[Congressional Record Volume 146, Number 107 (Wednesday, September 13, 2000)]
[House]
[Pages H7572-H7575]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PATIENT PROTECTION LEGISLATION AS IT RELATES TO HEALTH MAINTENANCE
ORGANIZATIONS
The SPEAKER pro tempore (Mr. Scarborough). Under the Speaker's
announced policy of January 6, 1999, the gentleman from Iowa (Mr.
Ganske) is recognized for 60 minutes.
Mr. GANSKE. Mr. Speaker, I thank the gentleman from Texas (Mr.
Stenholm) for yielding a little earlier this evening. Just as a form of
notice to the next speaker, I will probably speak somewhere between 20
and 30 minutes.
Mr. Speaker, I want to talk tonight about a topic that I have come to
the floor many, many times in the last several years to speak about,
and that is on the issue of patient protection legislation as it
relates to health maintenance organizations, HMOs.
Mr. Speaker, I remember a few years ago, it must be about 4 years,
that my wife and I went to a movie called As Good as It Gets. We were
in Des Moines, Iowa, at a theater and I saw something happen that I do
not think I have ever seen at a theater. During that scene, when Helen
Hunt talks to Jack Nicholson about the type of care that her son in the
movie, with asthma, was getting from her HMO and she uses some rather
spicy language that I cannot say here on the floor of the House of
Representatives, people stood up and clapped and applauded in that
movie theater. I do not think I have ever seen that before.
{time} 1900
Mr. Speaker, that was an indication 4 years ago that there was a
problem with the type of care that HMOs were delivering. Then, Mr.
Speaker, we began to see the problems that patients were having with
HMOs captured in political cartoons. Things like cartoons in the New
Yorker Magazine. Here was one. This is pretty black humor. We have a
secretary at an HMO, and she is saying ``Cuddly care HMO. My name is
Bambi. How may I help you?''
Next one, ``You are at the emergency room and your husband needs
approval for treatment.'' Next one, ``Gasping, writhing, eyes rolled
back in his head does not sound all that serious to me. Clutching his
throat, turning purple. Um-hum?'' And she says here, ``Have you tried
an inhaler?'' She is listening on the phone. ``He is dead. Then he
certainly does not need treatment, does he?'' And the last picture
there on the lower left shows the HMO bureaucrat saying ``People are
always trying to rip us off.''
For years now we have seen headlines like this one from the New York
Post, ``What his parent did not know about HMOs may have killed this
baby.''
Here is another cartoon. This is the HMO claims department, HMO
medical reviewer with the headphone set on is saying, ``No. We do not
authorize that specialist. No. We do not cover that operation. No. We
do not pay for that medication.'' Then apparently the patient must have
said something, because all of a sudden the medical reviewer at that
HMO kind of sits up and then angrily says, ``No. We do not consider
this assisted suicide.''
Or how about this headline from the New York Post, ``HMO's cruel
rules leave her dying for the doc she needs.'' Pretty sensational
headlines.
And then we had this cartoonist's view of the operating room, where
you have the doctor operating. You have an anesthesiologist at the head
of the table and then you have an HMO bean counter. The doctor says,
``Scalpel.'' The HMO bean counter says, ``Pocket knife.'' The doctor
says, ``Suture.'' The HMO bean counter says, ``Band-Aid.'' The doctor
says, ``Let us get him to the intensive care.'' The HMO bean counter
says, ``Call a cab.''
Some of these I think have passed the realm of being even humorous,
because it has just been going on too long. You notice you do not see
Jay Leno or David Letterman talking much any more about HMOs. It has
just gone on too long. People are being hurt every day by capricious
rules that deny people medically necessary care by HMOs; and patients
have lost their lives because of it.
Here are some real-life examples. This woman was hiking in the
mountains west of Washington, D.C., in Virginia. She fell off a 40-foot
cliff. She fractured her skull. She broke her arm. She had a broken
pelvis. She is laying there at the bottom of this 40-foot cliff.
Fortunately, her boyfriend had a cellular phone. So they flew in a
helicopter. They strapped her on, flew her to the emergency room. She
was in the ICU, there for weeks on intravenous morphine for the pain.
And then a funny thing happened, when she finally got out of the
hospital, she found out that her HMO refused to pay the bill. Why, you
ask.
[[Page H7573]]
Well, the HMO said that she did not phone ahead for prior
authorization.
Now, I ask you something, this lady's name is Jackie, how was Jackie
supposed to know that she was going to fall off that cliff, then maybe
when she is lying at the bottom of that cliff semicomatose she is
supposed to have the presence of mind with her nonbroken arm to reach
into her coat pocket and pull out a cellular phone and dial an 1-800
HMO number and say I just fell off a 40-foot cliff, I need to go to an
emergency room, is that okay? Maybe when she is in the ICU for a week
on intravenous morphine, she is supposed to have the presence of mind
to phone the HMO? Real life story.
How about this woman in the center? This woman's case was profiled on
a cover story on Time magazine 2 years ago, maybe it was 3 years ago
now. Her HMO denied her medically necessary care, and she died. Now,
her little boy and her little girl do not have a mother and her husband
does not have a wife.
Before coming to Congress, I was a reconstructive surgeon. I took
care of babies that were born with this type of birth defect, a cleft
lip and a cleft palate. Do you know that more than 50 percent of the
surgeons who repair these types of birth defects have had HMOs deny
operations for repairs related to this defect, because HMOs have said
that that is a ``cosmetic defect''?
Just imagine that you were the parents of a baby born with this
defect, number one, the baby is not going to learn how to speak
normally, because there is a hole in the roof of the mouth. Food is
going to come out of the nose. Is that a cosmetic problem? Is speech a
cosmetic problem? Not that I ever heard of. I happen to think it is a
human right. It is a devine right to look human, and I think it is just
absolutely wrong for HMOs to do what they do to kids who are born with
birth defects, many times worse than this.
Let me tell you about this little baby boy. His name is James. When
he was 6 months old, about 3:00 in the morning, his mother found that
he was really sick, and he had a temperature of about 105. She asked
her husband what they should do, and they said well, we better phone
that HMO that we belong to. They phoned the 1-800 number talked to a
member a thousand miles away, explained how sick their baby was, and
that voice at the end of the line, who never examined this baby to see
how sick he was, said, well, I will authorize you to go to an emergency
room, but we only have a contract with one, so we are only going to let
you go to that one, that is it.
Well, mom and dad are not medical professionals, so they hop in the
car. Unfortunately, that authorized hospital was more than 60 miles
away, 60 miles away, clear on the other side of metropolitan Atlanta,
Georgia. En route mom and dad passed three emergency rooms that they
could have stopped at.
They knew Jimmy was sick. They were not medical professionals. They
did not stop because they knew if they did it without authorization,
they would be left with a bill. Unfortunately, before they got to the
authorized hospital, Jimmy had a cardiac arrest. Imagine you holding
little Jimmy trying to keep him alive while you are trying to find that
distant emergency room. Finally, when they pull in to the hospital
emergency room, mom throws open the door, leaps out, screaming, help my
baby, help my baby, a nurse comes running out, resuscitated Jimmy.
They put in lines. They give him medicines. They get him going. They
save his life. Unfortunately, because of that delay in medically
necessary treatment, they cannot save all of Jimmy because gangrene
sets in in his hands and his feet, and little Jimmy's hands and his
legs have to be amputated. That HMO made a medical decision, instead of
saying it sounds like he is sick, take him to the nearest emergency
room, it is okay with us, we will pay for it. They said, no, no, we
only authorize you going to that far away hospital.
Mr. Speaker, little Jimmy is going to live all the rest of his life
with bilateral hooks for hands, with protheses for legs. He is about 7
years old now. In fact, I brought him to the floor of this House of
Representatives during our debate on patient protection legislation
almost a year ago, and he is a great kid. He is doing good. He has got
good folks, but I will tell you what, he is never going to play
basketball, and he is never going to touch with his hand the cheek of
the woman that he loves, and that HMO should be responsible for that
decision.
Unfortunately, there is a Federal law, a 25-year-old Federal law
called the Employee Retirement Income Security Act. It was really
written to be a pension law, but it was applied to health plans. And
what it did was it took away oversight of health insurance from the
States for people who get their insurance through their employer, and
it did not institute any of the safeguards for quality control to
prevent the types of problems like little Jimmy had, that your State
insurance commissioners normally do. It left a vacuum.
Furthermore, it said that the only liability that that health plan
would have would be the cost of treatment denied, the cost of treatment
denied. That means that if little Jimmy is in an employer-sponsored
health plan, a self-insured plan, the only thing that that health plan
is liable for is the costs of his amputations. What about all the rest
of his life? Is that fair? Is that just? I do not think so. Neither
does the Federal judicial, neither do the Federal judges whose hands
are tied, because of this law called ERISA.
Judge Gorton in Turner v. Fallon Community Health Plan said even more
disturbing to this court is the failure of Congress to amend a statute
that, due to the changing realities of the modern health care system,
has gone conspicuously awry from its original intent.
I have had Federal judges tell me, beg me to change that Federal law;
number one, they think that these types of medical malpractice
decisions should be handled in the State courts, like they are for
anyone else. Number two, they realized that because of provisions in
that law, they cannot even address the issue of the health plan
defining medical necessity in any way they want to.
What does that mean? Well, under the ERISA law, a health plan can
write a contract for the employees that basically says we are not
liable for anything if we follow our own definition of what we consider
to be medically necessary. So they can write a provision in the
contract for an employee, for you, that would basically say we define
medical necessity as the cheapest, least expensive care, quote,
unquote, as determined by us.
That means that for this little boy who was born with a cleft lip and
palate, instead of the traditional and optimal treatment of surgical
correction utilizing the baby's own tissues to rebuild the defect, that
HMO could say well, under our definition of the cheapest least
expensive care, you know, just in the roof of his mouth, that big hole
there, just put like an upper denture plate.
{time} 1915
It is called an obturator, made of plastic. Of course, a baby like
this, it might fall out, it might even be swallowed. So what? We can do
that, because we defined it, medically necessary care, as the cheapest,
least expensive care. I think that is wrong. That is why judges are
saying, they are begging Congress, please, please, change that law. Our
hands are tied.
Well, here we are, as I said before, almost a year since we passed in
this House a bipartisan vote, 275 to 151, the Norwood-Dingell-Ganske
Bipartisan Consensus Managed Care Reform Act, a real patient protection
act. It has been almost a year. And I will tell you what, the public's
opinion has not changed one bit about HMOs.
Today in USA Today they quote from a Gallop organization poll a list
of occupations or organizations that people say they have a great deal
of or quite a lot of confidence in those institutions. At the top of
the list is the military; 64 percent of the public have a great deal of
confidence in the military. Organized religion, 5 percent of the
public; the police, 54 percent; the Supreme Court, 47 percent.
Then we get down toward the bottom of the institutions. Congress is
down here at 24 percent. The criminal justice system, 24 percent. This
probably reflects all of the news stories on the death penalty lately.
But right at the very bottom of this, of institutions
[[Page H7574]]
that the public respects, only 16 percent of the public thinks HMOs are
deserving of respect, only 16 percent.
In fact, overwhelmingly, the public thinks that Congress should pass
and the President should sign a real patient protection law, one that
would do many things: one that would cover all Americans; one that
would allow doctors to make medical decisions; one that would hold
those HMOs accountable for their decisions; one that would guarantee
minimum health plan standards; one that would allow you to appeal a
decision to an independent review panel if an HMO denies your care; and
one that would have that independent panel make that determination of
medical necessity, not some bogus definition by the health plan. These
are all things that were in our bill, the Norwood-Dingell-Ganske bill,
that we passed.
Well, the Senate passed a bill too; and, unfortunately, to be honest,
I would have to characterize that Senate-passed bill as an HMO
protection bill, an HMO protection bill, because it actually, in my
opinion, had provisions that were worse than the current situation,
that gave additional protections to health maintenance organizations,
rather than additional protections to patients.
After the House passed its bill and the Senate passed its bill, it
went to conference to iron out differences between the bills, and that
conference has not met in months. It is a failed conference, nothing
has come out of it, so it is time to move; it is time to try something
different.
In an effort to get patient protection legislation signed into law,
the gentleman from Georgia (Mr. Norwood), the gentleman from Michigan
(Mr. Dingell), myself, and Senator Kennedy have created a new
discussion draft of the House-passed bill, the Norwood-Dingell-Ganske
bill, that seeks compromise with Senator Nickles' amendment; and some
of the ideas of the House substitute bills from last year that did not
pass.
We continue to think the original Norwood-Dingell-Ganske bill is just
fine and should be signed into law, but we are willing to be flexible
in order to get a law, in order to get action in the Senate. We and the
American Medical Association and over 300 health care groups who
supported last year's House-passed bill have developed this discussion
draft to see if it would help bring some Republican Senators on board.
We have had positive responses from a number of Republican Senators,
including those who have previously voted against the Norwood-Dingell
bill, as well as those who have voted for the Norwood-Dingell bill. We
remain optimistic that we may soon have an opportunity to break this
logjam.
This discussion draft, which we have provided to the Speaker of the
House along with the actual legislative language in detail, does many
things. It includes many of the protections nearly all parties need to
be addressed, including the right to choose your own doctor,
protections against gag clauses, access to specialists, such as
pediatricians and obstetricians and gynecologists, access to emergency
care, so we can prevent something from happening like happened to poor
little Jimmy, and access to information about the HMO's plan.
This discussion draft applies the patient protections to all plans,
including ERISA plans, non-Federal Governmental plans, and those
covering individuals. So we cover over 190 million Americans. This new
draft addresses the concerns of those who want to protect States'
rights by allowing States to demonstrate that their insurance laws are
at least substantially equivalent to the new Federal standards, thereby
leaving the State law in effect. State officials could enforce the
patient protections of State law. The Secretary of Labor and Health and
Human Services can approve the State plan or challenge it on grounds
that it is inadequate.
Under the new draft, doctors will make medical decisions involving
medical necessity. When a plan denies coverage, the patient has the
ability to pursue an independent review of the decision from a panel
independent of the HMO. This external review is composed of medical
professionals totally independent of the plan and whose final medical
necessity decision is legally binding on the plan.
We took the lead from the Nation's courts with particular attention
given to the Supreme Court's decision in Pegram v. Hedrick. The new
draft reflects emerging judicial consensus. Recent court decisions have
suggested injured patients can hold health plans accountable in State
court in disputes over the quality of medical care, those involving
medical necessity decisions. However, patients would have to hold
health plans accountable in Federal court if they wanted to challenge
an administrative decision to deny benefits or coverage or for any
decision not involving medical necessity.
In addition to specific legislative provisions, the discussion draft,
this discussion draft, answers continuing questions about the original
Norwood-Dingell-Ganske bill. For instance, the draft says employers may
not be held liable unless they ``directly participate'' in a decision
to deny benefits as a result of which a patient was injured or killed.
Even then defendants could not be required to pay punitive damages
unless they showed ``willful or wanton disregard for the rights or
safety'' of patients.
Another concern about the Norwood-Dingell-Ganske bill was whether it
would affect the ability of health plans to maintain uniformity in
different States. This new draft only subjects plans to State law when
they make medical decisions that result in harm. This discussion draft
will allow Republican Senators who have voted against the original
Norwood-Dingell bill to vote for a real patient protection bill. Will
they take up this opportunity? Stay tuned. But time is running out.
People are waiting to see whether this Congress will actually deal with
one of the major health concerns that the public has. Eighty-five
percent-plus of the public thinks Congress should pass patient
protection legislation to protect them from HMO abuses, 85 percent.
About 75 percent think that that should include legal responsibility
for the HMOs.
If this bill, this discussion draft, is ignored, then I am sure we
are going to see this as one of the major issues in the coming
election, and we should, and we should. We have been working on this
legislation now, the gentleman from Georgia (Mr. Norwood), the
gentleman from Michigan (Mr. Dingell), Senator Kennedy and others, for
about 4 years.
When I am back home in the district people say, Why is it taking you
so long to get something passed that the public overwhelmingly wants? I
tell them we are fighting a very, very powerful industry that has spent
$100 million lobbying against this piece of legislation, some very,
very powerful Washington special interests, who are seeking to, in my
opinion, make sure that their bottom line profits come ahead of patient
protections.
Well, we will see whether we get this done. There are not too many
more weeks when I will be able to come to the floor and speak about
this issue, but as long as we are in session for the rest of this year,
I will try to get an opportunity to inform my colleagues on where we
stand. But I wanted my colleagues on both sides of the aisle to know
that the Republicans and the Democrats who truly want a real patient
protection piece of legislation are working together.
We have never said, along with the 300-plus consumer groups and
professional groups that think that this legislation should pass too,
we have never said it has to be the Norwood-Dingell-Ganske bill word
for word. That is why we have come up with this discussion draft. That
is why the language for many of these provisions is taken from the
Nickles amendment, the Coburn-Shadegg amendment and others, at least
half of the language. We have made some adjustments to correct some of
the defects as we see it in some of those provisions, but we have been
willing to work towards a compromise to finally get this signed into
law. We are this close. It would be a shame for the leadership of
Congress to hold this important piece of legislation up.
As a physician who has taken care of patients who have had a lot of
troubles with HMOs, I have been on the front line; and I have seen that
we truly need this type of legislation.
This is not a piece of legislation for physicians. In fact, there are
provisions in our bill that could actually decrease
[[Page H7575]]
physician income. Nevertheless, the professional groups support this.
Why? Because their first and foremost job is to stand up for and to
advocate for their patients. That is why they take that Hippocratic
Oath.
{time} 1930
The patient-doctor relationship is foremost. HMOs have interposed
themselves between the doctor and the patient. Quite frankly, they have
put a financial consideration rather than the patient's best care into
that decisionmaking. Mr. Speaker, we need to swing that pendulum back.
Now, this brings me, finally, and I just would like my colleagues
from the other side to know that I only have a few more minutes in
which to speak; this brings me to another health care issue, and that
is that when we passed the Balanced Budget Act in 1997, we passed
several provisions on reducing the rate of growth in Medicare. The
implementation of those provisions has actually produced significantly
more savings than we planned on, and those savings have had a
significantly harmful effect on some of the provider groups.
Mr. Speaker, I just finished a series of town hall meetings around my
district. I represent Des Moines, which is a major metropolitan
suburban area, but I also represent southwest rural Iowa. There are a
lot of small town county hospitals in my district. Because of certain
provisions from the Balanced Budget Act with reduced payments to those
hospitals, those hospitals are having a real hard time and are right on
the verge of financial insolvency.
I grew up in a small town in northeast Iowa. I know how important it
is that a small town have a hospital. It is important for a number of
reasons. It is important for the people who live in that town or the
farm families around it so that they do not have to travel 70 or 80
miles if they have a heart attack or if they want to deliver a baby,
but it is also very important to the financial survival of that small
town. If we do not have a hospital in that small town, it is hard to
keep doctors in the town. If we do not have a hospital and doctors in
that town, it is hard to keep businesses in that town, and it is almost
impossible to convince any other business development in that
community. So we are talking about not only an issue of public health,
but we are also talking about an issue of economic survival.
My committee, the Committee on Commerce, is in the process, along
with the Committee on Ways and Means, of drawing up a bill to bring
some additional funds back into Medicare. I am working hard to ensure
that we get some additional funding for those small towns and rural
hospitals in Iowa and in other areas around the country. There will be
discussion on whether we should provide additional payments to Medicare
HMOs. I think we need to be careful on doing that.
Mr. Speaker, I have here a Report to Congressional Requesters from
the United States General Accounting Office on Medicare Plus Choice. It
is Entitled Payments Exceed Cost of Fee-for-Service Benefits, Adding
Billions to Spending, and it is dated August 2000, and it was requested
by Senator Grassley, by Senator Roth, by the gentleman from Michigan
(Mr. Dingell), and by the gentleman from California (Mr. Thomas). I
think it is really important for me to read the summary, the results,
in brief:
``Medicare Plus Choice,'' this is a quote from this GAO report:
Like its predecessor managed care program, has not been
successful in achieving Medicare savings. Medicare Plus
Choice plans attracted a disproportionate selection of
healthier and less expensive beneficiaries relative to
traditional fee-for-service Medicare, a phenomenon known as
favorable selection, while payment rates largely continue to
reflect the expected fee-for-service costs of beneficiaries
in average health. Consequently, in 1998, we estimated that
the program spent about $3.2 billion or 13.2 percent more on
health plan enrollees than if they had received services
through traditional fee-for-service Medicare. This year, the
Health Care Financing Administration implemented a new
methodology to adjust payments for beneficiary health
status. However, our results suggest that this new
methodology, which will be phased in over several years,
may ultimately remove less than half of the excess
payments caused by favorable selection. In addition, the
combination of spending forecast errors built into the
plan payment rates and the Balanced Budget Act payment
provisions cost an additional $2 billion, or 8 percent in
excess payments to plans instead of paying less for health
plan enrollees. We estimate that aggregate payments to
Medicare Plus Choice plans in 1998 were about $5.2
billion, or approximately $1,000 per enrollees more than
if the plan's enrollees had received care in the
traditional fee-for-service program. It is largely these
excess payments, and not managed care efficiencies, that
enable plans to attract beneficiaries by offering a
benefit package that is more comprehensive than the one
available to fee-for-service beneficiaries while charging
modest or no premiums.
Mr. Speaker, this brings us directly to the issue of prescription
drug coverage. Because what this is saying is that number one, the
Medicare HMOs have been skimming off the healthier beneficiaries so
that they would have lower costs. That way they make more money on
covering those. They are getting paid more for those Medicare
beneficiaries than if those beneficiaries were simply in the regular
Medicare plan. With those excess profits, what they do is they can
entice other healthier seniors into it by offering a prescription drug
benefit. I think as we consider whether and how Congress should
implement a prescription drug benefit, we need to take into account
this GAO report that documents that we have actually lost money with
our Medicare HMOs, rather than saved money with our Medicare HMOs.
So when we look at this Medicare give-back bill that is coming along
and will be signed into law, passed and signed into law, I am pretty
sure, I think we ought to be very careful and judicious about providing
more money to those Medicare HMOs. We ought to be looking, in my
opinion, at ways to provide pharmaceutical coverage, a prescription
drug benefit for Medicare beneficiaries, regardless of whether they
live in New York or Los Angeles or Miami or Harlan, Iowa. That benefit
I think should be equally available, regardless of where one lives in
this country. If we dump additional billions into a failed HMO program
called Medicare Plus Choice, then I think we will be throwing money
down the drain.
So clearly, this will be a package of provisions, and I absolutely
feel that it is important to support provisions for additional coverage
for our rural hospitals, for example, but I will also do my best to try
to make sure that we do not go overboard with providing additional
funds to Medicare HMOs, when this report from the GAO shows that even
with the implementation of a new risk adjuster, we will still only take
care of 50 percent of the excess payments.
Well, Mr. Speaker, I very much appreciate the opportunity to speak
tonight on health care issues, and I look forward to working with my
leadership and with members on both sides of the aisle to try to get
adjustments made for Medicare for our rural hospitals and to get
finally signed into law a real patient protection bill modeled along
the lines of what we passed here in the House almost a year ago, the
Norwood-Dingell-Ganske bipartisan consensus Managed Care Reform Act.
____________________