[Congressional Record Volume 145, Number 90 (Wednesday, June 23, 1999)]
[Senate]
[Pages S7506-S7509]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        PATIENTS' BILL OF RIGHTS

  Mrs. FEINSTEIN. Mr. President, I am on the floor because I 
anticipated that at 2 o'clock we would be returning to the agriculture 
appropriations bill. I indicated this morning that I would be proposing 
an amendment to that bill that has to do with giving the physician the 
right to provide medically necessary services in a setting which that 
physician believes is best for the patient. I now see that this has 
been postponed an hour, so I would like to speak to the amendment now 
and then introduce it at 3 o'clock. I hope there will be no objection 
to that.
  Let me begin by saying, once again, what this amendment does. 
Essentially, the amendment 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 the 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.
  I read that specific language because it is important to understand 
that because most people buying a health insurance plan believe that 
their doctor is, in fact, going to be prescribing the treatment that is 
best for them, not the treatment that is the least cost effective, not 
the treatment that might run a risk to the patient but be good for 
somebody else, but the treatment or the procedure, in an appropriate 
setting, that is right for that patient. What is right for a patient 
who is 18 years old may not be right for a patient who is 75 years old, 
and so on. I will read from the legislation the definition of ``medical 
necessity'' or ``appropriateness'':

       The term ``medical necessity'' or ``appropriate'' means, 
     ``with respect to a service or a benefit, a service or 
     benefit which is consistent with generally accepted 
     principles of professional medical practice.''

  That is something that everyone expects, that everyone is accustomed 
to in this Nation, and I believe that is the way medicine should, in 
fact, be practiced. I am very pleased to say the language of this 
amendment, from the

[[Page S7507]]

larger Patients' Bill of Rights (S. 6) is supported by some 200 
organizations all across the United States, including the American 
Academy of Emergency Medicine; the American Academy of Neurology; 
American Academy of Pediatrics; American Association of University 
Women; American Cancer Society; American College of Physicians; 
American Heart Association; American Lung Association, and the American 
Medical Association, which is the largest association of practicing 
physicians in the country.
  Then there is the American Psychological Association; the American 
Public Health Association; the American Society of Clinical Oncology; 
virtually every breast cancer organization; the Consumer Federation of 
America; the Epilepsy Foundation; the Leukemia Society; the National 
Alliance of Breast Cancer Organizations; the National Association of 
Children's Hospitals; the National Association of People with AIDS; the 
National Council of Senior Citizens; the National Black Women's Health 
Project; the National Breast Cancer Coalition; the Older Women's 
League; the Paralyzed Veterans of America--on and on and on.
  This is a widely accepted amendment that virtually has the support of 
every professional and patient organization that deals with health care 
anywhere in the United States.
  Let me read a statement from the American College of Surgeons, 
certainly the most prestigious body for surgeons, and one to which my 
husband, Bert Feinstein, belonged:

       We believe very strongly that any health care system or 
     plan that removes the surgeon and patient from the medical 
     decisionmaking process only undermines the quality of that 
     patient's care and his or her health and well-being.
       Similarly, the American Medical Association has said, 
     ``Medical decisions should be made by patients and their 
     physicians, rather than by insurers or legislators.''

  I have worked on this now for 3 years. In the last Congress, I 
introduced legislation to allow doctors to decide when to discharge a 
woman from the hospital after a mastectomy. I did this with Senator 
D'Amato in the last Congress and with Senator Snowe in this Congress. 
And I introduced a bill that would allow doctors to decide when to 
discharge a person from the hospital after any procedure or treatment, 
with Senators D'Amato and Snowe.
  Why do we need these bills? Senator Mikulski from Maryland this 
morning made a very impassioned case about mastectomies. And we learned 
in 1997 that women were being pushed out of the hospital on the same 
day after a mastectomy.
  I was amazed to hear from a woman named Nancy Couchot of Newark, CA, 
who wrote me in 1997 that she had a modified radical mastectomy at 
11:30 in the morning and was released from the hospital by 4:30 that 
afternoon. She could not walk to the bathroom without help. She said in 
her letter:

       Any woman, under these circumstances, should be able to opt 
     for overnight stay to receive professional help and strong 
     pain relief.

  Victoria Berck of Los Angeles wrote that she went in at 7:30 a.m. and 
was released at 2:30 p.m. with drains attached to her body. She said, 
``No civilized country in the world has a mastectomy as an outpatient 
procedure.''
  It was a very large health care network in California that was doing 
these ``drive-through'' mastectomies on the same day.
  I believe ``drive-through'' mastectomies have been largely stopped, 
but patients had to rise up, and patients had to say you can't do this 
to me. You can't push me out a few hours after an anesthetic with 
drains in my body, having had a radical mastectomy and not being able 
to take care of myself.
  What if the woman is 75 instead of 25? It makes no sense.
  We also learned that insurance plans were insisting one-night 
hospital stays if you had a child.
  We learned that babies--infants--were going home with jaundice, and 
they had to come back to the hospital for treatment once, twice, or 
three times. There was a lot of ``tsk-tsking.'' What a terrible 
procedure. How could they do this? Now it has changed because Congress 
acted, requiring a minimum of two days for childbirth, for a normal 
delivery. What if you need 5 days for care, or 6 days for care?
  The point is that it should be a decision made by the physician. It 
should not be countermanded by someone unqualified to make that 
decision.
  A California neurologist told us about a 7-year-old girl with an ear 
infection who went to the doctor with a high fever which developed into 
pneumonia, and she was hospitalized. The HMO insisted that she be sent 
home after 2 days. She ended up returning to the hospital three times, 
sicker each time to the point where she developed meningitis. The 
doctor said that if she had stayed in the hospital for 5 to 7 days the 
first time that she could have been given antibiotics, been monitored, 
and would not have gotten meningitis.
  What is the problem?
  Let me read the definition of medical necessity in an insurance 
contract provided to me by the American Medical Association. This is 
from the Aetna/U.S. Healthcare standard Texas contract. I quote: 
``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 here is the 
point, ``and which are the least costly of alternative supplies or 
levels of service.''
  It is not ``and/or.'' It is ``and which are the least costly.''
  So if you belong to that plan and there is a drug that is the least 
costly, perhaps not as effective or perhaps not good for you with your 
present condition, or because of your age, that is the drug you are 
forced to take because the insurance plan says so, despite what the 
doctor says. If there is a diagnostic process that may be less 
effective than an MRI, that MRI is very often prohibited for you.
  What is happening out there? What is the problem?
  The problem is that doctors are finding insurance plans overriding 
their decisions, dictating their decisions, second-guessing their 
decisions about what is medically necessary.

  We aim in this amendment to give that basic right of medical practice 
back to the physician.
  In fact, today doctors all across this Nation will tell you that they 
spend hours hassling with insurance company accountants and adjusters 
to justify medical necessity decisions --why a person needs another day 
in a hospital, why a person needs an MRI, why a patient needs a blood 
test, why a patient should get this drug instead of that drug.
  Seventy percent of doctors across this great Nation say they are 
forced to exaggerate a patient's symptoms to make sure HMOs don't 
discharge patients from hospitals prematurely.
  Is this the kind of medical care that we want to see HMOs press us 
toward where a doctor has to lie, fabricate, or exaggerate the 
condition of the patient to be sure that patient gets what is medically 
appropriate for that particular patient? I truly think not.
  Every patient is different. Every patient brings to a situation his 
or her own unique history and biology. Doctors should be able to use 
their best professional judgment in each individual case based upon the 
needs or condition of the patient.
  Pneumonia in a 30-year-old patient is different from pneumonia in a 
70-year-old patient. Doctors know the difference, and most of us do, 
too.
  A Maryland nurse said: I spend my days watching the care in my unit 
be directed by faceless people from insurance companies on the other 
end of the phone. My hospital employs a full-time nurse whose entire 
job is to talk to insurance reviewers.
  I myself in 1989 had to have a hysterectomy. I was extraordinarily 
anemic. As I was in the hospital for a blood transfusion, the phone 
rang. I picked up the phone. It was my insurance company. What they 
said to me is: Why are you still in the hospital? You are supposed to 
be out of there by now.
  My only response was: I am here because I am currently having a blood 
transfusion.
  A patient shouldn't have to go through this. It happened to me. You 
can be sure it is happening all across this country.
  Doctor Robert Weinman told the San Jose Mercury News that a doctor 
prescribed a brain wave test for a convulsing epileptic child. The HMO 
board--consisting of one accountant, the chief financial officer, and 
one doctor--refused coverage, depriving the

[[Page S7508]]

doctor of the necessary diagnostic information.
  On June 14, just a couple of weeks ago, a California nurse 
practitioner told my staff that insurance plans will allow people with 
ulcers to take Prilosec for only 4 to 6 weeks, even though the 
gastroenterologists say that it is needed for a longer period. Plans 
say patients can take Tagamet, which is cheaper but not as effective 
for this particular condition.
  This is what this amendment seeks to avoid.
  The doctor should be able to prescribe based on medical necessity 
what is appropriate to each patient--a hallmark of good medical care.
  A California doctor told us about a patient who needed a total hip 
replacement because her hip had failed. The doctor said that patient 
should remain in the hospital for 7 days. The plan would only authorize 
5 days.
  Let me quote once again from a Los Angeles physician.

       Many doctors are demoralized. They feel like they have 
     taken a beating in recent years. . .physicians train years to 
     learn how to practice medicine. They work long hours 
     practicing their field. Under this health care system, that 
     training and hard work often seem irrelevant. A bureaucrat 
     dictates how doctors are allowed to treat parties. . . 
     When I tell someone he is fit to leave the hospital after 
     an operation, I am often given an accusing stare. 
     Sometimes my patients even say: ``Is that what you really 
     think or are you caving in to HMO pressure to cut corners 
     on care?''
  Medicine shouldn't have to be practiced this way in the United States 
of America.
  Over 80 percent of the people of my State are in some form of managed 
care. California has been a laboratory for managed care. Californians 
are speaking out on the issue. Over one half of Californians say that 
major changes are needed in our health care system. Californians say 
they have to wait for care longer, they are rushed through 
appointments, they have to navigate impersonal systems when they are 
trying to get care.
  A survey of 900 doctors in California found that 7 out of 10 were 
dissatisfied with managed care organizations. Insurance companies have 
invaded the examining room, the emergency room, and the hospital room. 
The ``care'' is rapidly going out of health care. Getting good health 
care should not be a battle.
  I think everyone in this body understands HMOs can be effective good, 
they can reduce costs in a medically acceptable way. And that is the 
key--in a medically acceptable way, without adversely impacting the 
patient. The way to do this is not to countermand the physician, not to 
tell the physician what drug he or she can or cannot give a patient 
based on the cost, not to tell a physician he has to conduct a radical 
mastectomy at 7:30 in the morning, removing sometimes both of a woman's 
breasts and lymph nodes, and push her out on the street with drains in 
her chest and pain coursing through her body. That isn't good health 
care for anyone.
  This is a simple amendment. It is supported by virtually over 200 
health organizations.
  Some might say why not wait until we work out an agreement so a 
Patients' Bill of Rights--whether it be Democrat or Republican--can 
come to the floor. I have waited for 3 years for an opportunity to move 
this kind of legislation. We cannot wait any longer. Senator D'Amato 
and I, 3 years ago, held a press conference urging this kind of 
legislation. Senator Snowe and I, in this Congress, have introduced 
similar legislation.
  The beauty of this amendment, that I want to bring before the Senate 
for a vote, is that it states very simply that health insurance 
coverage may not arbitrarily interfere or alter the decision of the 
treating physician regarding the manner or setting--hospital, emergency 
room, outpatient clinic, whatever it is--in which particular services 
are delivered, if the services are medically necessary or appropriate 
for treatment or diagnosis.
  Every single patient in managed care anywhere in the United States of 
America will be better off the sooner this amendment becomes law.
  I believe to wait is wrong. I believe to wait will cost lives. I 
believe to wait will increase morbidity. I believe to wait is unfair to 
the physicians who are trained, able, and ready to carry out their 
profession.
  I am hopeful I will have an opportunity, in 25 minutes when the 
agricultural appropriations bill is on the floor, to offer this 
amendment which is broadly and widely supported all across the United 
States. Once and for all, the physician and the patient will together 
make the medical decisions--not a green eyeshade somewhere in a remote 
HMO office.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island. The Chair notes 
the Senator has 2 minutes 2 seconds.
  Mr. REED. I ask unanimous consent to speak for 10 minutes as if in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REED. Mr. President, I take this opportunity to talk about the 
Patients' Bill of Rights in one particular area. That is the area of 
appeals, both internal appeals and external appeals.
  Both versions of this legislation, both the Republican proposal and 
the Democratic proposal, purport to have provisions for appeals of 
denial of service to consumers of health care in HMOs. Looking closely 
at the proposals, we find that the Republican process is significantly 
deficient.
  We will hear discussions about these various proposals, but I will 
highlight a couple of the areas which suggest the deficiencies that are 
inherent in the Republican proposal versus the Democratic proposal.
  First, under the Republican plan, an internal review--one that is 
being conducted by the HMO itself--that reviewer is restricted from 
looking at all the evidence in a case.
  For example, if a patient thought they were not receiving appropriate 
care, they might go to another physician outside of their network and 
ask for an opinion. That type of information cannot be used by the 
internal reviewer to make a judgment about the decision rendered by the 
HMO. This narrowly restricted access to information prejudices the 
review process against the patient. It also leads to something I think 
is evident today and would be even more pronounced in the future, a 
growing cynicism that the managed care companies simply want to protect 
the bottom line, not the health of the patient.
  I strongly suggest the internal review process in the Republican 
legislation is deficient since it will not allow, essentially, a de 
novo review of the case by the reviewing authority.
  The second weakness with respect to the Republican proposal is with 
regard to external reviews. External reviews are reviews which are 
conducted by an outside party. Under the Republican plan, a review 
could only be conducted if there is a claim that some type of medical 
necessity has been violated, or the proposed treatment is 
experimental--again, two very narrow grounds.
  A patient cannot have an external review if the claim is about 
contractual rights. In the world of HMOs, it is so easy for the HMO to 
claim: This is not really an issue of medical necessity. It is not an 
issue even of innovative treatment. This treatment is just not covered 
under your plan.
  These contracts are pages and pages of small print. When the average 
consumer or family tries to figure out what the contract says, they are 
no match for the reviewing authorities and spokespeople for the HMOs.
  As a result, there is a very real possibility an aggrieved party will 
never get an external review. They will be buried in a barrage of 
verbiage indicating ``it is not covered in the contract'' or it 
``doesn't meet our definition of medical necessity.'' I refer to the 
text provided by my colleague from California where part of the 
definition of ``medical necessity'' included the low-cost alternative 
in the provision of services.
  All of this, in my view, is an invitation to endless argumentation 
about legalisms at a time when people need a prompt response to a 
health care crisis in their family.
  There is another deficiency with respect to the external review 
provisions. Under the Republican proposal, the HMO actually picks the 
reviewing authority. Now that just does not sound fair. If it does not 
sound fair to us, it will certainly not sound fair to the families of 
America.
  Mrs. BOXER. Will the Senator yield on that point?

[[Page S7509]]

  Mr. REED. Certainly.
  Mrs. BOXER. Because the Senator has made a point that is rather 
stunning to me. In other words, he is saying that in the Republican 
proposal which purports to be a Patients' Bill of Rights, if a patient 
believes he or she has not received the appropriate treatment and there 
is an internal review--and let's pass over that--and then there is an 
external review; in other words, people are coming in from the outside 
to take a look at whether or not you should have had a different 
treatment for your cancer, let's say, the Senator is saying to me that 
under the Republican proposal, the very organization that denied you a 
certain kind of treatment gets to pick the people who are going to 
decide if that HMO was wrong? So if they pick their friends, naturally, 
what chance does the patient have? I say to my friend, this seems like 
a kangaroo court if I have ever heard of one. Does he not agree?
  Mr. REED. I agree completely. The Senator is absolutely right. Both 
the perception of an unfair, unbalanced procedure, and I would also 
argue the reality, ultimately, will be such that you are not going to 
get a fair evaluation of your claim.
  I cannot conceive of a company--and the HMOs are famous now for their 
concern for the bottom line--that would go out of its way to retain 
people who are sensitive to the needs of patients versus the needs of 
the company and its bottom line. They will pick reviewing authorities 
who will invariably decide that this expensive procedure, or this 
inexpensive procedure, is not needed by a patient.
  What you are doing also is creating a degree of cynicism about the 
whole process of appeals. As a result, rather than making a sound, 
objective, external evaluation of the merits of the case with all the 
evidence and telling the patient, no, this is not necessary for you, 
or, yes, it is, a huge legal, bureaucratic labyrinth is created, at the 
end of which you find yourself facing somebody who basically works for 
the HMO.

  Mrs. BOXER. I wonder, in comparing these two bills, if my friend has 
made an analysis of the way the Democratic bill treats the appeals 
process? And can he tell us the difference here?
  Mr. REED. The Democratic legislation tries to create, and I think 
succeeds in creating, a situation where there is an external review 
where a party who is not beholden to the HMO, an individual reviewing 
authority outside of the company will review external appeals. It would 
be truly independent and there would not be a conflict of interest, and 
that, I believe, is the appropriate way to proceed.
  By creating an independent external review procedure, it will, No. 1, 
strengthen the confidence of consumers that they are getting a fair 
shake and, No. 2, it will lead to better judgments about the type of 
health care that should be necessary.
  Mr. KENNEDY. Will the Senator yield?
  Mr. REED. I am happy to yield to the Senator from Massachusetts.
  Mr. KENNEDY. If I understand the Republican proposal, if you had a 
child, for example, with cancer, and you had a pediatrician, but what 
you needed was an oncologist for that child, one who is a specialist in 
pediatrics, and the HMO denied you that, and you believed this was 
enormously important for the treatment for the child, under the 
Republican proposal you have no right to appeal that particular 
decision. I understand that the right to an independent appeal applies 
only to certain decisions, and a denial of access to a specialist is 
not one of them. I believe I am correct.
  We heard our wonderful friend, Dr. Frist, yesterday talk about how 
any child who had cancer would be guaranteed a specialist and everybody 
said: Doesn't that do the trick? No.
  We know you need not just a pediatrician, but as the Senator from 
Rhode Island knows--as one who has been a leader in the Senate on 
children's issues regarding access, and has introduced special 
legislation on this--that child needs a pediatric oncologist. That kind 
of specialist is absolutely crucial, if that child is to have a 
fighting chance; but denial of access to that particular specialist 
would not be eligible for appeal under the majority's program.
  The PRESIDING OFFICER. The time of the Senator from Rhode Island has 
expired.
  Mr. KENNEDY. Mr. President, I ask for 6 more minutes evenly divided.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KENNEDY. I was just asking whether the Senator's understanding is 
the same understanding as mine? If the Senator would just reflect on 
the significance of that, I would appreciate it. How important, really, 
is specialty care access, I ask the Senator, as an expert on this issue 
for the treatment of a child?
  Mr. REED. The Senator is exactly correct. The way the appeals process 
is drafted in the Republican legislation, a child who has a serious 
cancer might be offered the services of an oncologist for adults. In 
the view of the plan, that would be adequate, sufficient for the 
purposes of the medical necessity. As a result, the parents of the 
child, who want access to a pediatric oncologist, may not even get the 
chance to even protest internally, externally, or in any way.
  That is wrong. Frankly, I have been trying to learn as much as I can 
about pediatric specialties. I, like so many people, once thought an 
oncologist is an oncologist is an oncologist like a rose is a rose is a 
rose. It turns out pediatric oncology is a very specialized part of 
medicine.
  I was talking to a specialist recently who pointed out the case of a 
young child who was discovered with a particular type of cancer and was 
treated by an adult's oncologist using what is standard procedure for 
an adult. In fact, using the adult procedure produced additional 
problems for the child and only further complicated the situation. As a 
result, the child has to have an additional regime of chemotherapy. All 
of this could have been avoided, of course, had that child seen a 
pediatric oncologist immediately.
  The provisions in this legislation do not give a fair chance to 
appeal a denial of access to a specialist like the case I have just 
outlined. They do not give Americans, but particularly children, a fair 
chance to get good health care. That is what we want to do and should 
do.
  Mr. KENNEDY. Will the Senator yield just for another moment? It is 
now approaching 3 o'clock. To the best of my recollection, the good 
Senator from California, Senator Feinstein, has been here since 10 
o'clock this morning, prepared to go ahead and introduce her amendment 
and has still not been able to do it. There has been an extension of 
the time limits, evidently because of some negotiations about which all 
of us are hopeful. But I think we probably could have disposed of the 
amendment of the Senator and probably the proposal of the Senator from 
Rhode Island also. I do not know whether the Senator would agree with 
me or not.
  Mr. REED. I do agree. I have been listening to Senator Feinstein's 
very eloquent and thoughtful comments about the need for access to 
specialists and the need to have a physician make a decision about your 
health care and not an accountant.
  The PRESIDING OFFICER. The time of the Senator from Rhode Island has 
expired.
  Mr. REED. Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Chair, acting in his capacity as a Senator 
from New Hampshire, notes the absence of a quorum. The clerk will call 
the roll.
  The legislative assistant proceeded to call the roll.
  Mrs. MURRAY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. The Chair, in his capacity as a Senator from 
the State of New Hampshire, objects. The clerk will continue to call 
the roll.
  The legislative clerk continued with the call of the roll.
  Mr. NICKLES. 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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