[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.

[[Page H140]]

  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.

                              {time}  1715

  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

[[Page H142]]

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

[[Page H143]]

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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