[Congressional Record Volume 145, Number 91 (Thursday, June 24, 1999)]
[Senate]
[Pages S7553-S7554]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        PATIENTS' BILL OF RIGHTS

  Mrs. FEINSTEIN. Mr. President, I thank the Senator from Massachusetts 
for his remarks. I don't think anyone in the Senate has ever done more 
to advance the cause of responsible medical reform than Senator Kennedy 
from the State of Massachusetts. He also has been here day after day, 
with comment after comment, in speech after speech, trying to urge this 
body to act.
  My general style is probably not as forceful as that of the 
distinguished Senator from Massachusetts. But about this particular 
issue I am going to be persistent, and I am going to be here for as 
long as it takes, until there is an opportunity to have a vote on this 
amendment.
  Today, this morning, another arrow in the quiver of reform was played 
out above the fold in the Washington Post--something, as a doctor's 
daughter and a doctor's wife for many years, I never thought I would 
see in the United States of America--and that is, the American Medical 
Association voting to unionize doctors. The subhead under the headline 
reads: ``Group Acts in Response to Managed Care's Effect on Rights, 
Duties of Physicians.''
  I want to quote two brief things from the article:

       In setting up what they are calling a ``national 
     negotiating organization,'' AMA officials contended that only 
     through collective bargaining can doctors win back control 
     over which drugs they may prescribe for patients and how much 
     treatment they can provide.

  Mr. President, it is a disturbing day when physicians have to 
unionize to be able to prescribe and treat patients as they see fit. I 
can't believe that this day has come in the United States of America.
  Let me end on this subject, with one quote from the AMA president, 
Dr. Nancy Dickey. She said:

       Traditional unions are there primarily to care for their 
     employee's needs. We are looking for a vehicle that will 
     allow us to carry out the covenant we have with our patients.

  That is the reason I am proposing this amendment--or hope to propose 
the amendment. I hope to have an opportunity to offer an amendment that 
represents the heart of HMO reform.
  This amendment will prevent managed care plans from arbitrarily 
interfering with or altering the physician's decision of what is a 
medically necessary service. The term medically necessary, or 
appropriate, is defined as ``a service or benefit which is consistent 
with generally accepted principles of professional medical practice.'' 
That is something none of us can be opposed to. If this amendment were 
in fact the law, it would not be necessary for the American Medical 
Association to vote to unionize physicians. Physicians would have that 
right guaranteed by this amendment. Let me prove that by reading the 
actual wording of the amendment:

       A group health plan, or 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 diagnose 
     to the extent that such treatment or diagnosis is otherwise a 
     covered benefit.
  The amendment is saying that if an individual buys a policy which 
specifies treatment for certain illnesses, the physician will be free 
to treat that patient as medically appropriate with respect to both the 
treatment and the setting.
  That is what physicians at the AMA meeting yesterday just voted, to 
unionize to be able to care for their patients. Why do they need to 
have a union to achieve something which is self-evident, which is a 
part of medical training, which is the history of medicine in the 
United States of America, and has been the history of medicine in this 
country, up to the growth of managed care, which again could change and 
alter that history rather dramatically?
  The terms ``manner'' and ``setting'' mean the location of treatment 
and the duration of treatment. That means, whether the treatment is in 
the office or the hospital, the physician has the right to determine 
the type of treatment and the length of, for example, the hospital 
stay. The physician would have the right to determine these things.
  Physicians today are going to unionize in order to get that basic 
right, a right which we, the Congress, the Senate of the United States, 
could, if we chose, give them legislatively.
  The term ``medically necessary or appropriate'' is defined in the 
amendment as a service or benefit which is consistent with generally 
accepted medical practice--a very standard definition, a very well-
accepted definition.
  This amendment is intended to restore the physician to medical care. 
Very simply stated, I agree with the American College of Surgeons, 
which said:

       Any health care system or plan that removes the surgeon [or 
     doctor] and the patient from the medical decision-making 
     process only undermines the quality of the patient's care and 
     his or her health and well-being.

  Our system today has done just that. And the action taken by doctors 
to unionize strongly suggests that.
  Medical providers today are feeling kicked around, arm twisted, 
``incentivized,'' and compromised when they try to provide good care to 
sick people.
  I am compelled to offer this amendment because I have no other 
choice. Yes, I want to pass an agriculture appropriations bill, but I 
have been trying for almost 3 years now to pass legislation like this 
to restore medical decisionmaking to medical professionals. As Congress 
dawdles, the complaints keep rising, people get poor care, and people 
die.
  Let me talk a little bit about managed care.
  Managed care is a growing form of health insurance in America. I 
support managed care. I believe it can in fact be a cost-effective way 
of delivering good health care to large numbers of people. But it can't 
do that if accountants and the ``green eyeshade'' personnel make the 
decision for the physician. The physician has to make the decision as 
to what is appropriate medical care.
  Today over 160 million Americans--or 75 percent of the insured 
population--have managed care plans. My State of California--this is 
the reason I have decided to be so persistent--has the highest 
penetration of managed care of any state. Eighty-five percent of 
insured Californians are in some form of managed care.
  As managed care has grown, so have the complaints. There seems to be 
a steady stream of them into my offices, and into other Congressional 
offices and in the media.
  A Kaiser Family Foundation and Harvard University study found the 
following:
  First, a majority--actually 59 percent of Americans--say managed care 
plans have made it harder for people who are sick to seek medical 
specialists.
  Second, three out of five--61 percent--say managed care has reduced 
the amount of time doctors can spend with patients.
  Third, a majority of people in managed care--55 percent--say they are 
worried that if they are sick, their health plan would be more 
concerned about saving money than about what is the best medical 
treatment.
  In Sacramento, a survey of managed care enrollees found that of those 
consumers experiencing problems, the most common problems were:
  One, delay, or denial of care, or payment, 42 percent;
  Two, limited access to physicians, 32 percent, such as difficulty 
getting an appointment, or limited access to specialists;
  Three, concerns about quality of care, 11 percent, including 
inappropriate treatment, facilities, or diagnosis.
  As managed care has grown, the pressures on doctors and other 
professionals to control costs have come at the expense of people's 
health. In other

[[Page S7554]]

words, as the plans grow, the pressures on doctors to cut treatment, to 
prescribe cheaper drugs, to cut hospital stays also increase.
  Doctors report to us that they have to spend hours on the phone with 
insurance accountants and adjusters justifying medical decisions. That 
should not happen. They tell me they have to provide mountains of 
paperwork documenting patients' problems. This is a real change.
  When my father was chief of surgery at the University of California 
Medical Center, he had one secretary. He saw patients in his office at 
the University of California. He taught surgery in the medical school. 
And there was very little paperwork. Today, walk into virtually any 
surgeon's office, and there is a mound of paper, there are rooms full 
of staff, there are accountants, and there is a huge stream of 
paperwork.
  Medicine has changed dramatically in the United States. Not all of 
that is bad. I am the first one to say it. Many people have good 
coverage. The problem is the cost of that coverage and whether that 
coverage is providing for timely and appropriate diagnoses and 
treatments, which are the finest, as Senator Kennedy said, that people 
can expect.
  I am also told that physicians are spending increasing time having to 
fight insurance companies that try to impose rules on their medical 
practices--rules that are not considered to be the best medical 
practice or may not even fit an individual's illness. They tell me they 
have to exaggerate illnesses to get coverage. They tell me they have to 
struggle to balance medical necessity against insurance company bottom 
lines.
  One survey of California doctors by the California Medical 
Association found that fewer than 10 percent of doctors had good 
experiences with managed care. That is what is leading to this 
headline, ``AMA Votes to Unionize.'' That is what this amendment can 
change.
  Another study reported in the November 1998 New England Journal of 
Medicine found that 57 percent of primary care doctors in California 
felt pressure to limit referrals, and 17 percent said that this 
actually compromised the care of their patients.
  Doctors are trained to diagnose and treat based on the best 
professional medical practice. They know that every individual brings 
to their office a unique history, unique biology, and unique 
conditions. And they know that people vary tremendously. What works in 
one person may not work in the next.
  The point I am trying to make is that people vary tremendously. The 
drug that works in one and has no side effects may work differently in 
another person. A 70-year-old with the flu or pneumonia is very 
different from a 30-year-old with the flu or pneumonia. A person with 
high blood pressure or anemia may need an extra day or two in the 
hospital after surgery.
  This is why the physician should determine the treatment, the length 
of treatment, the length of hospital stay. That is what my amendment 
attempts to accomplish.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.

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