[Congressional Record Volume 146, Number 67 (Thursday, May 25, 2000)]
[House]
[Pages H3860-H3863]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          STATUS OF HMO REFORM

  The SPEAKER pro tempore (Mr. Shimkus). Under the Speaker's announced 
policy of January 6, 1999, the gentleman from Iowa (Mr. Ganske) is 
recognized for 60 minutes as the designee of the majority leader.
  Mr. GANSKE. Mr. Speaker, I am going to talk a little bit about the 
status of HMO reform before the House and the Senate. I have to admit 
that I am a little bit disappointed, because I thought that this 
afternoon or this morning, we would have been debating a bill called 
H.R. 1304, which is the Quality Health Care Coalition Act. This is the 
bill of the gentleman from California (Mr. Campbell).
  The gentleman from California (Mr. Campbell) has worked on that bill 
for 3 years. In essence, that bill would allow health professionals to 
group together to advocate for patient consumer rights without forming 
a union in negotiating contract provisions with HMOs.
  This is pretty important because, in the last 5 or 6 years, there 
have been over 275 mergers of health plans around the country, leaving 
us, in this country, with about five or six large HMOs. In many parts 
of the country, these HMOs, a single HMO may control 50 percent or more 
of the people who have health care in that area. It is curious that a 
lot of these, several of these large HMOs do not go into other areas in 
order to compete with another large HMO.

  So what that means, then, is that, if an HMO, for instance, gives a 
health care provider, a nurse or a pharmacist or a physician, a 
contract that has a provision in it that is, for instance, a gag rule, 
a gag clause, where it says one cannot tell a patient all of their 
treatment options unless one first gets an okay from us.
  So, in other words, in my prior life before being a congressman, as a 
physician, if I had a woman come to me with a lump in her breast, I 
examined her, talked to her, I would have to say, excuse me, leave the 
room, get on the phone, tell the HMO I have got this woman here with a 
breast lump, and ask them if it is okay if I tell this woman all three 
of her treatment options. I mean, that is an egregious infringement on 
the right of a patient to know all of the information that he or she 
needs in order to make a decision.
  Yet, there are contract provisions that HMOs have put in physician 
contracts to that extent. There are other contract provisions that HMOs 
put into employee contracts where it says that HMO's can define medical 
care as the cheapest, least expensive care ``as determined by the 
HMO.''
  What would be the problem with that? Let me give my colleagues an 
example. As a constructive surgeon, I have taken care of a lot of 
children born with cleft lips and palates. The correct treatment for a 
kid born with a cleft palate is a surgical repair to close that huge 
hole in the roof of their mouth so that food does not come out their 
nose, so they can learn to speak correctly.
  But under that HMO's contract provisions where they can define 
medical necessity as the cheapest, least expensive care, they could 
say, no, we are not going to authorize routine surgical repair, we are 
just going to authorize a piece of plastic to shove up into that hole, 
something called a plastic obturator. It would be like an upper 
denture.
  Now, will the child learn to speak very well with that? No. But it 
meets that plan's own contractual language of being the cheapest, least 
expensive care.
  Now, let us say that I, as a physician, taking care of children, 
whose treatment is denied, like this one, decide to get together with 
other reconstructive surgeons, and we start talking about how this one 
HMO is routinely denying medically necessary care. We say to each 
other, I do not think I can renew my contract with that company. Under 
current U.S. anti-trust law, we could be prosecuted and fined, if not 
thrown in jail, for being concerned about our patients' concerns.
  That was the bill that was supposed to be on the floor. It was a bill 
that did not, it was not about physicians forming unions, in fact, it 
would have the opposite effect. It was not a bill about price fixing. 
It has nothing to do with price fixing. It is a good bill. It had 220 
bipartisan cosponsors. We only need 218 votes to pass the House. One 
would think this would come to the floor.
  The gentleman from California (Mr. Campbell) had worked on this for 3 
years. Last year, he got a commitment from the Speaker of the House to 
bring it to the floor last year. Then he got a commitment from the 
Speaker to bring it onto the floor in January. Then yesterday, before 
the entire Republican Conference, the Speaker said, yes, this is coming 
to the floor today.
  But a curious thing happened last night. The Committee on Rules was 
meeting about midnight, they were debating this bill that we should 
have debated today. All of a sudden, they just tabled the bill 
indefinitely. So it did not come to the floor today.
  I find this very curious because, as everyone in Washington knows, 
the Committee on Rules functions as the right arm of the Speaker. The 
Committee on Rules follows the Speaker's will. Some people have said 
the Committee on Rules is a rubber stamp for the Speaker. In the 5 
years I have been in Congress, I cannot remember the Committee on Rules 
doing an action in committee that has been contrary to the Speaker's 
will.
  Now, yesterday, the Speaker said we were going to have this bill on 
the floor. He had given his promise to the gentleman from California 
(Mr. Campbell). Then at midnight, the Committee on Rules tables the 
measure. Very curious.
  Is this the first time the Committee on Rules has disregarded the 
Speaker's promise? We do not know. It is either that the Committee on 
Rules, which should function at the Speaker's discretion, did not, that 
they did not follow their own Speaker's prescription, in which case, 
the Speaker ought to have a long talk with those Members for not 
following out his instructions.
  Or the other alternative is that they received word from the Speaker, 
pull the bill. If that is the case, then there is a disparity between 
what the Speaker promised the gentleman from California (Mr. Campbell) 
yesterday morning and what happened at midnight.
  Most curious. Very unusual. Something in 5 years I have never seen 
happen here in Congress.
  So we are left with the situation that, today, we did not get to 
debate on a bill that is a free market bill to try to correct HMO 
abuses.
  Last year, last October, when we passed the Bipartisan Consensus 
Managed Care Reform Act, the Norwood-Dingell-Ganske bill that I helped 
write, passed this floor with 275 votes, with only 151 against it, last 
year we heard a lot of people say, I think that we ought to move to HMO 
reform in a more free market way. We ought to make sure that there is 
equal playing field so that these types of patient abuses can be 
addressed in the realm of the free market, in equal negotiations.
  Well, we are seeing a situation where we have, in some cases, almost 
monopolies by large HMOs, squishing any type of concerted action by 
providers to stick up for their patients. This bill of the gentleman 
from California (Mr. Campbell) would have gone a long way toward 
correcting that. Yet, for all those people on both sides of the aisle 
who voted against the Bipartisan Consensus Managed Care Act, saying I 
would rather see a free market approach, they do not get a chance today

[[Page H3861]]

to vote, to correct those types of HMO abuses.
  Now, it is no secret that the insurance industry has been lobbying 
very vigorously on this issue. It is no secret that, last night, the 
insurance industry dumped millions of dollars into fundraisers here in 
Washington. It would be most curious if there is any connection between 
the Committee on Rules' action and political contributions. I would 
certainly hope that is not the case.
  Why do we need HMO reform? Well, last week, in the Los Angeles Times, 
I saw this article on a case. The California State Department of 
Corporations said that it discovered systemic health care delivery 
problems at a California HMO, and they levied a $1 million fine against 
that HMO for delaying the urgently needed care of a 74-year-old woman 
who died.
  So we gave the California Department of Corporations a phone call. 
They sent us their memo on this case. I am going to share this with my 
colleagues today, because as I am speaking, at this very moment here in 
the Capitol, the conferees to that HMO reform bill are meeting. They 
have been meeting for months and months and months, and virtually 
nothing has happened. I think they need to listen to a case like this, 
because it is pretty incredible. This is happening every day around the 
country.
  ``In January, 1996,'' and I am going to pretty much just read from 
this brief by the California Department of Corporations, ``Margaret 
Utterback, 74 years old, and'' an HMO ``patient for 50 years, was still 
living in her home. She took reasonably good care of herself and she 
was in generally good health up to the day that she'' complained to her 
HMO of ``back pain that radiated to the right side of her abdomen.''
  It is important to note that she had been a smoker and that she had 
high blood pressure. That is from her HMO records.
  Now, as a physician, let me lay a little groundwork for this. There 
is a condition called an aortic abdominal aneurysm. This is a balloon-
like enlargement of the large blood vessel in one's abdomen, the aorta. 
It develops more frequently in people who have been smokers, who have 
atherosclerosis, and who have high blood pressure. If that balloon-like 
dilation of the aorta breaks, the patient usually dies. They bleed to 
death in a short time. It takes many years to develop.
  Generally a patient that is systematic with an aortic abdominal 
aneurism is an older person who complains of abdominal and back pain. 
That aortic aneurism impinges on the lumbar vertebrae, and that is 
responsible for the back pain.

                              {time}  1630

  If it is caught in time, surgery can fix it. The balloon-like 
dilatation can be bypassed. Just think of taking a balloon and blowing 
it up. As we blow and blow, the bigger it gets, and all of a sudden it 
gets easier to blow it up. That is because the walls of that balloon 
are getting weaker and weaker. Then all of a sudden it gets so easy 
that it just breaks. That is what can happen with this type of 
dilatation, this aortic aneurysm.
  On January 26, 1996, Mrs. Utterback woke up with pain in her back. It 
radiated towards her abdomen on the right side. She had been 
experiencing back pain since the day before. She thought the pain might 
be due to some hard work, but the pain progressed that morning. She 
also experienced abdominal pain she attributed to something she had 
eaten.
  At about 8:15 in the morning, she called her daughter, Barbara 
Winnie, and she asked her to come over because she had some really 
sharp pain. When her daughter got there, at about 9:30, she found her 
mom in bed, still in her pajamas. Mrs. Utterback reported to her 
daughter that she had tried reaching her primary care doctor at the HMO 
when the clinic opened at 8:30. She was put on hold so long that she 
had to hang up.
  The phone number that she used to secure an appointment came from her 
address book. Between 9:45 and 10 a.m. she tried to call this HMO 
again. Her daughter overheard this conversation and was also informed 
of the details. Mrs. Winnie essentially recalls this as follows: Mrs. 
Utterback explained her symptoms; that she was having pain on the right 
side of her back that was going around to her abdomen and she asked if 
she could get an appointment to see her doctor. She was told by the 
person who answered the phone that there were no appointments 
available.
  Mrs. Utterback explained her symptoms again. She asked if she could 
be put through to her doctor or the clinic so that she could talk to 
somebody there. But the person at the HMO, at the other end of the 
phone, said she could not do that. After that, the person said 
something to the effect that, If you think you need to be seen, call 
back at 3 p.m. and you will get an urgent care appointment for the 
evening. Mrs. Utterback was told that the urgent care clinic was the 
procedure to be used when there were no same-day appointments available 
to her doctor.
  Now, I want to point out something. This person she talked to did not 
suggest that if she was having really severe pain she needed to go to 
the emergency room.
  After hanging up, Mrs. Utterback and Mrs. Winnie, her daughter, 
discussed the conversation. Mrs. Utterback decided to call back again. 
She described her symptoms again to the new person who answered the 
phone, i.e., that right side back pain was radiating to her abdomen. 
After being transferred a couple of times, she was finally put into 
contact with somebody who Mrs. Utterback thought was kind and willing 
to listen. That particular woman offered to send an e-mail message to 
her doctor about her wanting to be seen that day.
  So Mrs. Utterback thought that once the e-mail was sent, she was 
supposed to wait for her doctor to get back to her. That is what she 
understood from the conversation. Her daughter recalls that this 
conversation occurred at approximately 10:15, which is consistent with 
the time that the e-mail was actually sent, which was 10:18.
  Mrs. Utterback was not given an appointment during that conversation. 
While waiting to hear back from the doctor's office, Mrs. Utterback 
reclined almost the whole time, but she did get up around 12 noon to 
have some soup. After not hearing back for nearly 2 hours, Mrs. 
Utterback and her daughter said they agreed that they would surely hear 
from her doctor either during lunch or after the lunch hour. However, 
when 1:45 p.m. came around, Mrs. Utterback and her daughter agreed that 
enough was enough, and they tried to call back to find out what, if 
anything, her doctor had decided to do.
  Mrs. Utterback called again. She explained to the person who answered 
the phone this time the steps she had taken up to this point in order 
and wanted to be seen by Dr. Perry. She again explained that she had 
right back pain radiating to her abdomen, which was getting more 
painful. She reiterated her efforts to see her doctor and reiterated 
her symptoms, as she was transferred several times. She also explained 
that she was frustrated. She wanted a same-day appointment, and she had 
been waiting to hear from her doctor since 10 o'clock, and it was now 
the middle of the afternoon.
  After speaking to several different people, it appeared to her 
daughter that Mrs. Utterback, her mother, had finally reached somebody 
sympathetic based on the tone of Mrs. Utterback's voice. Apparently 
this person offered to transfer Mrs. Utterback to patient assistance. 
However, when that transfer occurred, Mrs. Utterback reached a voice 
mail recording. So she hung up.
  She immediately phoned back the phone bank, and after explaining her 
symptoms and all of her attempts to get assistance again, she finally, 
after several attempts, reached a person who was able to get her 
scheduled for an appointment at 4:15. However, she had to insist on 
being seen that day because the medical assistant at first told Mrs. 
Utterback that her doctor declined to give her an appointment that day 
but, instead, would write her a prescription for narcotic pain 
medicine.
  Finally, upon Mrs. Utterback's insistence, the medical assistant 
agreed to give her an appointment late in the day. Well, Mrs. Utterback 
is not feeling very good. The pain is getting worse. She and her 
daughter decide to go immediately to the clinic to try to get in to see 
her doctor earlier, if possible. This is corroborated by an HMO 
employee, the medical assistant who booked the appointment at the 
doctor's station, who recalls that the daughter

[[Page H3862]]

told her that they were leaving right away to try to get worked in 
sooner in the day.
  Until arriving at the clinic, Mrs. Utterback never spoke to a 
registered nurse or an advice nurse, nor was she instructed to go to 
the emergency room by that HMO.
  Mrs. Utterback left about 2 p.m. and checked in no later than 2:45 at 
the HMO clinic. Despite requesting three separate times to be seen 
sooner because her pain was getting worse, staff at the HMO refused. 
While waiting, Mrs. Utterback's pain increased to the point where her 
discomfort was visually observable. She squirmed in her chair. She held 
on to her side. At times she was in plain view of the reception desk 
and the open hallway where the medical assistants would come to call 
patients. But it was not until 4:30 that her physician examined her.
  At one point, the medical assistant who was filling in for the 
doctor's patients that day was informed of Mrs. Utterback's desire to 
be put in a room. Two Kaiser receptionists testified that this 
assistant came to the front, glanced through the chart, looked into the 
waiting room where Mrs. Utterback was sitting, and stated, Doesn't look 
that sick to me, tossed the chart back and walked away. She did not 
stop, did not even bother to go out and talk to this woman.
  Well, once examined by her physician, what did he diagnose? He 
immediately diagnosed that she had not just an aortic aneurysm but a 
dissecting aortic aneurysm, one that was rupturing. Now, that is a 
life-threatening condition. It requires complete adherence to a 
stringent test of protocols in order to save the patient's life. IVs 
need to be put in, the patient needs to be given pain medicine, that 
pain medicine will help reduce the patient's blood pressure. If their 
blood pressure is too high, the medicine reduces the blood pressure. 
Because the higher the blood pressure is the more pressure every beat 
of the heart places on that enlarging balloon that is in that patient's 
abdomen.
  That patient is a medical emergency. That patient needs to be 
transported immediately to an emergency room, stabilized, and into the 
operating room in order to save that patient's life. But instead of 
calling 911 or arranging for advanced life support, and this is 
amazing, Mrs. Utterback and her daughter were initially asked to drive 
themselves to the emergency room. Imagine that. As a physician who has 
taken care of patients with this problem, to suggest that this patient 
should hop into the car and drive themselves there and possibly 
collapse enroute is just, it is just beyond me. It is just beyond me.
  The seriousness of Mrs. Utterback's diagnosis and condition were not 
even communicated to the Hayward Fire Department or to the ambulance 
personnel. Chief Michael Jay of the Hayward Fire Department, who had 
been dispatched to the scene, was not informed this patient had a 
dissecting aortic aneurysm. Instead, he was informed by the clinic that 
``the patient needed a transport, and the patient was complaining of 
lower back pain.'' Chief Jay stated, ``a diagnosis of a dissecting 
aortic aneurysm indicates a sense of urgency that would necessarily 
need to be communicated to the medical facility for the emergency 
personnel on scene,'' including himself, and it was never done.
  That lack of urgency was confirmed in the ambulance report, where it 
states, ``doctor nowhere to be found, nurse had very little patient 
information, patient transferred for 'question mark' for evaluation.''
  Mrs. Utterback did not arrive in the emergency room until 5:30. 
Remember, this saga started at about 8:15 in the morning. She did not 
get there until an hour after the diagnosis was made. Unfortunately for 
Mrs. Utterback, her aneurysm ruptured completely minutes after she got 
in the emergency room. She was taken to the operating room and given 24 
units of blood, but by then it was too late and the next day she died.
  The California Department of Corporations looked at this case and 
they found systemic lack of safety all the way through the day that 
this patient was treated. There should have been protocols in place. 
Certainly if a patient cannot be gotten into see her physician 
promptly, when she is having severe pain, she ought to be told to go to 
the emergency room. Do not pass go, just go to the emergency room, do 
not collect $200.
  It is these kinds of problems that we are hearing about HMOs. In 
fact, right at this moment one of my colleagues is holding a press 
conference over in the Longworth Building where he has 24,000 HMO 
complaints of abuse stacked up and piled up that have been gathered 
just in the last few months. 24,000. And, believe me, that is a small 
number, because most of the problems do not get reported.

                              {time}  1645

  And so, what have we been doing here in Congress? Well, after we 
passed a strong patient protection bill here in the House with 275 
votes back in October, the Speaker did not even name the conferees for 
a long time; and then the Republican conferees that were named from the 
House side, all except one, had not even voted for the bill.
  The two Republican authors of the bill, the gentleman from Georgia 
(Mr. Norwood) and myself, were not even named to the conference 
committee. The Senate had passed a bill, which, charitably, could be 
argued an HMO protection bill, not a patient protection bill. It is so 
weak, it is worse than weak. And we have had months now where the 
conference committee has gotten virtually nothing done. And, 
furthermore, there has been no legislative language put out on even the 
noncontroversial items. And every day goes by and somebody like Mrs. 
Utterback is being injured or loses their life.
  I could give my colleagues many, many other examples of this. If my 
colleagues would just take this one defect, cleft lip and cleft palate, 
in the last few years more than 50 percent of the surgeons who take 
care of this condition have had HMOs deny surgical repair related to 
cleft lip and cleft palate.
  I mean, this is a birth defect. This is not a cosmetic procedure. 
This is something to make somebody normal so they can speak right so 
they can walk through the grocery store and not be an object of 
contempt.
  For goodness sakes, why is it taking so long for us to address this 
problem? I guess you could only say, it is part of the systemic problem 
that exists here in Washington. There are very powerful special 
interests that oppose a real patient protection piece of legislation. 
That is the HMO industry, that is the insurance industry, and some of 
the big businesses.
  It is very interesting, though, that if you look at the polls that 
are done of, say, small businesses, even small business employers, by 
about a three to five margin think that Congress ought to pass patient 
protection legislation. These are the employers.
  What is the hang-up? Well, the hang-up in conference is on several 
things. One is the scope of the bill, who should the bill cover.
  Well, we in the House voted overwhelmingly that these patient 
protections should cover all Americans, not just a few like are covered 
in the Senate bill. Every American ought to have access to patient 
protection so they are not abused by their HMO. That is one of the 
issues.
  Another issue has to do with who determines medical necessity. Well, 
in the House-passed version, we passed a bill that said, you know, if 
there is a dispute you can go to an internal review, then an external 
review, an independent panel, and the panel can make a decision free of 
conflict of interest with the HMO and that that decision would be 
binding on the HMO, they would have to follow it. And if they did not 
follow that recommendation on a denial of care, then they could be 
subject to a fine. And if a patient was injured because of their not 
taking the advice of that panel, then they could be subject to 
liability.
  Nothing like that in the Senate version, nothing has been dealt with 
on that issue in conference.
  Now, some people are starting to think, well, maybe we ought to 
include some provisions from a substitute that was debated on this 
House floor and lost in regards to the liability. And that was the 
Goss-Coburn-Shadegg managed care liability provision. It is full of 
flaws and loopholes. I sincerely hope that the conference committee 
would correct these loopholes and flaws if they are looking at this. 
But more

[[Page H3863]]

importantly, they just ought to adopt the provisions that were in the 
bill that passed the House.
  But let me just read a couple of them. The Goss-Coburn-Shadegg HMO 
liability provision creates a Federal cause of action. Now, that is 
something we did not do. We simply said, if there is an injury, it goes 
back to be handled in the State, like all other insurance disputes do.
  The Goss-Coburn-Shadegg says other related claims could be brought in 
State court but not at the same time. That would create a procedural 
nightmare. Patients would be forced to bring actions in both State and 
Federal related to the same wrong, wasting judicial resources and 
posing an undue burden on them.
  The provision is unclear as to whether patients would be shut off 
from bringing related causes of action between various courts. The 
provision is vague whether a Federal court would have supplemental 
jurisdiction of State law claims, thereby taking a patient's State law 
claims away from a State jury.
  That is one example. Here is another problem with it. There was a 
provision in that Goss-Coburn-Shadegg liability bill that required a 
certification of injury by an external review panel that could deny a 
patient's Seventh Amendment constitutional rights. A defendant HMO 
could apply to a second external review panel under the Goss-Coburn-
Shadegg bill not involved in the external review decision to determine 
issues of substantial harm and proximate cause. These are traditional 
jury issues.

  If the external review panel, which could be completely devoid of any 
legal expertise, determined that either substantial harm has not 
occurred or that the HMO did not proximately cause the injury, then the 
patient's action would be dismissed unless the patient could overcome 
such a finding by clear and convincing evidence.
  Further, if a patient fails that burden, he or she is responsible for 
the HMO's attorney's fees. The use of an external appeal entity to 
establish causation or harm is unconstitutional. A patient's Seventh 
Amendment right to a trial by jury cannot be superseded, and external 
review panels cannot make decisions about injury and causation, which 
are reserved for our judicial system.
  There are many other problems with that substitute. But one of them 
is this, and that is that the Goss-Coburn-Shadegg bill would force a 
patient to exhaust internal and external review. To bring an action, a 
patient would have to exhaust current ERISA administrative remedies and 
all internal and external review processes, get this, even when he or 
she has already suffered an injury or even die due to the HMO's 
negligence.
  Let us go back to Mrs. Utterback. Mrs. Utterback started her problem 
at 8:15 in the morning when she phoned, goes through the day, how many 
times did she phone the HMO to try to get some resolution, did not get 
any help, was not treated properly, finally ended up dying, being taken 
to surgery about 9 and dying the next day.
  You know what? She would have no legal recourse under the Goss-
Coburn-Shadegg liability provision because, well, you know what, she 
had not gone through internal or external review. It is just 
unfortunate for Mrs. Utterback, I guess, that she died before she could 
bring it to review. But that does not mean that that HMO should not be 
liable.
  That is why the California Department of Corporations fined that HMO 
$1 million because of their negligent actions.
  We need to fix this problem. We need to address this. That is why we 
should have had a debate today on the Campbell Quality Health Care 
Coalition Act, which is one way to approach the problem; and that is 
why the conference committee on HMO reform really ought to get 
something done and soon.
  If they cannot move to some real substantive decisions and 
agreements, then we need to start looking at other ways to move this 
legislation. This is just too important for us for this to languish.
  There are millions of decisions being made every day on people's 
health care that are being interpreted to the disadvantage of patients 
because of an HMO's ability to determine ``medical necessity.''
  I hope it does not happen to a member of your family or to a loved 
one of yours or to you. Unfortunately, it could. All our constituents 
should be phoning and writing their congressman and they should say, 
please, enough is enough. Do not let this go anymore. Come to a 
resolution. Work with the President. Get a strong Patients' Bill of 
Rights passed this year, or we will hold you responsible at the voting 
booth.

                          ____________________