[Congressional Record Volume 145, Number 93 (Monday, June 28, 1999)]
[Senate]
[Pages S7687-S7688]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       PRUDENT LAYPERSON STANDARD

  Mr. BAUCUS. Mr. President, I return to the floor today to urge my 
colleagues to allow an open debate on the Patients' Bill of Rights. For 
some time now we have been asking for this debate. Actually, we have 
been asking for about 2 weeks. Yet we still have not reached an 
acceptable agreement.
  I return to the floor today to continue my discussion of a critically 
important provision in the Patients' Bill of Rights. This provision 
ensures appropriate coverage for emergency services according to the 
prudent layperson standard. Unfortunately, the alternative standard 
that my colleagues on the other side of the aisle are offering falls 
short of the true prudent layperson standard. It is unfortunate that we 
are locked into a divisive debate, since I believe we could reach 
agreement on this provision.
  We have already passed the prudent layperson standard for Medicare 
and Medicaid beneficiaries--a very important point. It is already in 
the law. Now we need to complete the task and offer the same protection 
for hard-working Americans with private insurance.
  The bipartisan bill I cosponsored and the Democratic Bill of Rights 
contain the real prudent layperson standard for emergency services. 
What is the problem with the version of the prudent layperson standard 
proposed by those on the other side of the aisle? There are two 
weaknesses in their version.
  First, it provides an inadequate scope of coverage for emergency 
services. The prudent layperson standard in their bill only applies to 
48 million people. Both the bipartisan bill and the Democratic bill 
apply this support and protection to all 180 million Americans with 
private health insurance.
  I heard arguments from the other side of the aisle that the Federal 
Government shouldn't get involved in private health insurance. The 
problem with that argument is simply this: We already are involved. 
Thankfully, we have made the decision that even if there is no other 
guarantee in our health care system, we will have guaranteed access to 
emergency services.
  Health care that millions of Americans receive during emergencies is 
a safety net on which our system relies. Federal legislation already 
mandates this safety net. The prudent layperson standard in our bill--
which, I might add, has bipartisan support--parallels the Federal 
mandate for emergency care.
  If we fail to extend the prudent layperson coverage to all privately 
insured individuals, then we are choosing to continue an unfunded 
mandate.
  The other major weakness in the prudent layperson provisions in the 
Republican bill is the lack of provisions for post-stabilization 
services. Mr. President I want to point out what the debate about post-
stabilization services is all about. It simply boils down to two 
questions:
  (1) Is post-stabilization care going to be coordinated with the 
patient's health plan, or is it going to be uncoordinated and 
inefficient?
  (2) Are decisions about post-stabilization care going to be made in a 
timely fashion, or are we going to allow delays in the decision-making 
process that compromise patient care and lead to overcrowding in our 
nation's emergency rooms?
  When I have heard arguments about the post-stabilization services, I 
have heard opponents of these provisions characterize post-
stabilization care as ``optional.''
  Mr. President, we need to understand that no matter what Congress 
decides to do, post-stabilization care will be delivered in our 
nation's emergency rooms. The care delivered after stabilization is not 
optional. The choice Congress has is to decide whether the care will be 
coordinated or uncoordinated.
  Kaiser-Permanente is a strong supporter of the post-stabilization 
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.
  Mr. President, I have a letter of support from Kaiser-Permanente 
which outlines their reasons for supporting our version of the prudent 
layperson standard. I ask unanimous consent that it be printed in the 
Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                            Kaiser Permanente,

                                    Washington, DC, June 24, 1999.
     Hon. Max Baucus,
     U.S. Senate,
     Washington, DC.
       Dear Senator Baucus, since 1996, Kaiser Permanente has 
     supported the passage of federal legislation embracing the 
     Prudent Lay Person concept, which requires insurance coverage 
     of emergency services provided to people who reasonably 
     expect they have a life or limb threatening emergency. In 
     connection with this, we support a requirement that the 
     emergency physician or provider communicate with the health 
     plan at the point where the patient becomes stabilized. This 
     will allow for coordination of post-stabilization care for 
     the patient, including further tests and necessary follow-up 
     care. These concepts are contained in several bills currently 
     pending before Congress. I should note, however, that our 
     favoring of this language should not imply endorsement in its 
     entirety of any specific bill that deals with other issues.
       As a result of the Balanced Budget Act of 1997 with its 
     ensuing regulations applicable to Medicare + Choice and 
     Medicaid enrollees and the Executive Order applying the 
     President's Advisory Commission's Bill of Rights to all 
     federal employees, approximately 30 million Americans are now 
     the beneficiaries of a financial incentive to emergency 
     departments to communicate with the patient's health plan 
     after the patient is stabilized. This helps to ensure that 
     the patient's care is appropriate, coordinated and 
     continuous. It is important that emergency departments have 
     the same incentive to coordinate post-stabilization and 
     follow up care for patients who are not federal employees or 
     beneficiaries of Medicare or Medicaid. We have heard of 
     minimal problems implementing this standard in those health 
     plans participating in FEHBP and Medicare + Choice programs. 
     Since a federal standard is in place and working, it is good 
     policy to extend that standard to the general population.
       For the past ten years, we have implemented on a voluntary 
     basis a program that embraces these concepts of honoring 
     payments for the care our members receive in non-
     participating hospital emergency departments up to the point 
     of stabilization. Our Emergency Prospective Review Program 
     has encouraged the treating physicians in such settings to 
     contact our physicians at the earliest opportunity to discuss 
     the need for further care. This has allowed us to make 
     available elements of the patient's medical record pertinent 
     to the problem at hand and to coordinate on-going care as 
     well as the transfer of the patient back to his/her own 
     medical team at one of our facilities. We have found this 
     program to be considerate of the patients' needs, emphasizing 
     both the urgency of treatment for the immediate problem as 
     well as the continuity of high quality care.
       This has been a cost-effective practice, affording the 
     patient the highest quality of care in the most appropriate 
     setting. By assuring immediate response to telephone 
     inquiries from non-participating emergency facilities, we 
     have been able to provide substantial assistance to the 
     emergency doctor who otherwise is practicing in an isolated 
     environment without access to the patient's medical record. 
     Our own emergency physicians on the telephone have offered 
     peer consultations provisionally approved coverage for 
     urgently needed tests and treatment, arranged for the 
     coordination of follow up care, and implemented critical care 
     transport of patients back to our own facilities. Of over two 
     thousand patients transported in this fashion, one third have 
     been discharged to their homes. Without this coordination of 
     care, these patients would have been hospitalized at needless 
     expense.
       In summary, this program has served the needs of our 
     patients, the treating emergency physicians, and our own 
     medical care teams, while providing substantial savings in 
     both clinical expense and in administrative hassle over 
     retrospective approval of payment for services provisionally 
     approved through the telephone call. We are strongly in favor 
     of the post-stabilization coordination provision as an 
     essential element of the emergency access provision of the 
     Patients Bill of Rights.
           Sincerely,

                                            Donald W. Parsons,

                                     Associate Executive Director,
                                        Health Policy Development.

  Mr. BAUCUS. Mr. President, I need to point out that this letter 
doesn't endorse all of the provisions in the Patients' Bill of Rights. 
However, it strongly supports the post-stabilization provisions in our 
bill. I'll read a small portion of the letter:

       In summary, this program has served the needs of our 
     patients, the treating emergency physicians, and our own 
     medical care teams, while providing substantial savings in 
     both clinical expense and in administrative hassle over 
     retrospective approval of payment for services provisionally 
     approved through the telephone call. We are strongly in favor 
     of the post-stabilization coordination provision as an 
     essential element of the

[[Page S7688]]

     emergency access provision of the Patients Bill of Rights.

  Mr. President, I don't know how you can say it any more clearly than 
that. Our version of the prudent layperson standard for emergency 
services is the right one for several reasons:
  (1) It's patient-centered; (2) It's comprehensive; (3) It promotes 
coordination of care with the patient's health plan; (4) It decreases 
overcrowding in our nation's emergency rooms by requiring timely 
decisions; (5) And last but not least, it saves money.
  Frankly Mr. President, I am puzzled by the fact that my Republican 
colleagues oppose this language. I can't understand why they oppose 
extending protection for emergency services to all Americans with 
health insurance. Shouldn't we do the right thing, and approve the real 
prudent layperson standard?
  I urge my Republican 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 for their 
health care.
  I am confident that we will have this debate. The last thing any of 
us want to do is put up barriers for patients who need medical care 
during an emergency.
  Mr. President, this legislation removes barriers and allows patients 
to get the care they need, providers to deliver care in a timely 
fashion, and health plans the opportunity to coordinate care 
efficiently. I am confident that when we have this debate, we will be 
able to come together and pass the real prudent layperson standard for 
emergency services.
  Mr. President, I yield the floor.
  Mr. DORGAN addressed the Chair.
  The PRESIDING OFFICER (Mrs. Hutchison). The Senator from North Dakota 
is recognized.

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