[Congressional Record Volume 146, Number 6 (Tuesday, February 1, 2000)]
[House]
[Pages H139-H143]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
HOUSE AND SENATE CONFEREES SHOULD MEET IMMEDIATELY ON HMO REFORM
The SPEAKER pro tempore. Under the Speaker's announced policy of
January 6, 1999, the gentleman from Texas (Mr. Green) is recognized for
60 minutes as the designee of the minority leader.
Mr. GREEN of Texas. Madam Speaker, over the next hour, we will be
hearing from lots of Members talking about not only the vote we took
today on the motion to instruct conferees, but talk about the need for
managed care reform and HMO reform. Because Congress, being out of
session since late November, and having passed the managed care reform
bill actually in early October, here we are February 1 and we are back
in session with no hope in sight of the conference committee actually
meeting. They have not met for 4 months.
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Madam Speaker, that is the concern we have. That issue is still on
the front burner for the American people. That is why today there was a
great deal of time spent on H.R. 2990, instructing conferees on managed
care that was authored by the gentleman from Arkansas (Mr. Berry) who
was trying to move that issue further along. In fact, since the motion
to instruct passed, Madam Speaker, we hopefully will see our conference
committee meeting not maybe at the end of February or March, but
hopefully in the next 10 days; instead of seeing the delay, delay,
delay that we have seen over the last 4 months, and not just over the
last 4 months but over the last number of years whenever the House has
considered managed care reform, even if a strong bill passes like it
did this last time. And, particularly, when we see that the conference
committee appointees from the majority side, not one of them voted for
the bill that passed this House in early October.
So it kind of makes us a little suspicious that the bill that we
worked so hard to pass on the bipartisan bill, Norwood-Dingell, and it
is not as bipartisan as I would like, although it passed the House on a
very bipartisan vote. And after months of negotiation we reached a
consensus, again to have that bipartisan vote. It has been 4 months
since we passed that bill, but we have not seen any action on the
Norwood-Dingell HMO reform bill.
Our Republican leadership continues to, I do not know, maybe because
we were out of session, but it seems like they delay. And when we talk
about gimmicks and watered down proposals to take away the strength
from a real managed care reform bill or HMO reform bill, because we
heard today the bill that was actually considered had lots of different
health care issues in it, including access.
I would like, as a Democrat, particularly to talk about access. We
have 44 million Americans without some type of health insurance
coverage. But I know we have 48 million Americans who have self-insured
employer plans that do not have the protections that we need to have in
this HMO reform bill.
So let us take it one step at a time and have it. Let us pass an HMO
reform bill so those 44 million Americans, when they do get some type
of insurance, hopefully we will pass some tax incentives and some
encouragement for people to do it so that they will have a policy that
will mean something instead of a worthless piece of paper.
Again, we have not had one meeting of the conference committee on the
managed care reform bill. And I think this is unacceptable for not only
those of us who voted in the majority, but those 44 million Americans
who belong to the self-insured health insurance plans that oftentimes
have little protections from neglectful and wrongful decisions made by
their insurance plans.
My colleagues on the other side of the aisle, hopefully they are not
choosing to ignore the will of the American people, because I have seen
the poll numbers and they have been consistent for over a year. The
people want a strong Patients' Bill of Rights and managed care reform
bill so when they go to the doctor or to the hospital, that they will
know that they have some protections. They will be able to choose to
talk with their physician.
Our bill eliminates the gag clauses to where a physician and a
patient can actually talk to each other without the managed care
provider or the insurance company saying, No, we do not cover that
procedure so you cannot even tell the patient that that is available;
allows open access to specialists for women and children; gives
patients timely access to an appeals process. And, again, health care
delayed is health care denied. And if we do not have a swift and sure
appeals process, then we are actually delaying health care and actually
denying that health care.
It provides coverage for emergency care, and I see my colleague the
gentleman from New Jersey (Mr. Pallone) is here and he and I have
talked for many months here on the floor that Americans should not have
to drive by the closest emergency room to go to the one on their
list. They ought to be stabilized at the closest one and then be
transferred once they know whether the chest pains they are having is
really the pizza they had last night or may actually be a heart attack.
So we need to have the emergency care as soon as possible.
Ensure that patients can continue to see the same health provider,
even if their provider leaves the plan or their plan changes. One of
the concerns that we have is the continued changes in the plans.
Physicians and providers go in and out of the plan, and also
facilities, and the patients are the ones that seem like they are being
whipsawed around and they are losing that health care in there.
One of the most important things that makes everything else in this
laundry list important is the medical decision maker has to be held
accountable. We have the health care provider, the doctor, held
accountable under tort law. But if that doctor is being told by someone
in Hartford or Omaha, No, you cannot do that, then that person needs to
be responsible.
There is a fear that we have heard that employers are going to be
sued. But in the bill that passed the House, that was not in the intent
or the language of that bill, unless that employer is making that
decision. But if an employer goes out and buys insurance and says, yes,
I can afford this plan and I am going to pay for this plan, and turns
it over to their carrier to make those decisions, then that carrier is
the one, not the employer. And if there is better language to insulate
the employer from being sued, I would hope the conference committee
would consider it and hopefully even pass it.
In my home state of Texas which passed many of the patient
protections included in the Norwood bill, there has been no premium
increases based on HMO reform and there has been no mass lawsuits that
have been filed, some of the things that we heard last year in some of
the opposition. What Texas residents do have are health care
protections that were in the Norwood-Dingell bill that we need to
expand to all Americans, not just Texans who happen to have a policy
that is licensed under the laws of the State of Texas.
In fact in my district in Houston, it is estimated that 60 percent of
the people have an insurance plan which comes under ERISA or federal
law and not under State law. So it does not do any good for the
legislatures of all 50 States to pass these bills if 60 percent of the
people are covered under Federal law. That is why I think it is
important that we have all these protections in the bill; that a
conference committee meet and come back with a strong bill as strong as
that which passed the House.
Again, there may be some small nuances that need to be changed, but
not something like what passed the U.S. Senate because that one I would
hope would be vetoed. The Senate bill actually overturns some of the
State laws that have been passed. That is why I was pleased when the
gentleman from Arkansas (Mr. Berry) offered a motion to instruct
conferees to begin meetings and pass a bill that provides real
protections for patients.
However, Madam Speaker, we should not have to resort to those tactics
to have any action on managed care reform. We ought to be able to do it
because it is right. We should not have stonewalling on a conference
committee that actually should have been meeting for the last 4 months
but has not. The American people have asked us to pass a real HMO
reform bill and it should be at the top of our agenda and we should do
it without any more delays.
The conference committee needs to meet and promptly decide on a bill
that protects patients and pass real HMO reform.
With that, I yield to the gentleman from New Jersey (Mr. Pallone),
the chair of our Health Task Force in the Democratic Caucus. And I
understand each conference has a task force and I am glad the gentleman
is chair of ours.
Mr. PALLONE. Madam Speaker, I thank the gentleman from Texas for what
he said. And, particularly, because he pointed out how HMO reform, or
something very similar to the Patients' Bill of Rights, has been, in
fact, law in Texas now for some time and is working very well. And that
they have had very few lawsuits.
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And as he mentioned, and I think it is so important, the reason there
are so
[[Page H141]]
few lawsuits is because basically the patient protections that we are
advocating here at the federal level are preventive measures. In other
words, the HMOs, when they know they have to provide these protections,
take more precautions, do the right thing; therefore, it is not
necessary for them to be sued, except in very few cases.
I think that sort of belies the critics of the Patients' Bill of
Rights who say it is going to be litigious and there are going to be so
many lawsuits and that costs will go up. In fact, just the opposite has
happened in Texas. But the problem, as my colleague has pointed out, we
need this at the federal level because of the federal preemption of
those people who come under ERISA; those who, through their employer,
are in self-insured plans, which is millions and millions of Americans
that come under that federal preemption, so they are not allowed to sue
their HMO.
I do not want to stress the suit aspect, however, because I do not
think that is as crucial as the fact that an individual needs an
independent ability to appeal a denial of care. And that can be done
under the Patients' Bill of Rights through a very good internal review,
or internal appeal, as well as an external administrative appeal where
an individual goes before a board that is not influenced by the HMO.
And that board can overturn the decision of the HMO to deny care
without having to go to court.
So there are a lot of ways that we achieve accountability in the
Patients' Bill of Rights without actually having to bring suit. And as
the Texas case points out, those situations where suits are brought are
very, very few indeed.
Now, Mr. Speaker, the reason why the gentleman from Texas (Mr. Green)
and myself are here today is because earlier today, maybe within the
last half hour or hour, we passed in the House, by a considerable
margin, a motion to instruct the conferees so that we go to conference
on the Patients' Bill of Rights. And we also directed those conferees
to stick with the House version of the bill, which is really the only
true Patients' Bill of Rights. What the Senate passed, in my opinion,
is really sham reform that does not add up to anything in terms of
actually dealing with the excesses and the abuses that we have seen so
many times with HMOs.
So I wanted to react to some of the comments that were made on the
other side of the aisle by the Republicans in the leadership who said
this motion to instruct was not necessary. Well, let me say this motion
to instruct was necessary, and the majority of Members on both sides of
the aisle voted for it because it is necessary. And it is necessary
because 4 months have passed since this House took up and passed the
Patients' Bill of Rights, a very strong HMO reform bill. And yet in
those 4 months, even though the Senate had passed another bill, I think
last July or so, we still have not seen any action to bring the House
and the Senate together, represented by their conferees, to try to come
up with a bill that both houses can agree on and send to the President.
So when the Republican leadership says give us more time, I think one
of my colleagues said on the Republican side, well, we will get to this
by the end of the month, meaning the end of February, my reaction is,
well, they have already had 4 months and time is running out. There
will not be many days left in this Congress. Certainly we are going to
be out of here by October if not sooner. And if we do not start meeting
and having the conferees meet and talk about the differences between
these bills and what can be done to achieve a consensus, we will never
get a good Patients' Bill of Rights passed.
The other thing I would point out is the reason we insisted on
sticking with the House version, so that the House version should be
the one, or something close to it should be the one that the conference
adopts, is simply because there is such a disparity between the House
bill, which basically is true HMO reform and protects against these
abuses, as opposed to the Senate bill that really does not cover
anybody.
My colleague from Texas was pointing to some of these things, but I
just wanted to point out some of the gross disparities between the two
bills. The Republican Senate bill leaves more than 100 million
Americans uncovered, because most substantive protections in the bill
apply only to individuals enrolled in private employment-based self-
funded plans. Now, a self-funded plan is one in which the employer pays
medical bills directly, rather than buying coverage from an HMO or
insurance company. These are the ones that come under the ERISA
exemption, or the ERISA preemption I should say.
There was a recent study in Health Affairs that found that only 2
percent of employers offer HMOs that would be covered by the standards
in the Republican Senate bill and only 9 percent of employees are in
such HMOs. Self-funded coverage is typically offered only by large
companies. Of 161 million privately insured Americans, only 48 million
are enrolled in such plans. And of these 48 million, only a small
number, at most 10 percent, are in HMOs.
So when I say that the Senate Republican bill is sham HMO reform, I
am not just making that up. We have data to show that because of the
exclusions and because so many insurance plans, so many people covered
by their insurance would not come under this bill and have the patient
protections we are talking about, in effect the Senate bill is
meaningless. It does not have any teeth to it at all because it does
not even apply to most people with health insurance.
The list could go on. By contrast, I should point out, of course, the
Democratic bill would apply to all those plans. And I should say it is
not even the Democratic bill. It is the House-passed bill that was a
Democratic bill that was passed on a bipartisan basis versus a Senate
bill. All we are saying in this motion to instruct is that we must
stick with the House version, because if we do not, we will not have a
true Patients' Bill of Rights.
I wanted to give a few other examples. And I am not looking to beat a
dead horse here, but I want to give a few more examples of the
contrasts between this Republican Senate bill and this essentially
Democratic House bill that we keep insisting on.
With regard to care for women in the Republican Senate bill, it does
not allow designation of OB-GYN as a primary care physician. It does
not require a plan to allow direct access to OB-GYN except for routine
care. On the other hand, the Democratic bill, the House bill that we
insisted on today in the motion to instruct, allows patients to
designate OB-GYN as a primary care physician and provides direct access
to OB-GYN for all OB-GYN services.
Specialty care. How many of our constituents have come to us and told
us that some of the problems they have had with HMOs is they do not
have access to the specialty care that they need. Well, in the
Republican Senate bill there is no ability to go outside the HMO
network at no extra cost if the HMO's network is inadequate with regard
to a particular specialist or specialty care. Basically, what the
Republican Senate bill does is to allow HMOs to write contracts
rendering the patient protections meaningless. In other words,
specialty care is covered under the contract only when authorized by a
gatekeeper.
Well, what good is that? That is the problem that our constituents
are complaining about, how they cannot go to a specialty doctor unless
they get a referral each time; and a lot of times the specialty care is
not even available within the network. This is all meaningless under
the Republican Senate bill. The Democratic, the House passed bill,
provides the right to specialty care if specialty care is medically
indicated. And it ensures no extra charge for use of non-network
specialists if the HMO has no specialist in network appropriate to
treat the condition.
Just a couple of other things. Probably the most important thing, and
I know my colleague from Texas would agree, is not only the ability to
go for some kind of external review if someone has been denied care
that is not biased against them, or ultimately the ability to bring
suit, but also the whole definition of what is medically necessary. In
other words, the problem that we face with so many of our constituents
is that the decision of what kind of care they need, the decision of
what is medically necessary, which is essentially the same thing, right
now is basically made by the insurance company or the HMO.
What my constituents say to me is, I do not want the decision about
what
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kind of operation I get or how long I stay in the hospital or what kind
of equipment I am eligible to use; I do not want that to be made by the
insurance company. I want it to be made by my physician, with me,
because my physician knows what is best for me. He is the medical
adviser. He is the doctor. He is the one that knows, not the nameless
bureaucrat working for the insurance company.
Well, under the Republican Senate bill they allow the HMOs to define
medically necessary, what is medically necessary. No matter how narrow
or unfair to patients the HMO's definition, their definition controls
in any coverage decision, including decisions by an independent third-
party reviewer. So even if someone had the external review or had the
right to bring suit, what good is it if all the external reviewer is
going to go over or what the court looks at is how the HMO defines what
is medically necessary? That just kills the whole thing. That makes the
whole HMO reform meaningless, if that decision about how to define what
is medically necessary is essentially made by the HMO.
What we say, and most importantly in the House-passed bill, the one
that we have been insisting on today in the motion to instruct, is that
that definition is made by the physician with the patient, and
basically is a definition based on what the standard of care is within
that specialty group, by the diplomates, the people that have the
diploma in cardiac care or the people that have the expertise in other
kinds of specialty care. Those are the people who should be defining
what is medically necessary.
I could go on and on, and we will talk a little more about why this
Democratic House bill is so much better than the Senate bill and why we
need to insist on that in the conference; but the other thing that I
wanted to mention, and then I will yield back to my colleague, and this
came up again during the debate today on the motion to instruct, is
that what I see happening here on the Republican side of the aisle with
the Republican leadership is that they realize that the Patients' Bill
of Rights has majority support in this House, and I think also in the
Senate as well, and amongst the American people, and so they cannot
really fight it any more by saying it is a bad bill. So what they are
now trying to do is to change the subject.
Instead of talking about the Patients' Bill of Rights today, so many
of my colleagues on the Republican side of the aisle tried to bring up
other issues. One of my Republican colleagues talked about why we do
not deal with the issue of medical mistakes, because that has become a
major issue now. I am not saying it should not be addressed, but why
are we mucking up the Patients' Bill of Rights when we know where we
stand and we know we can pass that and send it to the President to
sign? Why would we want to muck that up by dealing with the issue of
medical mistakes, which will probably take another year or two to get
that resolved and we can finally get a consensus on that.
Another Republican colleague talked about access for the uninsured.
And I am totally in favor of more access for the uninsured. The
President in his State of the Union address the other day, and my
colleague from Texas, talked about how we have proposals now on the
Democratic side that would expand health insurance coverage for more
children, taking the parents of the kids that are part of the Kids'
Care Initiative; address the problems of the near elderly so they can
buy into Medicare. Sure, all these other access issues for the
uninsured need to be resolved, but, again, we do not have a census on
that. They are now in the formative stage in terms of the debate and
where we are going to go. They have to have committee hearings, they
have to be voted on the floor, they have to be addressed in both
houses, and there is no consensus.
So, again, why would we want to muck up the issue of the Patients'
Bill of Rights, which has the consensus and can get the votes and can
pass and be signed by the President? Why would we want to throw in all
these other things? Basically, it comes back to what the Republican
leadership was doing all along with the Patients' Bill of Rights. They
tried their darnedest to try to throw all kinds of poison pills into
that debate and add all these amendments with the MSAs, the medical
savings accounts, the health marts, and all these other things, even
the issue of medical malpractice at one point. All these things they
tried to throw in as poison pills so that we could not get to the heart
of the issue where there was a consensus.
I simply say once again, based on that motion to instruct, do not
fool around any more. Let us go to conference. We know we can deal with
these HMO reform issues, these patient protections. Let us deal with
them and resolve them in a way that protects the American people and
not try all these other gimmicks to try to make it so we never get to
what is really important here and what we can pass.
With that, I would yield back to my colleague.
Mr. GREEN of Texas. Well, just in closing, because I think this is
important, the first day we have actually had votes, other than a
rollcall vote last week, the HMO reform bill is literally the top
priority for us. Sure, we have to deal with the budget and we need to
deal with medical mistakes, and there are hearings in the Senate going
on, because access is important; but let us deal with one issue at a
time.
I think the American people understand that if someone is opposed to
something and they do not really want to oppose it, they will throw up
something else. It is kind of like juggling balls. If I throw the red
one over here, maybe my colleague will look at that instead of what I
am really doing. That is what concerns me after the debate today.
I would hope that that conference committee would meet. I am
concerned because of the number of members on it who did not vote for
the bill that passed the House. And there were lots of Republican
Members who voted for the bill, but, again, it looks like it is stacked
and it is weighted against a real HMO reform bill, particularly when we
look at what the Senate passed and what the Senate side will be doing.
But I hope the American people understand that we will continue to
talk about this over the next few months unless we have a vote.
{time} 1730
And even if we have a vote, if they come back with a weak milquetoast
piece of legislation, and next year let us pass something that sounds
good, then I will be up here saying, no, it is not good. Let us not
pass something that is really a fake, this is a fig leaf.
After 4 months of delay, I would think that now we may see some
action. And if they come back, well, let us throw something out there
and we want something that is really HMO reform patterned after what
success that has happened not just in Texas but with States all over
the country, we have a pattern that has worked.
For example, when we talk about the external appeals process, the
external appeals work in Texas is they have the right to go to court
afterwards. Fifty-two percent of the appeals are found in favor of the
patient.
Now, sure, half of them, a little less than half, are found in favor
of the insurance company. And so, if I as a patient take an appeal in
the external appeals process and I am not entitled to that type of
service or that type of treatment, then I am probably not going to go
to the courthouse.
But I tell my colleagues, if 52, better than half, of the people in
the insurance company are wrong the first time and if we do not pass a
strong appeals process with a backup of the right to go to the
courthouse, then those half of those people in Texas who are finding
now, or more than half, that they really have some good coverage and
they have that treatment that they need, they will be lost. And so,
that is why this issue is so important not just for those of us who run
for office and serve here but for the people we represent.
I represent both Democrats and Republicans, like my colleague; and I
have found that in my district, I do not ask people whether they are
Democrat or Republican when they call me, but it is interesting when
the people who do call, we have a lot of people who say, I am a
Republican but I need to have help with my HMO problem.
So I think it is an issue that cuts across party lines. It is
important. The
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polls have shown that, not only Republicans and Democrats, but
Independents. And that is why we had the vote and will continue this
effort.
Mr. PALLONE. Mr. Speaker, I appreciate the comments of the gentleman.
If I could just add one thing before we conclude, one of the things
that I found in the 2 months that we had the recess and we were back in
our districts and I had a lot of forums on health care on seniors or
just in general with my constituents in the various towns that I
represent, we are living in very good economic times and the economy is
good and generally most people are doing fairly well, but there is a
tremendous frustration that the Government does not work. And it is I
think, for whatever reason, Congress seems to be the main focus of
that, the notion that somehow all we do down here is talk and we never
get anything done.
The reason I was so frustrated today when I heard some of the
arguments from the Republican side is because I know that this issue,
the Patients' Bill of Rights issue, the HMO reform issue, is something
that we can get done. Because the public wants it done. And we had
Republicans join us on this Patients' Bill of Rights, and I know that
the President will sign it. So I do not want this to be another issue
that is important that falls by the wayside because the Congress and
the President could not get their act together.
If there is anything that we can pass this year, this is the issue.
And I think we just have an obligation to our constituents to show
that, on something so important as this, that we can actually
accomplish something and not just sit here and argue back and forth.
Obviously, we need to argue, otherwise my colleague and I would not
be up here. But we also need to pass something. And that is what we are
all about.
Mr. GREEN of Texas. Mr. Speaker, in closing, I would like to say,
sure, I would like to talk about access, prescription medication for
seniors, medical mistakes. Let us take it one step at a time.
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