[Congressional Record Volume 145, Number 91 (Thursday, June 24, 1999)]
[Senate]
[Pages S7569-S7571]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




         PATIENTS' BILL OF RIGHTS EMERGENCY SERVICES PROVISIONS

  Mr. BAUCUS. Mr. President, I join my Democratic colleagues in their 
fight to have an open and unrestricted debate on the Patients' Bill of 
Rights. Over the past several days, we have heard the Republican 
leadership say they are interested in having an up-or-down vote on 
their bill, followed by a vote on the Democratic bill. We all know this 
is not how the Senate is supposed to work. We are a deliberative body, 
and as such, we should have debate on important issues that affect the 
lives of Americans.
  The Patients' Bill of Rights addresses one of the most important 
issues the Senate can debate: the rights of Americans to have access to 
quality health care.
  Our health care system essentially relies on three important factors: 
First is access to health care; second is the quality of our health 
care; and third is

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cost controls, that is, the cost of our health care.
  The problem is it is extremely difficult, if not impossible, to have 
the best in all three areas. If we concentrate on two of the areas, 
that usually results in sacrifices in the third area. The whole reason 
we are trying to have this debate is that this trio of access, of 
quality, and of cost control has shifted out of balance. Our market-
driven health care system has become too focused on controlling costs 
and protecting corporate profits. Although predictable, this, 
unfortunately, has led to sacrifices in access to health care and 
quality health care.
  It is important to point out we do need to be concerned about cost 
control in our health care system, no doubt about it. In fact, managed 
care has done many of the things we hoped it would do. For example, it 
has improved the efficiency of health care delivery, it has slowed down 
the growth in health care costs, and it has enhanced the collection of 
data to assess the quality of care. It has done all that, and that is 
good.

  The message of this debate is not that managed care is the enemy. As 
I said, managed care has done a lot of things which are very important. 
This debate, rather, is about restoring a balance in our health care 
system.
  We certainly could design a health care system that is only concerned 
about money, but that would miss the point. Unfortunately, though, we 
are headed in that direction. We need to stop and ask ourselves what we 
value in our health care system and what it means to have health 
insurance in America. That is why we want this debate so we can find 
answers to those questions.
  I stand with my Democratic colleagues who have called for an open 
debate. One of the reasons an open debate would be helpful is there is 
room for compromise. In fact, I am a cosponsor of a bipartisan patient 
protection bill that I think strikes an important balance between the 
two sides which we have heard about in the last few days.
  We need to come out of our corners and debate the issues because I 
believe there is an important middle ground, one that many Senators can 
support, if we simply have the courage to debate the provisions of 
these bills and let the votes fall where they may.
  I want to address an important area in the Patients' Bill of Rights; 
that is, the provisions that address coverage for emergency services. 
Both the Republican and Democratic bills provide coverage for emergency 
services using a prudent layperson standard. Unfortunately, the 
Republican version of the prudent layperson standard falls short of the 
standard that Congress has already enacted for the Medicare and 
Medicaid programs in the Balanced Budget Act of 1997.
  This means that under that bill, hard-working Americans with private 
insurance will have less protection for emergency services than 
beneficiaries in Medicaid and Medicare programs. The bipartisan bill 
that I cosponsor and the Democratic Patients' Bill of Rights contain 
the real prudent layperson standard for emergency services.
  What is the problem with the other version, that is, the Republican 
version of the prudent layperson standard? There are two important 
weaknesses in that standard.
  First, that standard provides an inadequate scope of coverage for 
emergency services. We have heard a lot of discussion about the scope 
of coverage in the two bills over the last 2 days. The best example of 
why we need to have uniform protections for patients throughout the 
country is the prudent layperson standard.
  The Federal Government is already involved in every emergency room 
visit in this country. We have strict Federal standards to protect 
patients with medical emergencies. These standards are embodied in the 
Emergency Medical Treatment and Labor Act or EMTALA. It is hard to 
argue that the Federal Government should not be involved in protecting 
patients with medical emergencies when the Federal Government already 
is involved.
  The prudent layperson standard in the Republican bill only applies to 
48 million people. Both the bipartisan bill and the Democratic bill 
apply this important protection to all 180 million people with private 
health insurance. We need to realize in the Senate, again, we have 
already mandated that anybody who goes to an emergency room should 
receive health care. That is mandated. We now have an opportunity to 
ensure that patients are not held financially hostage for the decisions 
they make in an emergency. There is broad bipartisan support for the 
patient-centered concept of the prudent layperson standard. Now we need 
to extend this scope of coverage so that it parallels the Federal 
statutes that are already on the books.

  The other major weakness in the prudent layperson provisions in the 
Republican bill is the lack of provisions for poststabilization 
services. I want to point out what the debate about poststabilization 
services is all about. It simply boils down to two questions.
  First, is poststabilization care going to be coordinated with the 
patient's health plan, or is it going to be uncoordinated and 
inefficient?
  Second, are decisions about poststabilization care going to be made 
in a timely fashion, or are we going to allow delays in the 
decisionmaking process that compromise patient care and lead to 
overcrowding in our Nation's emergency rooms?
  We have heard a lot of rhetoric about how poststabilization services 
amount to nothing more than a blank check for providers. If these 
provisions are a blank check, then why did one of the oldest, largest, 
and most successful managed care organizations in the world help create 
them in the first place?
  Kaiser-Permanente is a strong supporter of the poststabilization 
provisions in our bill for a simple reason: They realize that 
coordinating care after a patient is stabilized not only leads to 
better patient care, it saves money.
  Let me give an example of a case which took place in the past 2 
months. It illustrates the problem quite nicely.
  A woman came to an emergency department after falling and sustaining 
a serious and complex fracture to her elbow. The emergency physician 
diagnosed the problem and stabilized the patient. The stabilization 
process took less than 2 hours. Unfortunately, the patient's stay at 
the emergency room lasted for another 10 hours while the staff 
attempted to coordinate the care with the patient's health plan.
  The plan was unable to make a timely decision about the care this 
patient needed. The broken bone in her elbow required an operation by 
an orthopaedic surgeon. The patient's health plan did not authorize the 
operation in the hospital where the patient was located. They denied 
this care because the hospital was not in its network, even though 
there was a qualified orthopaedic surgeon available.
  After several phone calls, a transfer was arranged to another 
hospital. Unfortunately, the patient did not leave the hospital 
emergency room for almost 12 hours.
  When the patient arrived at the second hospital, the orthopaedic 
surgeon looked at the complexity of the broken bone and decided he 
could not perform the operation. The patient, therefore, had to be 
transferred to a third hospital, where the operation was finally 
performed.
  Let's look at the extra costs involved in this case. The patient had 
two ambulance rides and two extra evaluations in hospitals. The patient 
also laid in the emergency room with a painful broken bone for 12 hours 
before being transferred. During this time, the emergency room was very 
busy and the staff had to continue to care for new patients as they 
arrived.
  So why did this occur? In this case, the problem occurred because the 
plan was unable to make a timely decision about the poststabilization 
care this patient needed.
  This should not be how we in this country take care of patients with 
a medical emergency. I hope Republicans will join with us to pass a 
really prudent layperson standard for emergencies.
  I urge my colleagues to allow us to have an open debate on the 
Patients' Bill of Rights. We need to have this debate. Americans want 
protections in their health plans. Americans want a system that 
balances the needs for access, quality, and cost control in their 
health care.
  Before I close, I just want to mention how delighted I am to hear my 
colleagues talk about the needs of the uninsured in America. If they 
are serious

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about working to address the problem we have with 43 million uninsured 
Americans, I obviously look forward to working with them. Once we have 
established basic, uniform rights in health care, we should return to 
the equally important task of providing access to health care for the 
uninsured in America.
  It seems important that universal access to adequate health care 
should be our goal. But unless we recognize the importance of rights in 
health care, our constituents may end up with access to a system that 
is indifferent to both their suffering and their rights.
  I yield the floor.
  Mr. DORGAN addressed the Chair.
  The PRESIDING OFFICER. The Senator from North Dakota.

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