[Congressional Record Volume 145, Number 134 (Wednesday, October 6, 1999)]
[House]
[Pages H9474-H9502]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




       BIPARTISAN CONSENSUS MANAGED CARE IMPROVEMENT ACT OF 1999

  The SPEAKER pro tempore (Mr. Shimkus). Pursuant to House Resolution 
323 and rule XVIII, the Chair declares the House in the Committee of 
the Whole House on the State of the Union for the consideration of the 
bill, H.R. 2723.

                              {time}  1725


                     In the Committee of the Whole

  Accordingly, the House resolved itself into the Committee of the 
Whole House on the State of the Union for the consideration of the bill 
(H.R. 2723) to amend title I of the Employee Retirement Income Security 
Act of 1974, title XXVII of the Public Health Service Act, and the 
Internal Revenue Code of 1986 to protect consumers in managed care 
plans and other health coverage, with Mr. Hastings of Washington in the 
chair.
  The Clerk read the title of the bill.
  The CHAIRMAN. Pursuant to the rule, the bill is considered as having 
been read the first time.
  Under the rule, the gentleman from Virginia (Mr. Bliley), the 
gentleman from Michigan (Mr. Dingell), the gentleman from Pennsylvania 
(Mr. Goodling), the gentleman from Missouri (Mr. Clay), the gentleman 
from Texas (Mr. Archer), and the gentleman from New York (Mr. Rangel) 
will each control 30 minutes.
  The Chair recognizes the gentleman from Virginia (Mr. Bliley).
  Mr. BLILEY. Mr. Chairman, I yield myself 6 minutes.
  Mr. Chairman, over 5 years ago, Republicans in Congress stood 
efficient against a very bad idea, an attempted Government takeover of 
our Nation's health care system. Back then, we opposed President 
Clinton's vision of health care reform primarily because of the 
negative effects his proposal would have on employers and the negative 
effects it would have on consumers' ability to choose their own 
physicians.
  Mr. Chairman, we won that debate over how to best reform our health 
care system. We won that debate because the public agreed that 
Government micromanagement of our health care system was wrong. The 
public agreed that imposing expensive new burdens on employers would 
result in an increase in premiums and would cause businesses to drop 
their health care coverage.
  Now today we are faced with another debate about the direction of our 
Nation's health care system. Mr. Chairman, once again, we must decide 
whether we want to move toward a Government-controlled health care 
system or instead enact reasonable protections for patients that 
maintain quality without driving up costs. I stand here today with a 
firm hope that we will prevail in this fight similar to the way we did 
5 years ago.
  Mr. Chairman, I do not think that anyone would question my long-
standing commitment to ensuring that the United States maintains its 
high quality health care system and that Americans of all walks of life 
have access to that system.

                              {time}  1730

  Unfortunately, I believe that H.R. 2723, the Norwood-Dingell bill, is 
misdirected in several fundamental ways and ultimately will harm the 
very people it intends to help.
  My views on health care reform are fairly straightforward. First, we 
should do no harm. Doctors take the Hippocratic oath; we legislators 
should follow a similar injunction. We should vote down health reform 
legislation that harms patients. We should avoid legislation that 
increases the number of uninsured in this country. For all the 
attention that has been given in this debate to denied care, I think we 
should focus on the worst kind of denial, and that is denial to any 
form of health insurance at all.
  Forty-four point three million persons are uninsured today, and we 
ought not be adding to that number; we should be subtracting from it.
  Second, when we do enact patient protections, they should be just 
that, patient protections; not provider protections, not insurer 
protections but patient protections. That is why I have been an ardent 
supporter of a fair and just external review process.

[[Page H9475]]

  My colleagues have heard me say ``care, not court.'' A patient in 
need of care needs medical treatment not legal treatment. In my 
opinion, H.R. 2723 goes way too far on liability and will simply be a 
treasure trove for trial lawyers.
  By overreaching on the constraints it imposes on valid cost 
containment techniques, this bill poses a real threat to the voluntary, 
employer-sponsored health insurance system prevalent today.
  I know how price-sensitive employers are. I was a small business 
owner myself some time ago. The Norwood-Dingell bill takes a reasonable 
idea, and then it takes it way too far. As a result, costs will 
needlessly go up and not always for the betterment of health care 
quality. For example, the bill does not have a point-of-service 
exemption for small employers. Due to this omission, many small 
business owners, who can least afford to contribute to health care 
coverage for their employees, will be left with the choice between 
providing Cadillac care or no care at all. Many of their employees will 
lose their employer-sponsored insurance because the point-of-service 
mandate will drive health care costs up.
  The bill's whistleblower provision is another example of a reasonable 
idea gone bad, and the list goes on.
  This bill micromanages a plan's utilization review requirement.
  It gives too much secretarial authority in the selection of external 
review entities and in specifying the standards of review.
  Even the bill's definition of medical necessity extends beyond what 
is needed to ensure that patients receive the most appropriate care.
  Mr. Chairman, I could go on and on and discuss other concerns I have 
and point out the breadth of the bill's onerous ``any willing 
provider'' provisions and the lack of a conscience clause, but there 
are other Members here who wish to have their say.
  Let me simply conclude as follows: As the chairman of the Committee 
on Commerce, I have reached across the aisle to draft reasonable 
patient protection legislation with my colleagues. While some amount of 
this bill reflects that effort, in the end the authors went too far, as 
I have said. This is unfortunate, and this is why I have cosponsored 
H.R. 2926 instead.
  As I have said, my goals throughout have been to provide better, not 
worse, care to the American people; to provide access to needed medical 
care, not to courts of law; and to provide patient protections, not 
protections for the interests of providers or insurers.
  Mr. DINGELL. Mr. Chairman, I ask unanimous consent that I may yield 
15 minutes of the time available to me to the gentleman from Georgia 
(Mr. Norwood), to be controlled by him.
  The CHAIRMAN. Is there objection to the request of the gentleman from 
Michigan?
  There was no objection.
  Mr. NORWOOD. Mr. Chairman, I yield myself such time as I may consume.
  Mr. Chairman, I appreciate the opportunity finally, after 5 years, 
for us to come together and decide an issue that has really confronted 
this body for 5 years, but the truth is it has confronted the American 
patient for 25 years.
  The issue is whether managed care insurance companies can be held 
truly accountable in court when they breach their contract and someone 
is injured or dies.
  Since 1974, this Congress has given HMOs a free pass to deny promised 
benefits without any legal responsibility for the damages that they do 
and have caused.
  Are we willing to correct this injustice, finally, after 25 years? If 
so, we simply must pass a bill that can become a law which reverses 
that 1974 mistake, and a bill that we are certain will be signed by the 
President. We must also be able to answer in the affirmative the 
following question: If someone makes a wrongful medical decision or 
breaches their contract and a member of someone's family dies, will 
that family have an absolute, unconditional right to seek redress in 
court? Yes or no, no strings attached?
  There is only one bill that we will consider that can pass this test, 
and that is a bipartisan bill supported by both Republicans and 
Democrats. I believe that everyone in this body knows that to be a 
fact. To cast a vote really for any other bill is to cast a vote to 
block managed care reform.
  Not one Member of this body will be able to hide behind a vote for a 
watered-down bill that cannot become a law and claim to be on the side 
of patients. We know better. The American people know better. Vote no, 
Mr. Chairman, on every substitute. Vote yes on the only legislation 
that has really a chance of becoming law and changing the disaster that 
this Congress visited on the American people with the 1973 HMO Act and 
the 1974 ERISA Act.
  Mr. Chairman, I reserve the balance of my time.
  Mr. DINGELL. Mr. Chairman, I yield myself 3 minutes.
  (Mr. DINGELL asked and was given permission to revise and extend his 
remarks.)
  Mr. DINGELL. Mr. Chairman, this is an old story. Last year, the 
industry spent $75 million to defeat legislation similar to that which 
we are considering today. Reports today indicate they will be spending 
in excess of $100 million for that purpose. Tonight they will be 
launching another new ad campaign with pictures of sharks and music 
from Jaws.
  What scared them so much? Could it be they are afraid of paying for 
someone's cancer screening? Are they terrified of paying for surgery to 
some person who needs it? Is it the threat of paying for prescription 
drugs that has them petrified? Or maybe they are afraid of letting 
ordinary people make the decisions that affect their own lives.
  Maybe they are afraid of the mother whose child has leukemia and 
wants the pediatrician to decide what care her child needs or perhaps a 
terminally ill cancer patient who has no other treatment available to 
save his life, other than a clinical trial.
  Perhaps that patient needs to have an oncologist as his principal 
medical advisor. Maybe it is a woman in her second trimester of 
pregnancy whose doctor is dropped from the health care plan, or maybe 
it is a woman with breast cancer who has a mastectomy and is sent home 
that same day, or the man with a stroke who needs follow-up visits to a 
physical and speech therapist to regain full function.
  The Norwood-Dingell bill would help each of these people get and 
continue the health care they need. None of the other substitutes can 
truthfully make that claim. The gentleman from Georgia (Mr. Norwood) 
and the gentleman from Iowa (Mr. Ganske) and I have been working on 
these issues for years. Our bill has been totally vetted. We have even 
incorporated suggestions from other Members, including the gentleman 
from Oklahoma (Mr. Coburn) and the gentleman from New York (Mr. 
Houghton).
  We are going to hear a lot of rhetoric about lawsuits, and it is one 
thing which is perhaps one of the significant differences between these 
bills. Yes, we allow patients to hold their health care plans 
accountable if they cause harm or death when they make a medical 
decision. That should be. A right without a remedy is of no value.
  All we have done is the same thing they did in Texas, where a law 
enacted during the tenure of Governor George Bush does these things. In 
2 years since that law has been in effect, Texas has had exactly 5 
lawsuits. The cost of such a situation, according to Coopers & Lybrand, 
a major accounting firm, amounts to 13 cents a month.
  Let me remind all here, only one of these bills that is considered 
today was written before yesterday. They are all brand new, except the 
one which is offered by the gentleman from Oklahoma (Mr. Coburn), the 
gentleman from Iowa (Mr. Ganske) and I.
  All of our bills have been examined in broad daylight. The others 
have not. There is only one bipartisan bill. There is only one that has 
a chance of being signed into law. Only one has been endorsed by more 
than 300 organizations, including doctors, teachers, consumers, union 
members, specialists, women and others, including the league of voters, 
and all of the consumer organizations.
  Only one has a chance of really making life better for people who buy 
health insurance and only one gives the people a clear right to the 
care which they need and which they deserve. Only one will be signed by 
the

[[Page H9476]]

President. Vote for Norwood-Dingell and support a bill that is going to 
benefit the people.
  Mr. Chairman, I reserve the balance of my time.
  Mr. BLILEY. Mr. Chairman, I yield 5 minutes to the gentleman from 
Tennessee (Mr. Bryant).
  Mr. BRYANT. Mr. Chairman, I thank the gentleman from Virginia (Mr. 
Bliley) for yielding time to me.
  Mr. Chairman, as a former attorney who practiced malpractice law and 
defending health care providers, I can say part of the problem with our 
health care system is the cost of that. It is simply too expensive. A 
lot of that cost is driven up by lawsuits where doctors have to 
practice defensive medicine in the event they might be sued later on. 
Common sense would tell us that if we are going to try and work in this 
situation and make health care more affordable and more accessible, 
then common sense would tell us that we ought to be able to try and 
reduce the cost here so that we can make health care more affordable 
and keep more people in the health care market. That would be the 
commonsense approach.
  Now, the other approach, which is supported by the President and some 
here in Congress, would seem to allow the public to sue their way to 
more affordable health care; but according to the Congressional 
Research Service, expanding liability in an unrestricted fashion could 
result in private employer-sponsored plans, and these are the people 
who provide insurance to their employees, it could cause these plans to 
increase by 70 to 90 percent in premiums.
  Just as medical malpractice liability induces health care providers 
to practice defensive medicine, again do this so I will not be sued or 
in case I am sued I have myself covered here, so would expanding 
liability to managed care in an unrestricted fashion. It would result 
in those employers and insurers and HMOs and third party health plan 
administrators beginning to approve unnecessary or inappropriate tests 
and procedures that are expensive, that will drive up the cost, all out 
of a fear of being sued. These added costs would then have to be passed 
on to employers who would then have to pass them on to their employees 
in the form of increased premiums and planned administration fees or 
simply do the easy thing and that is just quit providing health 
insurance to their employees.
  Why fight that? If someone thinks suing a company for $4 million for 
a spilled cup of coffee was excessive, wait until they see some of the 
lawsuits and some of the awards which could result from the passage of 
this plan.
  With health care representing over one-seventh of our economy, the 
odds of hitting the lawsuit lottery will expand exponentially. If the 
cost of providing health insurance actually goes up under this plan, 
which is supported by the President, who actually benefits? The 
discussion from the other side would have people believe it is the 
public; but if the costs go up, I fail to see how it is going to help 
those 44 million Americans that we have talked about heretofore afford 
health care coverage.
  So who, in reality, does benefit from more lawsuits? Well, who gets 
over one-third in fees of the millions of dollars which have been 
awarded in our lottery-style court system? I think if we answer that 
question, we will find out who actually is being protected here; and 
those are some of those trial lawyers.

                              {time}  1745

  Mr. Chairman, this is not hard. Let us not turn this patient 
protection effort into a lottery. Let us instead try to find a way to 
find a balance here that would hold managed care people accountable, 
they ought to be held accountable, but yet do so in a fashion which 
does not drive up the cost of this health care; does not cause them to 
practice defensive medicine for fear of being sued or for these 
lottery-style judgments, but yet do the right thing and also keep these 
employers in the business of providing insurance for their employees.
  What we do not want to do by this plan is to put more people into 
that 44 million uninsured classification simply by virtue of the fact 
that it is just easier, less expensive, less risk involved if they do 
not provide health care insurance for their employees, and I think we 
can do that.
  Mr. Chairman, I trust this Congress has that ability to pass such a 
law that would provide that proper balance of accountability weighed 
against the cost and exposure and the risk and people dropping out of 
the market. I hope we can.
  Mr. NORWOOD. Mr. Chairman, I yield myself 1 minute which I need to 
respond to my friend from Tennessee.
  I am delighted that our lawyer friends would like to see some type of 
legal reform.
  Would I agree that we need to stop the extortion, and frivolous 
lawsuits and all those things that cause defensive medicine prices to 
go up that I have lived with all of my life? Absolutely right. But 
legal reform can never mean that we take the civil rights or the due 
process away from 160 million Americans across this country and simply 
say, In your case with health care insurance you're on your own, baby.
  Now we have got external review that is going to stop most of that 
anyway; it is going to be very hard to be negligent. And I think we are 
not going to find this big rash of lawsuits. But to say, Americans, the 
justice system is not there for you when somebody denies you a benefit 
that damages you and kills your child, what kind of justice system is 
that? Are we going back to six guns and the OK Corral when one is 
wronged? No, I do not think so.
  The good news is that ours is very modest. We go back to the States 
where we took this away from them in 1974.
  Mr. Chairman, I yield 2 minutes to the gentleman from California (Mr. 
Horn).
  (Mr. HORN asked and was given permission to revise and extend his 
remarks.)
  Mr. HORN. Mr. Chairman, for all the controversy surrounding this 
debate the issue is very simple: responsibility. Just as doctors are 
held accountable for the care they provide, just as manufacturers are 
held accountable for the safety of their products, so too should HMOs 
be held accountable for the consequences of their decisions.
  Mr. Chairman, the Norwood-Dingell-Ganske bill simply sets up 
mechanisms to enforce the existing contractual agreements between 
patients and their health insurance providers. No health insurance plan 
should be allowed to avoid paying for necessary medical treatment for 
those who have faithfully paid their premiums each month by inventing 
its own definition of medical necessity. When health plans tell 
consumers that a requested treatment is not medically necessary, they 
are practicing medicine as much as a doctor who reaches the same 
conclusion. This shield of ERISA allows HMOs to escape the consequences 
of their decisions.
  I know of no other business in America which has such immunity. With 
this bill we want to drive the quality of health care in this country 
not by encouraging lawsuits, but by encouraging HMOs to use the best 
medical science when providing care instead of using the bottom line. 
Medical necessity must be determined by physicians and their patients, 
not by MBAs and people that have not had a medical experience and not 
by profit margins and HMO bureaucrats. Norwood-Dingell-Ganske is the 
only bill that does just that. Support it.
  Mr. Chairman, for all the controversy surrounding this debate, the 
issue is very simple. Responsibility. Just as doctors are held 
accountable for the care they provide, just as manufacturers are held 
accountable for the safety of their products--so too should HMOs be 
held accountable for the consequences of their decisions.
  The Norwood-Dingell bill simply sets up mechanisms to enforce the 
existing contractual agreements between patients and their health 
insurance providers. No health insurance plan should be allowed to 
avoid paying for necessary medical treatment for those who have 
faithfully paid their premiums each month by inventing its own 
definition of ``medically necessity.'' When health plans tell consumers 
that a requested treatment is not ``medically necessary,'' they are 
practicing medicine as much as a doctor who reaches the same 
conclusion. This shield of ERISA allows HMOs to escape the consequence 
of their decisions. I know of no other business in America which has 
such immunity.
  With this bill, we want to drive the quality of health care in this 
country--not by encouraging lawsuits, but by encouraging HMOs to use 
the best medical science when providing

[[Page H9477]]

care, instead of using the bottom line. Medical necessity must be 
determined by physicians and their patients, not by profit margins and 
HMO bureaucrats. Norwood-Dingell is the only bill that does just that.
  Mr. BURR of North Carolina. Mr. Chairman, I ask unanimous consent 
that I be permitted to control the time of the gentleman from Virginia 
(Mr. Bliley).
  The CHAIRMAN. Is there objection to the request of the gentleman from 
North Carolina?
  There was no objection.
  Mr. DINGELL. Mr. Chairman, I yield 2 minutes to the distinguished 
gentlewoman from California (Mrs. Capps).
  Mrs. CAPPS. Mr. Chairman, I rise in very strong support of the 
Bipartisan Consensus Managed Care Improvement Act of 1999. I commend 
the gentleman from Georgia (Mr. Norwood) for his heroic leadership in 
this issue.
  The passion of the gentleman from Michigan (Mr. Dingell) for health 
care was inherited from his father, John Dingell, Sr., who introduced 
the first bill in Congress to make health care available to all 
Americans, and I am sure that he would be very proud of his son today. 
At last we can enact real managed care reform and improve patient care 
across this country. The Norwood-Dingell bill was not written by 
special interest groups. It is the result of listening to what I call 
the other voices, those of patients and providers who have been left 
out of this dialogue.
  As a nurse, I am also speaking on behalf of over 2 million nurses who 
have known for a long time that HMO reform is necessary, and I am proud 
that the American Nurses Association has offered a strong endorsement 
of this legislation, and I enter their letter as part of the Record:

                                  American Nurses Association,

                               Washington, DC, September 29, 1999.
     Hon. Lois Capps,
     House of Representatives, Washington, DC.
       Dear Representative Capps: As the House prepares for floor 
     consideration of patient protection legislation, I am writing 
     to express the American Nurses Association's strong support 
     for the Bipartisan Consensus Managed Care Improvement Act of 
     1999, HR 2723.
       The American Nurses Association is pleased to endorse this 
     bill and is encouraged by the cooperation and compromises 
     made to achieve real progress on managed care reform. This 
     legislation constitutes an important step in assuring that 
     strong, comprehensive, and enforceable protections will be in 
     place for all insured Americans.
       ANA believes that every individual should have access to 
     health care services along the full continuum of care and be 
     an empowered partner in making health care decisions. Given 
     the nursing profession's preeminent role in patient advocacy, 
     ANA is particularly heartened by the steps proposed to 
     protect registered nurses and other health care professionals 
     from retaliation when they advocate for their patients' 
     health and safety. As the nation's foremost patient 
     advocates, registered nurses need to be able to speak up 
     about inappropriate or inadequate care that would harm their 
     patients. Nurses at the bedside know exactly what happens 
     when care is denied, comes too late or is so inadequate that 
     it leads to inexcusable suffering, which is why the strong 
     whistleblower protection language in this bill is critical to 
     patient protection legislation.
       ANA also believes that accountability for quality, cost-
     effective health care must be shared among health plans, 
     health systems, providers, and consumers. The provisions of 
     HR 2723 that assure a truly independent appeals system and 
     legal accountability for health plans are reasonable and 
     necessary if we are to have reform that is comprehensive and 
     enforceable for all participants in the health care system.
       This important bipartisan compromise also includes an 
     important requirement that health plans allow patients to 
     have access to a full range of health care providers, with no 
     discrimination against some providers solely on the basis of 
     type of licensure. ANA also strongly supports the provision 
     assuring that women have direct access to providers of 
     obstetric and gynecological services.
       The American Nurses Association, which represents 
     registered nurses throughout the nation who practice in every 
     health care setting, urges support for HR 2723, the 
     Bipartisan Consensus Managed Care Improvement Act of 1999, 
     the only patient protection bill to be considered by the 
     House that will bring about genuine reform in our health care 
     system.
           Sincerely,
                                                Beverly L. Malone,
                                                        President.

  This bill contains common sense provisions so important in the lives 
of ordinary Americans. It allows patients to choose their doctor and 
hospital and to see needed specialists. It leaves the determination of 
medical necessity with doctors, not insurance clerks. It guarantees 
emergency room care and ensures access to clinical trials. It allows 
patients recourse when they have not received proper care. This bill 
also includes whistle-blower protections which prevent nurses and other 
health care professionals from being fired if they report dangerous 
abuses.
  Mr. Chairman, in my travels around the central coast of California it 
is heartbreaking to listen to so many families whose HMO horror stories 
have ruined their lives. In this, the greatest Nation of the earth, the 
time has come to put patients before profits. Let us pass this 
bipartisan bill. Stop the abuses of managed care.
  Mr. BURR of North Carolina. Mr. Chairman, I yield 3 minutes to the 
gentleman from Oklahoma (Mr. Coburn).
  Mr. COBURN. I thank the gentleman from North Carolina for yielding 
this time to me.
  As my colleagues know, several times today we have asked ourselves 
why we are here, and what we have already heard in the first part of 
the debate is some of us are here to take a cheap partisan shot, some 
of us are here to build a career in Congress, some are here to get an 
electoral advantage. I am here to help patients, and I have already 
heard that the only bill that can do that is the bipartisan bill, and I 
adamantly and flatly disagree with that.
  The American public needs to ask themselves why the persecution 
complex of the American Medical Association would say because we get 
sued so much we want everybody else sued.
  There is a 1990 study out of the University of Indiana that says 
American doctors at that time ordered $33 billion worth of tests that 
were unneeded because of the fear of being sued. It is a legitimate 
concern to consider what the unintended consequences of uncontrolled 
lawsuits are going to be. Some will say we are going too far. That is 
what people say about the bipartisan bill. Some would say we are not 
going far enough. That is what they say about the Boehner bill. What we 
have to do is find a balance between both extremes, one that holds 
plans accountable, that does not raise costs and in fact can be 
enacted.
  There is some perverse incentives out there that my friend, the 
gentleman from Georgia (Mr. Norwood), and the gentleman from Iowa (Mr. 
Ganske) have worked hard to try to change with their bills, and I 
applaud them in their efforts to doing that. But to get a bipartisan 
bill, what happened is the group of people that they listed in support 
of their bill, they just happened to fail to mention that the trial 
lawyers are in strong support of their bill. Why would they be? Because 
one out of every $3 that is ever going to come out of this system to, 
quote, ``protect patients'' is going right into their pockets.
  So there needs to be a balance; there needs to be accountability. We 
can do that.
  And some have talked today about poison pills. We need to be real 
careful with that because, if in fact we care about patients, there is 
no such thing as a poison pill, there is no such thing as a poison 
pill. If my colleagues care about fixing the great inequality in our 
laws for patients, if my colleagues care about the future of 
voluntarily giving workers benefits, if my colleagues care about 
restoring the responsibilities on both sides of the doctor and patient 
relationship, then we cannot have too far reaching either way. We have 
got to have a balanced approach.
  There is going to be several votes that we are going to take. If my 
colleagues care about fairness and finally again if my colleagues care 
about patients, they are going to consider the one that is just right, 
the one in between, the one that holds plans accountable, that does not 
raise the costs.
  And, Mr. President, I would say to him, When you talk about vetoeing 
a bill that has access, that has limited liability, what you are saying 
is you really don't care about patients either. What you care about is 
a partisan political advantage and the fact that we will not enact a 
law that will save our patients and give them the freedom that all the 
rest of us have.
  Mr. BROWN of Ohio. Mr. Chairman, I yield myself 2 minutes.
  I am going to vote for the Norwood-Dingell-Ganske bill and against 
all the substitutes, and here is why:
  The Norwood-Dingell-Ganske bill is the product of negotiations among

[[Page H9478]]

three Members of Congress who believe in patient protections so 
strongly that they have devoted more than 3 years to the passage of 
comprehensive reform. They know what they are doing, and the Norwood-
Dingell-Ganske bill gets it. To protect patients we just cannot fix 
discrete problems as they pop up. We would be at that task forever. We 
need to make it in HMO's best interest to do the right thing without 
hand holding or without prompting. That is what accountability is all 
about; that is what the Norwood-Dingell-Ganske bill does.
  As most of my colleagues know, Texas allows its citizens to sue 
managed care plans in State court. This bill says that all Americans 
should have that same right as people in Texas do. Most of my 
colleagues probably also know that there have been only five cases in 
the 2 years since the Texas law went into effect.
  One of those cases should silence every single opponent of the 
Norwood-Dingell-Ganske bill. It involves a doctor who refused to refer 
his patient to a specialist. Why? It turns out that the patient's HMO 
told this doctor that if he referred even one more patient to a 
specialist, he would be kicked out of the provider network permanently 
and financially penalized. Apparently, Mr. Chairman, he had passed his 
quota.
  Managed care organizations take huge gambles that they perceive as 
benign business decisions at our expense. We need to raise the stakes. 
That is what the Norwood-Dingell-Ganske bill does. If we want to 
protect patients now and in the future, it is the bill we should all 
vote for.
  Mr. Chairman, I reserve the balance of my time.
  Mr. BURR of North Carolina. Mr. Chairman, I yield 30 seconds to the 
gentleman from Oklahoma (Mr. Coburn).
  Mr. COBURN. Mr. Chairman, I think we just need to address what was 
just said because what was just said was misspoken.
  The State of Texas allows a suit on quality of care only, not on 
benefits. The Norwood-Ganske-Dingell bill covers both of those. The 
coalition bill allows any State to set up the same law that Texas has, 
but it reserves the right for benefits to the ERISA plans where they 
should be reserved.
  So any State can do what Texas can do under either of the two 
options.

                              {time}  1800

  Mr. NORWOOD. Mr. Chairman, it is my great privilege, pleasure, and 
honor to yield 3 minutes to the gentleman from Iowa (Mr. Ganske).
  Mr. GANSKE. Mr. Chairman, I thank the gentleman from the great State 
of Georgia, who has led the fight on patient protection, for yielding 
me this time, and my colleagues on the other side of the aisle, the 
gentleman from Michigan (Mr. Dingell), and so many others that I 
recognize from the many nights we have had here on the floor.
  Mr. Chairman, why are we here? We are here because patients have been 
harmed by HMOs because they have made medical decisions. It started out 
a couple years ago. Remember, we had 285 cosponsors to ban gag clauses.
  Here we have a cartoon, a doctor is talking to his patient, he says, 
``Your best option is cremation. $359, fully covered.'' The patient is 
saying, ``This is one of those HMO gag rules, isn't it doctor?''
  There were problems with all sorts of denials of care; right? Here is 
the HMO claims department. ``No, we don't authorize that specialist. 
No, we don't cover that operation. No, we don't pay for that 
medication.'' And the lady at the desk at the HMO suddenly hears 
something and she says, ``No, we don't consider this assisted 
suicide.''
  Or how about the HMOs that decided they were going to do drive-
through deliveries. Here we have the counter at the hospital drive-
through window. ``Now only 6 minute stays for new moms.'' And we have 
the mother there, her hair like this, getting her baby.
  And, do you know what? This affects real people. This lady here with 
her family is no longer alive because an HMO made a medical decision 
where she lost her life.
  This lady who fell off a 40-foot cliff found that her HMO would not 
pay her bill because she did not phone ahead for prior authorization.
  This is a patient of mine, a child born with a birth defect. Guess 
what? Fifty percent of the surgeons who correct this have found that 
HMOs deny coverage for this birth defect because it is ``cosmetic.''
  And this little boy, this beautiful little boy, clutching his 
sister's shirt sleeve. Guess what? After his HMO care, he no longer has 
any hands and feet, and the judge that looked at that case said that 
HMO's margin of safety was ``razor thin.''
  Look, I call upon my colleagues on both sides of the aisle: Vote for 
the bill that will correct these HMO abuses. Vote for a bill that will 
make sure that patients do not lose their hands and their feet before 
it happens. That is the Norwood-Dingell bill. It is the only bill that 
has been endorsed by over 300 organizations. It is the only bill that 
has been endorsed by nearly every consumer group, by nearly every 
patient advocacy group, by the provider groups, by the AMA. It is the 
only bill that the AMA has endorsed. The AMA is recommending a ``no'' 
vote on all substitutes. Look, why is that? It is because we need to 
fix this Federal law.
  Mr. BURR of North Carolina. Mr. Chairman, I yield myself 2 minutes.
  Mr. Chairman, let me say that I hold in high regard my colleagues on 
both sides of the aisle that are here on different sides of this 
debate.
  I hope the fact that we have seen the works of political satirists 
and comics is not an indication that health care policy in this 
institution will be driven by the jokes that we see in the newspapers 
but that it will be driven by the policies that we should adopt about 
those real people.
  Mr. Chairman, I think that the forgotten folks in this debate are the 
200-plus million people that are insured, many of whom are happy with 
the system. You know, we do have the best health care delivery system 
in the world, and I hope that that is not something that would be 
challenged on this floor. It is not a system that we want to change the 
gold standard that we have set. Nor is ours a system where the American 
people want to wait for procedures, like they do in other countries.
  I am confident that it is, in fact, the wish of the American people 
that Congress do no harm to the system. Is there room for improvement? 
There always is. I remember when I became a Member of Congress, I took 
the same health care coverage that I had in North Carolina, only to 
find out that the cost of it was some $30 higher than the 50-person 
company I worked for. It was, needless to say, something that I had to 
inquire as to why.
  That health care company said to me, ``Richard, never let the Federal 
Government negotiate your health care.'' That stuck with me ever since 
then, because it gets at the heart of cost, and it also gets at the 
heart of the quality of the services provided.
  I am hopeful that through this debate we can separate the rhetoric 
and the policy and truly come up with the right direction.
  Mr. BROWN of Ohio. Mr. Chairman, I yield 2 minutes to the gentleman 
from Massachusetts (Mr. Markey), a member of the committee.
  Mr. MARKEY. Mr. Chairman, back 4 years ago the gentleman from Iowa 
(Mr. Ganske) and I introduced a gag bill, a bill that said that 
physicians should not be gagged in telling a patient that they might 
need some additional help, some additional services outside of the 
scope of what the HMO might want to provide. We had 169 cosponsors on 
our bill in the 104th Congress. We had 302 cosponsors on that bill in 
the last Congress, but the Speaker of the House would not allow us to 
debate it out here on the floor of Congress.
  We have come a long way since that point, not that long ago, when 
that was controversial in the minds of the majority, of the Speaker, a 
gag rule.
  The gentleman from Iowa (Mr. Ganske) and I are looking back at that 
as though it is ancient history, because this debate has moved far 
beyond that now. The majority wishes they could just work on the gag 
rule now, ``How do we go just on that?'' But that issue is passed by, 
and as each issue goes to the public and they understand it more, the 
Republicans get educated more.
  Now we are down to the question of whether or not, if an HMO engages 
in practices which are really wrong, that an injured family should be 
able to sue,

[[Page H9479]]

to say something went wrong; my family member got hurt. The public 
understands this issue. It is 75-25. ``Give me and my family the right 
to be able to protect ourselves. Allow me to be able to sue someone who 
harmed my family member.''
  They are debating on this final issue now, but it is going to go in. 
If it does not go in this Congress, it is going in the next Congress. 
And you should view that gag rule as past being prologue. Vote for this 
substitute today, and give the American people what they need, 
protections for their families today across our country.
  Mr. BURR of North Carolina. Mr. Chairman, I am pleased to yield 3 
minutes to the gentleman from Pennsylvania (Mr. Greenwood).
  Mr. GREENWOOD. Mr. Chairman, when we come to the well of the House to 
speak, we can make speeches about the things that divide us. And we can 
do that for partisan reasons or other reasons. Or we can choose to come 
and talk about the things that unite us and then try to examine our 
differences. We are, in fact, united within the Republican Party and 
among Republicans and Democrats on most of what will be debated today 
and most of what will be debated tomorrow.
  We all understand that managed care has brought us savings, but it 
has also put insurance companies between doctors and patients, and that 
is not good.
  All of us, all of the plans, all four of them that will be debated 
agree on that and have good provisions to protect patients. We are not 
fighting about that. What we do have a legitimate difference of opinion 
about is the extent to which patients ought to be able to sue their 
insurance companies. That is a legitimate difference.
  In fact, three of the four versions that we will vote on, two 
Republican and one Democrat version, will allow patients to sue their 
insurance companies if they have been harmed by them, so we are not 
even fighting about that. The one plan that does not allow suits, as 
everybody knows, that is going to fail and get the least number of 
votes of all of them.
  So now the whole debate about which people will try to make political 
hay for reasons of elections is really about what is the best structure 
to allow patients to get accountability and to get redress when they 
are really hurt, which does not create a feeding frenzy for the trial 
bar. That is what this is about.
  The gentleman from Georgia (Mr. Norwood), whom I respect immensely, a 
good friend of mine, has one version. Our bill, which we now call Goss-
Coburn-Shadegg-Greenwood, et cetera, has another version, and the 
gentleman from South Carolina (Mr. Graham) has yet another version.
  We are going to have a good debate for the next two days. And if we 
can stop trying to make political hay out of it and try to figure out 
what is good for the American people, I have a feeling that this House 
will pick the right and wise position.
  I advocate for the position that the gentleman from Colorado (Mr. 
Coburn) and the gentleman from Arizona (Mr. Shadegg) and I and the 
gentleman from Florida (Mr. Goss) have structured. We think it is the 
midpoint. We think it allows accountability, unlike the Boehner 
proposal, but it does not allow wide open accountability, which we 
think would generate too many lawsuits, which would then be settled by 
the insurance companies day in and day out, raise the cost of 
insurance, and cause employers to stop offering insurance to their 
employees because the cost is high.
  So we think that our version, the Goss-Coburn-Shadegg-Greenwood 
substitute, strikes the midpoint, and I would urge all of my colleagues 
to support us in that position.
  Mr. BROWN of Ohio. Mr. Chairman, I yield 1\1/2\ minutes to the 
gentleman from New Jersey (Mr. Pallone), who worked incredibly long 
hours in support of this legislation.
  Mr. PALLONE. Mr. Chairman, I have great respect for the previous 
speaker, the gentleman from Pennsylvania, but I think he suggests that 
somehow there are not great differences between these various bills. 
And I do not think that is true.
  There are two goals in the Norwood-Dingell bill, and each of the 
other substitutes that we are going to vote on tomorrow takes away from 
those goals I think in a significant way. And that is why Members 
should vote for Norwood-Dingell and not any of the other three 
substitutes.
  Those two goals, which I have spoken about many times in the well, 
are as follows:
  One is the issue of medical necessity. The bottom line is the 
decision of what kind of care you get, whether you get a particular 
operation or procedure, whether you can stay in the hospital a certain 
number of days. That basically is defined by what is medically 
necessary.
  What the Norwood-Dingell bill says is that that decision, what kind 
of care you get, what is medically necessary, is going to be made by 
doctors and by the patients and not by the HMOs, not by the insurance 
companies.
  The second goal in the Norwood-Dingell bill is to enforce your 
rights. If that decision about what kind of care you make goes the 
wrong way, you should be able to go either through an independent 
review board or through the courts, if necessary, in order to enforce 
your right. It is an enforcement issue.
  The bottom line is that the Norwood-Dingell bill provides for a very 
good enforcement mechanism. It says that when you want to appeal a 
decision because of a denial of care, you are going to go to an 
independent review board, not under the authority, if you will, of the 
HMO. And they are going to define what is medically necessary, what 
kind of care you get, and they can overturn a denial of care. Failing 
that, you can go to court.
  All of the substitutes take away from those two goals, and that is 
why you should vote against the substitutes and vote for Norwood-
Dingell.
  Mr. NORWOOD. Mr. Chairman, it is now my great pleasure and honor to 
yield 2 minutes to the gentlewoman from New Jersey (Mrs. Roukema).
  (Mrs. ROUKEMA asked and was given permission to revise and extend her 
remarks.)
  Mrs. ROUKEMA. Mr. Chairman, I want to say this is really wonderful. I 
want to congratulate the gentleman from Georgia (Mr. Norwood), the 
gentleman from Iowa (Mr. Ganske), the gentleman from Michigan (Mr. 
Dingell), and all of the others who cosponsored this legislation, 
because we are finally getting past bureaucrats and HMOs practicing 
bottom line medicine.

                              {time}  1815

  We are putting the medical decisions back in the hands of the medical 
professionals, where they belong. I think that has been more than 
adequately explained by those who have come before me.
  I guess I have to recognize that there has been another straw man put 
up here, and misinformation on lawsuits and so forth, in that somehow 
this legislation is an open door to the courthouse. That is not true. 
That is not on the facts. There are strict appeals processes, strict 
grievance procedures, and lawsuits are only the last resort.
  Mr. Chairman, I guess I also have to say that I had an interesting 
conversation with a host of a radio show the other day that I think 
more than anything explains why this provision for appeals process and 
Federal and State court access to the legal liability is necessary.
  This was a Christian radio station. They were interviewing me. The 
host was a conservative-oriented host, okay? We discussed a number of 
things. All of a sudden he says, Congresswoman, you know what, a 
builder who built my house, we closed on the house and I thought I had 
a good contract with him. I thought everything was well explained. But 
I no sooner moved into the house than the foundation was weak, the roof 
leaked, I had to replace the roof, and by God, he was refusing to deal 
with it, Congresswoman. Of course, I went to court.
  Would you tell me that if my mother died because of a denial of 
treatment by an HMO, that I should not have the ability to go to court?
  Mr. Chairman, knowing that these procedures are very specific, can we 
really say to our constituents, conservatives and liberals alike and 
everybody in between, no, you cannot file a grievance procedure when 
your mother died, but you can take your homebuilder to court?
  Mr. Chairman, last year, the House conducted a similar debate on the 
future of health

[[Page H9480]]

coverage for working Americans--an issue of critical importance for 
every family in our Congressional Districts. At that time, I stood on 
this floor and asked, ``Is this as good as it gets?''
  The answer last year was a disappointing ``no.''
  But 1999 may be different. The debate over who makes medical 
decisions for our family members--doctors or insurance company 
bureaucrats practicing ``bottom line medicine''--has moved forward 
significantly.
  Today, after this debate, the House will vote on no less than three 
pieces of legislation that protect a patient's access to necessary 
medical services AND ensure a patient's right to hold health plans 
responsible for their treatment decisions.
  All three have been drafted by Republican Members of this House and 
all three move the public policy debate in the right direction. This is 
a victory for families everywhere.
  So, ``Is this as good as it gets.''
  Well, if this House passes the Norwood measure then the answer will 
be yes. The Norwood bill, which I am a proud co-sponsor, includes many 
significant improvements in Patient Protections. It includes:
  Emergency Services.--The bill says that individuals must have access 
to emergency care, without prior authorization, and under a ``prudent 
layperson'' standard.
  Direct Access to ob/gyn care and services, including direct access to 
all covered obstetric and gynecological care, including follow up care 
and direct access to a broad array of qualified health professionals 
for ob/gyn care.
  Direct Access to Pediatric Care by ensuring access to appropriate 
specialists for children and pediatricians as primary care providers. 
The list goes on.
  But let's face it--the crux of this debate is about one issue--
protecting a patient's ability to hold HMOs accountable for any 
negligent actions--the ability for patients to sue.
  But an important point must be understood here. This legislation is 
not an open door to the courthouse. The bill contains a strict 
grievance procedure if a plan denies a claim, including a legally 
binding independent external review done by a panel of medical 
specialists. If a plan does not follow the recommendation of the 
grievance procedure than the patient may seek judicial relief in state 
court. Since the external review language is so prescriptive, most 
claims should be taken care of at this level, rather than the 
courthouse. This bill reduces the need for costly court cases by 
setting up a straightforward appeals process for grievances.
  Lawsuits Are the Last Resort.--The bill only allows suits for 
personal injury or wrongful death and this greatly limits the type of 
suits that can be filed under the bill. The bill does not allow suits 
and damages for persons who weren't harmed and does not allow suits and 
damages for benefits that weren't covered by the plan.
  Employers Are Protected.--Much has been said that opening plans up to 
liability will trap small businesses in a swamp of litigation that will 
eventually force them out of business.
  Well let's set the record straight. Small employers usually contract 
out with insurance companies to administer the health plans, thus these 
small employers don't exercise discretionary authority. In an explicit 
provision in the Norwood bill, only employers who exercise 
discretionary authority (i.e., make medical decisions/pre-certification 
and utilization review) can be held liable along with the health plan.
  So, Mr. and Mrs. Small Business, unless you are at the table with 
your insurance company bureaucrats using discretionary authority to 
design your own health plan, you are shielded from liability. So the 
claim that you will be sued out-of-business simply does not hold water.
  Mr. Chairman, I don't know if this is as good as it gets, but it is 
better than last year and a world of difference from current law where 
insurance company clerks and accountants are making medical decisions 
about our loved ones.
  Support the Norwood bill.
  Mr. BURR of North Carolina. Mr. Chairman, it is my honor to yield 1 
minute to the gentleman from Florida (Mr. McCollum).
  (Mr. McCOLLUM asked and was given permission to revise and extend his 
remarks.)
  Mr. McCOLLUM. Mr. Chairman, well-intentioned HMOs have run amok, and 
tomorrow we are going to have an opportunity to correct some of the 
more glaring deficiencies and to allow more choice, more right to 
choose the doctor you want, and for doctors to get more control over 
their patients' care.
  The principal bone of contention we have in this legislation and the 
choices we have is over the decision-making with regard to redress and 
negligence, when that occurs in the HMO circumstance. Norwood-Dingell 
allows tort claims in State courts as the last resort, but fails to 
require the exhaustion of administrative remedies before 
administration, and contains no caps on damages that can be awarded. It 
also leaves open the possibility of employer liability, not just HMO 
liability.
  On the other hand, Coburn-Shadegg requires the exhaustion of all 
administrative remedies before litigation when relief is sought, but 
the right to seek court relief is too narrow, and suits are required to 
be brought in Federal courts, which are already overworked, and simply 
an inappropriate place for dumping this garden variety type of 
litigation.
  I hope that tomorrow we send a strong message and pass an appropriate 
Patients' Bill of Rights, but work out these problems in conference, 
because once the House-Senate meets to bring back a bill to us, it 
needs to be right. We need to have the exhaustion of remedies. We also 
need to have the remedy.
  Mr. NORWOOD. Mr. Chairman, I yield myself such time as I may consume.
  Mr. Chairman, dead people really should not have to go to external 
review. Of course we exhaust all administrative remedies, unless there 
is bodily harm or death which occurs before you get to external review. 
If you do not do that, we encourage those people to drag it out forever 
until someone can die.
  Mr. Chairman, I reserve the balance of my time.
  Mr. BROWN of Ohio. Mr. Chairman, I yield 1\1/2\ minutes to the 
gentleman from Massachusetts (Mr. Tierney).
  Mr. TIERNEY. Mr. Chairman, I thank the gentleman from Ohio for 
yielding time to me.
  Mr. Chairman, in 1994 the insured population was swelling while the 
cost of health care was rising higher and higher, even higher than the 
rate of inflation. We were paying more and getting less, but we backed 
off and walked away from health care reform because we were told there 
really was no health care crisis.
  Yet, when we look at the picture now, things have only gotten worse. 
The Census Bureau tells us that the number of uninsured continues to 
rise. Health care costs are still escalating, and the Federal 
employees' health benefit premiums are going to 9 percent this year. 
The managed care organizations who were supposed to solve the problem 
of cost have not only failed to do so, but have added new problems of 
their own.
  The system is still in need of major reform that would make health 
care universal and that would eliminate the inhumaneness of our current 
system, which leaves millions without coverage. But in the meantime, 
even our imperfect system has things that can be improved.
  Managed care should not be allowed to run rampant over patients by 
denying emergency care arbitrarily, by interfering with doctors' 
professional clinical judgments, and by injuring patients who have no 
legal redress.
  Only the Norwood-Dingell bill allows access to lifesaving clinical 
trials and prescription drugs outside the plan-defined formulary. Only 
the Norwood-Dingell bill has whistle-blower protections for doctors and 
nurses who advocate for patients. Only the Norwood-Dingell prohibits 
plans from giving financial rewards to health care professionals when 
they limit care. Only this bill will hold plans accountable through 
strong external review processes, backed by a nonwaivable right to sue 
in court, as people should have.
  When we buy health coverage, what we really are purchasing is peace 
of mind and the security that we will be taken care of in the event 
that something unforeseen occurs. Without some way of holding plans 
accountable to what they have promised, we can never be certain that 
our care will not be denied. We have to support the Norwood-Dingell 
bill.
  Mr. BURR of North Carolina. Mr. Chairman, it is my pleasure to yield 
3 minutes to the gentleman from Arizona (Mr. Kolbe).
  Mr. KOLBE. Mr. Chairman, I thank the gentleman for yielding time to 
me.
  Mr. Chairman, I think the significance of today's debate cannot 
really be overestimated. This legislation and the many permutations 
that we are considering is going to affect the lives of 160 million 
working Americans, every small business owner, every self-employed 
person, every corporation in America. The decision that we make here 
today and tomorrow has the potential to fundamentally alter the

[[Page H9481]]

structure of the U.S. health care system, and with it, the quality and 
the quantity of health care that every American enjoys.
  The task that we have before us today and tomorrow is to strike a 
balance between assuring access to health care and assuring 
accountability for those who provide it. We have to rise above the 
rhetoric, the heated rhetoric, which we are going to hear in these next 
2 days and find the truth. If we do not and we respond with knee-jerk 
legislation, that in the end will only cause more harm than good to 
patients.
  Let us be honest, there are no easy answers in this debate, but we 
can begin by acknowledging that under current laws, HMOs are not held 
truly accountable for their health care decisions. When the agent 
responsible for delivering health care services is the same agent that 
is responsible for controlling costs, then the quality of health care 
gets short-changed, and rationing of care results.
  I have heard the cries of people in Arizona, and I have listened to 
the angry complaints of physicians who serve them. I have heard the 
horror stories I know many of my colleagues have about cancers that 
went untreated, physical deformities that went uncorrected, lifesaving 
therapies that were denied.
  I believe HMOs should be held accountable for their decisions. But 
unfortunately, the suggested remedy in the underlying Norwood-Dingell 
bill establishing the unlimited right to sue an HMO I find equally 
troublesome. Already 44 million Americans have no health insurance, and 
that number is rising. Another significant number of Americans are 
underinsured. There can be no doubt that permitting unlimited liability 
will increase both the cost of health insurance and the number of 
uninsured.
  How do I say this? How do I know that I can say this? In the first 
instance, simple economic logic tells us that insurers will pass the 
cost of increased risk of litigation along to someone else, and that 
someone in this case is going to be the consumer.
  We have plenty of empirical evidence about the second concern, the 
loss of coverage for working people. I have in my office dozens of 
letters from companies in my area that say, in effect, any expansion of 
liability will force us to drop health insurance for our employees. The 
reason is straightforward. A company always seeks to reduce unknown and 
unquantifiable business risks. Norwood-Dingell is an open-ended 
liability, a brand new lottery for trial lawyers.
  I am concerned that instead of 44 million uninsured Americans, we 
should all worry that in 4 or 5 years, with unlimited right to sue, the 
ranks of uninsured Americans will swell to 144 million people. That is 
what I mean by a knee-jerk response to a very ugly problem.
  I urge my colleagues to reject the Norwood-Dingell bill and to 
support the Coburn-Shadegg bill.
  Mr. BROWN of Ohio. Mr. Chairman, I yield 1\1/2\ minutes to the 
gentleman from New York (Mr. Engel).
  Mr. ENGEL. Mr. Chairman, every day I hear from my constituents 
enrolled in HMOs who are crying out for help.
  Most Americans want guaranteed access to emergency room care, and so 
do I. Most Americans want to be able to see doctors who are 
specialists, and so do I. Most Americans want the ability to choose 
their own doctors, and so do I. Most Americans want doctors, not 
accountants or bureaucrats, to make decisions about their medical 
health care. So do I. Most Americans want protection of the doctor-
patient relationship. So do I. Most Americans want the ability to sue 
their HMOs if they are injured by deficient medical care, and so do I.
  It is ludicrous that in New York City if you were injured in a 
taxicab, you can sue, but if you are injured or killed by deficient 
medical care, you would have no right to sue. That cannot continue to 
happen in the United States.
  The Norwood-Dingell bipartisan bill is the only one which guarantees 
these consumer rights. It is the only one which will ensure that 
Americans will have quality health care. It is the only one that will 
ensure that Americans who understand the needs of health care get 
access to quality health care.
  I commend the gentleman from Georgia (Mr. Norwood) for his courageous 
stand, and the gentleman from Michigan (Mr. Dingell) as well. Americans 
will not be fooled. Americans want quality health care. So do I. 
Support Norwood-Dingell. It is the only bill that assures them that 
quality.
  Mr. BURR of North Carolina. Mr. Chairman, I yield myself 1 minute.
  Mr. Chairman, I want to tell a quick story about a town in North 
Carolina in my district, a town with a high concentration of textile 
workers and companies, companies that are forced to compete on margin, 
struggling to find cost-effective health care for their employees.
  They banded together and self-insured. They supplied a greater 
benefit package to their employees than they ever could have had they 
gone through an insurance company. Their creative, innovative approach 
to quality health care for their employees is in jeopardy with what we 
do here in the next 48 hours, because if we extend liability to those 
employers, they will no longer offer health care as a benefit.
  For us to talk about the human face hopefully is not to show that 
face of the future uninsured because of our actions. I would encourage 
my colleagues to vote against the Norwood-Dingell bill and to support 
the Coburn-Shadegg bill.
  Mr. Chairman, I yield 2 minutes to the gentleman from Arizona (Mr. 
Shadegg).
  (Mr. SHADEGG asked and was given permission to revise and extend his 
remarks.)
  Mr. SHADEGG. Mr. Chairman, I rise in strong support of the Goss-
Coburn-Shadegg-Greenwood alternative substitute, but I want to begin by 
talking about the Norwood-Dingell bill and about what it does.
  I want to talk about the fact that it simply goes too far. When we 
look at the legislation, it makes liability too available and it turns 
the entire system over to the lawyers.
  I want to focus in my remarks particularly on an issue that concerns 
the employers in my district. That is, can those employers be held 
liable when all they do is buy insurance for their employees. The 
reality is, the sad truth, is that my good friend, the gentleman from 
Georgia (Mr. Norwood) wrote language which he thought protected 
employers, but which does not do so. It says quite clearly that if an 
employer exercises discretionary authority, that employer may be sued.

                              {time}  1830

  Discretionary authority is a very broad concept. Indeed, the decision 
not to do something can be construed as the exercise of discretionary 
authority. I want to contrast that with our efforts to protect 
employers. We said, no, we should not make employers liable. We ought 
to make health care plans liable.
  So how can we do that? Because we want employers to pick a health 
care coverage plan. So we wrote that employers cannot be sued for 
picking a health care coverage plan. We want employers to participate 
on behalf of their employees. We want them to be able to advocate on 
behalf of their employees. That is the exercise of their discretion. We 
want to them to be able to make a decision not to advocate an employee 
in a particular case without being suable for just that decision.
  Let us look at the language in our substitute. It does not say if one 
really exercises discretion as an employer one can be sued. It says 
that one may only be sued if one chooses as an employer to directly 
participate in the final decision to deny care to a specific 
participant on a claim for covered benefits.
  We had written an airtight provision that says one cannot sue 
employers. We did it precisely because we want employers to pick a 
plan. We want them to offer health care coverage. We want them to get 
involved and advocate on behalf of their employees. All of those are 
the exercise of discretion.
  Sadly, the Norwood-Dingell bill allows suits by anyone. One does not 
have to show actual harm or does not have to be sustained by a panel 
like ours does. One can sue at any time. There is no requirement that 
one goes through administrative remedies.
  One can sue over everything. Ours is limited to just covered 
benefits. One can sue even when the plan does everything right, that 
is, the plan makes the right decision that is sustained on external 
appeal. One still can sue under

[[Page H9482]]

the Norwood-Dingell bill. Sadly, they put in place no limits.
  I know that doctors across America do not like the fact that they can 
be sued; and in some States, there is no tort reform. We need tort 
reform. We do not need lawsuit lotteries against doctors, but we also 
do not need them against plans driving up costs and driving patients 
away from the system because they cannot get coverage.
  Mr. NORWOOD. Mr. Chairman, it is my pleasure to yield 1 minute to the 
gentleman from New Jersey (Mr. Frelinghuysen).
  (Mr. FRELINGHUYSEN asked and was given permission to revise and 
extend his remarks.)
  Mr. FRELINGHUYSEN. Mr. Chairman, I thank the gentleman from Georgia 
for yielding me this time.
  Mr. Chairman, judging by the amount of time and money that some 
Washington lobbyists are spending on character assassinations and other 
ridiculous paraphernalia that we have received in our office in an 
attempt to defeat the Norwood-Ganske-Dingell bill, I am more certain 
than ever of supporting this bill.
  This bill deserves our bipartisan support. This bill is right on 
target. It puts patients first. That is what we are here for, for our 
constituents. I support the Norwood-Dingell-Ganske bill.
  Mr. Chairman, judging by the amount of time and money some Washington 
lobbyists have spent in recent weeks on character assassinations and 
other ridiculous paraphernalia in an attempt to defeat this bill, I am 
more certain than ever that voting for this bill is the right thing to 
do.
  The Norwood-Dingell-Ganske bill is the only legislation that puts 
patients--our constituents--first!
  We've all heard that question posed, ``is there a doctor in the 
House?'' when someone is in dire need of expert medical care. One 
always hopes that someone with some sort of medical training is nearby 
to assist. Well, Mr. Chairman, we must pose that question here today: 
Is there a doctor in the House?
  As my colleagues are already well aware, indeed there are physicians 
in our Congressional ranks--bona fide caregivers, medical experts, 
right here among us. Because we are in need--because the American 
public is in dire need of expert medical advice--we ought to listen to 
the professionals among us.
  Why is it that ``the doctors in this House'' support legislation with 
stronger patient protections?
  Because they have been on the front lines of this debate--they have 
been there to see the look in the eyes of a mother who discovers her 
health plan won't cover the next phase of her child's cancer therapy.
  They've been there when an insurance company accountant dictates to 
them what medical options are available and what essential information 
cannot be disclosed to their patients.
  Mr. Chairman, patients, men, women, and children and their families 
rely on doctors in life and death situations, a heavy responsibility. 
But that resonsiblity is even greater under our current managed care 
system as insurance companies burden doctors with making medical 
decisions that too often coincide with the company's business 
decisions.
  Mr. Chairman, our nation's doctors went to medical school because 
they were passionate about helping people. They could have gone to 
business school if they were interested in helping companies make a 
profit.
  And Mr. Chairman, Americans want to be assured that when they step 
into their doctor's office, they will be seen by a doctor, not an 
accountant!
  Realizing that managed care is here to stay, and that health 
maintenance organizations will always be in the business of making a 
profit as much as they are in the business of keeping patients healthy, 
we must not miss the opportunity to strengthen the system and make it 
more accountable. We must bring balance to the system--balance that 
ensues doctors are free to provide compassionate care to their 
patients, balance that ensures doctors are free to provide 
compassionate care to their patients, balance that ensures providers 
are protected, too, yet held acountable when a decision ultimately 
proves wrong, and balance that, most importantly, assures patients that 
they are the number one priority for their health care provides.
  We can do that by passing H.R. 2723, the Bipartisan Consensus Managed 
Care Improvement Act of 1999 of which I am a proud co-sponsor. The 
Bipartisan Consensus bill provides important choices for everyone--the 
most important being the passage of a law that provides for the best 
health care possible in the next century.

  The Bipartisan Consensus bill provides access, accountability and 
strong patient protections. It also: gives patients the ability to 
appeal a decision by their health plan; won't allow health plans to 
prevent doctors from informing their patients of all treatment options; 
gives female patients direct access to OB/GYN care and services, and 
children direct access to pediatricians; provides all patients with 
access to emergency services; and ensures that medical decision makers 
would be held responsible if someone suffers injury or dies as a direct 
result of that decision.
  With just these few simple provisions, this legislation would 
eliminate some of the most egregious and unfair abuses by some health 
insurers.
  Mr. Chairman, in the year or so since our last attempt to reform 
managed care, nothing has improved. In fact it has only gotten worse as 
we learned earlier this week of reports that said another one million 
people have joined the ranks of America's uninsured. This is a 
startling revelation considering our robust economy.
  If this bill is defeated, another year will go by, maybe more time, 
and we will start the 21st century having missed an opportunity to 
provide Americans with the right to control their own health care. 
Indeed, we are afforded a rare opportunity here to prove to an already 
cynical American public that when the United States Congress debates 
the bottom line in managed care reform, we refer to protecting people, 
not profits.
  Mr. Chairman, in closing, I remind some of my colleagues that no one 
political party owns this issue. All of us have heard from our 
constituents who tell us about their unhappy experiences with their 
health plans. I think it is the desire of every member to make health 
maintenance organizations more accountable--no one is interested in 
promoting more litigation; we simply support basic protections for all 
Americans.
  As the greatest nation in the world counts down the days until the 
start of a new--millennium--there is no better way to prepare for a 
strong, healthy America than by putting people in control of their 
health care. Let's pass the Bipartisan Consensus bill (H.R. 2723), and 
let's return medical decisions to doctors and their patients.
  Mr. BROWN of Ohio. Mr. Chairman, I yield 1\1/2\ minutes to the 
gentleman from New Jersey (Mr. Andrews).
  (Mr. ANDREWS asked and was given permission to revise and extend his 
remarks.)
  Mr. ANDREWS. Mr. Chairman, I thank the gentleman from Ohio for 
yielding me this time.
  Mr. Chairman, I rise in strong support of the Norwood-Dingell-Ganske 
bill and in opposition to the other substitutes. I believe it is 
important to point out the strengths that the real Patients' Bill of 
Rights, the Norwood-Dingell-Ganske bill, has. There are two of them.
  The first is that the key aspect of liability is not simply the 
claims on which people can prevail in court and make their specific 
case winnable. It is the behavioral change that liability will 
introduce throughout the managed care system. It is a decision that 
will be made with people understanding that there are real 
consequences.
  The key to the Norwood-Dingell bill is not the suits that will be 
brought. It is the suits that will not be brought because the right 
decisions will be made in the first place.
  The second advantage of this bill is its medical necessity standard. 
It is very important for us to lay out very clearly, as the Norwood-
Dingell bill does, that disputes will be resolved under an objective 
standard of medical necessity defined by the best practices of those 
who practice in a given medical field, not by the arbitrary economic 
discretion of the insurance carrier.
  For reasons of medical necessity and the benefits of liability on 
corporate behavior, it is important that we reject the other 
substitutes and strongly support the Norwood-Dingell-Ganske bill.
  Mr. NORWOOD. Mr. Chairman, I yield myself the balance of my time.
  Mr. Chairman, however one views this debate, it is exciting. Think 
about where we have come in 5 years. I mean, here we are, all members 
of the Committee on Commerce. All of us know each other well. We are 
generally good friends. The gentleman from Oklahoma (Mr. Coburn) and I 
do not disagree on probably three things on this Earth.

[[Page H9483]]

  We are actually sitting here all talking about the same thing. We are 
talking about a managed care system, Mr. Chairman, that has gone awry, 
where it allows people to practice medicine who simply are not licensed 
to do so. Even if they are licensed to do so, usually it is a 
dermatologist telling a cardiologist how to treat their patient; and 
they are 2,000 miles away, looking at a computer screen. They have 
never touched that patient. They have never listened to their heart. 
They have never listened to their lungs. They are 2,000 miles away, and 
they say, Doctor, you cannot possibly be right. I know better. I have 
got a protocol in front of me. That is what we have allowed to happen 
in this country.
  Now, have some people been killed? You bet. Why do my colleagues 
think the insurance industry said to Congress in 1974, give us the 
system. We will manage the costs. We will make it cost cheaper. By the 
way, we are going to have to deny some benefits to do that. We are 
going to kill a few people. For God's sakes, give us immunity, too. And 
we did. They are the only industry in America where we say they are 
absolutely protected from being responsible for their actions.
  We do not believe that. We tell everybody they need to be responsible 
for their actions, do we not? We tell welfare mothers. We tell deadbeat 
dads. We tell teachers. We tell everybody. One has to be responsible 
for oneself. When one harms somebody, one has got to step up to the 
plate.
  Do I want anybody sued? No. I am not interested in lawsuits, and I 
never have been. But the people who are practicing medicine without a 
license are being paid to do so. They are incentivized to do so. They 
lose their job if they do not do it.
  Do I want a hammer over their head? Yes. Do I want that insurance 
clerk to think twice when he says to that mother, I know the 
pediatrician thinks your child needs to be hospitalized, but I know 
better. I have got it on my computer right here. I want that clerk to 
think twice about it.
  If that clerk makes a decision that denies a benefit that is in a 
plan and causes death or injury, then, by golly, maybe we should go to 
court on that. We ought to go to State court. I strongly believe that 
now.
  A lot of us do not disagree on a lot of this. We do disagree a little 
bit on the liability. I want to just tell my colleagues that, in our 
bill, employers who do not make medical decisions cannot be held liable 
on H.R. 2723. It states that a cause of action may only be filed 
against an employer when the employer exercises discretionary authority 
to make a decision on a claim for benefits covered under the plan and 
the exercise of such authority results in injury or death.
  What that means is that the employer has the ability to make some 
decisions. If one of those decisions it makes is a medical decision, if 
it absolutely denies one of the patients a benefit that is in their 
plan, and they die from it, yes, we are saying the employer needs to be 
responsible for that and needs to be called up.
  The only system of justice we have in this country, where does one 
right a wrong if one does not do it in a courtroom anymore? We are not 
going back to the O.K. Corral. We are not going back to six guns to 
solve our problems.
  We have only one system of justice; and to say to an entire industry 
in this country, no, they never have to be held accountable for the 
decisions that they make, even though the Congress of the United States 
told them they could do all of this, discretionary authority does not 
include an employer's decision to include or exclude from the plan any 
specific benefit. What that says, they can have anything in it that 
they want to.
  Now, we agree on a lot of things, but the one thing that is a must, 
my colleagues must vote for the bipartisan bill if they want to protect 
patients because that is how we get to a law.
  Mr. BURR of North Carolina. Mr. Chairman, I yield 3 minutes to the 
gentleman from Oklahoma (Mr. Coburn), still a practicing doctor.
  Mr. COBURN. Mr. Chairman, I love the gentleman from Georgia (Mr. 
Norwood). What he just expressed to my colleagues in his heart is 
right. The conclusion he has drawn on how we accomplish what he wants 
to accomplish is dead wrong.
  Let us just use their definition of protecting employers. I happen to 
have a son-in-law that is a lawyer. He likes their bill because he 
knows he is going to make a lot of money off of it, because the very 
subtleties of going to State court to solve the problem that the 
gentleman from Georgia (Mr. Norwood) so eloquently just described, 
which we all want to solve, we all want to solve that, says that that 
lawyer is going to file a suit against that company, not because he 
thinks he can and not because he thinks he will win, because that is 
the person with the deep pockets. Then he is going to work hard, and 
then he is going to extort, and he is going to say I am going to 
settle.
  They do not care about the patients most of the time. What they care 
about are their pocketbooks. The reason we are in this shape is too 
many doctors in this country care about their pocketbook more than 
doctors in the first place, or we would never have had HMOs, or we 
would never have had the abuses of HMOs.
  So if my colleagues really care about patients, and if they really 
want a solution that will meet the needs of those patients and not the 
needs of the trial bar, then we have to back up. We have gone too far. 
We have created a system that is going to result in the extortion of 
dollars from every employer in this country.
  Mark my words, those guys are smart. They are going to find every 
crack every time. They are going to claim it under doing something 
good. But the motive is not going to be pure; the motive is going to be 
money. Just like the motive today with too many HMOs is money. It is 
not about patients to either side, but it should be about patients to 
this body.
  The only way we have to fix it is with a middle ground that protects 
the very supplier of that care in the first place, does not undermine 
it, does not cut it. If they truly make a medical decision under the 
Coburn-Shadegg bill, they are held liable. They cannot be penetrated 
unless they are not. So let us hold them accountable. Let us do it in a 
way.
  Let us get a good bill to the Senate. Let us get a good a bill that 
the President is going to sign. Let us fix the problem. Let us reverse 
the cynicism of this body. Let us talk about patients and not politics.
  The CHAIRMAN. All time has expired for the Committee on Commerce.
  Under the rule, the gentleman from Pennsylvania (Mr. Goodling) and 
the gentleman from Missouri (Mr. Clay) each will control 30 minutes.
  The Chair recognizes the gentleman from Pennsylvania (Mr. Goodling).
  Mr. GOODLING. Mr. Chairman, I yield myself such time as I may 
consume.
  Mr. Chairman, over the last several years, the Committee on Education 
and the Workforce has tackled the issue that should be number one when 
we talk about health care problems in this country, because the number 
one issue that needs to be fixed before anything else is the fact that 
we have 44 million uninsured people in this country, most of which work 
or have someone in the family that works.
  That is very, very expensive to health care because, of course, the 
cost shifting that takes place is dramatic. Someone has to pay for the 
bills for the uninsured.
  So today we have an opportunity to make a real difference in the 
lives of many Americans. As I said to the committee over and over 
again, there is a very fine line. Our job is to make sure the 44 
million get insured and at the same time make sure that the 125 million 
do not get uninsured that are already insured.
  We can thoughtfully provide real patient protections, including a 
binding external review by independent medical experts, that will 
ensure that Americans who currently have health care coverage get the 
care they are entitled to when they need it.
  Unfortunately, we also have an opportunity to do great damage to a 
very successful system of employer-sponsored health care coverage and 
add to the ranks of the 44 million Americans who are presently 
uninsured. I would hope that we would make the wise choice.

                              {time}  1845

  One of the great casualties of this debate has been the reputation of 
one of

[[Page H9484]]

the most successful Federal laws ever enacted: The Employee Retirement 
Income Security Act, better known as ERISA. Enacted in 1974, ERISA has 
provided the foundation for employers to voluntarily offer health care 
insurance to their employees. It has given employers who operate in 
multiple States the ability to provide uniform benefits and 
administration to their health plans. This has resulted in more than 
125 million Americans having coverage through their employers.
  In 1998, more than 2 billion claims were filed under employer-
sponsored health plans. The overwhelming majority of these claims were 
approved and participants and providers were reimbursed in a timely 
fashion. Because some small percentage of these claims are disputed or 
denied, some Members of this body believe that litigation and trial 
lawyers are the best way to bring about accountability.
  But what if we could guarantee that any benefit disputes could be 
resolved by an independent panel of medical experts in a time frame 
that takes into account a patient's condition, and then, if warranted, 
provides care immediately, not a courtroom, which finally makes a 
decision after they have died. What need would anyone have for courts 
and lawyers? The answer is none. And that, frankly, is what so upsets 
supporters of H.R. 2723. They put their entire faith in the hands of 
lawyers and courts that are blind to a process that would ensure proper 
medical care without the need of litigation.
  The various bills that we consider today, all of them, and tomorrow, 
have all of the patient protections that are needed. All of us have the 
right for women to have direct access to OB-GYNs; the right for parents 
to designate a pediatrician as a primary care physician for their 
children; the right for unrestricted communication between a doctor and 
a patient. They all have these. The right to seek care if a person 
reasonably believes they are in an emergency situation; the requirement 
for greater disclosure of information from health plans and that the 
information be communicated in easy-to-understand language. They all 
have continuity of care for pregnant mothers, those awaiting surgery, 
and the terminally ill. And they all have access to specialists and the 
right to go to doctors outside a closed network.
  What has become the focal point of the debate is whether we provide a 
system that guarantees quality medical care or begins a new era of 
expensive, lengthy, and self-defeating litigation. The Dingell-Norwood 
bill, I believe, would quickly take us to a medical decision by court 
order. It would result in a significant increase in health care costs, 
and will, make no mistake about it, result in many more Americans 
joining their 44 million fellow Americans in the ranks of the 
uninsured. It is bad medicine and bad policy. All Members should think 
long and hard before they entrust the future of medical care to lawyers 
and courtrooms. Get them into hospital rooms when needed, not 
courtrooms.
  I urge all Members to oppose expanded liability and support an 
approach that provides people with the care they need when they need 
it: binding external review of any disputed health care claim. A bill 
almost like that passed last year out of committee and on the floor of 
the House.
  Mr. Chairman, I reserve the balance of my time.
  Mr. CLAY. Mr. Chairman, I yield myself 2 minutes.
  (Mr. CLAY asked and was given permission to revise and extend his 
remarks.)
  Mr. CLAY. Mr. Chairman, during the past few years, health care 
consumers have expressed increasing concern about the manner in which 
managed care plans are operating. Patients are being denied emergency 
care. Patients are being denied access to specialists. Patients are 
being denied needed drugs, and patients are being denied the ability to 
hold plans accountable for these coverage denials. Clearly, Mr. 
Chairman, this situation is intolerable, and the enactment of Federal 
legislation is needed to remedy it.
  Though several comprehensive managed plan reform bills have been 
introduced during this session of Congress, I first decided to 
cosponsor H.R. 358, the patients' bill of rights introduced by the 
gentleman from Michigan (Mr. Dingell), because it would best deliver 
the comprehensive and enforceable patient protections that health care 
consumers demand.
  In addition to the patients' bill of rights, I also decided to 
support the compromise now before us, introduced by the gentleman from 
Georgia (Mr. Norwood) and the gentleman from Michigan (Mr. Dingell). 
This bill retains all of the essential protections found in the 
patients' bill of rights. Among them are access to enforcement in State 
courts if an individual is injured by their health plan's actions and a 
fair and responsive grievance and appeals process.
  Despite the initial attempts by the Republican leadership in both 
bodies to block consideration of the patients' bill of rights, those 
interested in real health care reform continued to fight for its 
consideration. Now, with H.R. 2723, we have a reasonable compromise 
that can become law. I urge a ``yes'' vote on H.R. 2723 and ``no'' 
votes on all three substitutes.
  I would like to take this opportunity to briefly discuss the bogeyman 
known as ERISA. I have been on the primary committee of ERISA 
jurisdiction, which is now known as Education and the Workforce, for 
over 30 years and I have watched how this statute has been repeatedly 
misconstrued by the courts and employers.
  First and foremost, ERISA, the Employee Retirement Income Security 
Act, was enacted in 1974 to protect the pension and other employee 
benefits promised to workers and their families. Plain and simple, 
ERISA was intended to protect workers, not be used against them.
  ERISA was primarily directed at pension plans. It contains extensive 
standards that employers must comply with in order to ensure that 
workers receive promised benefits. With respect to health benefits, 
ERISA contained few standards. That was because Congress was already 
debating health care reform in 1974, and Congress expected to shortly 
enact national health care legislation. Unfortunately, that legislation 
never came to be.
  ERISA contains two key provisions that have repeatedly been 
misinterpreted by the courts and used to undermine the employee benefit 
protections of ERISA. First, although ERISA permits individuals to sue 
for violations of the law, ERISA only permitted individuals to seek 
``appropriate equitable relief.'' The reason for this was that pension 
law derives from trust law and under trust law equitable relief 
includes money damages. Unfortunately, the initial courts that 
interpreted ERISA did not consider ERISA's underlying trust law basis.
  Second, ERISA preemption. ERISA did intend to preempt states from 
directly enacting laws that regulate benefit plans. But, ERISA 
specifically included a provision that permitted state laws that 
regulate insurance. Historically, health benefits have been provided 
through insurance companies and the states have always been the primary 
regulators of insurance. Unfortunately, here too, the courts 
misinterpreted ERISA and encroached upon traditional state authority. 
ERISA always intended for states to continue to be able to regulate the 
activities of insurance companies, which includes managed care 
companies.
  Mr. Chairman, let's make ERISA what it was intended to be--a law to 
protect the pension and employee benefit rights of workers and their 
families.
  Mr. Chairman, I reserve the balance of my time.
  Mr. GOODLING. Mr. Chairman, I yield 5 minutes to the gentleman from 
Ohio (Mr. Boehner), a gentleman who truly cares about those who are 
uninsured and truly cares about those who need quick medical attention.
  Mr. BOEHNER. Mr. Chairman, I thank the gentleman from Pennsylvania 
for yielding me this time; and I would like to follow up on his earlier 
remarks.
  In America today, about 125 million lives are insured through 
employer-based plans. Earlier today, we passed an access bill that 
would give Americans more choice, give them an above-the-line tax 
deduction for health care that I think will empower them to have better 
choices in the system we have today and begin the process of developing 
a more competitive private market.
  But the fact is today employers do, in fact, provide most of the 
health insurance that we have out there. I have letters in my office, 
one from Mike Toohey, a former staffer here in the Congress who now 
works for Ashland Oil, who wrote to me, and I will quote, ``Because I 
have leukemia, I am not insurable except through my corporate health 
care plan.'' Mike went on to say, ``My company's health care plan saved 
my life and paid for those costs.''

[[Page H9485]]

  Employer-based health care is what made it possible for James Barton, 
a retired employee from Tulsa, Oklahoma, to get quality care for his 
wife after she had a stroke in 1998. He wrote and said, and I will 
quote, ``During the past year, my company's health plan has been a 
godsend,'' Mr. Barton wrote recently. ``We could not have gotten by 
without it.''
  Employer-based health care is what made it possible for Simon Scott, 
a patient from Columbus, Ohio, to afford the expensive treatment he 
needed when he was gripped by cancer. He wrote, ``These choices were 
critical to me and allowed me to afford the medical care that I needed. 
Please oppose any legislation that will cause my costs and those of my 
company to rise at alarming rates, resulting in less coverage and less 
ability of my company to provide the quality care that I need.''
  That is really what this debate is all about, Mr. Chairman. We have 
the underlying bill here, the Dingell-Norwood bill, and while the 
sponsors of the bill are dear friends of mine, and I would never 
question their judgment nor what their motives are because they believe 
strongly in the bill that they have before us, it is just that I and 
many Members believe it goes way, way too far.
  Employer-provided health care in America today is a voluntary 
program, started back in the 1950s, then codified in the ERISA act that 
the gentleman from Pennsylvania (Mr. Goodling) talked about earlier, 
that has allowed this program to grow successfully. But it is a 
voluntary program. If we put too much weight, if we put too much 
regulation, and, most importantly, if we put too much liability, we 
will drive employers away from offering this coverage to their 
employees. And when we look at the Dingell-Norwood bill, it does put 
the Federal Government more in charge of our health care by empowering 
the Secretary of Labor and the Department of Health and Human Services 
to look at health plans to make sure that they have network advocacy 
and all other types of Federal mandates.
  Most importantly, and I think where we will see this debate go over 
the next day and a half or so, is in the area of lawsuits. Because 
under the Dingell-Norwood bill not only are health insurers and health 
care providers liable for insurance, but, in my view, employers are 
also subject to lawsuits. I do not believe we can sue our way to better 
health care in America today.
  The sponsors will say they have shielded employers from any 
liability, and I will say that they have made an attempt to do that. 
But the fact of the matter is that under ERISA, employers have to 
provide discretion. And if they provide discretion under the Dingell-
Norwood bill, they are now subject to liability.
  I think there is another way, a better way to provide the care that 
Americans want, when they want it; and that is through a binding 
external appeals process that has severe penalties to make sure that 
employers and health care plans provide the care that the outside 
reviewers have determined that the patient ought to get. This 
independent review, this third-party review, has real binding teeth in 
it. It allows a reviewer to look at the care that is out there and 
available and would allow them to determine, within the contract, what 
appropriate care was right for that patient.
  If the patient won the fight, they get the care. They do not have to 
wait around for a courtroom or wait around for a judge or a lawyer to 
get there. They get the care. And if the health plan or the employer 
drags their feet, it is a $1,000 a day penalty on that health plan or 
employer, with no cap. And if they willfully deny that coverage after 
it has been granted by an external reviewer, it is $5,000 a day, no 
cap. And while they are waiting, if they are dragging their feet, that 
individual has a certificate from an external reviewer that they can 
take and get their care at any medical facility they want to go to.
  I think this is a much better way to provide the care that patients 
want without going to court. Let us do the right thing, the responsible 
thing and, at the same time, not undermine the employer-provided health 
care that millions and millions of Americans appreciate today.
  Mr. CLAY. Mr. Chairman, I yield 2 minutes to the gentleman from Texas 
(Mr. Turner).
  Mr. TURNER. Mr. Chairman, the managed care insurance industry has 
used the threat of lawsuits as a red herring in this debate. The 
insurance industry has chosen to use the oldest trick in the book to 
oppose the Norwood-Dingell bill, that is to say the problem is the 
lawyers. After all, no one likes lawyers, until they need one.
  The insurance industry knows that the law in Texas, that the Norwood-
Dingell bill is modeled after, has not resulted in litigation. In fact, 
I was a part of helping that legislation become law in Texas when it 
was first introduced in 1995. Since its enactment in 1997, we have had 
only five lawsuits filed.
  In our Nation, there are two solemn principles guaranteed every 
person, rich or poor, wealthy or powerful, and even to the weak, and 
that is equal justice under the law and due process of law. Access to 
the courts ensures that every citizen, every business, every 
organization is accountable for their negligent actions. Only one group 
in our system of law is immune from litigation, and that is foreign 
diplomats. The insurance industry in this debate tonight wants to add 
one other group. That is the insurance companies themselves want to be 
immune from liability.
  Now, no one wants to go to court, and the Norwood-Dingell bill has 
embraced a full internal and external review process to avoid having to 
go to court. But in the last analysis, the protections the American 
people deserve under our constitution is the right to have access to 
the courts.
  The Congressional Budget Office estimated the cost of legal 
accountability would be 12 cents per month per patient. And the CBO 
says that half of that cost would be because the insurance companies 
would implement review standards to be sure that no patient is denied 
quality care. Sounds like a pretty good investment to me.
  Every individual, every business understands that they are 
accountable for their negligent acts in our society; that they can land 
in court. Managed care insurance companies should be accountable too.
  Support the Norwood-Dingell bill. It has worked in Texas, and it will 
work for all Americans.
  Mr. CLAY. Mr. Chairman, I yield such time as he may consume to the 
gentleman from Indiana (Mr. Visclosky).
  (Mr. VISCLOSKY asked and was given permission to revise and extend 
his remarks.)
  Mr. VISCLOSKY. Mr. Chairman, I rise in support of the Norwood-Dingell 
bipartisan consensus bill.
  Ann is a 60-year-old diabetic from Lake Station, IN who had always 
taken care of her condition. She refused to drink or smoke, and 
carefully monitored her insulin and sugar levels. However, the disease 
continued to progress and her doctor scheduled regular kidney tests to 
make sure that her kidney function did not deteriorate to emergency 
levels. Then Ann switched to a Health Maintenance Organization (HMO), 
lured by promises of lower costs and prescription coverage. Her first 
primary care doctor continued the same regimen, keeping a close eye on 
her kidneys and monitoring her heart function and sugar levels as well. 
This doctor was dropped from the HMO. The new doctors she was allowed 
to see did not think regular testing was necessary. In fact, when Ann 
came down with an infected foot, a common symptom in diabetics whose 
condition is worsening, the approved doctors she visited were unmoved. 
Finally, a member of Ann's family realized she was in potential danger 
and took her to the emergency room. There she was found to be in 
congestive heart failure. She was also anemic and her kidney function 
had dropped to a dangerous level. The painful process of kidney 
dialysis became necessary. Several days later, Ann received a call from 
her HMO. Although her daughter had taken her to an approved hospital, 
neither the emergency room physician nor the two specialists she saw 
were on the approved list. Ann was forced to pay out of pocket for this 
emergency care.
  Sadly, Ann's case is not unique. Certainly, many HMOs provide 
excellent medical care at a reasonable cost. However, there are far too 
many which routinely abuse their members, refuse to pay for necessary 
treatments, and, in many cases, prevent doctors from conducting 
treatments that they consider too costly.
  Ann's story and others' from Northwest Indiana demonstrate just how 
desperately we need to reform the managed care industry. I

[[Page H9486]]

believe doctors and patients should make decisions about health care, 
not insurance company bureaucrats. That is why I support the Norwood-
Dingell Bipartisan Consensus Bill.
  Certainly not all HMOs abuse their patients, but there are far too 
many horror stories from real patients to think all HMOs act in a 
responsible and reasonable manner. The Norwood-Dingell bill will set a 
standard in which emergency room coverage is guaranteed as long as the 
prudent layperson considers the situation an emergency. Along with 
guaranteed emergency room care the Norwood-Dingell bill outlines common 
sense patient protections that provide access to specialty care, 
continuity of care, opportunities for patient grievances and appeals, 
and accountability for decisions made by HMOs regarding patient care.
  This bill has the support of approximately 300 organizations, 
including the American Medical Association and the American Public 
Health Association. I am glad to see that the leadership of the House 
has finally addressed this important issue. I have been fighting to see 
that real HMO reforms be addressed in the House for the past three 
years. I am glad to see that we finally will be allowed a straight up 
or down vote on real HMO reform.

                              {time}  1900

  Mr. GOODLING. Mr. Chairman, I yield 3 minutes to the gentleman from 
North Carolina (Mr. Ballenger), a member of the subcommittee.
  Mr. BALLENGER. Mr. Chairman, I thank the gentleman from Pennsylvania 
(Mr. Goodling) for yielding me the time.
  Mr. Chairman, let me talk a minute about the 125 million people who 
could lose their insurance. H.R. 2723, or Norwood-Dingell contains 
language that would expose employers to lawsuits for voluntarily 
providing health care benefits to their employees and thus jeopardize 
the employer-based health care system.
  The bill opens the flood gates for trial lawyers. It mandates greater 
cost and liability to employers of all sizes. Yet, defenders of this 
bill believe that employers would be shielded from liability unless 
they used discretionary authority on a benefit decision.
  However, what is discretionary authority? In reality, nearly any 
health care decision made by employers entails the use of discretionary 
authority. This open-ended term leaves trial lawyers drooling over the 
possibility of litigation and employers considering whether to pull the 
plug on the health care benefits. Trial lawyers will continually test 
the term ``discretionary authority'' in the courts, which will cost 
employers millions in the realm of attorneys and defense.
  An ad in today's Washington Post put it best. ``The patients' bill of 
rights is actually the lawyers' right to bill.'' When faced with the 
specter of liability and the ambiguous term ``discretionary 
authority,'' employers will opt to stop voluntarily offering health 
care and give employees the monetary equivalent. In a recent poll, 57 
percent of small businesses said they would drop health care if faced 
with increased liability and cost.
  We do not need more litigation spurred on by greedy trial lawyers. We 
need health care reform that supports both patients and the employers 
who voluntarily provide these important benefits. The solution is not 
liability but accountability, and the Boehner substitute does just 
that. This substitute strengthens the internal and external review 
process and holds health care plans liable for up to $5,000 a day if 
the plan refuses to adhere to the decision of the review process.
  H.R. 2723 would jeopardize employer-based health care plans for over 
120 million Americans. Support the Boehner substitute and let small 
businesses and employers continue to provide health care for the 
American workforce.
  Mr. CLAY. Mr. Chairman, I yield 2 minutes to the gentleman from Ohio 
(Mr. Kucinich).
  Mr. KUCINICH. Mr. Chairman, I support Dingell-Norwood-Ganske because 
I believe the people have a right to decent health care in the United 
States of America. This is a life-and-death matter that transcends the 
narrow needs of insurance companies.
  Do my colleagues know that the total cash compensation received by 
the CEOs of just the largest three HMO companies totaled $33.3 million. 
The insurance companies have enslaved our health system. They hold 
patients and doctors captive. They operate a modern-day plantation 
where servitude to their profit is their only objective.
  The old spiritual says, ``Let my people go. Go tell it on the 
mountain.'' Well, we are here on Capitol Hill, and it is time to send a 
message to the insurance companies: let my people go. My people are 
being denied decent health care because of the insurance companies' 
profit motives. My people are being denied the doctor of their choice 
because of the insurance companies' profit motives. Let my people go.
  My people are being charged confiscatory prices for prescription 
drugs. Let my people go. My people are being told they should not even 
have legal help in dealing with these same insurance companies because 
the insurance companies' profit motive is there.
  The insurance companies may rule health care like modern-day 
pharoahs, but soon they will have to meet the awesome wrath of the 
American people. If we are worthy of the promise of government of the 
people, by the people, and for the people, we will free our people from 
the rule of the insurance companies, we will lead them out of this 
valley of tears to better health care, we will let them live longer, 
better healthier lives, let their children grow up healthy.
  We have a chance to write a new chapter in this country's history 
where government of the people means better health care. Pass Dingell-
Norwood-Ganske.
  Mr. GOODLING. Mr. Chairman, I yield 30 seconds to the gentleman from 
Pennsylvania (Mr. Greenwood).
  Mr. GREENWOOD. Mr. Chairman, I think the point here is that if we 
allow open-ended litigation in health plans what will happen is 
employers will let their people go, employers will let their people go 
without insurance because they will no longer be able to afford it.
  The idea here is to keep the costs down by keeping the litigation 
down.
  Mr. GOODLING. Mr. Chairman, he is not a Moses so I don't know whether 
he will let his people go, but I yield 3 minutes to the gentleman from 
South Carolina (Mr. Graham), a very important member of our committee.
  Mr. GRAHAM. Mr. Chairman, no, I am certainly by no means Moses. Do my 
colleagues know what I was before I was in Congress? I was a trial 
lawyer. I was glad to do what I did for a living. Because when somebody 
came into my office, I tried to help them where I could, and I would 
always be honest: you do not have a case. I am sorry. It would be a 
waste of your money and my time.
  But every now and then people would come in like the folks that the 
gentleman from Iowa (Mr. Ganske) have displayed on the floor tonight. 
And if my colleagues think suing a hospital or a doctor is easy, they 
have never done it. They have got to find an expert that will be 
willing to say the standard of care was not adhered to. And most people 
that come into the office do not have enough money to pay the bill, so 
we have got to go into our own account and advance costs.
  The most dramatic form of litigation I have ever been involved in is 
suing health care professionals because most people in the community 
want to support their doctors and to give them the best benefit of a 
doubt, as they should. It is traumatic; it is emotional for the doctor 
and their family. And it is traumatic for the patient; and it is very, 
very expensive. But it needs to occur in situations where people are 
wrongfully treated.
  We need to have liability over HMOs' heads. When they make a decision 
for the plan participant, they need to understand that if they nickel-
and-dime folks and they do not treat them fairly, they could wind up in 
a courtroom.
  But having made my living in courtrooms, let me tell my colleagues, 
we could do better than all the options that we have heard about 
tonight. To say that legal liability does not affect insurance and the 
ability to have health care is wrong. Legal liability is something 
employers look at very hard.
  I believe, when it is all said and done, that there are no guys with 
white hats and black hats in this debate. I support Norwood-Ganske-
Dingell, and I will vote for it no matter what happens because I 
believe the Senate Republican bill does not get us where we need to go 
as a country.
  I am going to ask my colleagues to listen to one thing at the end of 
this debate. I am not a doctor, and I am not

[[Page H9487]]

going to practice medicine because it is not what I know how to do. But 
I am a lawyer. I can tell my colleagues this: we can create a fair day 
in court for people in this country, but we have got to look long and 
hard at how we do it. Because one day, if we do not watch it, we are 
going to drive people out of the health care business.
  If we allow State court lawsuits for companies that do business in 
more than one State, I believe we will have a legal conversation that 
goes like this: the corporate lawyer is going to tell the company, You 
are subject to 50 different legal theories of liability. There are 50 
different rules out there. And you are going to have to think long and 
hard if you want to stay in this business.
  To give this back to the State where there is no uniformity is going 
to drive up cost, and it is going to be very complicated to administer. 
What I suggest is let us keep the Federal court system as it is but 
allow full range of lawsuits. If they have a bodily injury, sue for the 
complete recovery of their damages, but let us make it uniform so 
people do not lose their health care and have some damage limitations.
  Mr. CLAY. Mr. Chairman, I yield 2 minutes to the gentleman from Iowa 
(Mr. Ganske).
  Mr. GANSKE. Mr. Chairman, I appreciate the comments of my colleague 
from South Carolina (Mr. Graham).
  Mr. Chairman, I am a doctor and not a lawyer. So what did I do? When 
we were looking at drafting this law to help protect employers, we put 
in a provision that said, unless the employer makes a discretionary 
decision, they are not liable.
  Most employers, most small business people, most doctors, what do 
they do? They hire an HMO or they hire a health plan, and they do not 
get involved in the administration of the plan; and so, under our bill, 
they are not liable.
  And so, do my colleagues know what? Since I am not a lawyer, we asked 
some experts to make sure that our language truly did protect the 
employers. We asked the senior attorneys at the Employee Benefits 
Department and Health Law Department at the law firm of Gardner Carton 
and Douglas to look at our language, does it really protect employers. 
And guess what they said. They said that it protects employers if they 
are not involved in that decision-making.
  That is what they said in their legal brief on this. They said the 
provisions in the Norwood-Dingell bill, section 302(a) that protect 
plan sponsors would be interpreted under the Supreme Court's well-
established ``plain meaning'' analysis. Such an analysis supports the 
Norwood-Dingell bill that the clear intention to continue to preempt 
any State law liability suits against employers that do not involve an 
exercise of discretion by them in making a benefit claim decision 
resulting in injury or death. Other types of discretionary plan sponsor 
action would not be affected and would not be subject to State law 
liability claims.
  Interpretations of the Norwood-Dingell bill which characterize it as 
a broad employer liability provision require one to ignore critical 
elements of section 302(a) which means under the ``plain meaning'' 
analysis of the Norwood-Dingell bill that employers will not be liable 
when the HMO that they contract with makes the decision.
  That is the lawyers' opinion.
  Mr. CLAY. Mr. Chairman, I yield 2 minutes to the gentlewoman from the 
Virgin Islands (Mrs. Christensen).
  Mrs. CHRISTENSEN. Mr. Chairman, I thank my colleague for yielding me 
the time.
  Mr. Chairman, every so often this body gets an opportunity to decide 
on an issue that has direct impact on the lives the people we 
represent. Today is one of those days.
  At long last, we have an opportunity, through passage of the 
bipartisan managed care improvement act, to balance the scales of 
health care delivery in favor of our constituents. And it is long 
overdue.
  The opponents of justice for health care consumers say that we should 
not pass the Norwood-Dingell-Ganske bill because it would drive up the 
cost of health care. But they are not telling the American people the 
truth. The premiums are going up now, but they have not risen 
disproportionately in the States that have enacted HMO reform.
  The American people understand that we cannot put a price on the 
right to get justice when an HMO refuses to pay for care that was 
ordered reasonable by a doctor and the patient suffers harm or dies.
  My colleagues, the American people are a lot smarter than the HMO 
industry; and our colleagues who are against this bill give them 
credit. They can tell whether a particular piece of legislation is good 
and whether it is not.
  How many good doctors have been fired by HMOs just because they 
continue to deliver a high standard of health care? Norwood-Dingell-
Ganske is the only bill that would change that.
  Among the other things in H.R. 2723 that the American people support 
is the fact that it will ensure that people have direct access to OB-
GYN services from the health care professional of their choice. Under 
the Norwood-Dingell bill, if someone has a chest pain, they can go to 
an emergency room and be seen immediately; if they have a heart attack, 
they can be treated and stabilized and not have to be transported for 
emergency care.
  My colleagues, a number of States and the courts have already begun 
to do away with the exemption from being held accountable that HMOs 
currently enjoy.
  Should not all Americans, not just the ones in California, Georgia, 
Texas, and now Illinois also enjoy this right?
  We are having an opportunity to do right by the American people 
today. Let us not squander that opportunity. Let us pass a right kind 
of managed care reform, the only bill that does what the American 
people have asked us to do. Vote yes on Dingell-Norwood-Ganske and no 
on all the other substitutes.
  Mr. CLAY. Mr. Chairman, I yield 1 minute to the gentleman from New 
Jersey (Mr. Menendez).
  (Mr. MENENDEZ asked and was given permission to revise and extend his 
remarks.)
  Mr. MENENDEZ. Mr. Chairman, I rise in support of the Dingell-Norwood 
bill because it is the only bipartisan bill that addresses the needs 
and concerns of some families in my district who need a level playing 
field in dealing with their managed care plans.
  I am hopeful, however, we will have the opportunity to provide the 
funding offsets we were denied on the floor today. This issue is simply 
too important to families like the one in my district in which a child 
was denied postoperative care by their managed care plan and, as a 
result, suffered severe life-long health complications.
  It is these families for whom we should level the playing field. And 
the Republican leadership should be having breakfast with them, not the 
fat-cat insurance companies who want to kill the Patients' Bill of 
Rights.

                              {time}  1915

  We can ensure that doctors, not insurance bureaucrats, make medical 
decisions in the best interests of the patient not the health plan.
  This is not about lawyers. It is about empowering patients by giving 
them the right to hold their plans accountable when they are denied 
care.
  The Dingell-Norwood bill levels the playing field, empowers patients 
and, as a result, ensures access to quality health care for all 
Americans.
  Mr. GOODLING. Mr. Chairman, in passing I might mention that I think 
that law firm referenced might represent the AMA. I think I heard that 
somewhere.
  Mr. Chairman, I yield 2 minutes to the gentleman from Pennsylvania 
(Mr. Peterson).
  Mr. PETERSON of Pennsylvania. Mr. Chairman, good HMOs manage care. 
Bad HMOs manage costs. Good managed care has physicians making those 
decisions not bean counters. Bad managed care has bureaucratic bean 
counters making health care decisions to cut costs, and that is the 
problem we should have fixed first.
  The good guys and gals who are out of this debate are our employers. 
Where are they in this proposal? Were they at the table? No. The 
manufacturers, the contractors, the restaurateurs, the retailers, NFIB, 
the Chamber, people who make this country work, employers who pay the 
bill.
  I also find it is interesting, are Medicare recipients covered by 
this? No. Medicaid? No. Veterans? No. Federal employees? No. We pay for 
their health

[[Page H9488]]

care and are responsible. They are not covered.
  We are building a Federal bureaucracy like HCFA for our employers to 
deal with, the good guys. Our employers are frightened by this 
proposal, and they should be. They were left out in the cold. They were 
not adequately protected. This proposal takes a meat axe to an issue 
that a sharp surgical knife could have fixed. We should have made sure 
managed care used physicians to manage care, not accountants and 
bureaucrats to manage costs.
  Our employers who pay the bill should have had their concerns 
resolved. That did not happen. The Dingell-Norwood bill will increase 
the number of uninsured, and what recourse do those who have no 
insurance have? Nothing is given to them.
  Mr. CLAY. Mr. Chairman, I yield 2 minutes to the gentlewoman from 
Ohio (Mrs. Jones).
  Mrs. JONES of Ohio. Mr. Chairman, I thank the gentleman from Missouri 
(Mr. Clay) for yielding me this time.
  Mr. Chairman, I am sure tired of hearing the other side say that it 
is lawyers who are causing this dilemma. There is a doctor seated in 
here this evening who had to sue to be able to practice medicine in 
California. And he sued and he won. His name is Dr. Thomas Self. There 
are a ton of people who keep saying the lawyers are keeping the 
patients out of the hospital and keeping the doctors out of the 
hospital. Well, we want to be able to get in doctors' offices and 
hospitals, but it seems the only way we can do that is to sue them 
because the HMOs will not let us in the hospital.
  Now, my friends, the Selfs, and my friend Miles Zaremski, my law 
school buddy, submitted an open letter to Congress and I would like to 
include that in the Record.

An ``Open Letter'' to the Honorable Members of the United States House 
         of Representatives Regarding Managed Care Legislation

    (By: Thomas W. Self, MD, FAAP, Linda P. Self, RN, BSN, Miles J. 
                          Zaremski, JD, FCLM)

                                               September 29, 1999.
       Dear Honorable Members of the House of Representatives: We 
     hope that our remarks that follow will be able to be part of 
     the floor debate that will occur on managed care legislation, 
     scheduled for early next month. While we have endeavored to 
     communicate with several of you, either by letter, phone or 
     by in-person conferences with you or your staffs, we feel our 
     individual, yet collective, wisdom on the underpinnings of 
     this legislation before you is critical and important. Two of 
     us have a unique experience not shared by other health care 
     providers in our country. The other has considerable 
     expertise based on experience and writings on managed care 
     liability, what our courts have done with ERISA preemption, 
     and what is likely to be done in the future by our judicial 
     system. Two final introductory remarks. First, there is so 
     much that needs to be said that brevity in our remarks could 
     not be achieved. Second, while this letter comes from the 
     three of us, we refer to each of us in the third person.
     Thomas W. Self, MD, FAAP,
     Linda P. Self, RN, BSN,
     Miles J. Zaremski, JD, FCLM.
       Our plea comes not as Democrats, Republicans or members of 
     other political parties. Our plea comes to you as a 
     physician, nurse and lawyer, representatives of those at the 
     crossroads of medicine, health care and law. Our plea comes 
     to you also as people who are deeply and passionately 
     concerned about the quality and delivery of health care for 
     America's patients, all patients, and the legal and 
     legislative efforts to do the right thing--insure fairness 
     and accountability for patients and by those delivering 
     health care.
       To quote a famous line from a motion picture of some years 
     back, the battle cry of patients is, ``We are mad as hell and 
     we are not going to take it anymore!'' Patients and providers 
     alike should not be subject to the grave inequities foisted 
     upon them by what managed care has done to the delivery of 
     health care. Linda and Tom Self are fitting and, perhaps, 
     unfortunately, unique examples of what has to occur before 
     managed care moguls will listen.
       As a San Diego doctor trained at Yale and UCLA, who ran 
     afoul of managed care and who was actually fired for spending 
     ``too much time'' with his patients, Dr. Self is unique among 
     health care providers in that he fought back against the 
     medical group that fired him and won a three year ``battle'' 
     that culminated in a three month jury trial. His victory is 
     the first of its kind in the nation, and was profiled by 
     ABC's ``20/20'', on August 6, 1999.
       His experience, where managed care profit motives 
     infiltrated and contaminated the professional ethics of his 
     medical group, shows clearly the murky and often brutal 
     influences wielded by HMOs which have only profit, not 
     quality of care, as their goal. In this scenario, patients 
     become ``cost units'' and doctor is pitted against doctor, 
     undermining the very foundation of medicine and throwing to 
     the winds the Hippocratic axiom, ``first of all do no harm''.
       With the art and science of medicine controlled by managed 
     care forces, it is not surprising that the number of patient 
     casualties continue to soar. The ability of a clerk with no 
     medical training, in the employ of a payor thousands of miles 
     away, to overrule medical decisions of a trained physician is 
     allowed in no other profession, but is the standard of 
     practice under managed care! Furthermore, this type of 
     employee and also the managed care entity which acts as the 
     puppeteer behind the clerk are completely immune from any 
     legal accountability when their faulty medical decisions 
     cause patient harm. That this situation is allowed to 
     continue is also peculiar only to the medical profession. 
     This is unfair and inequitable.
       As an experienced diagnostician with the reputation of 
     being thorough and careful, Dr. Self was criticized under 
     managed care dictates as a physician who ordered too many 
     costly tests and as a ``provider'' who ``still doesn't 
     understand how managed care works.'' Sadly, this situation 
     continues nationwide, as more and more experienced doctors 
     are unjustly censored, dropped from managed care plans or 
     terminated from medical groups anxious to conform to managed 
     care policies, leaving their needy patients feeling confused, 
     frightened and abandoned.
       This pillage and waste of medical resources (under the yoke 
     of managed care which destroys the very quality and 
     continuity so necessary for a positive outcome from medical 
     treatment) is running rampant in America. Dr. Self and his 
     wife have put their lives and their careers on the line to 
     combat the wrongs caused by the health care delivery 
     system called managed care. Now, representing, in 
     microcosm, all health care providers, they turn to you as 
     lawmakers, representing all past, present and future 
     patients, to stop the horror and carnage by health plans 
     by voting for the Norwood-Dingell bill, H.R. 2723, and 
     restoring quality, decency and humanity to health care for 
     the American people.
       Linda Self, a registered nurse, is, like her husband, a 
     healer. Always active in charitable activities, she returned 
     to nursing full time four years ago to work with her husband 
     when he lost his job. After being away from nursing for many 
     years, she realized that her compassion and love for the art 
     of healing was now even stronger, especially after raising 
     two children, one of whom had a serious illness. Devoted to 
     caring for children with chronic disease and giving support 
     to their families, she was shocked and unprepared for the 
     massive de-emphasis on patient care that had been fostered by 
     health plans. Linda realized that her commitment to people 
     had not changed nor had the needs of such children--what had 
     changed, and changed for the worse, was the indifference to 
     patient suffering held by the managed care system. She 
     realized that in order to care for sick patients and their 
     families in the 90's, there is, and was going to be, a 
     constant controversy with the managed care bureaucracy 
     involving patient referrals, treatment authorizations and, 
     above all, the daily need to appeal treatment decisions lost, 
     delayed or denied by their patients' health plans.
       As if also in microcosm to what other private medical 
     practitioners face, this office ``busy work'', in addition to 
     the requirements of providing necessary medical support to 
     sick patients, has created enormous frustrations among health 
     care providers as well as increasing the costs of running a 
     practice. Conversely, reimbursements from health plans have 
     steadily diminished, regardless of the severity of the 
     patient's illness or the increased amount of physician and 
     nursing time expended.
       Additionally, in her dual role as nurse and office 
     administrator, Linda works daily to insure that patients 
     receive the appropriate medical care they need and deserve 
     without suffering the indignity and humiliation of having 
     their health plans ignore, delay, or deny health care that is 
     not only medically necessary, but for which the patient has 
     already paid insurance premiums. This endless paper shuffle 
     mandated by managed care with its cost cutting mentality 
     further decreases the amount of time that a nurse can devote 
     to patient care. This Dilemma has driven competent and caring 
     paraprofessionals from the medical field in droves, thereby 
     further weakening the overall quality of medical care needed 
     by patients nationwide. The resulting upswing in poorly 
     trained, undedicated office personnel hired to replace the 
     nursing flight has created a hemorrhage in medical care 
     delivery which, if not stopped, will hasten the demise of 
     American medicine as far as any vestige of quality of care 
     which still remains.
       Patients must not be considered commodities to be batered 
     by health plans. Payors must be held fully and judicially 
     accountable wherever their pressures on physicians to curtail 
     tests, delay or deny treatment plans, or by clogging the 
     wheels of medicine with mountains of paperwork cause patient 
     harm. Therefore Linda Self, speaking as a mother, a patient, 
     and a nurse brings her experiences to the House floor and 
     adds her plea to those of Dr. Self and Mr. Zaremski to bring 
     dignity and salvation to the practice of medicine.
       Those in the House, listen, as we have done for years, to 
     the voices of the grass roots populace when they cry out for 
     help and relief from a medical system that harms, not

[[Page H9489]]

     heals. Read, if you will, the numerous e-mails and other 
     written communications from viewers of the ABC ``20/20'' 
     program on Dr. Self and other well wishes after he and his 
     wife's historic jury verdict, which we have included as an 
     attachment to this letter. A sampling of quotations from 
     these communications follows:
       As an R.N. I have had similar experiences as Dr. Self 
     concerning HMO's. He is the type of doctor HMO's do not want, 
     since he actually takes enough time for each patient, and 
     does the right thing. A warning to all patients: do not 
     choose an HMO if you have a chronic or rare illness! They 
     will hasten your demise; they are Goliath and you are David. 
     * * * Until patients become better-informed and less passive 
     about their health care, and until doctors start standing up, 
     like Dr. Self, HMO's will continue to run over the patients 
     they are supposed to serve.--Sheryl W. McIntosh
       Your August 6 piece on Dr. Self who was fired for ignoring 
     his group's bottom line and putting his patient's needs first 
     was excellent. This is happening more frequently than people 
     realize. Only when people have access to information like you 
     provided--or when they get sick and learn firsthand--do they 
     realize how corporate managed care has affected American 
     lives. I hope you will talk to other medical caregivers and 
     deal with other facets of this complicated problem.--Frances 
     Conn
       This might be just the tip of the iceberg. Our health care 
     should not be treated as a commodity, i.e., something to make 
     money on at your or my expense. Neither should it be a 
     political football where the vote goes to the place with the 
     most political donations. * * *''--James A. Eha, M.D.
       * * * At first HMOs were VERY good but every single year 
     that passes it gets volumes worse. Now, it is so hard to get 
     a referral, a prescription, a test or an office visit. * * * 
     My husband has to take off work because you have to take the 
     appointment they give you. * * * They make it nearly 
     impossible to get care. They have those drug lists that they 
     are always changing so the doctors are changing your meds all 
     the time making you very sick. They do not allow doctors to 
     do their jobs * * *--Diann Wolf
       An identical story happened. . .with my brother who is a 
     family practitioner. . . .He dealt mostly with AIDS patients 
     and the HMO found that to be too costly. He and his fellow 
     practitioners in his office decided to leave the medical 
     practice and regroup mentally to figure what to do. They had 
     spent many months without pay at all due to the methods of 
     saving costs by the HMO. . . . And just so the HMO's could 
     make some money, good doctors are leaving the profession.--
     Michele Drumond
       . . . For the past 11 years I have cared for people in long 
     term care. . . . Just imagine the lack of incentive there is 
     for good care of the elderly or disabled. Many newer meds are 
     not covered as they are not cost effective . . . patient 
     loads rise but staffing does not, rules and regulations of 
     documentation rise, staff does not nor does equitable pay. 
     The diagnosis to dollar mentality is ripping the caring soul 
     and commitment out of medicine. Everyday I ask God to give me 
     both compassion and wisdom in my job, but my soul feels that 
     the battle of excellence in care and cost will always be won 
     by cost. I feel called to this job, and just have to do what 
     I do the best that I can, but NEVER would I want any of my 
     four children involved in direct patient care. The physical, 
     emotional and psychological load is becoming too great!! I 
     strongly believe we will see life expectancy decline.--
     Barbara Harland, RN
       . . .I work for a doctors office. . .I do all referrals, 
     authorizations and surgery precerts for our patients. It has 
     become a nightmare to approve any surgeries without going 
     thru the third degree for patients. They can't begin to 
     realize what we in the ``field'' go thru to get these things 
     approved.--Susie Wallace
       `There are men too gentle to live among wolves' to a gentle 
     and courageous man & woman [Tom and Linda Self].--Brian 
     Monahan,
       . . .It is a great irony that, after a generation of 
     tremendous growth of our knowledge and our ability to care 
     for patients and diseases in a manner far better than we ever 
     could before, greedy companies are seeking to limit our doing 
     so.--Herbert J. Kauffman, M.D.
       . . .I deeply respect what you've accomplished and 
     appreciate the way in which your victory benefits patients 
     and those of us who choose to treat patients according to 
     sound clinical decision-making versus adherence to the 
     masters and dictates of those more concerned with profit than 
     quality patient care. . .--Robert Alexander Simon, PhD.
       . . . Seven years ago I was hired as a homecare Social 
     Worker. . . . Then, managed care entered the scene--
     frequently denying approval for a social-worker's services. 
     Since urgent social worker intervention was often necessary 
     with our patients, there were many times that I was 
     dispatched to the patient's home to provide emergency 
     services . . . only to later receive a ``denial of payment'' 
     from the managed care company . . . [Hospital] required me to 
     find any excuse possible to visit those patients whose 
     insurance would pay, and would cram as many patients as 
     possible every day into my schedule. It was all so very, very 
     wrong. For months this unethical practice tore me apart--and 
     eventually made me very ill. I quit my job. . . . I had been 
     forced to compromise my ethics in order for [Hospital] to 
     maximize their profits. I applaud your courage, and I just 
     wanted you to know that I am proud to be the parent of one of 
     your patients.--Ruth Bronske
       You stood tall for yourself and set a perfect example for 
     the rest of us. I am so pleased.--George Jackson, M.D.
       . . . Congratulations on winning your lawsuit! Truth always 
     comes out triumphant. Hopefully the HMOS . . . of the world 
     will put the patients' interest first and the bottom line at 
     the bottom as it should be from now on . . .--Faith H. Kung, 
     M.D.
       . . . Dr. Self stuck his neck out and he lost his job, but 
     he stood up for what he believed in and hopefully other 
     doctors will do the same. He should be commended for what he 
     did. I hope . . . that if something really bad ever happens 
     to me and I need tests run or extensive surgery done, the 
     doctor better not look at what kind of insurance I have 
     rather than giving me the best medical attention I need that 
     could save my life . . .--Kim Lewis
        . . . I have quit the medical field in the past month 
     because medicine is no longer about patient care and needs. 
     It is only about how much money can be made off of them. 
     Thank you for letting me see it is not just the employee that 
     is affected!--Linda Copp
       As a legislator, you can therefore appreciate first hand, 
     the anger, frustration, and hopelessness expressed by your 
     constituents such as what we have quoted above. Then, recall 
     the quote by Margaret Mead, ``Never doubt that a small group 
     of dedicated people can change the world. Indeed, it is the 
     only thing that ever has.'' The ``rank and file'', the grass 
     roots populace is, we think, what Ms. Mead had in mind when 
     it comes to health care in our country.
       The third major thrust of our letter pertains to the three 
     of us having seen and heard the disingenuous expressions of 
     opponents of what patients really need and which is embodied 
     in the Norwood-Dingell bill. First, we have heard that 
     lifting the ERISA preemption will cause employers to 
     terminate health plans for their employees, that lifting this 
     so-called shield will cause premiums to increase and that 
     trial lawyers will gain an avenue to sue. To all of this, and 
     with all the passion we can muster, we say, ``absolutely 
     not!''
       First, ERISA, enacted in 1974, had nothing to do with 
     shielding managed care plans from accountability for their 
     medical decision-making process. There has never been 
     anything in the legislative history on ERISA having to do 
     with this subject. The American Bar Association, not known at 
     all for representing trial attorneys, voted last February 
     302-36 to lift the ERISA shield.
       Next, allowing for accountability by health plans to 
     patients, as contained in HR 2723, provides for real equity 
     in distributing responsibility to all those persons and 
     entities involved in the medical decision-making process. 
     This does not mean increased or additional litigation! The 
     liability exposure to managed care entities that would exist 
     with removal of the ERISA preemption shield will force these 
     entities to insure improvement in patient care, by, for 
     example, not allowing clerks to override physician treatment 
     decisions, providing a review process to all treatment denial 
     determinations, etc. As a result, the number of bad-outcomes 
     leading to litigation will likely decrease, leading to less 
     litigation. And where bad-outcomes do occur, allowing direct 
     suits against health plans will not create more lawsuits, but 
     will rather lead to roughly the same number of lawsuits--with 
     one additional defendant. this one additional defendant will 
     better allow a trier of fact to equitably distribute 
     liability to the persons and entities responsible for the 
     harm. In the end, there are fewer bad-outcomes, less 
     litigation and better equity in the distribution of fault.
       Also, realize that HR 2723 provides for accountability and 
     responsibility of health plans according to state laws. State 
     courts are where this area of responsibility and 
     accountability for health plans should reside. For example, 
     if your state has ``caps'' on the amount of money that an 
     injured person could receive, such as in California, then 
     those caps would equally apply to exposures faced by health 
     plans.
       And if the Texas state statute on holding HMOs responsible 
     is any example, fears of increased litigation are totally 
     without any basis in fact. In the three years since that 
     state's law was enacted, there have been less than a handful 
     of cases filed against health plans in that state. Also, in 
     joining with Georgia legislators, the California \1\ state 
     assembly of 80 members (overwhelmingly) passed legislation 
     recently providing that HMOs can be held accountable for 
     their medical decision-making. On September 27, 1999, 
     Governor Grey Davis signed into law this legislation, and, in 
     so doing, stated, ``It's time to make the health of the 
     patient the bottom line in California HMOs.''
---------------------------------------------------------------------------
     \1\ California is said to be the ``birthplace'' of managed 
     care.
---------------------------------------------------------------------------
       In conclusion, we implore each and every one of you to do 
     the right thing. Vote your conscience by voting for the 
     rights of each and every American who has been, or will be, a 
     patient in our health care delivery system. Remember that a 
     person's health is unlike anything that can be bought, 
     traded, negotiated or sold. Don't hold hostage human sickness 
     and injury to a ``bottom line'' mentality. Keep in mind the 
     words of a colleague in medicine who wrote Dr. Self after his 
     jury verdict, ``The rewards of being a doctor are largely 
     measured in indentifying what is

[[Page H9490]]

     best for the patient and then having to do what one believes 
     is correct and best for the patient.'' Again, we reiterate 
     the quotation by Mead: ``Never doubt that a small group of 
     dedicated people can change the world. Indeed, it is the only 
     thing that ever has.'' In passing HR 2723, each one of you 
     will heed her message, and, accordingly, insure that the 
     tendrils of greed and disregard for legal accountability in 
     managed care will no longer be able to find fertile soil in 
     which to take root and grow.
       Thank you.
           Sincerely,
     Thomas W. Self, MD, FAAP,
     Linda P. Self, RN, BSN,
     Miles J. Zaremski, JD, FCLM.

  They say that Norwood-Dingell will restore medicine to physicians not 
bureaucrats. They say that it will provide for medicine over money and 
not the bottom line. They say that it will provide for patient care 
over profits. They say that it will provide judicial accountability for 
all entities involved in the medical decision, and I agree with them.
  Dr. Self said to me, remember that a person's health is unlike 
anything that can be bought, traded, negotiated, or sold. He said, do 
not hold hostage human sickness and injury to a bottom line mentality.
  Mr. Chairman, I strongly support H.R. 2723, and we will ensure that 
greed and disregard for legal accountability and managed care will no 
longer find fertile soil in which to take root. Support H.R. 2723.
  Mr. CLAY. Mr. Chairman, I yield 5 minutes to the gentleman from 
Georgia (Mr. Norwood).
  Mr. NORWOOD. Mr. Chairman, I thank the gentleman from Missouri (Mr. 
Clay) for yielding me this time.
  Mr. Chairman, in this debate we have come a long way. We are actually 
beginning to agree on some things. I am proud of my good friend, the 
gentleman from Ohio (Mr. Boehner), for having an external review 
provision in his bill. In fact, we all do, because all of us understand 
that is precisely the better way to get our patients the care that they 
need.
  I would like to speak to the gentleman from Pennsylvania (Mr. 
Peterson) before he leaves. I noticed that he made a couple of remarks 
about employers, that they are not involved.
  I will say, I have been doing this a long time, 5 years, and I do not 
know many employers I have not met with. I am sure there are not many I 
have not begged to come to my office over the last 5 years, from 
General Motors, to Wal-Mart, to IBM, to Caterpillar, to you name it.
  I have asked them to come. I have said, look, guys, we have a serious 
problem going on out here. Help me with this bill. I am not after them. 
I am simply trying to get people to quit practicing medicine that are 
not licensed.
  They did not want anything to do with it. They did not help. They 
absolutely did everything that they could do to make sure we do not 
want anything to happen; we like it like it is; we are in control, and 
that is what we want.
  They did not work with us at all, but I worked with them. I worked 
with them for 3 years, hard. We met with one of them every day. Here is 
the bill, help us with it. They would not.
  Many employers, and I am sure not all, but many employers have had 
the opportunity to help us make it better and what they want is 
absolutely nothing.
  Now, why? Well, there are two types of employers. Seventy-five 
percent, I would say, of the 160 million Americans, are in insurance 
plans that are partially funded and partially administered, and those 
employers typically they do not practice medicine. They really do not. 
That is why we have worked very hard in this bill to make certain those 
people would not be made liable, because they are not sitting there 
every day, the CEO, trying to tell the administrator, no, this patient 
cannot have that surgery but this patient can.
  The problem is that other 40 million Americans that are under plans, 
very good plans, too, the big guys, really good stuff, they do practice 
medicine, though. The gentleman said they did not, but they do. Just 
because they make tires does not mean they do not have an insurance 
company in the backyard. I can guarantee they do, and they make 
decisions of medical necessity, long distance, untrained people, 
planned and paid to deny care. That is what they do for a living. These 
medical directors make big money. They do not last long if they do not 
deny care.

  My problem with that is that they are looking at a computer screen. 
They are not using the art of medicine, the science of medicine. They 
are going down a mathematical screen on a computer. People are going to 
be killed like that. Medicine cannot be practiced that way if the 
patient is at least not looked at.
  They never talk to the patient. They just call up and say, no, my 
computer screen says no. How could that cardiologist possibly know 
anything, that has been seeing someone as a patient for 30 years, that 
is a next door neighbor that a lot is known about?
  That is the problem; it is that group.
  Do I want them out of this? Yes, because basically they do try to do 
a good job, and basically have very good plans, but there is not a way 
to take them out of it because they are practicing medicine without a 
license; and that, Mr. Chairman, is what the problem is.
  If we had it all to do again and go back 5 years ago, what would I 
do? I would make it a Federal crime to practice medicine without a 
license. That would stop this mess, because that is indeed what is 
going on.
  Now, why are the employers scared? And they are. I am in sympathy 
with them about that. They are scared because the insurance industry 
scares them. They have great practice at this, Mr. Chairman. They have 
been doing it in States across America for the last 20 years. They go 
in and scare the bejeezus out of these employers. They say, gosh, if 
this is not done, if that bill is not killed, costs are going up 25 
percent. Guys, if this is not done, we are going to find that everybody 
gets sued every day.
  We do not say that in that bill. My word of mercy, I am for 
employers, too. We have to support, Mr. Chairman, to change the system, 
a bipartisan bill. That is the only way that I know to get a law in a 
split Congress with a Democratic president, but it is so important we 
have to get it done now. This window of opportunity, where we have my 
friend the gentleman from Ohio (Mr. Boehner); my friend the gentleman 
from Oklahoma (Mr. Coburn); my friend the gentleman from Iowa (Mr. 
Ganske); my friend the gentleman from Michigan (Mr. Dingell); my friend 
the gentleman from Arizona (Mr. Shadegg); we are all pretty close to 
agreement because we all have recognized the fallacy in a system of 
practicing long distance medicine by people who make their living by 
denying those claims.
  Mr. GOODLING. Mr. Chairman, I yield 5 minutes to the gentleman from 
Kentucky (Mr. Fletcher), a member of our committee.
  Mr. FLETCHER. Mr. Chairman, I thank the gentleman from Pennsylvania 
(Mr. Goodling) for yielding me this time.
  Mr. Chairman, I appreciate the opportunity to come and speak. It has 
not been too long ago since I was sitting face-to-face with patients, 
practicing family practice, primary care.
  We also had a program in Kentucky where we cared for those without 
insurance. We provided that treatment free of charge. And we saw a lot 
of folks that would like to have insurance. But they were not able to 
afford it, or the small business that they worked for could not afford 
it.
  We also solved problems with HMOs, and I have the utmost respect for 
my colleagues, the gentleman from Georgia (Mr. Norwood), the gentleman 
from Iowa (Mr. Ganske), and the other folks that certainly have 
addressed this issue long before I arrived here.
  I have had the privilege of working in health care in the State of 
Kentucky, and I do know that projections of increase in costs and those 
sorts of things are tenuous. The real fact is we do not know how much 
any of this is going to cost.
  I think there was an article yesterday, an editorial in The 
Washington Post, that advised us to be careful, to go incrementally, to 
take very careful steps because, in fact, we do not know how much this 
is going to increase costs and how many more people this is going to 
leave without insurance and without health care.

[[Page H9491]]

  We have 44 million people, increasing almost by a million people a 
year, that are uninsured and have no health care. And we do not need to 
take health care dollars and run them into another system. We need to 
make sure they are running in to providing care for patients that 
really need it. That is why I came here, and I trust that is why all of 
us came here.
  Since I have arrived here, I found one thing out, Mr. Chairman. There 
are some very loud voices here. I have heard the loud voices of trial 
lawyers, or people that take that position, providers, employers, 
insurance companies. Sometimes those voices get so loud that we cannot 
hear the patients back home. We cannot see the number of folks that are 
getting the kind of health care that they need because their employer 
voluntarily provides that.
  I have companies like Toyota and 3M, Caterpillar, Johnson Controls, 
Trane, Cooper Tires, and I could go on and on, Dana, et cetera, et 
cetera, that offer the kind of health care, and I visited those plants 
and I have gone through, and I have asked the employees about this. 
They have some of the best health care in this country. I do not want 
to threaten that, but we do need to do something to make sure that 
physicians make decisions not insurance companies.
  I think we have done that with many of the bills. We have said, let 
us make sure we have internal review. And I am glad that we want to 
make sure it is a physician in many of the bills, but we also say there 
is an independent panel that can look and decide, a panel of experts 
decide what is medically necessary and what is needed. And then the 
decision lies with physicians not insurance companies. I think that is 
important.
  We need to look at the other provisions of the bill. Certainly we 
want to make sure they have access to emergency room, they have access 
to the OBGYN and their pediatricians, that they can go to the emergency 
room so we do not see the kind of problems the gentleman from Iowa (Mr. 
Ganske) has brought out about a patient that wanted to go to the 
emergency room and had to go to a distant one. Our bill takes care of 
that.
  I am very concerned about the Norwood-Dingell bill, because I am 
concerned about where would some of the money go of increased costs. I 
want to hold insurance companies accountable, but to open up unfettered 
liability is something that I have felt like has increased costs. And I 
think many other folks have documented the increased costs over the 
years, and I do not think there is any question that it will increase 
cost and more money will go into the pockets of trial lawyers instead 
of providing care for patients.
  According to the General Accounting Office, it takes an average of 25 
months, more than 2 years, to resolve a malpractice suit. At the same 
time, patients typically receive only 43 cents on the dollar.

                              {time}  1930

  Defensive medicine, Mr. Chairman, is the practice of ordering tests, 
and the American Medical Association has said that about 8 out of 10 
doctors practice defensive medicine because of the fear of trial 
lawyers. One study touted by the AMA, was in 1996, reported by Daniel 
P. Kessler and Mark McClellen of Stanford University, published in the 
Quarterly Journal of Economics.
  This study found that tort reforms directly limiting the liability of 
medical care providers could reduce hospital expenditures by 5 to 9 
percent within 3 to 5 years of adoption basically by eliminating 
unnecessary testing associated with defensive medicine.
  I want to make sure that physicians make the decision, but I do not 
want us to put money in trial lawyers or to have the practice increase 
of defensive medicine. I think it is important, and we have got one 
estimate of Stanford researchers that extrapolating the savings to the 
national level of researchers, if we had some tort reform, unlike what 
is in the Norwood-Dingell bill, would save an estimated $50 billion per 
year.
  I think we need to be very careful as we are doing this. As my 
colleagues know, we can always come back a year, 2 years, or whatever 
and improve what we are doing; but I think this leap to the Norwood-
Dingell bill, a leap that will increase the costs, decrease the 
availability of health care, and I discourage or I encourage my 
colleagues to vote against the bill.
  Mr. CLAY. Mr. Chairman, I yield 2 minutes to the gentleman from 
Illinois (Mr. Davis).
  Mr. DAVIS of Illinois. Mr. Chairman, I rise today in support of the 
Dingell-Norwood bill, in support of this bipartisan managed care reform 
legislation, a bill that puts patients ahead of politics and allows us 
an opportunity to address American's concerns regarding health 
maintenance organizations. This bill provides important patient 
protections such as ensuring that medical judgments are made by medical 
experts, not insurance bureaucrats, ensuring that individuals have 
access to emergency medical services, clinical trials, prescription 
drugs.
  In addition, this bill ensures that individuals have a right to see a 
specialist, access to out-of-the-network providers, and holds HMO plans 
accountable when their decisions to withhold or limit care injures the 
patient.
  We have an opportunity today to listen to the over 80 percent of the 
individuals in health plans who have cried out for reform of HMOs. We 
have an opportunity today to make sure that women do not have to see a 
gatekeeper before seeing their OB/GYN specialist. We have an 
opportunity to improve the quality of health care individuals receive.
  In my congressional district we have 22 hospitals, three VA medical 
facilities, countless community health centers, half a dozen HMOs all 
providing quality health services throughout Illinois. This bill will 
facilitate opportunities for doctors and patients to form a strong 
relationship and make important decisions regarding their health 
treatment.
  Let us take a historic step forward. Let us vote in favor of Dingell-
Norwood. A vote for Dingell-Norwood is a vote for real reform of 
managed care.
  Mr. CLAY. Mr. Chairman, I yield 3 minutes to the gentleman from New 
York (Mr. Nadler).
  Mr. NADLER. Mr. Chairman, I rise in support of the Norwood-Dingell 
bill and in opposition to the three substitutes that will be offered. 
This legislation will restore medical decisions to where they belong, 
to patients and their doctors.
  Mr. Chairman, quality health care should be the right of every 
American, but this principle seems to have been lost in recent years as 
more and more people have been forced into a managed care system in 
which HMOs are involved in a zero-sum gain. Every dollar not spent on 
health care is another dollar of profit for the HMO. Every incentive in 
the system is not to allow the specialist referral, not to allow the 
diagnostic tests, not to allow the treatment. The HMO has every 
incentive to overrule the doctor's judgment or to exert financial 
pressure on the exercise of that judgment, and they do so every day.
  Mr. Chairman, this destroys the confidence a patient should be able 
to have in his or her doctor's judgment and often causes unfavorable 
medical outcomes, avoidable deaths and suffering. The American people 
are crying out for reform, and this bill provides it.
  One of the most important provisions of this bill will prohibit an 
HMO from providing a financial incentive to doctors to limit treatment 
for their patients. It is wrong to put doctors into a conflict of 
interest situation between their medical judgment on the one hand and 
their pocketbooks on the other.
  I introduced a bill to prohibit this practice in 1993, and I am 
pleased that it has been incorporated into this bill.
  We have seen a lot of negative publicity surrounding this bill. The 
insurance industry has waged a campaign of misinformation. They claim 
this bill would open up a flood of lawsuits against employers, but 
anyone who takes the time to actually read the legislation will find 
that it is a balanced bill that protects the interests of employers, 
doctors, and patients.
  The greatest distortion concerns the liability provision. This 
provision says that whoever is directly responsible for making a 
decision that harms a patient must be held accountable for his or her 
action. If an HMO practices medicine, if it does so negligently, and 
withholds necessary medical care and the patient is hurt by this, the 
HMO should be liable to a malpractice lawsuit.

[[Page H9492]]

  This is a matter of simple justice. It is also the only effective way 
to deter withholding necessary medical care in order to save money.
  Every other person or corporation in this country is held responsible 
for the consequences of their actions, responsible at law if necessary. 
Why should HMOs be the only entities in this country not held 
responsible for the consequences of their actions at law?
  Contrary to what the insurance companies would have us believe, this 
bill would not open employers to liability if their involvement was 
simply to contract with a negligent HMO, nor would an employer who 
advocates on behalf of his or her employees be held responsible. This 
bill would eliminate the common HMO gag rules so that information can 
flow freely between doctors and their patients.
  It would ensure full access to clinical trials, greater choice of 
doctors and plans, continuity of care, access to services for women and 
access to emergency care and specialists, and it would hold insurance 
companies accountable for their decisions. It would go a long way 
toward ensuring that people have access to the treatment they need. We 
must not settle for less.
  Mr. GOODLING. Mr. Chairman I yield 4 minutes to the gentleman from 
Arizona (Mr. Shadegg).
  (Mr. SHADEGG asked and was given permission to revise and extend his 
remarks.)
  Mr. SHADEGG. Mr. Chairman, I thank the gentleman for yielding this 
time to me, and I want to begin by pointing out the bill. Would the 
gentleman bring me a copy of the bill? I want to point out that in this 
debate there is a lot of misinformation. One piece of misinformation 
that is going around is that this legislation does not protect existing 
lawsuits authorized by State law.
  Here is a copy of the Norwood, excuse me, of the Coburn-Shadegg 
substitute. If we turn to Page 91, any Member can read the language; 
and it plainly says for Texas, for Georgia, for Louisiana, every State 
action has been preserved; and it says that not only are State actions 
already created at State law by State legislative conduct, preserved, 
but those authorized by future legislation are preserved as well.
  Now let us turn to some of the debate that I think goes to the issue 
of Norwood-Dingell.
  I respect my friend, the gentleman from Georgia (Mr. Norwood). I know 
his intentions are good in this debate. I believe that he has done a 
great service by forcing this debate to occur here tonight.
  But the reality is there are two extreme positions in this debate 
which is going forward on the floor tonight and will continue tomorrow. 
Those two extreme positions are represented by the HMOs on the one side 
who say we must continue to have absolute immunity. On that issue I 
could not agree more with my friend, the gentleman from Georgia (Mr. 
Norwood), or my friend, the gentleman from Iowa (Mr. Ganske).
  A good friend of mine in Arizona said the other day why would we want 
people who have to get a license to practice medicine to be held 
liable, but people who do not have to get a license to practice 
medicine, not to be held liable? So on that issue, on the concept of 
liability I agree that we must change the system. But if immunity is 
one extreme, we cannot ever be held liable when we kill Mrs. Corcoran's 
baby.
  Mr. Chairman, I have to point out that absolute liability is the 
other extreme; and my friends on the opposite side, from the Democrat 
side, my friend, the gentleman from Georgia (Mr. Norwood), when he 
joined with them embraced the other extreme in this debate, and that is 
absolute liability, and let us talk about one example of that.
  In their enthusiasm to deal with this, they swept into their 
legislation fee-for-service plans. I will tell my colleagues fee-for-
service plans regulated at the State level should not be brought into 
your legislation, but they are. They are already regulated at the State 
level. The State insurance commissioners cannot handle them, and they 
can already be sued. But my colleagues sweep them into their regulatory 
net. That is going too far.
  Let us talk about lawsuits that can be brought without exhausting the 
administrative review. My colleagues' bill says the minute somebody 
becomes dissatisfied with the plan, they can file a lawsuit. It is like 
simply having to allege that a marriage is irreconcilably broken. All 
one has to do is decide they want out, decide they want to go to court 
and they are in court. Well, that is no system. We ought to force 
patients to at least ask the plan to do the right thing. But my 
colleagues allow them to sue without any exhaustion of administrative 
remedies. They just open the door at any time.
  Let us go beyond that. Lawsuits over anything.
  Our bill says the Coburn-Shadegg substitute says we allow suits over 
covered benefits. If they cover this benefit, then they got to provide 
the benefit, and if they do not provide the benefit, we will allow an 
appeal; and we will probably allow a lawsuit. But my colleagues allow a 
lawsuit over anything, not just covered benefits; and what that means 
is that a panel of doctors or a court can come in after the fact and 
say, you may not have thought you covered this, but we are going to 
mandate that you should have covered it.
  Now think about that from the insurance policies position. They 
thought they insured this podium, but they have just discovered they 
insured the table as well, and nobody told them. That is not fair. It 
is the other extreme of the end of the pendulum.
  And what about lawsuits without limits? Nobody, nobody in this system 
does not understand that if we, and I implore, I implore colleagues to 
look at the costs that they can drive. If we allow too many lawsuits, 
we will produce a million more uninsured Americans.
  I urge my colleagues to support the Coburn-Shadegg amendment.
  Mr. CLAY. Mr. Chairman, I yield 4 minutes to the gentleman from Iowa 
(Mr. Ganske) to respond to the gentleman who just spoke.
  Mr. GANSKE. Mr. Chairman, let me respond to a couple comments that 
have been made. I appreciate the comments of my good friend from 
Kentucky (Mr. Fletcher). I just wish that he would listen to some of 
the arguments by the American Academy of Family Physicians that 
endorses the Norwood-Dingell bill. I would also point out to him a 
study. He is concerned about costs, costs of litigation? Well, here is 
a study by Coopers and Lybrand. This study was conducted for the Kaiser 
Family Foundation. They looked at group health plans where one can sue 
their HMO. Okay. They researched the litigation experience of Los 
Angeles School District, California Public Retirement System and the 
Colorado Employee Benefit System, and what did they show? That the 
incidence of lawsuits was very low, from 0.3 to 1.4 cases per hundred 
thousand enrollees per year and that the cost of that was 3 to 13 
cents.
  Now let me talk about some of the comments that my good friend from 
Arizona made. I hardly have time. I am glad that now on the fifth or 
sixth draft of the Coburn-Shadegg bill we are finally going to have an 
exemption for California and Texas. It has been hard to pin this bill 
down; it has been changed so many times.
  I would also point out, yes, the Coburn-Shadegg bill requires that a 
patient has to exhaust all available administrative remedies before 
going to court. That does not make any sense in situations where the 
patient has already been seriously injured, or even worse, has died.
  My colleague is correct. The Norwood-Dingell bill allows patients who 
have already suffered harm to go to court. How can you justify a 
provision in yours that says that, Gee, you have to exhaust all of your 
appeals. They can be dead before that, or they are already injured.
  Mr. NORWOOD. Mr. Chairman, will the gentleman yield?
  Mr. GANSKE. I yield to my friend from Georgia.
  Mr. NORWOOD. Mr. Chairman, I would like to ask my friend a question. 
If that provision were to hold, then would the insurance companies not 
just simply delay getting them through all these appeals until the 
patient dies? Then they do not have to pay any benefits.
  Mr. GANSKE. Absolutely, and I also point out that the punitive 
damages relief provision in our bill is applicable to all insurance.

[[Page H9493]]

                              {time}  1945

  Mr. Chairman, let us look at the issue of how the Norwood-Dingell 
bill applies it to everyone. Yes, it applies to fee-for-service plans. 
Do Members know why? Because that is a benefit to the independent 
insurance policies.
  We have a provision in our bill that the Democrats were kind enough 
to go along with, a very Republican provision, that says, if a health 
plan follows the advice of that independent panel, they cannot be held 
liable for any punitive liability. Think of that. That is tort reform. 
That applies not just to group health plans, that applies to all health 
plans.
  That means that the Blue Cross-Blue Shield plan in Pennsylvania now 
will get a total punitive damages liability if they have a dispute and 
then they follow that independent panel's decision. They do not have 
that now. That is a very good provision in our bill.
  Mr. NORWOOD. If the gentleman will continue to yield, Mr. Chairman, 
one of the reasons we wanted to make sure that we had good tort reform 
that would particularly protect the fee-for-service plans is that under 
State law, which we are pretty fond of, there are only 22 States that 
cap punitive damages, so we wanted to get them all. We have them all 
under there. But under State law, there are 24 States that limit non-
economic damages.
  There is not any Federal tort reform. We have tort reform at the 
State level. That is where we always have dealt historically with 
problems in the health care field with medicine, malpractice, and tort, 
is at the State level. We like it there, because it has these 
wonderful, absolute limits in there.
  Mr. GANSKE. I would remind my good friend, the gentleman from 
Georgia, is it not Republicans who stand in this aisle who say the 
States are the laboratory of democracy? Is it not my good friends, the 
Republicans, who say, hey, we want to get power back to the States? Do 
Members want to support a bill that eats up States? I do not think so.
  Mr. CLAY. Mr. Chairman, I yield 2 minutes to the gentlewoman from 
California (Ms. Lee).
  Ms. LEE. Mr. Chairman, I want to thank my colleague for yielding time 
to me, and for his commitment to health care for all Americans.
  Mr. Chairman, I rise in strong support of H.R. 2723, which will 
provide protection for patients in managed care plans.
  Patients should not have to face obstruction when they seek basic 
health care, and they should have the right to sue HMOs when careless 
or questionable decisions are made. Patients should not have to agonize 
with obtaining proper medical care while they struggle with their 
health problems. During these periods of life, times should be less 
stressful, rather than more burdensome.
  This bipartisan bill allows patients to appeal their grievances when 
they are denied basic health care. It is wrong that millions of 
Americans and their families are still denied these simple rights, and 
continue to be denied for so long now. It is about time that medical 
decisions be made by the patient and his or her physician, rather than 
account executives or insurance bureaucrats.
  In my home State of California, our Governor, Governor Davis, just 
signed legislation to enact historic health care reform within the 
State. These laws offer similar proposals to H.R. 2723 in allowing 
dissatisfied patients the right to appeal and seek redress from HMOs.
  California patients now have many more protections than the rest of 
the country. Patients across the Nation, however, should also have 
these protections. We must not limit access to health insurance, but we 
should put the health of all Americans before the interests of special 
interests. Let us vote for H.R. 2723, and put people first when it 
comes to life or death decisions.
  Mr. CLAY. Mr. Chairman, I have no further requests for time, and I 
yield back the balance of my time.
  Mr. GOODLING. Mr. Chairman, I yield myself the balance of my time.
  The CHAIRMAN. The gentleman from Pennsylvania (Mr. Goodling) is 
recognized for 3 minutes.
  Mr. GOODLING. First of all, Mr. Chairman, I want to make sure that if 
the Norwood-Dingell bill is a tort reform bill, I sure hope the 
leadership does not ask them to write some major tort reform bill. We 
are in trouble if that happens.
  Let me close by first of all indicating what the Washington Post said 
recently. I quote: ``Those who favor regulating the industry do so in 
the name of preserving access to care for those it insures. But to 
regulate in such a way as to weaken cost containment and price more 
people out of the market would likewise have the effect of reducing 
access, just for different folks.''
  They continue, ``The need is for greater balance than an increasingly 
partisan debate such as this may allow. You should legitimatize managed 
care by keeping it within acceptable bounds without crippling it.''
  They close by saying, ``Our first instinct would be to try an appeals 
system first, and broaden access to the courts only if the appeals 
process turned out, after a number of years, not to work.'' So I repeat 
the call I made to my committee so many times, and now make it to the 
entire Congress.
  When the final bell rings, after the conference is concluded with the 
Senate, if we have not insured the 44 million who are uninsured, we 
have done a great disservice not only to those 44 million, but to all 
Americans who are now picking up the burden in the cost-sharing process 
that goes on. If we have not, at the end of this day or the end of that 
conference, made sure that we did not uninsure, no matter how 
unintentional it may have been, uninsure those who are presently 
insured, then, again, we have done a great disservice. If one person 
becomes uninsured because of any action that we take here in the House 
or in conference, again, we have done a great disservice to the 
American people.
  It is my hope that by the end of the time when the conference is 
over, that, as a matter of fact, we have tackled the number one health 
care issue in this country, and that is, insuring the uninsured. All 
should have that opportunity to be insured, and at the same time, 
making very sure that we do not uninsure by destroying a system that 
has worked so well that provides health care insurance for 125-plus 
million people in this country.
  Thanks to the Employee Retirement Income Security Act, that has 
worked. So my hope would be that we build the whole program on the 
Boehner-Goodling program, so that we do not make a mistake and destroy 
what it is we are trying to do; build incrementally, starting with 
Boehner-Goodling.
  The CHAIRMAN. All time has expired for the Committee on Education and 
the Workforce.
  Pursuant to the rule, the gentleman from California (Mr. Thomas) and 
the gentleman from Maryland (Mr. Cardin) each will control 30 minutes.
  The Chair recognizes the gentleman from California (Mr. Thomas).
  Mr. THOMAS. Mr. Chairman, I would ask the gentleman from Maryland to 
proceed.
  Mr. CARDIN. Mr. Chairman, I yield myself such time as I may consume.
  Mr. Chairman, I have been listening to my colleagues debate this 
issue for the last 2 hours. I marvel more about the fine work that the 
gentleman from Georgia (Mr. Norwood), the gentleman from Michigan (Mr. 
Dingell), the gentleman from Iowa (Mr. Ganske), and the gentleman from 
Arkansas (Mr. Berry) have done. They have given us a bipartisan bill, a 
consensus bill, that will move forward on the Patients' Bill of Rights. 
It is a good bill. It will make a lot of progress in areas that we need 
to do.
  The first question is, why do we need to pass Federal legislation in 
this area? There is a very simple explanation. It is called Employee 
Retirement Income Security Act. We at the Federal level have prevented 
our States from effectively providing protection to many people in our 
own State. We have preempted the States, and yet we provide no 
protection at the Federal level for many of our people who are insured 
under Employee Retirement Income Security Act plans. Therefore, we need 
to enact Federal legislation.
  The concerns out there are great. We know that in too many cases, 
medical decisions are being made by insurance company bureaucrats, not 
health care professionals. We know that HMOs are putting roadblocks in 
the way of our constituents needing necessary medical services by 
requiring them to go

[[Page H9494]]

across town to see a primary care doctor before they can see a 
specialist, over and over and over again.
  The Norwood-Dingell bill is a reasonable bill that establishes 
national standards to protect our constituents. Let me just mention a 
few of the provisions I am particularly pleased with, that I have 
worked on for many years with many of my colleagues in this body.
  There is access to emergency care. We have been working on this bill 
for many years. I thank my friend, the gentleman from California, for 
the work that he did in expanding these protections to our Federal 
health care plans, including Medicare and Medicaid.
  Many States have already enacted access to emergency care, as my own 
State of Maryland has. But the Maryland law does not apply to over half 
the people in Maryland because of the preemption under Employee 
Retirement Income Security Act.
  Access to emergency care will say that if your symptoms dictate that 
you need emergency care, the HMO must pay for that emergency care. That 
is reasonable. Too many times a day HMOs are denying payments of 
emergency needs because the final diagnosis was not life-threatening. 
Sometimes we think that they want you to die before they are willing to 
acknowledge that there is an emergency.
  Then there is the independent appeal that I have been working on with 
many of my colleagues for many years to guarantee that if you disagree 
with your HMO, you have the ability to have a review of that decision 
by individuals that do not have a financial stake in the outcome of 
that review. That is only fair. We have that, again, in many of our 
States, we have that in our Federal health care plans, but it is not 
there for Employee Retirement Income Security Act plans, because we 
have preempted the States' ability to act.
  The use of clinical trials. In many cases it is the best health care 
available for our constituents. The gentlewoman from Connecticut who 
was on the floor has been very instrumental in moving forward with the 
clinical trials issues. This bill will provide basic protection to our 
constituents to be able to participate in clinical trials.
  There are many, many other provisions in the bill that go to 
eliminating the gag provisions, the availability of specialists. Let me 
deal with some of the issues that the opponents have raised, because I 
do think they are without merit, and the gentleman from Iowa (Mr. 
Ganske) and the gentleman from Georgia (Mr. Norwood) have both done an 
excellent job in explaining that.

  As far as compliance, the Employee Retirement Income Security Act 
shields the HMOs from liability. We cannot bring cases against them 
today for the consequences of their negligent acts. We all agree that 
that is wrong, so the Norwood-Dingell bill says, okay, let us do it 
this way.
  First, we are not going to hold employers liable unless they are 
directly involved in the management of the plan. Secondly, in regard to 
the insurance company, if they follow their appeals process, we protect 
them from punitive damages. That seems like a reasonable compromise on 
compliance.
  Let me deal with the issue of cost. We have heard over and over 
again, this is going to increase costs. Mr. Chairman, we have these 
reforms in place, including the compliance provisions, in many States 
in the Nation. We have not seen any dramatic escalation of costs. Many 
of these reforms are already in our Federal health care plans, and we 
have not seen an escalation of costs. I think good health care will 
reduce costs, not increase costs.
  Mr. Chairman, we have heard it is going to be tough for a multi-State 
company to comply with laws in different States. Mr. Chairman, 
historically insurance has been subject to State regulation. That is 
what we thought was best. A multi-State company has to comply with the 
different State laws on workers' comp and unemployment compensation. 
This is not a burden for them to understand how the local court systems 
work. After all, they are located in these States.
  It is for all these reasons and many more that over 300 groups, 
including health care professionals, consumer groups, the League of 
Women Voters, urge us to pass the Norwood-Dingell bill, and I urge my 
colleagues to do that.
  Mr. Chairman, I reserve the balance of my time.
  Mr. THOMAS. Mr. Chairman, I yield myself such time as I may consume.
  Mr. Chairman, I am sure that by now people trying to follow this 
debate are thoroughly confused. When we look at the plans, there are 
significant portions of the various bills that are identical. The 
reason for that is that in 1997, when we worked together to produce the 
most significant change in the Medicare system since the beginning of 
Medicare, the gentleman from Maryland (Mr. Cardin) and others joined 
together with me to produce a bill which we thought was responsible in 
the area of emergency rooms, gag rules, and most of what is in, in a 
specified fashion, all through the bills.

                              {time}  2000

  Obviously that is not what is at issue tonight and tomorrow. It is 
the question of who can sue whom, when and how.
  If my colleagues look at that and examine the various bills in that 
regard, what we hear over and over again in an attempt to defend 
Norwood-Dingell and its reasonableness or appropriateness dealing with 
employers is ``unless,'' ``if,'' ``and,'' ``but.'' What we have is 
hedging. Because, frankly, at the end of the day, employers, through no 
fault of their own, can be liable under Norwood-Dingell.
  When employers are faced with potential liability on something which 
is an option to begin with, which has continued to increase in cost to 
the employer, there will be some employers who say I have had enough.
  In contrast to that, if my colleagues will look at the Goss-Coburn-
Shadegg-Greenwood-Thomas substitute, we can say this: employers cannot 
be held liable if they provide health care coverage, in selecting a 
plan, in selecting a third-party administrator, in determining coverage 
or increasing or reducing coverage, intervening on behalf of an 
employee, or declining to intervene on behalf of an employee.
  When we look at what is available in terms of remedies, one of the 
things that concerns people is the open-endedness of the ability to 
sue. When we compare, for example, the Norwood-Dingell bill, it 
basically says that someone has a right to sue for something that is 
denied to them under a health plan. One also has the right to sue for 
something that is not under the health plan.
  Now, how in the world, when it is entirely possible that a benefit 
request that is requested for external review does not have to be under 
contract, and a court can grant a benefit that is not under contract, 
that creates an open-ended opportunity.
  In contrast, the position that the gentleman from Oklahoma (Mr. 
Coburn) and the gentleman from Arizona (Mr. Shadegg) have been willing 
to modify with the gentleman from Florida (Mr. Goss), the gentleman 
from Pennsylvania (Mr. Greenwood), and myself says that what is 
adjudicated is in the contract. More importantly, if the plan follows 
the contract, internal review, and external review, the plan is not 
liable.
  That cannot be said about the Norwood-Dingell plan. If, in fact, 
there is an ability to bring a charge, no matter how remote, no matter 
how qualified, it is not the number of cases that are critical. It is 
the case that says it is not under the plan, and one followed all the 
rules, but one can still be sued.
  No matter how qualified that position is, it is absolutely true that, 
under the Norwood-Dingell plan, no matter how remote, that can occur.
  When an employer looks at that potential exposed liability, there 
will be, and if one does it, that is too many, a number of employers 
who will say that exposure, no matter how limited, is too much. That is 
one of the real key differences that we should be discussing, how much 
exposure, how much protection, how many safeguards are reasonable and 
appropriate.
  On that ground, I think my colleagues will find that Norwood-Dingell 
is too open ended, too exposed, too much relying on third parties able 
to impose themselves and make decisions that are different than were 
contained between the two parties who originally

[[Page H9495]]

wrote the contract. That contract in opposition to the coalition bill 
is, I think, protected on a far, far higher level.
  The gentleman from Georgia (Mr. Norwood) has been standing in the 
well; and if the gentleman from Maryland (Mr. Cardin) wishes to yield 
him time, I would be more than willing to respond to him.
  Mr. Chairman, I reserve the balance of my time.
  Mr. CARDIN. Mr. Chairman, I yield 30 seconds to the gentleman from 
Georgia (Mr. Norwood).
  Mr. NORWOOD. Mr. Chairman, I just simply want to read from our bill 
about the exercise of discretionary authority. We say very clearly, 
unlike the gentleman from California (Mr. Thomas) just described it, we 
say very clearly in this bill that an employer under any circumstances 
cannot be held liable for what they want to put in a plan or for what 
they do not want to put in a plan. That is totally their business, none 
of mine. They cannot be liable regardless of what happens to anybody. 
The only way they can be liable is if they deny a benefit, a treatment 
that is in the plan, and that results in the death of a patient.
  Mr. CARDIN. Mr. Chairman, I yield myself 30 seconds to clarify what 
the gentleman from Georgia (Mr. Norwood) was saying.
  Not only does the bill specifically provide that there is no cause of 
action if they do not provide a particular benefit, but what the 
Norwood-Dingell bill does is say that, if we have a plan of 50 
employees in the State of Maryland, that is currently subject to State 
law, and one that is creative enough to come under ERISA, then we are 
going to treat both of the plans the same as far as their 
responsibility is concerned. I think that is a matter of basic 
fairness.
  Mr. Chairman, I yield 3\1/2\ minutes to the gentleman from Maryland 
(Mr. Wynn).
  Mr. WYNN. Mr. Chairman, I thank the gentleman from Maryland for 
yielding me this time.
  Mr. Chairman, I rise in support of the Dingell-Norwood bill. It is 
the truly bipartisan approach that we need to address the issue of HMO 
reform.
  Now, there are several alternatives, and I believe they are well 
intentioned. I believe, however, Norwood-Dingell is the better bill for 
several reasons. First, it is bipartisan. It is the only bipartisan 
alternative which reflects the thinking of both Democrats and 
Republicans who are serious about reforming our HMO system.
  Second, I want to go to the crux of this debate, which has to do with 
the right to sue. Again, I believe Dingell-Norwood is a superior piece 
of legislation. Now, if we listen to the opponents of Dingell-Norwood, 
we would believe that citizens who need health care really want to buy 
a lawsuit. That is not what people pay their premiums for. They pay 
their premiums to get quality health care.
  The issue of liability, the issue of suits only arises when benefits 
are denied, care is improper. Under those circumstances, the citizen, 
the taxpayer, the consumer, the patient gets the best protection under 
the Dingell-Norwood bill.
  Now, some people, opponents of this bill, would have my colleagues 
believe that this is really just a boon for trial lawyers, and, for 
some reason, we on the Democrat side in particular, as proponents of 
the bill, just want to provide welfare for trial lawyers. Nothing could 
be further from the truth.
  Understand this: the value of the right to sue is not in the lawsuit. 
It is in the deterrence. Because when HMOs understand that they can be 
sued, they have a strong deterrent to provide best quality, the best 
quality of health care. That is the ultimate point. The number of suits 
in relation to the number of patients is ultimately going to be very 
small.
  But the question is, are we motivated by profit or greed, or are we 
motivated by the fact that, if we do not provide good care, one's 
patient could possibly sue one.
  Now, my colleagues will also hear, well, this will result in a 
proliferation of lawsuits, and this will overburden the system and 
increase costs. Not so.
  We have an empirical example in Texas which has implemented a program 
similar to Norwood-Dingell. They have not seen a significant increase 
in the number of lawsuits. Quite the contrary. Because, keep in 
mind, lawsuits are time consuming, cumbersome; and, remember, people do 
not pay premiums for lawsuits. They pay premiums to get quality care.

  Now, Dingell-Norwood says one cannot just rush right into court at 
any rate. First one has to exhaust an administrative process that 
allows for both internal review within the HMO and independent third-
party review by an impartial arbitrator who can look at the situation. 
In most instances, that will resolve the case one way or the other. At 
least based on the Texas experience, that is the case.
  On the other hand, if one still believes one is aggrieved and the 
issue is not resolved, one has the opportunity to go into court to get 
redress for one's grievances.
  The bottom line is simply this, we have maximum deterrence to 
encourage best practices when we have the optimal right to sue. We do 
not have an experience that tells us that we are actually going to get 
an explosion of lawsuits. We have, in fact, a system that has very few 
lawsuits and protection for consumers. Is that not really what we are 
trying to accomplish?
  I believe Dingell-Norwood best accomplishes this goal and best 
protects the consumer-patient in the purchase of health care services. 
I urge adoption of Dingell-Norwood bill.
  Mr. THOMAS. Mr. Chairman, I yield myself 2 minutes.
  Mr. Chairman, notwithstanding that statement, there is a phrase 
``discretionary authority.'' My colleagues can qualify it. They can 
argue that is what it means. It is not defined.
  I guess the most ironic aspect, though, of this discussion is the 
constant argument that doctors are no longer making decisions, that we 
have got to put doctors back in the decision-making key positions.
  I hope somebody finds that ironic that, in the Norwood-Dingell bill, 
the question of whether or not someone has been physically harmed is 
not determined by a medical doctor. It is determined by a jury.
  Under the coalition plan, both on the internal review by medical 
doctors and the external review by medical doctors, that decision is 
made. In Norwood-Dingell, there is a hole one can drive a medical 
malpractice case through because one alleges harm and one goes to 
court. A jury determines something that they have been constantly 
pleading ought to be in the hands of a doctor.
  By the way, was not it desirable for doctors to have medical 
malpractice? Where is it in the bill? Ironically enough, the argument 
that they are doing this for doctors does not contain the thing that 
the doctors have always said they wanted so they would not have to 
practice defensive medicine, so they would not have to overutilize to 
protect themselves. Something as simple as medical malpractice, which 
is present in a number of States, is not available in this bill.
  Mr. Chairman, it is my pleasure to yield 7\1/2\ minutes to the 
gentlewoman from Connecticut (Mrs. Johnson), a member of the 
Subcommittee on Health of the Committee on Ways and Means, someone who 
has worked long and hard on these issues, has examined them, not only 
from someone who deals with this issue in the Congress of the United 
States, but who is very familiar with it from her close relationship in 
the medical community.
  Mrs. JOHNSON of Connecticut. Mr. Chairman, I am very pleased that we 
are having this debate on the floor of the House tonight. I believe 
that, due to the real intense focus of a group of Members on this issue 
over the last few months, we have before us three very thoughtful 
bills.
  I do not want the citizens of this country who are watching this 
debate to miss a very important fact, and that is that any one of these 
bills would force accountability for health care decisions made by HMOs 
and able patients to get the care they need.
  It is essential that we act during this Congress to pass meaningful 
patient protections because patients need it, doctors need it, and HMOs 
need it. For the first time, a national independent external review 
process will help us identify those plans that routinely deny necessary 
care.
  If we hold them publicly accountable, I guarantee they will change 
their ways or dramatically lose their patient enrollment. We will also 
identify those

[[Page H9496]]

plans that are providing timely access to quality care and give them 
the public attention and support they deserve.
  Most importantly, a strong external appeals process will reestablish 
the role of physicians in the health care delivery system as plans must 
use physicians to review claims internally, and the external review can 
be made only by physicians with appropriate specialty of training.
  So there are many bills before us tonight, but they all have certain 
core benefits in common. This internal-external appeals process for the 
first time makes evident nationally controversial decisions made by 
health plan.

                              {time}  2015

  And that will provide us with the information we need and the power 
we need to guarantee that patients get the care they need in a timely 
fashion.
  All the bills provide access to OB-GYN care, access to specialists, 
access to better pediatric care, access to emergency services, 
continuity of care, access to far better information about benefits, 
access to clinical trial coverage, and prohibits gag clauses and 
incentive plans that discourage the delivery of appropriate care. One 
can hardly say this is a partisan debate when the two parties have come 
together in agreement on the majority of the issues at hand, and when 
passage of these positions would address major concerns of the American 
people and have a substantial impact on the way Americans receive their 
health care coverage.
  Now, there is an additional issue that is controversial and, 
unfortunately, has turned partisan. Many of us have come to the 
conclusion that assuring all Americans the right to sue is an important 
component in increasing health plan accountability. Unfortunately, many 
of us are also keenly aware that if we create this right to sue in the 
wrong way that we will create so many opportunities for litigation that 
the cost of insuring all those possibilities will drive premiums up.
  This is an important point, because many Members have said there have 
not been many suits. Of course there have not been many suits. There is 
no clear right to sue. But if we look back at physician liability, we 
can see how suits do drive up costs and how one has to insure to the 
possibilities not just to the existence. The possibilities of suit 
contained in the Norwood-Dingell bill will, without fail, increase the 
number of the uninsured because it will drive premium costs up.
  Equally important, if employers perceive themselves as liable, and 
this is just as big a point, if employers perceive themselves as liable 
by sponsoring a plan or negotiating benefits, they will drop plans, 
whether we say they are technically protected or not. So this bill is 
fraught with dangers, and we must do this job right.
  My goal is to place doctors and patients back in the driving seat of 
health care decisions. Many who have spoken today have worked long and 
hard to make that kind of reform of the system possible and to assure 
that patients get the care they need at the earliest stage of their 
illness. In my opinion, the Dingell-Norwood bill would create systemic 
incentives to choose lawsuits over timely, independent, external 
reviews, driving up costs, forcing small employers to drop plans to 
protect themselves against the possibility of suit, and increasing the 
number of uninsured Americans.
  Without nationwide public review of care decisions, as the external 
and internal appeals process will provide us, we, as a society, and 
health insurance, as a product, cannot develop a health care system 
capable of providing appropriate, timely, and affordable health care. 
That is why adding the right to sue must be done exactly right and must 
not be done in a way that creates an explosion of litigation with all 
the attendant consequences.
  I am a cosponsor of the Coburn-Shadegg coalition substitute, because 
I believe lawsuits are a necessary remedy for patients who have been 
wronged by their managed care plan's decisions, but I oppose opening up 
opportunities for lawsuits where none should exist. Let me give my 
colleagues an example of what I believe to be the systemic incentives 
to lawsuits contained in the Dingell-Norwood bill.
  In laying out the appeals process, internal and external, that bill 
says the decision must be made within 14 days or as soon as possible, 
given the medical exigencies of the case. Now, first of all, imagine 
the Department of Labor writing regulations to define what the medical 
exigencies are; and imagine the medical community trying to figure out 
how to comply with those regulations. That is a problem. But the bigger 
problem is that this passage now creates a case-by-case deadline for 
the reviewers to meet that can be reevaluated retroactively.
  So it is not a 14-day decision. It is a 14-day decision unless it can 
be done earlier. And that can be a point that can be litigated when we 
start from the back end of the line and go back and say this process 
could have made this decision earlier and, therefore, harm has been 
done and liability is established.
  It is that kind of phrase in the Dingell-Norwood bill that gives that 
legislation, and there are many others I could quote, that create 
within that legislation a systemic incentive for litigation.
  Mr. Chairman, let me close by saying that my goal is to put doctors 
and patients back in the driving seat of health care decisions. Lawyers 
driving these decisions is no more desirable in America than insurance 
companies driving these decisions. The right answer is the 85 percent 
of these bills that provide greater access to specialists and timely 
access to appropriate medical care.
  On the issue of the right to sue, we must guarantee it protects 
patients who are harmed by the egregious practices of health plans, and 
we must provide a clear simple process that avoids the ambiguities that 
delight trial lawyers, explodes litigations, drives up costs, and 
drives small employers out of the business of providing health care. 
The Coburn-Shadegg substitute is the right answer.
  Mr. CARDIN. Mr. Chairman, I yield 1\1/2\ minutes to the gentleman 
from Iowa (Mr. Ganske).
  Mr. GANSKE. I wonder if the gentlewoman from Connecticut would return 
to the mike.
  The gentlewoman from Connecticut (Mrs. Johnson) is to be commended, 
because she has really worked hard on a lot of health care issues, but 
she and I have had a discussion several times on this medical 
exigencies part. And she has a concern about that.
  I think it is necessary to have that in a bill in order that a health 
plan does not slow walk to the definition. But let me ask the 
gentlewoman, because I know she feels differently. The gentlewoman 
would not support a bill that has medical exigency language in it; is 
that correct?
  Mrs. JOHNSON of Connecticut. Mr. Chairman, will the gentleman yield?
  Mr. GANSKE. I yield to the gentlewoman from Connecticut.
  Mrs. JOHNSON of Connecticut. That is correct, I would not support 
that bill, unless it has a very good appeals process in place.
  We were one of the first States to do this, and now the gentleman 
wants to impose on our appeals process that is working. I do not mind 
shortening the time. That is not hard for a State to adjust to. But the 
gentleman wants to impose this language that is very hard to adjust to, 
and that really throws what is a simple clear system into an 
unpredictable, and uninsurable liability, I believe, system.
  Mr. GANSKE. Reclaiming my time, Mr. Chairman, I want to be clear. The 
gentlewoman will not support a bill that has medical exigency language 
in it?
  Mrs. JOHNSON of Connecticut. If the gentleman will continue to yield, 
I will not support the Dingell-Norwood bill because this is one of the 
passages among many others that create a systemic explosion of 
litigations.
  Mr. GANSKE. Let me point out to the gentlewoman that the bill she is 
supporting has medical exigency language that she says she does not 
like, yet she criticizes our bill on, on page 7, on page 11, on page 
52, and on page 85. And they all are in the same time frame.
  Mrs. JOHNSON of Connecticut. That may be true but it is not in 
context, if the gentleman will yield.
  It is in the context of a totally different ability to sue with all 
the different definitions. The gentleman talked earlier about the 
discretion language.

[[Page H9497]]

  Mr. GANSKE. Here is the language from the bill that the gentlewoman 
supports. The decision on expedited review must be made according to 
the medical exigencies of the case. That is in the gentlewoman's bill.
  Mrs. JOHNSON of Connecticut. Yes, but in a context that functions 
very differently than this language does.
  Mr. CARDIN. Mr. Chairman, I yield 4 minutes to the gentleman from 
Washington (Mr. McDermott), a member of the Committee on Ways and Means 
and a distinguished member of the Subcommittee on Health.
  Mr. McDERMOTT. Mr. Chairman, I thank the gentleman for yielding me 
this time.
  I first want to say that last year, we passed a bill out of this 
House that was a terrible bill, absolutely terrible bill, and it 
rightly died over in the Senate. They never did a thing. But the 
persistence of two Members of this House, the gentleman from Iowa (Mr. 
Ganske) and the gentleman from Georgia (Mr. Norwood) needs to be 
acknowledged. They knew what was wrong with that bill, and they came 
back and persisted and put a bill on the floor which makes great sense 
to anybody involved in the medical profession. That is why hundreds of 
organizations, of physicians and other health care providers are deeply 
supportive of this bill. It is because it meets the needs of people who 
deal on a day-to-day basis in this field.
  There are two issues here that I think are really central. We can get 
into exigencies and all these fancy words, but there are two things 
that really this bill is about. One is about the question of ERISA. If 
we allow that Federal law to protect from this bill a whole series of 
100 million people in this country, we will not have done a good job.
  The reason we need to preempt ERISA is that we have to give 
everybody, whether they are under a State plan, in Maryland or 
Washington State or Nevada or working for a major corporation shielded 
by ERISA, they all ought to have the same protection. There should be 
no difference. And that, in my view, is what the number of all these 
other bills are about, is to keep that ERISA protection some way or 
other that they will be treated differently.
  Now, the second issue, and I think this one is more personal. Having 
recently been a patient and having had open heart surgery, I have been 
in a hospital and I had my chest opened and they did all this stuff, 
and within 5 days the doctor came in and patted me on the back and 
said, ``Jim, you can go home.'' Now, the essence of why we are here on 
this patient protection act is that everybody, when they are 
vulnerable, as I felt then, wants to know that that decision was made 
by my doctor, who knows me and cares about me. I do not want some 
insurance company person saying, ``Well, let me see. Open heart 
surgery: 5 days. Home you go.'' I want it to be my doctor that looks at 
me and listens to my chest and makes the decision.
  Now, the gentleman from California says, oh, this is no problem, 
doctors making the decisions, blah, blah, blah. Is that the reason we 
had to come in here and pass a bill prohibiting drive-by baby 
deliveries, as we did 2 years ago? And the next year we came in and we 
stuck an amendment into a military appropriations bill or something or 
other, an authorization, saying that we were not going to have drive-by 
mastectomies. A woman comes to the hospital in the morning; and in the 
afternoon, she goes home. Who decided that? Did the doctor decide it? 
No. Insurance companies were throwing people out in the afternoon. And 
we said, wait a minute, the doctor ought to have something to say about 
that.
  And this whole issue is about whether or not we give the assurance to 
all the American public that when they are in a vulnerable state after 
surgery, after cancer treatment, after whatever, that they have the 
assurance that it is their provider that made the decision about what 
happened to them. They do not want to sue. I did not want to sue. I 
simply wanted the assurance that my doctor made the decision.
  Mr. THOMAS. Mr. Chairman, I yield 2 minutes to the gentlewoman from 
Illinois (Mrs. Biggert).
  (Mrs. BIGGERT asked and was given permission to revise and extend her 
remarks.)
  Mrs. BIGGERT. Mr. Chairman, I rise in opposition to H.R. 2723, the 
Bipartisan Consensus Managed Care Improvement Act.
  Mr. Chairman, I have heard much talk in this chamber about what is 
wrong in the area of private health insurance. Members from both sides 
of the aisle have concentrated on what is wrong with HMOs and ignored 
the many good things that have happened and are happening in private 
health care.

                              {time}  2030

  What I think we are forgetting is that employers are voluntarily 
providing health insurance coverage for their employees. What we are 
also forgetting is that our employee-based system of health care has 
been the best in the world and most employees are pleased with their 
care.
  Mr. Chairman, I fear that what we are doing today will jeopardize 
millions of employees who are satisfied with both the cost and 
protection offered by their plans. Employers throughout my district 
tell me the risk of liability will drive them out of the health care 
business. They will simply give their employees a check. Who loses 
then? Employees.
  Without the ability to negotiate the lower rates secured by their 
employers, employees will be forced to pay rates double or triple for 
the same coverage.
  Mr. Chairman, the challenge we face today is encouraging more 
employers to offer health insurance, not fewer. We need access and 
accountability, but reform should preserve our ability to offer more 
cost-effective quality health care, not less.
  I am afraid the bill offered by the gentleman from Georgia (Mr. 
Norwood) and the gentleman from Michigan (Mr. Dingell) will produce the 
latter.
  I urge my colleagues to oppose H.R. 2723.
  Mr. CARDIN. Mr. Chairman, I yield 2 minutes to the gentlewoman from 
New York (Ms. Velazquez).
  Ms. VELAZQUEZ. Mr. Chairman, we are experiencing a health care crisis 
in our country. Forty-three million Americans are uninsured. Almost 11 
million of the insured are children. One in five uninsured adults went 
without needed health care in the past year. This is unacceptable.
  Equally unacceptable are the more than 50 percent of insured 
Americans who are in HMOs and are denied coverage in emergencies, 
access to specialists, and recourse if wrongfully denied necessary 
medical treatment. This bill does something about that.
  What matters to Americans is their ability to take care of their 
families in an emergency. What matters to Americans is that their 
children will not be turned away from an emergency room because the 
hospital is not on the family's HMO plan. What matters to Americans is 
that they will have access to the best treatment by the best doctor 
when they or their children are sick.
  This bill will protect patients. No longer will HMOs deny patients 
access to specialists and emergency care. No longer will HMOs gag 
doctors and restrict their freedom to disclose medical treatment 
options to their patients.
  Arguably, the most progressive element of this bill will allow 
patients to pursue punitive damages in State courts when they have been 
wrongfully denied necessary treatment by an HMO.
  It makes me sick to hear opponents of this bill try to convince the 
American public that we will pay inflated premiums because of this 
protection. I have news for them. We do not buy it. We know who will 
pay the price if we do not demand more accountability in health care. 
The American public.
  I urge everyone here to vote in favor of this bill. By doing so, we 
will take the first step toward addressing the health care needs of 
Americans.
  Mr. CARDIN. Mr. Chairman, I yield 4 minutes to the gentlewoman from 
Texas (Ms. Eddie Bernice Johnson).
  Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Chairman, this really is a 
historic day for this House. For the first time, Members will have an 
opportunity to fundamentally change how managed care operates in this 
Nation.
  For far too long, insurance companies have based their treatment 
decisions not on what is best for their patients but what is best for 
the companies' stockholders. It is time to put health care providers 
and patients back into the business of patient care.

[[Page H9498]]

  We need the Norwood-Dingell bill to ensure that patients have access 
to emergency care and to specialists. HMOs need to be prohibited from 
gagging doctors and other providers so that they are prevented from 
telling their patients of all the treatment options available.
  What are the insurance companies afraid of? Are they afraid of their 
own policies?
  Patients also need the right to appeal when they disagree with HMO 
suggested treatment. The Norwood-Dingell bill grants patients internal 
and external appeals, a process to ensure that the best possible 
treatments are made. The bill permits patients or their families who 
have been injured or die as a result of the HMO's denial of care to sue 
in State courts.
  What is wrong with that? If the insurance companies are confident of 
their policies, what is wrong with that? This is America.
  The Norwood-Dingell bill, however, does not invite frivolous 
lawsuits. It imposes the number of limitations on lawsuits. These 
restrictions include those damages only allowable by State law, no 
punitive damages provided the HMO complied with an external reviewer's 
decision and no plan would be required to cover services not provided 
in the contract.
  My State of Texas has a patients' bill of rights. This legislation 
took effect 2 years ago. And while HMOs serve more than 4 million 
patients in Texas, there have been only five lawsuits resulting from 
the legislation. That is hardly a flood of lawsuits.
  To quote Senator David Sibley, one of my colleagues when I was in the 
Texas Senate, the bill's Republican sponsor, ``The sky didn't fall'' 
with its passage.
  The number of lawsuits is low because our patients are fully using 
the external review process, and that is a component of the Norwood-
Dingell bill. More than 700 patients have used that external review 
process in the past 2 years to appeal decisions made by health plans.
  Critics of the Norwood-Dingell bill have said it will increase health 
care costs. Since Texas's bill of rights has been in effect, premiums 
in our State have been less than the national average, while health 
care costs rose 3.7 percent nationally in 1998. The Texas health care 
cost increased only by 1.1 percent. And these are figures done by the 
Texas Medical Association.
  As a former registered, degreed nurse, I strongly understand the 
relationship between a patient's involvement in his or her treatment 
and quality health care. We cannot have one without the other.
  The Norwood-Dingell bill will create a treatment environment where 
patients and doctors can work together with insurance companies to 
produce the best patient care and the best patient outcomes.
  I urge all Members to please support this bill. Let us put health 
care where the patients are.
  Mr. THOMAS. Mr. Chairman, I yield myself 3\1/2\ minutes.
  Mr. Chairman, there was a colloquy just a short time ago on the 
exigency question. I had said sometime earlier that it was possible to 
abort the system under Norwood-Dingell and go to jail if they claim 
that they have been harmed. And it could be denial of medicine for one 
day, denial of a procedure for one day. That was the point that the 
gentlewoman from Connecticut was talking about, that although there are 
numbers stated in the bill, there are ways to short-circuit those 
numbers and, notwithstanding the internal and external appeal language, 
go to court.
  What was read from the Goss-Coburn-Shadegg provision claiming to be 
loaded with exigencies is under the section that deals with the 
emergency 48-hour provision. The 14-day time frame is the ordinary one 
in which they are required to exhaust the internal and the external. 
And then based upon the medical exigency, they have a 48-hour 
capability.
  In other words, instead of writing all of the medical conditions that 
would trigger the 48 hours, they use the phrase ``medical exigency.'' 
The English word was the same. The location and the usage was entirely 
different. I will tell my colleagues, that has been the basis for a 
number of challenges in this debate. Just because a word is there does 
not mean anything. As most people know, it is the context, the 
location, and how that word is used.
  Let me also point out that although the Clinton administration is 
pleading for us to move this kind of legislation, and we are talking 
about in the coalition bill a fast and fixed 14 days in ordinary 
situations on the internal appeal, 14 days on ordinary situations in 
the external appeal, and in both situations, depending upon the medical 
exigencies, 48 hours.
  The Clinton administration, with a stroke of a pen, could change the 
appeals procedure in Medicare. Do my colleagues know what the appeals 
procedure in Medicare is today? For Part A on a fair hearing, it is 52 
days. And if they want to appeal that decision, on average, it is 310 
days.
  Why are they not making the kinds of changes in Medicare law that 
they are arguing ought to be imposed on the private sector?
  Now, if my colleagues think that is bad, in the Part B appeals 
provision, currently it is 524 days. It seems to me a fixed 14 days and 
in serious conditions 48 hours with medical doctors reviewing the 
appeal, not the rush to judgment, not the claim of harm, not the 
ability to go to court and let a jury decide whether or not they are 
harmed, but it seems to me some folks ought to go back and with a 
stroke of the pen make the changes in Medicare that they are claiming 
are so necessary to be imposed on the private sector.
  Mr. CARDIN. Mr. Chairman, I yield 1 minute to the gentleman from Iowa 
(Mr. Ganske).
  Mr. GANSKE. Mr. Chairman, I appreciate the gentleman yielding the 
time.
  Mr. Chairman, I would point out to the gentleman from California (Mr. 
Thomas) that on page 7, lines 25 through 35, are not ``in the expedited 
care,'' they are ``in the ongoing care.'' And I point out that on page 
47, the lines that talk in the Thomas bill are not ``in the expedited 
area,'' they are ``in the ongoing care'' concurrent review sections.
  So I am just glad that my colleague has recognized that there are 
places in the bill.
  Mrs. JOHNSON of Connecticut. Mr. Chairman, will the gentleman yield?
  Mr. GANSKE. I yield to the gentlewoman from Connecticut.
  Mrs. JOHNSON of Connecticut. Mr. Chairman, the concurrent care, that 
is what the word ``concurrent'' means, it is during that 48-hour 
period.
  In the longer 14-day period, that language does not appear. It is 
appropriate when they have only 48 hours and they look at whether the 
person can stay in the hospital then it ought to be as quick as 
possible, and it is the same argument the gentleman gave me about why 
it is important.
  Mr. GANSKE. Mr. Chairman, reclaiming my time, I appreciate the 
comments of the gentlewoman because it conforms with what we have said 
in these certain areas. We need to have some flexibility in that.
  Mr. CARDIN. Mr. Chairman, I yield 2 minutes to the gentlewoman from 
Florida (Ms. Brown).
  Ms. BROWN of Florida. Mr. Chairman, today we have a chance to do the 
right thing for millions of Americans who are currently being served by 
the HMO by holding health care plans accountable when they deny 
patients the care that they need.
  I just suffered through a very painful experience of the death of a 
very close relative. It was a difficult experience made even more 
difficult because of the HMO restrictions we face.
  For example, a family member is in the hospital for a week and they 
have to come out and be placed back in because even though the doctor 
said that the person needs to stay in the hospital or they have to go 
to a rehab, they cannot go to the one close to their home; they have to 
go to one miles away.
  We know their health care plan should make sense. It should not cause 
headaches.
  Mr. Chairman, this bill brings dignity back to the health care for 
the 4 million people in my great State of Florida who use HMOs. We did 
not pass a health care plan in 1993. That did not mean that the problem 
went away.
  Shame on this Congress if we miss this opportunity to provide genuine 
protection from harm to the citizens that are counting on our 
leadership. Do the right thing and vote for the Dingell-Norwood bill.
  Mr. THOMAS. Mr. Chairman, it is my pleasure to yield 5\1/2\ minutes 
to the gentleman from Florida (Mr. Weldon).

[[Page H9499]]

  Mr. WELDON of Florida. Mr. Chairman, I thank the gentleman for 
yielding me the time.
  Mr. Chairman, I rise to speak in support of the Goss-Coburn-Shadegg-
Thomas bill. And let me explain why, should that not pass, I intend to 
vote for the Norwood-Dingell bill. But first I would like to make a few 
general comments regarding how we got into the problem that we are in 
today in the United States with managed care.
  A health care plan in the early 1960s, a plan that we all grew up and 
became used to where there was very little interference in the doctor-
patient relationship cost a family of four a few hundred dollars a 
year. But along came developments like MRI scanners, CT scanners, 
third-generation cephalosporins, new surgical procedures to treat 
glaucoma diabetic retinopathy, all good things that prolonged life, 
improved the quality of life, reduced disability but significantly 
increased costs.

                              {time}  2045

  The pressure of the cost burden on our health care system led many 
health care economists to look at the perversity in our health care 
system, where the doctor was not responsible for costs, nor the 
consumer; the patient was responsible for costs. Both parties were 
really not regarding costs at all.
  Now, what should have been done was exploring alternatives that 
actually introduced a true marketplace in health care, which is along 
the lines of some of the reforms we are trying to establish, but 
instead what was established was managed care, HMOs.
  I would like to say, in defense of those entities, while it is true 
that there are problems in HMOs and people are being injured and are 
dying, the system that they replaced was a system where people were 
injured and were being killed, and the body of information on this is 
out there. It is abundant.
  Many economists looked at the issue that there were perverse 
incentives that caused providers to provide excessive care in some 
areas such as Cesarian sections, there is abundant data to show that 
there were too many Cesarian sections; and, yes, there were people who 
had unnecessary complications; and some people, unfortunately actually, 
died from it.
  Now, I believe it is entirely in order for us to try today to address 
the problems, the perverse problem in the HMO field, where there is an 
incentive not to provide care.
  Now, I would like to point out to my colleagues that I met with 
officials from the AMA several months ago; and at that time, they said 
to me that they thought that a health care reform package that had a 
good internal and external review, without any litigation language, 
would be sufficient; and that is because their primary interest was 
quality of care.
  I believe the people at AMA, that is their real interest, in 
preserving the quality of care. Unfortunately, some of the leaders of 
the underlying Norwood-Dingell-Ganske bill had come to the conclusion 
at the same time that I was having that discussion with the AMA that 
our leadership on this side of the aisle was so determined not to pass 
any type of reform that they went over to the other side of the aisle 
and agreed to a proposal that introduces a tremendous amount of new 
litigation.
  If someone asked me what is the real solution to the problem that is 
at hand, it is to open up insurance companies and HMOs to litigation 
because they are practicing medicine. Today, when I make rounds at the 
hospital, third party payers can come in and say, ``No, Dr. Weldon. If 
you want to send a patient home in 2 days, we do not agree; they have 
to go home now. No, they cannot go home on that antibiotic, they will 
go home on this antibiotic.'' That is practicing medicine, and I 
believe they should be held accountable for that, in all the facets 
which they are practicing medicine.
  There should be reasonable caps and limits on punitive damages and on 
pain and suffering claims. The other side of the aisle refuses to agree 
to any of that language, and the President of the United States refuses 
to agree to any of that language.
  The bill we are primarily talking about right now, the substitute 
with the name of the gentleman from California (Mr. Thomas) on it, 
tries to institute some reasonable limits on litigation, reasonable 
limits on litigation that I feel most of the Republican supporters of 
the Norwood-Dingell bill actually want to see in place; maybe not this 
language.
  My hope is that as we move from the House to a conference committee, 
that we will finally have a product that places patients first and the 
doctor/patient relationship first and that does not open up American 
courts to more and more litigation.
  Mr. CARDIN. Mr. Chairman, I yield 3 minutes to the gentleman from 
Iowa (Mr. Ganske).
  Mr. GANKSE. Mr. Chairman, I would just like to thank my colleague, 
the gentleman from Florida (Mr. Weldon), for his support for the 
Norwood-Dingell bill. He is a family physician. He has been on the 
front lines. The American Academy of Family Physicians has endorsed the 
bipartisan bill.
  Mr. THOMAS. Mr. Chairman, will the gentleman yield?
  Mr. GANKSE. I yield to the gentleman from California.
  Mr. THOMAS. I believe the gentleman made a misstatement, and he can 
take it on my time.
  Mr. GANKSE. What was my misstatement?
  Mr. THOMAS. The gentleman said he was supporting the Goss-Coburn-
Shadegg-Greenwood-Thomas bill and that under the rule, if it passes, I 
want the gentleman to characterize accurately his statement.
  Mr. GANKSE. Mr. Chairman, reclaiming my time, I was accurately 
stating that the gentleman from Florida (Mr. Weldon) said that he would 
support the Norwood-Dingell bill.
  I hope we get to the Norwood-Dingell bill, to be quite frank. I know 
the gentleman from California (Mr. Thomas) will try to prevent that.
  I would point out that the American Academy of Family Physicians has 
endorsed the Norwood-Dingell bill. They are on the front line. My 
colleague from Florida is on the front line. He understands that we 
need HMO reform.
  I do want to specifically, though, thank the gentlewoman from 
Connecticut for her remarks because this is about much more than just a 
debate on liability. The liability provisions that are in this bill are 
almost verbatim the ones that the gentleman from Oklahoma (Mr. Coburn) 
and the gentleman from Georgia (Mr. Norwood) and I wrote at the behest 
of the Republican chairman of the Committee on Commerce. Quite frankly, 
we thought it was a very good faith effort and compromise on the part 
of the Democrats to agree to a punitive damages liability provision 
that we have in that bill that would protect employers from any 
punitive damages liability if they followed the recommendation of that 
independent panel. I thought that represented a good bipartisan 
compromise, and I very much appreciate my colleagues from the other 
side, but this bill is about so much more than that.
  It is about emergency services, people getting the care they need. It 
is about specialty care, people getting the care they need. It is about 
people who have chronic care problems getting the care they need; women 
getting the care they need; children getting the care they need, having 
continuity of care so that the gentleman from Oklahoma (Mr. Coburn) can 
continue to see his patients and the HMOs cannot yank him around. This 
is about clinical trials. The American Cancer Society endorses our bill 
because we have clinical trials in it, as well as numerous other 
patient advocacy groups.
  This is about choice of plans. This is about getting health plan 
information to beneficiaries. This is about allowing appropriate 
utilization. It is about allowing internal appeals. It is preventing 
gag rules that prevent people from getting the information they need. 
It is about prompt payment of claims. It is about paperwork 
simplification. These are all things that are in the bipartisan 
Norwood-Dingell bill. This is about so much more than liability. This 
is about patients finally having some ground rules that their HMOs have 
to follow.
  Mr. THOMAS. Mr. Chairman, I yield 30 seconds to the gentleman from 
Oklahoma (Mr. Coburn), one of the central participants in this debate.
  Mr. COBURN. Mr. Chairman, I would make two notes. Number one, the 
American Academy of Family Practice

[[Page H9500]]

has endorsed our bill as well, the Goss-Coburn-Shadegg-Thomas bill. 
Number two is, the gentleman from Florida (Mr. Weldon) is an internist, 
not a family practice physician. Number three is, we do have cancer 
clinical trials. And, number four is, we in fact have network adequacy 
which is not in the consensus bill, which is if there is not an 
adequate network there is not care.
  Mr. CARDIN. Mr. Chairman, I yield 30 seconds to the gentleman from 
Iowa (Mr. Ganske).
  Mr. GANKSE. Mr. Chairman, my apologies to the gentleman from Florida 
(Mr. Weldon), who is an internist.
  I would point out that the American Society of Internal Medicine has 
endorsed the bipartisan bill, too.
  Mr. CARDIN. Mr. Chairman, I yield myself the balance of my time.
  Mr. Chairman, I think the choice here is very clear. There have been 
many groups and many Members working for many years to get an effective 
patient bill of rights enacted by this Congress. Three hundred groups 
have endorsed the Norwood-Dingell-Ganske bill. They understand who has 
been working to make sure we pass a bill that will be effective, that 
does the right thing. It is very interesting to see the eleventh hour 
efforts to try to confuse what we should do.
  It is very interesting that the Norwood-Dingell bill has been 
available. People have looked at it. It has been worked on. It has been 
given the public airing necessary in order to make sure it is drafted 
properly.
  Now, we saw last year those who did not want to see a Patients' Bill 
of Rights pass but they did, and bringing out a bill without any real 
effort made to deal with the issues. Now we see this year an eleventh 
hour effort in order to confuse the people, but the people are not 
confused. They know where the advocates are. They know where the people 
are who have been working on this issue, and it is the Norwood-Dingell 
bill.
  Mr. Chairman, how much time do I have remaining?
  The CHAIRMAN. The gentleman from Maryland (Mr. Cardin) has 1\3/4\ 
minutes remaining.
  Mr. CARDIN. Mr. Chairman, I yield the balance of my time to the 
gentleman from Maryland (Mr. Hoyer).
  (Mr. Hoyer asked and was given permission to revise and extend his 
remarks.)
  Mr. HOYER. Mr. Chairman, I thank the distinguished gentleman from 
Maryland (Mr. Cardin) for yielding me this time.
  Mr. Chairman, I rise in very strong support of this piece of 
legislation. On Monday, I met with a constituent of mine, Sharyl Asbra 
of Waldorf, Maryland. She went to the hospital in June complaining of 
severe abdominal pains. After diagnosing her condition, the doctors 
recommended she have a hysterectomy, but her insurance company denied 
the procedure. After weeks and weeks and weeks and weeks of pain, only 
after Dr. Scott Kelso repeatedly called the insurer on Sharyl's behalf 
did the insurer relent and let Sharyl get the necessary treatment. This 
was after she had to be off work, could not care for her children, her 
mother had to do so, and after she experienced a long period of pain.
  This bill is about real people who have a real problem. It is about 
people who need medical care, as determined by their doctors and by 
themselves. It is about ensuring that they have access to the medical 
care that they need, and that that decision will be made by doctors who 
are trained to make those decisions and who have sworn an oath of 
personal responsibility to those patients to ensure that they get the 
kind of quality health care that is available in this country if it 
will be paid for.
  I rise in strong support of this bipartisan bill to help Sharyl and 
millions and millions of others like her in America.
  Mr. THOMAS. Mr. Chairman, I yield myself the balance of my time.
  Mr. Chairman, I would tell my friend from Maryland, he cannot have it 
both ways. When we were debating the rule, there was plea after plea 
from the other side of the aisle, do not vote for the rule because they 
would not let us have an eleventh hour amendment to our bill, and yet 
they say that they have had their bill without making changes.
  They cannot have it both ways. Either they pleaded for an eleventh 
hour amendment, they did not get it and they voted against the rule, or 
they have a position they have held for some time.
  We can read off hundreds of medical associations. They have endorsed 
the Coburn-Shadegg bill, just as they have endorsed the other. I can 
say, we fall by the wayside when we reach about 200 endorsements. The 
reason we do not reach the level of 300, that the gentleman from 
Maryland cited, is because we do not have the labor unions and the 
trial lawyers.
  The trial lawyers are endorsing their bill. Why? Because their bill 
will allow trial lawyers, without medical doctors proving harm, to go 
to the courtroom and have open-ended penalties imposed by juries. 
Frankly, we do not think those extra 100 endorsements are the kind of 
endorsements Americans think should be made in today's health care 
structure.
  Our bill makes sure that medical doctors make the decision, and when 
the plan is wrong, one can sue.

                              {time}  2100

  What I find most egregious is the fact that employers struggling to 
provide health care to their employees if Norwood-Dingell becomes law, 
will have to examine the exposure to those same trial lawyers and 
juries and decide if the risk is worth it. It is a sad statement to 
make, but I believe a factual one; if Norwood-Dingell becomes law, 
there will be fewer people covered. On the other hand, if the Goss-
Coburn-Shadegg-Greenwood-Thomas bill becomes law, we will have an 
ordered process, internal and external, reviewed by medical doctors, 
and if the plan is wrong, they have to provide the coverage. If there 
has been medical harm, they can go to court, and they can, yes, those 
now famous phrases, sue their HMO, but it is done in an orderly 
fashion, and guess what? The trial lawyers do not endorse our proposal. 
Why? Because it is not open ended, and it is not left up to a jury to 
determine injury. If we are going to advance medical coverage in this 
country, it is clear one of the things we have to do is to allow 
patients to get what they rightfully deserve, and, if harmed, to get 
proper adjudication. But what we do not need is open-ended trial juries 
with trial lawyers endorsing the process. They proudly announce they 
have the trial lawyers on their side. We proudly announce we do not, 
and that, I think, is the bottom line.
  Mr. ARCHER. Mr. Chairman, two principles have forever guided this 
great nation of ours--freedom and liberty. As a democratic nation whose 
strength is derived from its people, we have achieved unparalleled 
success, unsurpassed by any nation on this planet. It's no wonder that 
people around the globe want to come here and be called Americans. 
We're the envy of the world.
  Our nation's health care system is no different. Americans don't 
travel abroad to get health care. Visitors come here--to the Mayo 
Clinic, to Mt. Sinai, to the Texas Medical Center, because we are the 
best.
  And the reason our health care system is the best is because it's 
based on free-market principles, on choice and on individualism. But we 
lose that choice when we take it out of the hands of doctors and 
patients and put it in the laps of trial lawyers. As we consider a plan 
to protect and strengthen a free people who worry about the health care 
needs of themselves and their families, we must do so with our guiding 
principles in mind.
  The best patient protection of all is health insurance, and the 
number one barrier to access to cost. But this big government approach 
makes this problem worse by raising the costs of health insurance 
premiums even higher, pricing thousands of American families out of the 
market. But Democrats don't stop there.
  After they've raised health costs for Americans and made it more 
expensive for businesses to provide employees with health insurance, 
they want to pay for it by turning around and sticking it to those same 
companies under the guise of ``closing loopholes.'' That's why the 
National Taxpayers Union and Americans for Tax Reform oppose the 
Democrats' one-two punch, because it slams the very people that create 
jobs and provide 70 percent of Americans with their health insurance.
  Frivolous lawsuits won't promote individual choice. More trial 
lawyers won't mean better care. And higher punitive damages won't save 
one American from falling into the ranks of the uninsured.

[[Page H9501]]

  The best patient protections we can offer to families and individuals 
is health care coverage. Forty-four million Americans go without that 
protection every day. Isn't it time we did something for them, and not 
the special interests? The American people want the choice and freedom 
to be examined by a doctor in the treatment room, not cross-examined by 
an attorney in the courtroom.
  Finaly, Mr. Chairman, let me point out that the base bill and the 
amendments made in order under the rule address tax matters under the 
jurisdiction of the Committee on Ways and Means.
  Specifically, section 401 of H.R. 2723, as introduced, contains a 
single tax code amendment to enforce the legislation's so-called 
patient protections through the existing tax penalty structure in the 
tax code. The bill aims to conform to the structure established in the 
original HIPAA law by including health reforms in both the Public 
Health Service Act and ERISA, as well as by reference in the tax code. 
The Houghton substitute includes an identical provision.
  Title III of the Boehner substitute and Title III of the Goss 
substitute include similar provisions necessary to mirror the proposed 
health reforms in the tax code. However, these two amendments have been 
drafted to more closely follow the format used in the HIPAA 
legislation.
  Mr. COX. Mr. Chairman, my colleagues today are addressing very real 
concerns that patients and doctors have raised. The current system of 
``managed care'' imposes restrictions on a patient's choice of doctors. 
It interferes with the doctor-patient relationship. And it requires 
patients to navigate through a maze of frustrating health care 
bureaucracy. Indeed, the only dysfunction the current system does not 
yet suffer from is an epidemic of litigation that drives up health care 
costs. More lawsuits is not the right prescription for today's health 
care ailments. Rather, we need more consumer choice. Choice, quality, 
and competition should be the watchwords of this debate.
  In a competitive market, when consumers don't like what they want, 
they go elsewhere. In today's health care market, where employers often 
provide only one health care plan to employees, that is often not 
possible. Workers who are dissatisfied with their HMO care should have 
real alternatives to choose from, not just a lawsuit against a plan 
they didn't really want to begin with.
  Today, 90 percent of insured Americans are covered through their 
employers. Fully 30 percent of employers provide only one health plan 
to their employees. And a whopping 70 percent offer only no more than 
two choices. The tragic cause of Americans' lack of health care choice 
is federal regulation. The tax code provides a special break for 
employer-provided third-party payment plans. It provides a severe 
disincentive for individuals to shop for their own insurance, fee-for-
service medicine, or other health care not preapproved by Uncle Sam. As 
a result, individuals are left with a Hobson's choice--employer-
provided coverage or nothing. When your employer contracts with an HMO 
provider, what choice do you have?
  Today's bill piles on more regulation and litigation on top of this 
tragic mess. It further regulates how you interact with your HMO. It 
does not increase individual choice; it only increases the cost of 
health care for everyone. Increased health care costs, in turn, mean 
rationing of services, limits on patient choice, shortages of the 
latest high-tech equipment, and long waiting lists for operations. 
Consumers will see an increase in premiums, and many will lose their 
benefits or their insurance altogether as employers are forces to drop 
coverage due to higher costs.
  It's time to give Americans more choice in their health care, and 
more control over their health care dollars. Instead, however, this 
bill takes us towards more and more government control.
  Until individuals have an alternative to an employer-provided HMO, 
the fool's gold of ever-increasing litigation and regulation will 
beckon us toward disaster. The solution is to resist the calls for more 
lawsuits and more government controls, and to move to a genuinely 
competitive market that will empower consumers, put patients and 
doctors back together and cut out the bureaucracy, deliver reduced 
costs, provide increased access, and guarantee improved health care 
quality.
  Ms. PELOSI. Mr. Chairman, there are few things more important to 
family security than access to quality health care. People's health 
must come before the corporate bottom line. We must preserve and 
protect the doctor-patient relationship, and put health care providers 
ahead of insurance company accountants. At least 13 million 
Californians and 122 million Americans are now without enforceable 
patient protections on their health care plans. To protect them, 
Congress must act to pass a real Patients' Bill of Rights.
  Take, for example, the person who has a painful health condition. Her 
doctor would like to prescribe a medication with the fewest side 
effects, but that drug is not on the managed care company's formulary. 
Or consider a person with a chronic disease who needs frequent access 
to a specialist, but is required to get a referral from his primary 
care doctor for each specialty visit.
  H.R. 2723, the Norwood-Dingell Patients' Rights Bill, would provide 
needed protections for these and other health care consumers. The bill 
would: ensure access to emergency care without prior authorization; 
allow people to choose their own primary care and specialty providers; 
and give patients the right to hold HMO's accountable.
  The other bills we will consider today fall far short of guaranteeing 
many important protections. H.R. 2824, introduced by Representatives 
Coburn and Shadegg, and H.R. 2926, introduced by Representative 
Boehner, differ from the Consensus bill in important ways. In 
particular, they would not provide patients with the ability to hold 
health plans accountable in state courts, which typically handle injury 
and wrongful death suits, and are less expensive and more accessible 
than federal courts.
  Mr. Chairman, last week we learned that the number of the uninsured 
in this country has increased to over 44 million. For years, many of my 
colleagues and I have insisted that we must expand access to health 
care. But H.R. 2290, the Quality Care for the Uninsured Act, would 
institute untested or failed health programs and cost at least $48 
billion over ten years.
  For example, ``Association Health Plans'' authorized in the bill 
would repeal state-based health care reform initiatives that address 
the needs of local consumers, and eliminate several consumer 
protections designed to prevent fraud and abuse. H.R. 2290 would 
undermine our ability to pass comprehensive and bipartisan patient 
protection this year. It should be rejected by the House.
  The Bipartisan Consensus Managed Care Improvement Act provides a 
broad range of important protections for health care consumers. The 
American Medical Association has stated that the bill is ``the only 
real patients' bill of rights,'' and the Children's Defense Fund feels 
that the legislation is ``tailored to meet the health care needs of 
children and their families.'' I urge my colleagues to support real 
patient protection by voting for H.R. 2723.
  Ms. MILLENDER-McDONALD. Mr. Chairman, our day has been consumed with 
debate on a desperate rule drafted to derail the bipartisan managed 
care reform train. This disheartens me because the Norwood-Dingell bill 
is a good bill. It is such a good bill; the three alternatives have 
used it as their base. Why is that? Whatever the reasons may be, they 
are all for naught if this good bill has to be joined with the poison 
pill train that the Rules Committee placed on our tracks.
  The Norwood-Dingell bill allows women to obtain routine ob/gyn care 
for their ob/gyn without prior authorizations or referral. This is a 
good step in the right direction.
  Mr. Chairman, this bill needs a straight up or down vote. When a 
straight up or down vote--without poison pills is allowed, I urge my 
colleagues to vote YES on the Norwood-Dingell bill.
  Mr. KUCINICH. Mr. Chairman, I rise in favor of this bill. If HMOs are 
left free to determine the quality and availability of health care in 
America, they will have an incentive to deny care to those who need it 
and reward their executives and shareholders with these quote unquote 
``savings''. Studies show that HMO enrollees receive \1/3\ less home 
visits after a hospital stay (1994 Health Care Finance Review study). 
HMO enrollees are three times more likely to report problems getting 
medical care than publicly owned and managed Medicare beneficiaries 
(1969 Study by the Physician Payment Review Commission, a Congressional 
advisory commission). Meanwhile, private HMO executives are richly-
compensated. The total cash compensation received by the CEOs of just 
the 3 largest HMO companies totaled 33.3 million dollars. Three 
companies: Aetna, Inc.--$888,568, Pacifi Care Health System Inc.--$1.7 
million, Oxford Health Plans--$30.7 million.
  Now, our job in Congress is to pass laws. But what good is a law that 
is not enforced? The easiest way for HMOs to limit health care costs is 
to deny people care to those who need it most. This bill gives citizens 
the opportunity to hold HMOs accountable for trimming costs at the 
expense of the sick. If a lawsuit against an HMO corrects the 
incentives and ensures that the best treatment will be given to a 
patient rather than the cheapest treatment, then I say, give people 
their day in court to enforce the law. And what we really need is a 
national health care system so that every person has health care 
coverage and has protected rights under the law. Let's pass H.R. 2723, 
I urge my colleagues to vote ``yes'' on this bill.
  Mr. KLECZKA. Mr. Chairman, the need for managed care reform is clear.
  According to a study by the non-partisan Kaiser Family Foundation, 
nearly nine in 10

[[Page H9502]]

doctors say their patients had experienced denial of coverage by a 
health maintenance organization (HMO) over the past two years. The same 
study found that as many as two in three of those doctors believe that 
the denial resulted in a serious decline in health for their patients.
  To address this problem, the bill before us today, the Managed Care 
Patients' Bill of Rights, will establish critical patient protections 
to ensure that consumers get the health care they've been promised and 
have paid for.
  The Patients' Bill of Rights would: prohibit plans from gagging 
doctors who wish to talk about treatment options; ban arrangements in 
which doctors receive incentives to limit medically necessary service; 
prevent plans from retaliating against health care workers who 
advocated on behalf of their patients; allow women to see their OB/GYN 
without prior approval; allow patients to select pediatricians as the 
primary care provider for children; allow patients with special needs 
to get a standing referral to a specialist; require coverage of 
emergency care without prior approval; and allow patients with life-
threatening conditions access to approved clinical trials.
  None of these provisions have any weight unless patients can hold 
health plans accountable for the medical decisions they make. This bill 
would allow patients to do so.
  Some insurance companies, business groups and their advocates in 
Congress claim that if you hold health plans accountable in the courts 
for their actions the whole health care system will collapse. They say 
there will be a rush to the courthouse and the cost of health care will 
shoot through the roof. This is just not so.
  For those who claim the sky is falling, let me point to an article 
that appeared in the Washington Post. As this article explains, two 
years ago, Texas became the first state to give patients the ability to 
sue their health plan. Since then, there have been only five lawsuits 
among the over 4 million Texans who belong to HMOs. Moreover, health 
care premiums have not increased more in Texas than in the rest of the 
country.
  The Dingell-Norwood bill would ensure that all Americans have the 
protections which have worked to promote better patient care in Texas. 
The bill would permit patients--or their survivors--to sue their health 
plans in state courts when they make negligent decisions that result in 
injury or death.
  H.R. 2723 is a responsible approach to make our nation's health plans 
accountable for their actions. As a cosponsor of the Dingell-Norwood 
Managed Care Patients' Bill of Rights, I stand in strong support of 
this needed reform which will finally put patient protections ahead of 
special interests.
  Mr. WELDON of Florida. Mr. Chairman, I rise in support of the 
Norwood-Dingell bill, H.R. 2723. I am very supportive of the provisions 
in this bill which strengthen patient protections and restore the 
doctor-patient relationship.
  I am also hopeful that the final bill that we send to a House-Senate 
conference will include not only the Norwood-Dingell patient 
protections, but also provisions that will make health insurance more 
affordable for the growing ranks of the uninsured. Our failure to 
address both of these issues will leave the job perilously half done.
  I fully support the strong patient protection standards included in 
H.R. 2723, many of which were included in my Access to Specialty Care 
legislation from the last Congress. Particularly, I am pleased that the 
bill provides for a strong internal and external review process. This 
will help reassure patients that medical decisions about their coverage 
have received full consideration, not only by an internal board of 
medical experts, but also by an external board of medical experts.
  The bill also ensures that patient have access to the care they need 
in a timely manner. In addition to providing timely internal and 
external reviews, the bill ensures that patients' emergency room 
expenses are covered. For a patient to be second guessed by a health 
plan administrator after an emergency episode is unreasonable. H.R. 
2723 ensures that patients have their emergency health care needs taken 
care of. It also ensures that they have greater access to the specialty 
care that they need. This is critical for ensuring that patients have 
access to the type of provider that can care for their special needs.
  In addition to these provisions, I am pleased that the bill ensures 
that women can designate an obstetrician or gynecologist as their 
primary care provider. Also, I am pleased that we ensure that parents 
can designate a pediatrician as the primary care provider for their 
children. These provisions make perfect sense and they will be of 
significant help in emphasizing preventive care.
  The bill will also ensure that health plan enrollees will have access 
to full, easily understandable language on what medical services are 
covered and not covered. Information is the key to empowering 
individuals to make informed decisions on their health care. Consumers 
should have a right to know before they sign up with a plan exactly 
what is covered and what is not covered.
  I am pleased with provisions that will ensure that no one gets 
between the physician and the patient. The patient must have the 
assurance that their physician is not influenced by any third party 
when making decisions about their health care. Toward this end, the 
bill eliminates gag rules that in the past have limited the free speech 
of doctors when talking with their patients. Additionally, the bill 
ensures that the insurance companies are no longer permitted to offer 
perverse incentives that would encourage health care providers not to 
provide care.
  Finally, H.R. 2723 includes liability provisions to hold medical 
decisionmakers accountable. While I agree that the current system in 
which the people who make medical decisions to deny care are often not 
held accountable, I am concerned that the provisions in the Norwood-
Dingell bill go too far. I fully support provisions to hold health 
plans accountable for the decisions they make; however, we must ensure 
that we do not open Padora's Box by turning the Patients' Bill of 
Rights legislation into a Lawyers Right to Bill. Any liability 
legislation must impose caps.
  We must recognize that allowing trial lawyers and their clients to 
walk away with multi-million dollar awards will raise everyone's 
premiums. The costs of multi-million dollar lawsuit awards will be 
passed along to everyone in higher premiums to health plan enrollees. 
That is why I believe it is critical that if the final bill includes 
liability provisions, we must insist on reasonable caps on damages. 
While caps may not be in the best interest of the trial lawyers, it is 
important for average American citizens in ensuring that insurance 
premiums are more affordable.
  Mr. UDALL of Colorado. Mr. Chairman, I rise in opposition to H.R. 
2990 and in favor of the Norwood-Dingell Bipartisan Consensus Managed 
Care Improvement Act.
  At some time in their lives, all Americans will be faced with making 
tough choices about medical care for themselves or their families. At 
these times, the last thing anyone wants to think about is whether 
their health plan will pay for what's necessary. H.R. 2723 is a 
bipartisan solution to many of the problems Americans face with their 
health plans. The bill creates new federal standards and requirements 
on all health insurance plans and would cover 161 million Americans, 
much more than what is covered in the Senate bill.
  I believe H.R. 2723 would protect the doctor-patient reationship. It 
provides a point of service option if the enrollee otherwise does not 
have access to non-network alternatives. It provides access to 
emergency room care, specialists, and clinical trials. It gives women 
their choices of OB/GYN specialists without referrals from a primary 
care provider. It allows parents to choose a pediatrician as their 
child's primary care physician. It provides for continuity of care in 
cases where a provider or insurer is terminated by a plan.
  And finally, it will give consumers uniform grievance and appeals 
procedures, including the right to sue, if their health plan makes a 
decision that puts them in harms way.
  In short, this legislation will help restore the doctor-patient 
relationship, give Americans better access to care, greater consumer 
information, and better protections and benefits. On top of all this, 
it protects employers by exempting them from legal action if they are 
not involved in a claim decision.
  H.R. 2723 is good legislation. It is good for Americans, and it is 
good for the future health of our country.
  The CHAIRMAN. All time for general debate has expired.
  Mr. THOMAS. Mr. Chairman, I move that the Committee do now rise.
  The motion was agreed to.
  Accordingly, the Committee rose; and the Speaker pro tempore (Mr. 
Kuykendall) having assumed the chair, Mr. Hastings of Washington, 
Chairman of the Committee of the Whole House on the State of the Union, 
reported that that Committee, having had under consideration the bill 
(H.R. 2723) to amend title I of the Employee Retirement Income Security 
Act of 1974, title XXVII of the Public Health Service Act, and the 
Internal Revenue Code of 1986 to protect consumers in managed care 
plans and other health coverage, had come to no resolution thereon.

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