[Congressional Record Volume 145, Number 99 (Wednesday, July 14, 1999)]
[Senate]
[Pages S8424-S8427]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        PATIENTS' BILL OF RIGHTS

  Mr. GRAMS. Mr. President, I rise today to talk a little bit about the 
health care bill we are debating in this Chamber.
  Our colleagues on the other side of the aisle have day after day 
asserted that their Patients' Bill of Rights legislation is better than 
the Patients' Bill of Rights Plus legislation, of which I am a proud 
cosponsor.
  If we are to believe that raising the cost of every insured 
individual's premiums by 6.1 percent and increasing the number of 
uninsured by roughly 1.8 million people is what is good for America, 
then, yes, this could be called a better bill. I, however, don't think 
those statistics suggest it's a better bill. Most Americans who know 
that this legislation increases costs and increases the number of 
uninsured do not think it is a better bill at all.
  I firmly believe that the Patients' Bill of Rights Plus, S. 300, is a 
much more productive solution to problems facing Americans in the 
health care market today.
  Mr. President, eight to ten percent of Minnesotans are uninsured 
today. Now, we in Minnesota enjoy a lower uninsured rate than the 
national average and we have historically had one of the lowest 
uninsured populations in the country.
  However, if S. 6 is adopted into law, I could expect to see about 
36,000 more Minnesotans become uninsured. Nationally, about 15 percent 
of our population today is without insurance. They may be uninsured for 
a number of reasons, but I bet the biggest obstacle for most people is 
access, and access is determined by costs. They simply cannot afford 
the costs of insurance.
  These uninsured Americans would be left even further behind if we 
adopt the Kennedy-Daschle health care bill. Our colleagues make no 
effort whatsoever to address the problems of the uninsured. I do not 
think this is good policy, I do not think it is good for the Nation, 
and it certainly is not good for those already uninsured or those who 
will be forced to drop health care insurance because of increased 
costs.
  Thankfully, we have an alternative, and it is called the Health Care 
Access and Equity Act of 1999, or S. 1274. I was pleased to introduce 
this legislation along with my colleagues Chairman Roth and also 
Senator Abraham of Michigan. When we introduced this bill on June 24, 
we did so with the support of 15 of our colleagues.
  The Health Care Access and Equity Act does several things to increase 
access to health insurance, but one of the most important components is 
the full deductibility of health insurance costs for those without 
access to health insurance coverage through their employer. The Health 
Care Access and Equity Act of 1999 presents us with the opportunity to 
create the most comprehensive tax deductible coverage system in our 
Nation's history. It achieves this by eliminating one of the most 
discriminatory portions of the Tax Code: the disparate treatment 
between an employer purchasing a health plan as opposed to an 
individual purchasing health insurance on their own.
  When employers purchase a health care plan for their employees, he or 
she can fully deduct the cost of providing that insurance, effectively 
lowering the actual cost of providing that coverage. However, when an 
employee purchases an individual policy on their own, they must do so 
with after-tax dollars and cannot fully deduct the cost of that plan. 
They do not have the ability or the advantage offered to employers to 
reduce the actual costs of their policy by deducting the premiums from 
their taxes every year. Therefore, health insurance is too costly and, 
for many, they usually wind up without health coverage. The Health Care 
Access and Equity Act will end this discrimination within the Tax Code 
and make health care available for many more Americans.
  Let's make the same tax incentives for purchasing health insurance 
now available to employers apply to everybody. Let's level the playing 
field, and we will have taken the next logical step in the evolution of 
our health care system.
  I believe Congress should be doing what it can to lower the cost of 
health insurance, making it more affordable--not by proposing 
legislation that will raise the costs and will make health insurance 
more and more difficult to afford.
  I have a chart with me that shows the impact my legislation would 
have for my constituents. As you can see, it would reduce health 
insurance costs by anywhere from $796 to $1,384 for a family of four 
living in Mankato, MN, and also $887 to about $1,542 for a family of 
four living in St. Paul, or the Twin Cities. This is because they could 
deduct their premiums on their taxes, and this is what they would save 
off their tax bills which they could use then to pay for health 
insurance policies, thus making health care more affordable.

  These are very significant costs which could make health insurance 
coverage available for many more people in my State, as well as across 
the country, who are currently in the individual health insurance 
market, and that is more than my colleagues on the other side of the 
aisle can say about their bill.
  It seems most proposals before the Senate are just out there forcing 
some Federal definition of quality health plans onto the consumers and 
then sticks them with the bill, the increased cost for those mandates. 
It is not good policy, it does nothing for those who are uninsured, and 
it will not help those who will be forced to drop their health 
insurance because they can no longer afford the increase in those 
health care premiums.
  Even without the increased costs associated with the so-called 
Patients' Bill of Rights legislation, employers are already 
anticipating premium increases of between 7 to 10 percent over and 
above the costs that would be forced to go up under the plan by Senator 
Kennedy. Add on to that the costs of the Patients' Bill of Rights and 
you get higher numbers across the board, you get higher premiums, 
higher uninsured and higher frustration because any raise in pay that a 
middle-class worker might expect will now go toward even higher health 
care premium costs.
  It is estimated that benefit mandates comprise over 20 percent of the 
price of health plan premiums already in the

[[Page S8425]]

State of Minnesota, and if you add on top of that the 5- to 6-percent 
tax on health plans and we are getting close to one-third of that 
premium being attributed to taxes or mandates.
  You might say: Employers can cover the premium increases. Some may, 
but some may not. Regardless, the money employers use to cover higher 
health insurance premiums could be used to increase the employee's 
salary. By increasing the employers' costs, Congress will force 
employees to forego a pay increase. My colleagues across the aisle may 
believe this is a good direction for the country to go in, but I do 
not, and I know that most Minnesotans do not agree.
  If all this were not bad enough, 57 percent of small businesses say 
they will stop providing health insurance for their employees if they 
are exposed to the Kennedy-Daschle bill's liability provisions. This is 
not just a threat. Most small businesses are not able to absorb higher 
operating expenses without cutting back or eliminating some costs, and 
that could mean as well some jobs that would be lost.
  Let's talk about the liability issue a little bit.
  Under Senator Kennedy's legislation, employees will be able to sue 
their employers for something the employer is not obligated to provide. 
That sounds a little strange to me, so I have to say it again. People 
will be able to sue their employer if they are unhappy with something 
their employer is not in any way obligated to provide.
  Proponents of increasing costs through liability will say: We have 
carved out employers from the liability provisions so only insurers, 
HMOs, and third-party plan administrators would be liable. This may be 
true in theory, but what they will not tell you is that there is 
already no way to separate the two under recent guidance from the 
Department of Labor. The guidance clarifies that employers have a 
fiduciary obligation to monitor plan quality. This responsibility 
renders so-called carve-outs ineffective because there is no way 
employers can completely absolve themselves of benefit decisions under 
their health plan which is required under the Democrats' illusionary 
carve-outs.

  As I have mentioned before, the Kennedy-Daschle approach will 
increase costs, and even if employers could meet the guidelines for 
that liability exemption, the costs are still passed on to the 
employers and, of course, those costs are then passed on to their 
employees. Essentially, the Kennedy-Daschle liability provision does 
not guarantee quality health care. What it does guarantee is increased 
health premium costs for every American.
  What fork in the road is this country taking when a notion such as 
this is given any serious discussion? Isn't it apparent to supporters 
of the Kennedy bill that if companies are exposed to this type of 
liability they would just drop insurance coverage for their employees?
  I have never believed we need more litigation in this country, and 
this is certainly not an exception. We all want patients to have 
protection as much as anyone else. Yet how do we ensure patients are 
receiving the health care they need in a timely fashion?
  I believe a strong, independent, quick, and easily accessible appeals 
process for those who have been denied health care services they and 
their physicians believe is necessary is what is needed and appropriate 
means to resolve coverage disputes. Again, as an original cosponsor of 
the Patients' Bill of Rights Plus legislation, I support an idea for 
this strong, independent, external appeals process to ensure people 
receive the health care they need and to make sure they get it when 
they need it.
  Perhaps the best part of the appeals process is the fact that the 
external appeal is binding on the health plan but not binding on the 
person who is appealing. What does that exactly mean?
  It means if you were denied care you and your physician believe is 
necessary, go through the appeals process and the appeals board agrees 
with you, the health plan then is legally bound to pay for that care. 
However, if you are unsatisfied with the outcome of the appeals 
process, you can then sue the health plan under current law, which 
allows the collection of attorney's fees, the cost benefit, court 
costs, injunctive relief, and other equitable relief.
  No one can sue their way to good health, but we can give them the 
tools they need to get the care they need when they need it, and the 
Patients' Bill of Rights Plus gives consumers those tools.
  The Kennedy-Daschle bill also includes a provision which, on the 
surface, also sounds very reasonable. It allows physicians and patients 
to determine what is medically necessary. Who could be against that? 
But what they do not tell you is creating such a standard could, under 
some circumstances, work against the patient's best interest. I will 
give an example of how this could happen.
  Under Senator Kennedy's bill, health plans would be required to cover 
the costs of whatever setting or duration of care a physician decides 
is ``medically necessary.'' The bill goes on to define medical 
necessity as whatever is consistent with generally accepted principles 
of professional medical practice.

  This effectively prohibits health plans from intervening in 
situations when it is clearly in the patient's best interest. For 
instance, the Centers for Disease Control figures indicate that 
approximately 349,000 unnecessary caesarean sections were performed in 
1991. While decisions regarding these individual procedures were based 
on generally accepted principles, a large number of women were 
needlessly subjected to major surgery and risk of infection.
  Another shortcoming of the generally accepted principles of medical 
practice is the variance in treatments from region to region. Let's 
take a look at what the Dartmouth Atlas of Health Care 1998 says about 
treatments for breast cancer;

       Once diagnosed, surgery is universally recommended for the 
     treatment of breast cancer. There are two principle surgical 
     approaches: breast sparing surgery (lumpectomy, which is 
     followed by radiation therapy) and mastectomy (complete 
     removal of the breast). Randomized clinical trials have shown 
     that these two approaches have nearly identical rates of 
     cancer cure. . . . Despite scientific evidence that the 
     survival rate is the same for breast sparing surgery and for 
     mastectomy, and in spite of wide consensus that patient 
     preferences should determine which treatment is chosen, the 
     wide variations in surgical rates suggest that physician, 
     rather than patient, preferences are the deciding factor on 
     most cases.

  That's what the Dartmouth Atlas of Health Care 1998 has to say about 
the choice between lumpectomies and mastectomies. Let me tell you about 
a related incident which actually happened in my state of Minnesota.
  Several years ago, one of the major health plans in Minnesota 
received a telephone call from a Minnesota physician seeking 
authorization to perform an outpatient mastectomy on a woman suffering 
from breast cancer. This physician wanted to admit a woman to a same-
day surgical center, remove her breast and then send her home later 
that day.
  The health plan's medical director had never heard of an outpatient 
mastectomy being done before. In answer to questioning by the health 
plan, the physician admitted he had done the procedure only one time 
before. When asked why he wanted to do this procedure on an outpatient 
basis, he told the plan it was at the request of the patient. The 
plan's representative told the physician to wait and make no plans to 
do the procedure outpatient.
  The health plan then went to the patient and asked why she would want 
to procedure done as an outpatient. She told the plan's representative 
that the physician told her the plan was ordering him to do the 
procedure on an outpatient basis. ``You know how insurance companies 
are,'' she said he told her.
  When the plan told her they hadn't ordered the physician to do the 
procedure outpatient, she began to cry. She did not want the procedure 
done outpatient.
  The health plan called the physician back and told him that due to 
the lack of medical necessity, they were denying his request for 
authorization to do the mastectomy on an outpatient basis. The patient 
had the mastectomy as an inpatient, and because of complications, she 
ended up staying in the hospital for several days.
  Mr. President, this women was a single-mother of three who would have 
been totally incapable of caring for herself, much less her three 
children, if the physician had done the procedure outpatient as he 
originally requested.
  This example demonstrates how health plans can and do contribute to

[[Page S8426]]

quality in our health care system. Are there problems in some areas? 
Have mistakes been made? Yes. But, let's think about the consequences 
of what we do here today. Will the Kennedy bill really make health care 
better? More quality oriented? I don't think it will.
  New breakthroughs in pharmaceuticals and medical devices are unveiled 
almost daily. Many of these breakthroughs come from Minnesota companies 
and research facilities. These breakthroughs represent opportunities 
for individuals to live longer, healthier, more productive lives. I 
believe it would be difficult for physicians, or anyone, to be able to 
keep up with all the latest technology and treatments by themselves. 
Yet, that's what we're forcing them to do if the medical necessity 
provision included in the Kennedy bill passes as written. Further, if 
plans are required to pay for whatever procedure, treatment, drug or 
device providers offer, we could be putting patient's health, and 
perhaps their lives, at stake.
  To show the inconsistency of President Clinton and Senator Kennedy 
display by insisting the medical necessity provision be part of the 
Patients' Bill of Rights, they directly contradict a report issued in 
February by the Office of Inspector General of the Department of Health 
and Human Services. The report found that the majority of all Medicare 
fee-for-service fraud cases is a lack of medical necessity. You may 
recall Secretary Shalala holding a press conference in response to this 
report calling on America's seniors to be more vigilant when receiving 
health care services to assure that fraud is not being committed.
  If the administration is urging consumers and health plans to take 
action in order to reduce fraud in the Medicare program, why is it 
proposing to bar health plans from using the very same tools to prevent 
fraud in their programs?
  While I'm thinking about Medicare and the Patients' Bill of Rights, 
it was President Clinton who insisted, under the threat of a veto, a 
provision be included in the Balanced Budget Act which denies seniors 
one of the most basic patient's rights--the ability to use their own 
money to pay for the health care services they believe are necessary. 
Our Democratic colleagues agreed with the President and have stalled 
reconsideration of this egregious violation of a basic right. I am 
hopeful we can get to that patient's right later this year.
  The problems our health care system faces are not just the result of 
managed care. If it were, Minnesota, where 90 percent of health care 
consumers are in managed care organizations, would not have the longest 
life expectancy in the United States. The Twin Cities of Minneapolis 
and St. Paul would not have the lowest health care costs of the top 20 
metropolitan areas in the United States, and we wouldn't have an 
uninsured rate half the national average. Minnesota has found a way to 
live and thrive with managed care. It's not without problem, but for 
the vast majority of Minnesotans, it works well. With all due respect 
to my colleague from Massachusetts, Minnesotans don't want his 
definition of a quality health plan and we don't want him to tell us 
what protections we need or don't need.
  During my first term in Congress, President Clinton introduced the 
Health Security Act, which is now commonly referred to as ``Clinton 
Care.'' I was opposed to the President's legislation because it was 
nothing short of a government take-over of the best health care system 
in the world. I remain opposed to this type of legislation because it 
is too prescriptive, too centralized and limits health care choices.
  Over the past two years, we've seen bill after bill introduced which 
propose, in the name of quality health care, to allow federal 
bureaucrats, Congress and lawyers to practice medicine without a 
license. Benefit mandates are thrown around Congress as if there were 
no consequences. I've heard it referred to as legislating by body part.
  We are told by those on the other side of the aisle, ``we need to 
have benefit mandates so Americans can receive quality health care,'' 
and ``let's preempt the states because they don't know what they're 
doing.'' I disagree, and the very individuals who regulate HMOs and 
every other type of health plan for the respective states--the 
insurance commissioners--also strongly disagree. In fact, State 
insurance commissioners have already spoken to Congress on this issue. 
The National Association of Insurance Commissioners wrote this to 
Chairman Jeffords in March of this year.

       It is our belief that states should and will continue the 
     efforts to develop creative, flexible, market-sensitive 
     protections for health consumers in fully insured plans, and 
     Congress should focus attention on those consumers who have 
     no protections in self-funded ERISA plans.

  The letter goes on to explain very precisely their view of pending 
legislation:

       The states have already adopted statutory and regulatory 
     protections for consumers in fully insured plans and have 
     tailored these protections to fit the needs of their states' 
     consumers and health care marketplaces. In addition, many 
     states are supplementing their existing protections during 
     the current legislative session based upon particular 
     circumstances within their own states. We do not want states 
     to be preempted by Congressional or administrative actions.

  There has been a lot of smoke blown around here about how many 
health-based organizations have endorsed this bill or that bill, but 
when it comes to regulating health insurance policies, I believe we 
need to put more stock in the option of those who are currently 
responsible for regulating health insurance--our state insurance 
commissioners. They know best what the people in their states need--
they know best how to achieve their goals, and Congress should know 
better than to question their ability or willingness to meet those 
challenges.
  As we get deeper and deeper into the details of the Kennedy-Daschle 
bill, I am reminded of something Minority Leader Daschle said in the 
opening hours of this debate. He claimed that the reason insurance 
companies call them HMOs ``is that H-M-O stands for their patient 
philosophy: Having Minimal Options.'' Mr. President, I suggest that it 
is the Kennedy-Daschle bill that would take away options and our 
colleagues should be willing to admit it.
  We have seen our colleagues' true motives when they backed President 
Clinton's Health Security Act, when they backed President Clinton 
taking away a senior's right to use their own earnings to pay for 
medical services without the government and now we see it with the 
Kennedy-Daschle Patients' Bill of Rights. Consumer's options are 
becoming minimal and we have government to thank for that.
  To suggest that our bill--the only one expanding options for the 
American people by eliminating restrictions on medical savings 
accounts, allowing the self-employed to fully deduct the cost of 
purchasing health insurance, and permitting the carryover of unused 
funds in flexible spending accounts--limits Americans choices, ignores 
the contents of our bill and ignores the reality of the Kennedy-Daschle 
bill.
  Another issue I would like to talk about is something I have taken 
great interest in over the past three years--emergency medical 
services. This is perhaps one area in our debate which Republicans and 
Democrats have agreed is important enough to ensure access for 
Americans in need of immediate care. Every proposal in Congress 
contains some form of the prudent layperson standard for emergency 
services. That is with good reason.
  The Federal Government has some precedence in dealing with access to 
emergency care through a law enacted in the 1980s called EMTALA, or The 
Emergency Medical Treatment and Active Labor Act. This act requires 
hospitals to treat everyone and anyone who enters their emergency 
department regardless of ability to pay as a precondition to 
participation in the Medicare program.
  All the proposals before Congress with the prudent layperson standard 
include some reference to EMTALA. Where I have concern is the lack of 
any mention of ambulance services in any Patients' Bill of Rights 
legislation. While there has been some mention of ambulance services 
being included as part of the ancillary services clause under EMTALA, 
this simply will not work.
  I will remind my colleagues that EMTALA only affects what happens 
once an individual arrives at a hospital's emergency room door. It 
covers none of the pre-hospital care people receive from courageous EMS 
personnel

[[Page S8427]]

all over the Nation whose sole function is to get the sickest among us 
to the emergency room quickly, efficiently and safely so emergency 
physicians can tend to our condition.
  Contrary to what most people think, EMS personnel do not make 
diagnoses. They do not make decisions about whether a patient should or 
should not be transported to an emergency room based on their medical 
condition. Ambulance personnel respond to calls initiated in any number 
of ways, arrive at the location, assess the patient's condition, 
stabilize them and ready them for transportation to a facility with the 
personnel trained to make a diagnosis.
  The reason I wanted to bring this to everyone's attention is because 
I believe many of us have not taken the time to fully understand the 
function ambulance services performs in the health care delivery 
system. We cannot afford to continue ignoring the important role EMS 
plays in health care.
  For the past 3 years, I have introduced legislation which would 
address some of the problems ambulance services faces every day. My 
most recent iteration is S. 911, the Emergency Medical Services 
Efficiency Act. I invite any and all of my colleagues to join me as a 
cosponsor of this important legislation. I am hopeful we can include 
several of its provisions in the Patients' Bill of Rights legislation 
before us today.
  For every 1 percent increase in premiums, there are an additional two 
to four thousand uninsured in Minnesota. Whether it's a family of four 
in Ada, Minnesota or a single mother of two in Zumbrota, I don't want 
to be responsible for any Minnesotan losing their health insurance 
coverage. I believe if I were to vote for the Kennedy-Daschle bill, I 
would be doing just that--ensuring that 36,000 Minnesotans will be 
forced to drop their coverage because they can no longer afford it.
  That is something I, along with 97 of my colleagues in the Senate, 
voted not to do in a sense-of-the-Senate resolution last year. I urge 
my colleagues to honor the promise they made in that vote and defeat 
the government-centered, one-size-fits-all vision of health care 
illustrated by the Kennedy-Daschle Patients' Bill of Rights. Patients 
will get a bill all right--one taken out of their paychecks every 
month.
  I urge my colleagues to say yes to creating choices, yes to 
protecting consumers who aren't currently protected, yes to being 
mindful of costs, and yes to increasing the number of insured--they can 
do all that with one vote for the Patients' Bill of Rights Plus.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Rhode Island is recognized to speak for up to 5 minutes.
  Mr. REED. Thank you, Mr. President.

                          ____________________