[Congressional Record Volume 146, Number 13 (Monday, February 14, 2000)]
[House]
[Pages H367-H370]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        PATIENTS' BILL OF RIGHTS

  The SPEAKER pro tempore (Mr. Sherwood). Under the Speaker's announced 
policy of January 6, 1999, the gentleman from New Jersey (Mr. Pallone) 
is recognized for 60 minutes as the designee of the minority leader.
  Mr. PALLONE. Mr. Speaker, I have spoken over the last couple of weeks 
during our special orders in the evening a number of times on various 
health care issues because I do believe that this new session of 
Congress that began a few weeks ago must focus attention and try to 
pass legislation that would address three major health care concerns. 
First and in many ways most important because it has moved the furthest 
and has the best chance I think of getting passed before the Congress 
adjourns this coming fall is HMO reform, the need to pass the Patients' 
Bill of Rights which is the House version of HMO reform that passed 
this fall that is now in conference with the Senate.
  The conferees have been appointed, and we understand that the 
conference is scheduled to meet at some time towards the end of this 
month, but I cannot stress enough how important it is to move quickly 
on the Patients' Bill of Rights. I am going to devote my time this 
evening to that.
  I did want to also mention the two other major health care 
initiatives that were outlined by the President in his State of the 
Union address and which are at the top of the Democrats' agenda and the 
second issue after the Patients' Bill of Rights, after the HMO reform, 
is the need for a prescription drug package, benefit package, under the 
auspices of the Medicare program.
  Any one of us, any Member of Congress, any of my colleagues, either 
Democrat or Republican, knows that when they go back home, if they have 
a town meeting or they stay in their office and they hear from their 
constituents they will hear over and over again about the problems with 
seniors who do not have access to prescription drugs, either because 
Medicare does not provide it as a basic benefit or because they cannot 
find an HMO or pay privately for a medigap policy or some other kind of 
insurance that will cover prescription drugs. They do not find either 
the insurance policy affordable or they do not have enough money to pay 
for the prescriptions on a daily or weekly basis that they need, and I 
should mention that tomorrow night during special orders we intend to 
take up that issue.
  The third issue, of course, is access to health insurance for the 
uninsured. The bottom line is that we now have about 45 million 
Americans that have no health insurance, and the numbers continue to 
grow. The President again outlined in his State of the Union address, 
and as one of the priorities of the Democratic agenda, the fact that we 
now have articulated a way to try to cover a significant number of 
those uninsured Americans, first by expanding the CHIPS, the kids' 
health care initiative, second by enrolling patients of those children 
who are eligible for the CHIPS, for the kids' care initiative and, 
third and just as important, addressing the problems of the near 
elderly, those between 55 and 65 who are not now eligible for Medicare 
because they are not old enough but who perhaps can buy into Medicare 
or could buy into Medicare with a little bit of help either

[[Page H368]]

through a tax credit or some kind of subsidy from the Federal 
Government.
  I do not think there is any question that all three of these health 
care initiatives need to be addressed and can be addressed in a 
bipartisan way in this Congress if we sit down and put our minds to it. 
So far, the Republicans have not moved on any of these initiatives, any 
of the three; and I want to concentrate tonight on the Patients' Bill 
of Rights because I think that has the best chance of getting passed 
and getting to the President's desk.

  I have been basically critical of the Republican leadership in the 
House because they dragged their feet so long on true HMO reform, and 
the Patients' Bill of Rights was a piece of legislation that was put 
together by Democrats but with the help of some Republicans, the 
gentleman from Georgia (Mr. Norwood) and the gentleman from Iowa (Mr. 
Ganske). These were physicians and health care professionals who worked 
with the Democrats, a small group of Republicans, in trying to put 
together the Patients' Bill of Rights.
  We had a very hard time getting a hearing, getting anything out of 
committee, getting it brought up on the floor. The Republican 
leadership put up all kinds of roadblocks and alternatives, but finally 
we were able to pass the Patients' Bill of Rights in the House of 
Representatives.
  I would like to outline a little bit of the good points of the 
Patients' Bill of Rights and why we insist, as Democrats, that this be 
the bill that finally goes to the President. I say that by way of 
contrast because on the Senate side, the other body, I should say, the 
other body has passed a bill that is now in conference with the House 
version; but the version passed in the other body is far inferior and 
does not really constitute true HMO reform.
  Before I get to the contrast, let me, Mr. Speaker, talk about what is 
in the House bill in the Patients' Bill of Rights and why it is so 
important for the average American that this legislation pass pretty 
much intact.
  I think a lot of people are aware of the abuses and excesses within 
the HMO system. What happens frequently, when I talk to my 
constituents, is they complain to me about the fact that they need a 
certain procedure, a certain operation, or they need to stay in the 
hospital a certain number of days or they need certain kinds of medical 
equipment and the insurance company says, no, we will not pay for it. 
We do not think it is necessary.
  The problem is that too often that is the case. Something, whether it 
is an operation or procedure or some kind of service or equipment, that 
your physician feels is necessary, medically necessary, the insurance 
company says is not. Well, we know traditionally that the doctors who 
were sworn to the Hippocratic oath and went to school to learn what is 
good for you should be, with you, should be making the decisions about 
what kind of medical care you need. That is why they went to school. 
That is why they became doctors. They are now hamstrung. They do not 
have the ability to decide what kind of medical care you get because if 
the insurance company will not pay for it and you cannot afford it, you 
are simply out.
  So what we really need to do, and I think the two most basic aspects 
of the Patients' Bill of Rights that are really crucial is, one, the 
decision about what is medically necessary needs to be taken from the 
insurance company, from the HMO, and given to the physician and you, 
the patient, and that decision about what is medically necessary then 
is once again made by the physician and the patient, not by the 
insurance company.
  The second thing is that if you are denied care, if you are told that 
this is not medically necessary by the insurance company, then you 
should have some way to redress that grievance, either by some sort of 
external review that is not influenced and decided or determined by the 
insurance company, or ultimately be able to go to court and sue the HMO 
for your rights or for any damages that are inflicted upon you because 
you were not able to have the medical procedure that you and your 
physician deem medically necessary.

                              {time}  2015

  Well, unfortunately, that is not the case right now. Right now, many 
times the insurance company has an internal appeal procedure but they 
control the procedure, and they simply say we made the right decision 
and that individual cannot sue. Because under Federal law, in many, 
many cases, an employee that works for an employer who is self-insured, 
which most of the larger ones are, then under Federal law, what we call 
ERISA, there is a Federal preemption that says an individual cannot 
bring suit against the HMO, against the insurance company.
  Well, the Patient's Bill of Rights reverses all that. Basically it 
says the decision about what is medically necessary is made by the 
physician and the patient, not by the insurance company. And in order 
to enforce that definition about who decides what is medically 
necessary, there is both an internal review and an external appeal that 
is devoid of the influence of the insurance company because it is a 
panel that does not have the insurance company on it. And then, failing 
that, you have the right to go to sue and for the court to make a 
determination that that particular operation or procedure should be 
granted; or, alternatively, if the procedure or operation was denied 
and someone has suffered, that damages can be obtained from the HMO 
because they denied what was legally entitled.
  Those are the basic tenets of the Patient's Bill of Rights. There are 
a lot more specific items, which I would like, Mr. Speaker, to 
basically outline, if I could, for a few minutes this evening. And I am 
only going to cover the ones that I hear the most about in terms of 
abuses that come to me from my constituents.
  One is with regard to emergency services. In the Patient's Bill of 
Rights, individuals are assured that if they have an emergency the 
services will be covered by their insurance plan. The bill says that 
individuals must have access to emergency care without prior 
authorization in any situation that a prudent layperson would regard as 
an emergency.
  Now, that sounds a little bureaucratic, but basically it is saying 
that the insurance company cannot say, if an individual has an 
emergency and they think it is a legitimate health emergency, that they 
have to go to a particular hospital which may be much further away than 
the closest one, or that they have to call the insurance company and 
get a prior approval before they go to the emergency room.
  Some people say how can that be? How can they issue a call for 
approval if they are having a heart attack? Unfortunately, in many 
cases, that is the case. And in many cases they will not pay if a 
patient goes to the emergency room that is a few blocks away, because 
they say that individual should have gone to one that was 30 miles 
away. Well, this Patient's Bill of Rights, this bill, says that is not 
the case.
  If the average person would think, for example, that they are having 
a heart attack, they can go to the nearest emergency room and they do 
not have to call for prior approval, because it is a true emergency and 
there is no time for it.
  The second major area in terms of access to care under the Patient's 
Bill of Rights is specialty care. Patients with special conditions must 
have access to providers who have the requisite expertise to treat 
their problem. The bill allows for referrals, for enrollees to go out 
of the plan's network for specialty care at no extra cost if there is 
no appropriate provider in the network for covered services.
  So what it says is, if the HMO does not have a particular person who 
can handle that specialty care, and I will give an example, the HMO may 
have a number of pediatricians but they do not have a pediatrician 
who specializes in heart problems or one who specializes in kidney 
problems or whatever, then that individual would be able to go outside 
the plan's network and get a doctor who has that particular ability and 
there would be no extra charge to them.

  In addition, for individuals who are seriously ill or require 
continued care by a specialist, plans must have a process for selecting 
a specialist as a gatekeeper for their condition to access necessary 
specialty care without impediments. This is a situation where the HMO 
says an individual can go to a cardiologist, but every time they go, or

[[Page H369]]

maybe every other time, they have to get another referral from the 
primary care physician. Well, if this is a chronic illness where that 
individual needs the cardiologist on a regular basis, the cardiologist 
should be the person the patient sees regularly without having to go to 
their primary care physician for approval every time.
  That is very important for a lot of people. Because what happens is 
the primary care physician becomes the gatekeeper. And if he is under 
pressure, he or she is under pressure not to allow too many visits to 
the specialist, then that patient may not have access even though they 
have a chronic illness to the cardiologist, for example, on a regular 
basis.
  The Patient's Bill of Rights provides direct access to OB-GYN care 
and services for women. It ensures that the specialties of children are 
met, including access to pediatric specialists and the ability for 
children to have a pediatrician as their primary care provider. I could 
go on and list a number of other things that are provided and 
guaranteed as patient protections under the Patient's Bill of Rights, 
but I think I have covered enough of some of the major areas that 
people complain to me about where abuses exist.
  I do want to talk a little bit about information, though, because 
many people complain to me and say that their HMO, when they sign up, 
does not provide adequate disclosure of what benefits are provided and 
what is essentially in the insurance plan. That is a major problem 
because many times seniors sign up for HMOs and they do not necessarily 
know what they are getting into. They do not know the limits of it.
  We have in the Patient's Bill of Rights protections with regard to 
health plan information that says informed decisions about health care 
options can only be made by consumers who have access to information 
about their health plans and, therefore, we require managed care plans 
to provide important information so that consumers understand their 
health plan's policies, procedures, benefits, and other requirements.
  Now, that is a kind of a general broad statement, but I will give an 
example. In my home State of New Jersey, Mr. Speaker, there have been a 
number of situations over the last 6 months where HMOs have decided to 
drop seniors in a given area or for a given reason, and a lot of the 
seniors do not understand that that can happen. So that is the type of 
information that they certainly should have.
  I talked about the external appeals process; that individuals would 
have access to an external independent body with the capability and 
authority to resolve disputes for cases involving medical judgment. If 
a plan refuses to comply with the external reviewer's determination, 
the patient may go to Federal Court to enforce a decision about what is 
medically necessary. We have already discussed that.
  There are also a number of protections with regard to the doctor-
patient relationship. Many of my constituents are surprised to learn 
that we have gag rulings with a lot of the HMOs today. In other words, 
if the HMO, or the insurer, figures that a particular operation or 
procedure is not going to be paid for, is not going to be covered, they 
will simply tell the physician that the physician cannot talk about 
that procedure because it is not covered.

  Well, it is bad enough if the doctor tells his patient that they need 
a particular operation and then the patient finds out the insurance 
company will not cover it. But imagine that the doctor cannot tell his 
or her patient about an operation, even though he or she feels that 
that patient needs it, because the HMO contract says he cannot talk 
about it if it is not covered. Well, that is in fact a reality for many 
Americans today with some of the HMOs. That is totally wrong. It 
violates every notion of freedom of information and free speech. I 
suppose it is questionable whether it is even constitutional.
  But we, in the Patient's Bill of Rights, specifically say that we 
prohibit plans from gagging doctors and from retaliating against 
physicians who advocate on behalf of their patients. We also prevent 
plans from providing inappropriate incentives to providers, to 
physicians, to limit medically necessary services. So, in other words, 
there cannot be any financial incentive, which is often the case to a 
physician if he cuts back on services or does not provide for a number 
of services and keeps costs down for the HMO, for the insurance 
company, in that way.
  There are a lot of other protections in the Patient's Bill of Rights, 
and I do not want to go through every one of them, but, Mr. Speaker, I 
do want to make the point that this is a very strong bill. And this 
problem is a problem, the abuses within HMOs, that Americans and all 
our constituents face. These abuses need some very strong medicine to 
make sure that they do not occur any more on a regular basis. That is 
why the Patient's Bill of Rights is a strong bill, and that is why 
Democrats, myself and other Democrats, keep insisting that it be the 
bill that comes back to the House from the Senate and goes to the 
President's desk. Because if we do not have good patient protections 
and strong patient protections then we will not accomplish anything in 
terms of this debate on the HMO reform.
  Now, I wanted to, if I could, just make some comparisons with the 
version of HMO reform that came from the other body, from the Senate, 
and is now in conference with the House Patient's Bill of Rights that I 
just described. The point I want to make here is that if the conferees, 
when they meet, were to accede to a version that is more like the 
Senate bill as opposed to the House Patient's Bill of Rights, we would 
have accomplished nothing, in my opinion, on this issue, and no reform 
that is meaningful would take place in this session of Congress.
  I will give some examples of how the Senate Republican bill differs 
from the House Patient's Bill of Rights. The Senate bill leaves more 
than 100 million Americans uncovered, because most substantive 
provisions or protections in the bill apply only to individuals 
enrolled in private employment-based self-funded plans.
  Now, this is what I talked about before where most of the larger 
employers, and even some smaller employers but certainly most of the 
larger employers, they have their own insurance fund. They are self-
insured. Well, about 100 million Americans, the majority of Americans, 
do not fall into that category. What the Republican bill says is that 
the bill applies only to individuals who are enrolled in those self-
funded plans. So most Americans would not even be covered by the 
patient protections because they are not in those self-insured plans 
that the Senate bill covers.
  Just an idea. There was a study done by Health Affairs, which is a 
publication, that found that only 2 percent of employers offer HMOs 
that would be covered by the standards in the Senate bill and only 9 
percent of employees are in such HMOs. Self-funded coverage is 
typically offered only by large companies. Of the 161 million privately 
insured Americans, only 48 million are enrolled in such plans. Of those 
48 million only a small number, at most 10 percent, are in HMOs.
  So that is an interesting statistic. Because what it says is that of 
all the Americans out there who are covered by health insurance, only 
48 million are in these self-insured plans that are covered by the 
Senate bill. But even of those 48 million, about 10 percent are in HMOs 
because most of the people who are in those plans are not in HMOs. They 
are probably in some kind of traditional insurance policy on a pay-as-
you-go basis as opposed to an HMO.
  The Senate bill does not allow designation of an OB-GYN, or 
obstetrician gynecologist, as a primary care physician. With regard to 
the specialty care that we talked about, it provides no ability to go 
outside the HMO network at no extra cost if the HMO's network is 
inadequate. So what I said before, about the House version of the 
Patient's Bill of Rights, it says that an individual can get a 
specialist outside the network at no extra cost if they do not provide 
it in the network. We do not have that language in the Senate bill.

                              {time}  2030

  It allows the HMO to write contracts rendering the protection 
meaningless, e.g., specialty care is covered only when authorized by a 
gatekeeper. There are all kinds of gimmicks, if you will, in the Senate 
bill that basically make it difficult to really apply any of

[[Page H370]]

the patient protections in a significant way.
  I just wanted to mention a couple more things, just by way of 
contrast. With regard to continuity of care for patients, in other 
words, when a doctor is dropped from a network or an employer changes 
insurance plan, in the Senate bill it leaves out protection for all 
Americans who are not terminally ill, pregnant, or hospitalized. It 
provides only 90 days of continued care for terminally ill or 
hospitalized patients, forcing them to change doctors or hospitals even 
if they live longer or have not been discharged from the facility.
  Most important, though, and I think this really gets to the heart of 
the debate, in the Senate bill, and this goes back to what I said 
before, Mr. Speaker, the key really to this HMO reform is who is going 
to define what is medically necessary and how are they going to enforce 
their rights if they have been denied care that they and their 
physician think is medically necessary.
  Well, in the Senate bill, in the Senate Republican bill, the HMO 
continues to define what is medically necessary. No matter how narrow 
or unfair to patients the HMO's definition is, their definition 
controls in any coverage decision, including decisions by the 
independent third-party reviewer.
  So what that says is that, if my physician and I feel that I need a 
particular operation and the HMO denies it, even if I go to an outside 
reviewer, they are only reviewing the HMO's definition of what is 
medically necessary; they cannot go beyond that definition. So if the 
HMO defines what is medically necessary in a way that would preclude 
that particular operation procedure, it does not matter whether they go 
to an outside panel or if they go to court, or whatever, because the 
bottom line is the HMO is going to decide what is medically necessary.
  I could go on and on and talk about so many other things in the 
Senate bill. It does not ensure doctors can talk about the HMO's 
financial incentives or its processes. It does not prohibit the gag 
clauses that I talked about before. In terms of information that is 
provided to patients when they sign up for their HMO, it is very 
limited in the Senate version.
  And so, again, the point that I am trying to make is that we can hear 
my colleagues on the other side of the aisle talk all they want about 
how they want to pass good HMO reform, but the only way that is going 
to happen is if this conference comes up with a bill that is very much 
like the House passed Patients' Bill of Rights. Without that, if the 
bill comes out similar to the Senate version, in effect, the Congress 
would have failed in its responsibility to enact true HMO reform.
  The one other thing that I wanted to mention in the context of the 
Patients' Bill of Rights and HMO reform, the Republican leadership in 
the House, when they passed the Patients' Bill of Rights, attached to 
it a number of provisions which I call poison pills. These are 
provisions that really have nothing to do with patient protections but 
which the Republican leadership claim also address some of the access 
problems for the uninsured.
  We do not have a consensus in the House or in the Senate at this 
point on how to deal with the problem of the uninsured. Obviously, as I 
mentioned before, the Democrats and myself feel very strongly that is 
what is needed is a major effort through legislation both monetary as 
well as a change in policy that would allow children, the parents of 
children who are not covered, and the near elderly, at a minimum those 
groups, to be insured.

  The President has talked about, as I mentioned before, a major new 
initiative that expands the kids' health insurance to sign up more 
kids, to sign up the parents of those kids that were uninsured and to 
make it possible for people who are 55 or 65 to buy into Medicare or to 
even have a subsidy or a tax credit so they could afford to do so.
  What the Republicans have done with the Patients' Bill of Rights, 
they have attached provisions which they claim are going to address the 
problems of the uninsured but do not effectively do so. They have 
attached provisions that would expand MSA, medical savings accounts.
  Medical savings accounts are a device whereby, under Medicare, for 
example, rather than buy an HMO or traditional fee-for-service policy, 
they could buy a policy whereby they get a lump sum; and if they do not 
use a certain amount of their care over the course of the year, that 
money is paid back to them in a check that they can use to go on a 
vacation or to by a car, whatever they want to do.
  Basically what it does is to create a situation where they are kind 
of gambling with their health, if you will. They assume that they will 
not have certain expenses; and they, basically, establish a threshold, 
if you will, for the level of care that if they do not meet they pay 
out of pocket up to that certain threshold. And it has not worked.
  I mean, basically, very few Americans have signed up for medical 
savings accounts. And the whole idea is, essentially, something that 
very few seniors or anybody is responding to. But the Republican 
leadership says, oh, this is a great idea. This is a great way of 
expanding health insurance. Well, I do not see how it accomplishes that 
at all.
  They also have HealthMarts and they have other devices that 
supposedly are going to make it possible for more people to have health 
insurance but, in fact, do not accomplish that at all.
  What I see happening here, without getting into the details of it, 
is, rather than addressing the Patients' Bill of Rights and trying to 
come to a consensus on the HMO reform that the majority of the people 
in the majority of this Congress have supported, they now are trying to 
muck up this whole issue by talking about these access issues for which 
there is no consensus and which will simply delay any action on the 
Patients' Bill of Rights and on HMO reform in this Congress.
  And so, what I have said to my colleagues, and I will say again, Mr. 
Speaker, is let us pass a good Patients' Bill of Rights; let us deal 
with the HMO reform issue, which is now ripe, which overwhelmingly the 
people and the Members of Congress have voted for in this House and 
support; let us go with the House version; let us send this to the 
President, because he says that he will sign it; and let us make this 
the first priority to show that that Congress can accomplish something 
that is important to the American people on a bipartisan basis.
  I know that I, as a Democrat, and my colleagues on the Democratic 
side, including those of us who are conferees, will continue to insist 
on that, insist that the conference meets, that we come up with a 
strong Patients' Bill of Rights similar to the House version, and that 
we get it to the President so that we can have a great accomplishment 
and a great victory for the American people. And we will be back here 
many times in the evening demanding that that happen. Because the 
Republicans are in the majority and they control the process, and it is 
up to them to make sure that this happens, with bipartisan support from 
the Democrats.

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