this voice: Wait a minute, are you a 
doctor?
  And the voice said: No.
  Well, are you a nurse?
  No.
  Are you a college graduate?
  Well, no.
  Are you a high school graduate?
  Yes.
  What gives you the authority in this insurance company to overrule my 
medical decision?
  She said: I go by the rules--the rules of the insurance company.
  Rules, frankly, that are driven not so much by the need for quality 
care but by the bottom line.
  The health care system in this country is in a state of crisis. The 
question is whether this body, the Senate, which is supposed to be the 
most deliberative body in American politics, will even consider the 
issue. We are now tied up in knots over whether we can debate this 
issue. Isn't it ironic. The argument made by the Republican side is, we 
do not have time to debate this issue. Time? It is 1:30 in the 
afternoon. We spent the entire morning talking about this issue. Why 
don't we spend this time actually debating the issue? Let the 
Republicans put their best plan forward, let us put our plan forward, 
and let's vote. That is what this body is supposed to be about--not 
ducking and weaving and avoiding the issue but facing it. That is what 
it is about.
  I stand by the Democratic Patients' Bill of Rights. I think our 
approach is a better approach. It includes a lot of provisions that, 
frankly, just make sense to most people.
  First, doctors should make medical decisions, not insurance company 
bureaucrats.
  Second, if you need a specialist and your doctor says that is the 
best thing for you or your baby, you have access to that specialist.
  Third, if you are a woman and believe your primary care physician 
should be your OB/GYN, whom you are confident in dealing with, you have 
that right.
  Fourth, if the insurance company makes a bad decision--if the 
insurance company denies you care, overrules your doctor, sends you 
home--you have a right to hold that insurance company accountable.
  Let me be honest about what that means. It means the possibility the 
insurance company might have to go to court. The Republican side of the 
aisle just says, oh, you are not for health care; you are for more 
litigation; you want more people in court.

  No. But I can tell you, every American, every American company, is 
subject to that same rule except health insurance companies. They have 
an exception in the law. You cannot sue them for anything more than the 
cost of the procedure.
  This Senator and everyone in the gallery and all listening will be 
held accountable for their actions. If I did something so foolish as to 
drink and drive and hurt someone, I would be hauled into court. I 
should be. That is something you expect in America. If you ask 
businessmen, they say: Yes, if we sell a product that is defective and 
we hurt someone, we are going to be held accountable. But health 
insurance companies are not held accountable. They make life-and-death 
decisions, and the Republicans in their so-called Patients' Bill of 
Rights do not want them to be held accountable. They think insurance 
companies should be above the law, the only businesses in America above 
the law. I don't think that is right.
  The provisions in the Republican version, as opposed to the 
Democratic version, leave 115 million Americans behind. Who is involved 
in that? If you happen to be a farmer--and I come from an agricultural 
State, Illinois--you are not going to get a protection from the 
Republican version of the bill, only the Democratic version. If you 
happen to be a small businessperson, self-employed, you have no 
protection in the Republican bill. There is protection in the 
Democratic bill. State and local employee? Same story.
  Why would we do that? Why would we write a law saying we respect the

[[Page S7504]]

rights of individual Americans in dealing with their health insurance 
company--unless they happen to be small businesses, unless they happen 
to be farmers, unless they happen to be the local policemen we rely on 
for safety in our community? This is worthy of a debate.
  I think the Republicans would want to stand up and defend their point 
of view and let us defend our point of view. Then vote. But that is not 
what has happened. For 2 weeks we have talked about debating. For 2 
weeks we have been here day after day asking for recognition on the 
floor to talk about this issue, because the Republican leadership does 
not want to face a debate and does not want to face tough votes, votes 
that may be hard to explain back home.
  I have quoted him before and he is worthy of another quote, a former 
Congressman from Oklahoma named Mike Synar, who used to say to 
squeamish Congressmen when a tough vote was coming: If you don't want 
to fight fires, don't be a fireman. If you don't want to cast tough 
votes, don't run for Congress.
  That is what we are here for, to do the best we can, debate this, and 
come up with a law that is good for America. Maybe we should bring in 
some of the better provisions from the Republican side, some of the 
better provisions from the Democrat side, and put forth a bill that 
will help the families in this country. But we have been stopped in our 
tracks. The leadership on the Republican side refused to give us that 
opportunity.
  We tried yesterday, incidentally. We had an effort to amend the 
agriculture appropriations bill. You say, What does that have to do 
with health care? Well, people who live in rural areas are concerned 
about health care, but it was an available bill on which to try to 
bring up this issue. When we tried, we were stopped again. A vote to 
table that effort, to stop the debate, to stop the amendments 
prevailed.

  I have here a story, which I am sorry I will not have time to tell 
you, about Michael Cahill who lives in my home State, in Chicago, IL. 
It is a long, sad story. Michael had dizzy spells and went to a doctor 
who thought it might have been an inner ear problem. He was sent back 
and forth. Finally, he was referred to a neurologist who performed a 
CAT scan, and 3 years after the symptoms began, they determined he had 
multiple sclerosis, and then the insurance company said: You have to go 
back to the original doctor who did not diagnose it properly.
  He went through a period--this goes on for pages--of fighting his 
insurance company. This is a man who comes to realize in his adult life 
that he has a serious medical illness, one he worries about. He worries 
about its effect on him and his family and his future. Instead of just 
fighting the illness, he is fighting the insurance company at the same 
time.
  I wish this were an isolated story. It, unfortunately, is a story 
that has been repeated time and again. It is a story which reflects the 
reality most Americans now face when it comes to health insurance.
  We only have a limited time left this week and next before we break 
for the Fourth of July. I am sure there will be many important issues 
we will consider. But I will bet if I went back to Chicago or any part 
of Illinois, my hometown of Springfield, and started asking people: 
What really concerns you? What could we do on Capitol Hill that might 
have an impact on your life?--if I brought up the issue of health 
insurance, my guess is a lot of those people would say, Can you do 
something about this? Are your hands tied? Can the Senate really act on 
it?
  The answer is, we can do a lot. There was a press conference this 
morning by the women Senators who came forward and talked about some of 
the terrible things that have occurred in the treatment of women 
receiving these so-called drive-by mastectomies, where women literally 
have mastectomies and, under the insurance policies, cannot stay in the 
hospital overnight. A lot of State legislatures are changing the law in 
their States, but federally this should be a standard we all agree to, 
that people can stay in the hospital long enough for a good recovery.
  Clinical trials are another real concern. Clinical trials are 
opportunities for medical researchers to come up with new cures. But, 
of course, they are not the most cost-efficient things. It takes extra 
time to try to find the patients who are appropriate for the test, get 
their permission, go through the testing and procedure, and a lot of 
health insurance companies say: We cannot be bothered by that. It is 
the bottom line. The longer they stay in the hospital, the worse for 
us.
  But think about it. How can we expect to develop the cures we need in 
this country, the important things that challenge us and our families, 
if we do not have that? So we want to make certain clinical trials can 
still go on as a result of health care in this country.
  Let me return for a moment to one of the basic frustrations that 
seems to attack the medical profession. I spoke to the Illinois State 
Medical Society a few weeks ago. It was an amazing experience, because 
as they started to ask questions afterwards, a lot of the questions 
circled around the question whether or not, as doctors, they could form 
a union. You know, there was a time if you said the word ``union'' in 
the presence of doctors, they would say: Wait a minute, we have nothing 
to do with that; that's some other group of people.
  Why are doctors talking about forming unions or associations now? 
Because they have to have the power to bargain with the health 
insurance companies. Otherwise, they are being treated as employees and 
denied their professional rights, rights which they have earned with 
their education and their licensure.
  It is an indication, too, of a concern I have that unless we change 
the way health care is managed in this country, fewer and fewer women 
and men will go to medical school. They will opt out of the opportunity 
of being health insurance company employees or servants and try 
something else. That is something that is not good for America if it 
occurs.
  I can tell you if I am on a gurney in a hospital needing medical care 
and I look up into the eyes of that doctor, I want to see the best and 
the brightest. I will be praying that doctor was top of the class, the 
No. 1 graduate. I do not want someone who thought about this as a 
second option in their life, if they ever could.
  I am afraid if this debate does not take place, if health insurance 
does not change, we could jeopardize the possibility of having the kind 
of men and women we want going to medical school and certainly 
jeopardize our ability, as individuals and members of families, to have 
health insurance and health care that we really can count on.
  When Americans are asked across the board about their concerns, what 
they would like to see us work on, they tell us over and over: Take the 
decisions out of the hands of the health insurance companies and give 
them back to the doctors and medical professionals.
  That is what this debate should be about. This empty Chamber should 
be filled with 100 Senators, Democrats and Republicans, debating this 
most important issue. Instead it is empty. We give these speeches 
calling for the issue to come before the Senate, and we are told by the 
other side we cannot; it would take too much time. And the clock 
continues to tick.
  We have the time. The question is whether or not we can summon the 
courage to address an issue which, frankly, is controversial. On one 
side, the Democratic Patients' Bill of Rights has some 200 different 
organizations endorsing it. Doctors and hospitals, consumer groups, 
children advocacy groups, labor, business--all endorsing the Democratic 
plan. On the Republican side, their plan is endorsed by only one group, 
but it is a big one--the insurance companies. They do not want to see 
this changed. They are making a lot of money.
  It goes beyond money. It goes to a question of quality of life for 
America's families. We had a similar debate just a few weeks ago, a 
debate that really followed the tragedy in Littleton, CO, when families 
across America and individuals stopped to ponder whether or not it was 
safe to send their kids to school anymore. It wasn't just Littleton, 
CO. It was Conyers, GA; West Paducah, KY; Pearl, MS; Springfield, OR; 
Jonesboro, AR; and maybe your hometown is next.
  Finally, after a week of pointless debate, we came down to a sensible 
gun

[[Page S7505]]

control bill that was enacted only when Vice President Gore cast the 
deciding vote. Six Republicans and 44 Democrats voted for this 
bipartisan plan. It was sent to the House of Representatives and, 
unfortunately, there the National Rifle Association prevailed. The bill 
was basically defeated, and the opportunity for sensible gun control 
was lost.
  I hope we have another chance in this session. I hope we have a 
chance to address not only gun control but the Patients' Bill of 
Rights, an improvement in the minimum wage in this country, and doing 
something about the future of Medicare--these things I believe are the 
reason we are here. It is the agenda with which most American families 
can identify--doing something about our schools to improve education. 
Instead we seem to be caught up in a lot of other issues that are at 
best only secondary. It is time to move to the primary agenda and the 
primary agenda is the Patients' Bill of Rights and that is what this 
Senate should be considering.
  I thank the Chair for the opportunity to speak in morning business. I 
hope that as I end my remarks and we go into a quorum call, which is 
really a time out in the Senate, that all those who watch this quorum 
call will ask the same question: Why then, during that moment in time, 
isn't the Senate even talking about or debating the Patients' Bill of 
Rights? Why isn't that bill on the floor? Why aren't the Senators of 
both parties offering their best suggestions on how to improve health 
insurance in America?
  Sadly, that has not happened. I hope it happens soon, and the sooner 
the better. I yield the floor.
  Mr. KENNEDY addressed the Chair.
  The PRESIDING OFFICER (Mr. Voinovich). The Senator from 
Massachusetts.
  Mr. KENNEDY. I understand we are in morning business until the hour 
of 2 o'clock.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. KENNEDY. Is there a limitation of 5 minutes or 10 minutes?
  The PRESIDING OFFICER. There is no limitation.
  Mr. KENNEDY. Mr. President, I yield myself such time as I may use.

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