[Congressional Record Volume 146, Number 113 (Thursday, September 21, 2000)]
[House]
[Pages H7983-H7988]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           HEALTH CARE ISSUES

  The SPEAKER pro tempore (Mr. Pease). 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 am going to speak on several issues 
related to health care this afternoon. As my colleagues know, before I 
came to Congress I was a physician practicing in Des Moines, Iowa. I do 
have some insight into some of these health care issues that we are 
trying to tie up before the end of this session, whenever that will 
happen.
  Let me first speak about the prescription drug problem. I just 
finished a series of town hall meetings around my district.

                              {time}  1615

  I will tell my colleagues that the high cost of prescription drugs is 
a real one, not just for senior citizens but for everyone, and it is a 
major component to the increased premiums that we are seeing for 
working families in terms of their health insurance premiums. 
Prescription drug costs for those health plans are going up 18 to 20 
percent per year, and then those costs are being transferred on to the 
businesses that pay for health insurance and then on to increased 
premiums for the family. So it is not senior citizens. But from my town 
hall meetings, I had a senior citizen in Council Bluffs come up to me 
and tell me that between his wife's drug costs and his drug costs, they 
were spending almost $13,000 a year on prescription drugs. They were by 
no means a wealthy family. I had another gentleman in Atlantic, Iowa 
come up to me and he had a whole packet of his prescription drug costs. 
They amounted to almost $7,000 a year.
  Now, it is true there is a certain percentage of senior citizens who 
are fortunate, who are healthy, who do not have any drug costs. That is 
about 14 percent of the Medicare population. And about 36 percent have 
less than $500 out of pocket. But there is a group of senior citizens 
that have very high drug costs. We need to address that problem.
  As a Republican, I just have to offer a polite voice of dissent, 
because the plan that passed this House is simply not going to work. It 
relies heavily on

[[Page H7984]]

insurance companies to offer prescription drug policies. I sit on the 
committee of jurisdiction, the Committee on Commerce, the Subcommittee 
on Health and Environment. We had testimony before my committee by the 
insurance industry that said, we will not offer those types of 
policies. They have a pretty good reason for doing that: They cannot 
predict what the future costs of the prescription drugs are going to 
be. They are afraid that they will get locked into a program at a 
certain rate, see their costs rise way above that and they simply 
repeatedly, to both the House and the Senate, have said, ``We're just 
not going to offer those plans.'' So it does not do you any good to 
pass a bill on the floor of the House that relies on insurance 
companies to do that when they say from their past experience and their 
present experience that they are not going to do it.
  What is the solution? Well, I have a bill before Congress that has 
several important points, but two of them I think are very important: 
One is for that senior citizen who is right on the margin of being in 
poverty but is not in Medicaid as well as Medicare, we ought to do 
something to help that senior citizen with their high prescription drug 
costs. We could do that simply, not by creating a new bureaucracy. 
There already is a program in place for poor senior citizens and that 
is the Medicaid program. Every State has a Medicaid program for those 
senior citizens who are below the poverty line. And every Medicaid 
program that I know of has a drug benefit.
  And just about every State that I know of has negotiated discounts 
with the pharmaceutical companies for those drug programs. So we ought 
to look at including those senior citizens who are above that poverty 
line, maybe up to 175 percent of poverty and include them in that 
Medicaid drug benefit. No new bureaucracy, they simply get a card. We 
could pay for that from the Federal side so that we would not be 
talking about an unfunded mandate on the States. It would be 
significantly less expensive than what we are talking about with the 
other proposals and we could get it done today. We could implement it 
tomorrow. Yes, it would not be comprehensive for everyone but it would 
certainly help those who need it the most in Medicare.
  But what could we do for everyone?
  The second thing that we should do to help with the high cost of 
prescription drugs, not just for senior citizens but for everybody is 
to readdress a law that Congress passed in 1980. It was signed into law 
by President Reagan, but he did so with grave reservations. He was 
concerned that that law would generally prohibit certain types of 
beneficial competition in the sale of pharmaceuticals by hospitals and 
other health care providers that would allow consumers to benefit 
through increased choices and lower prices. What was that bill? It was 
a bill that gave the pharmaceutical industry special protection, 
something that, as far as I know, no other industry in this country has 
and, that is, that you cannot reimport into the United States drugs 
that are made in the United States and packaged in the United States. 
It is against the law. Anyone who does that, brings drugs across the 
border, prescription drugs, could be prosecuted, fined. Senior citizens 
who have done this have gotten very nasty, threatening letters from the 
Customs Service or from the Food and Drug Administration. Even though 
senior citizens do cross to Mexico and do cross to Canada and do buy 
prescription drugs, they are breaking the law.
  I got a letter the other day from a senior citizen in Des Moines, 
Iowa. He is a volunteer at a hospital that I used to work at, and he 
participated in a drug study at the University of Iowa for an arthritis 
medicine called Celebrex. That medicine worked really well for him. So 
he went to his doctor, he got a prescription, he went to the hospital 
where he is a volunteer, went to the pharmacy there and with a 
volunteer discount could get that prescription for about $2.50 a pill. 
Well, this gentleman is a pretty smart guy. He got on the Internet that 
night and he found out that he could, with about $10 or $15 of shipping 
and handling, get that prescription from Canada from a pharmacy for 
about half price. Same thing from a pharmacy in Geneva, Switzerland. 
And from Mexico he could get that medicine for about 55 cents per pill, 
made in the United States, packaged in the United States.
  Look at this chart. Here are some drugs with a U.S. price and a 
European price. Let us say Coumadin, that is a blood thinner medicine, 
twenty-five 10-milligram pills in the United States will cost you 
$30.25. Over in Europe, $2.85. From $30 to $3. How about Prilosec? 
Twenty 28-milligram pills in the United States, $109. In Europe, 
$39.25.
  How about Claritin? Claritin is a good antihistamine. It is 
advertised night and day. I guarantee my colleagues that if they watch 
any TV or look at any billboard, they are going to see Claritin 
advertised. The marketing budget by the company that makes this is 
astronomical. Why? Because they are making a ton of money on it. They 
are also trying to get an extension of their patent, which this 
Congress should oppose. But Claritin. For 20 pills in the United 
States, $44. In Europe, and this is not a Third World country. In 
Europe, $8.75.
  I can go down this whole list. This is just representative of the 
difference in the cost between what we pay in the United States and 
what they pay in Canada or Europe, not to mention in Mexico. Why is 
there such a differential? Because there is not any competition, any 
global competition. We are subsidizing the high profits of the 
pharmaceutical companies in this country because of that law. Changing 
that law to allow a reimportation of those medicines is part of my 
bill. But I have to tell you that others have been involved in this 
issue, also. The gentleman from Oklahoma (Mr. Coburn), who is a 
physician; also, the gentleman from Maine (Mr. Baldacci); Senator Jim 
Jeffords, and several others have been interested in this. We have now 
passed amendments to appropriations bills that would overturn that law 
that prevents prescription drugs from being reimported back into the 
United States.
  In the House, we had a vote. We had a vote in the House that was 370-
12 in favor of doing that. There was a vote in the Senate that was 74-
21 to overturn that law. 370-12 in the House; 74-21 in the Senate. Why? 
Because I think intuitively we realize that if we could get in on a 1-
800 telephone number or get on the Internet and be able to order our 
prescriptions filled from Canada or from Europe at a lower price, we 
know what would happen to the prices in the United States. In order to 
be competitive, they would come down.
  Every farmer in my district knows what the price of soybeans is and 
they know that that price is determined by the world market. But on 
prescription drugs, we have given the pharmaceutical companies a 
special interest protection. That should be changed. If we allow 
competition on a global basis, the prices will come down. They will 
come down for everyone, not just senior citizens. They will come down 
for the businesses that are providing the health insurance to their 
employees. The pharmaceutical companies have profit margins that are 
three and four times higher than any other group of companies in the 
country. Believe me, they will still make plenty of money if we 
introduce some competition. And that is not setting any prices. That is 
not a government price-setting mechanism. That is simply allowing the 
market to work.
  My friends on the Republican side of the aisle, all of them who voted 
for this, who believe in free markets and that free markets and 
competition bring down prices, they and all of our colleagues on the 
Democratic side who voted for this bill should insist with such support 
from both the House and the Senate that those amendments not be 
stripped from the conference bills on those appropriation bills that 
come back for our vote.
  The pharmaceutical companies are lobbying night and day to get those 
provisions removed. If the leadership of the House or the leadership of 
the Senate accedes to the pharmaceutical companies' desires and strips 
out provisions where overwhelming majorities in both the House and the 
Senate have expressed their will, we are not talking about a narrow 
vote margin, we are talking about a margin where only 12 Members in 
this House voted against that, where only 21 Members in the Senate 
voted against that provision. If the leadership in the House, the 
Republican leadership in the House and the

[[Page H7985]]

Republican leadership in the Senate strip those amendments out of those 
appropriations bills, then every American in this country who is paying 
a high prescription drug cost will know where part of the problem lies.
  This is not a time to bow to special interests, big corporate, soft 
dollar contributions.

                              {time}  1630

  This is a time to stand up for every American who is paying 
outrageously high drug costs compared to the rest of the world. To buy 
a very simple remedy, bring down the costs of prescription drugs for 
everyone. If the conference bills come back, one of them is the 
agricultural appropriations bill, if that comes back with this 
provisions stripped out, I can grant my colleagues that I will be here 
on the floor, the gentleman from Oklahoma (Mr. Coburn) will be here on 
the floor, the gentleman from Maine (Mr. Baldacci) will be here on the 
floor.
  We will be pointing out to all of our colleagues that the leadership 
in this House and the leadership in the Senate, which is giving 
directions to that conference committee, is trying to subvert the 
overwhelming Democratic majority, the overwhelming majority of both 
Republicans and Democrats on a very, very important policy issue.
  That is something we can get done. The administration, the Secretary 
of Health and Human Services, Donna Shalala, has said we can agree to 
that provision; we think we might need a little more money to make sure 
that the Food and Drug Administration can oversee, to make sure that 
there is not a problem with those reimported drugs.
  The last figure I saw from Secretary Shalala was that her estimate 
was that maybe this would cost an additional $24 million in 
appropriations to the Food and Drug Administration. I tell my 
colleagues that is a drop in the bucket compared to the billions and 
billions of dollars that American citizens could save if we remove that 
special protection and let the price of prescription drugs come down 
because of competition.
  My constituents back in Iowa who have those high drug prices will be 
watching to see what happens. I will be doing what I can, just like I 
am in this speech, to try to make sure that the will of the House and 
the will of the Senate is not contravened by a small minority of 
leadership subverting the will of the House and the Senate.
  Now, let me talk about another very, very important issue that is 
coming up. We are going to be dealing with a bill very shortly, maybe 
as soon as next week, that will provide additional funding for 
Medicare. In 1997, we passed a bill involving Medicare, the Balanced 
Budget Act of 1997. Back in 1995 and 1996, I was one of the first 
Republicans to say be careful, do not cut those programs too much or we 
could see some real hurt.
  At a committee hearing, I said, you know what, we are looking at 
deficits; but we have to be careful with that tourniquet. A tourniquet 
can stop bleeding, can keep a patient from bleeding to death; but if we 
put that tourniquet on too tight, it can cause the loss of blood supply 
to the extremity, and we can end up with gangrene.
  We have found that there have been more savings from that 1997 Budget 
Act than we anticipated, and the consequences for certain groups that 
are involved with Medicare have been more than we planned for. And so I 
think it is entirely appropriate that we use part of our surplus, 
projected surplus, to go back in and fix some of that.
  I have hospitals in my district in small towns in rural Iowa where 
the hospitals are right on the margin. They take care of very high 
percentages of Medicare patients, so they rely very much on the 
reimbursement that they get from Medicare; and they do not have, you 
know, a large population base to try to make that up with, say, 
charitable donations. We need to go back and give those hospitals some 
help.
  One of the areas that they are having problems with is in keeping 
their nurses, because the funding formula for rural hospitals, they get 
paid less as a price index for their nurses than a hospital, for 
instance, in a metropolitan area, like Des Moines or Chicago or 
Minneapolis or Omaha; and so those areas can offer nurses significantly 
higher salaries, and they tend to just pull those nurses out of those 
small town hospitals.
  We need to significantly re-adjust the pay scale index for those 
hospitals to bring up the funding so that they are providing their 
nurses with a competitive salary so that they will stay and help take 
care of those patients in those hospitals in the rural areas; 
otherwise, those hospitals are not going to make it.
  If a small town does not have a hospital, we cannot keep our doctors 
there; and if we do not have doctors and if we do not have a hospital, 
we cannot keep our businesses there.
  We are talking not only about whether patients would have to travel 
80 miles or 100 miles to take care of a heart attack or to deliver a 
baby, we are talking about whether that community stays viable 
economically, continues to survive. So this is important. We need to do 
that.
  I am troubled by what I am hearing on what the funding is going to be 
for this sort of emergency Medicare giveback bill, because the HMOs 
have been lobbying to get a huge percentage of this instead of getting 
it to those rural hospitals or to the teaching hospitals or to the 
inner city hospitals that take care of a lot of indigent parents or to 
other areas that need it. The HMOs want to take the majority of this, 
and I have a real problem with that.

  I will tell my colleagues why a GAO, a General Accounting Office, 
report just published in August shows that the HMO program in Medicare 
has not been successful in achieving Medicare savings. It is called 
Medicare+Choice. And Medicare+Choice plans attracted a disproportionate 
selection of healthier and less expensive beneficiaries relative to the 
traditional fee-for-service Medicare program. That is called favorable 
selection.
  Consequently, in 1998, the GAO estimates that the Medicare program 
spent about $3.2 billion, or 13.2 percent, more on health plan 
employees in HMOs than if they had received the same services through 
traditional fee-for-service Medicare. And, yet, I am hearing from my 
colleagues, oh, we have to give so much more money to the Medicare 
HMOs.
  This is about the fourth study that we have had from either the 
Inspector General's office or the General Accounting Office that has 
shown that the average Medicare patient in a Medicare HMO costs the 
Medicare HMO less than what a fee-for-service patient would. 
Consequently, they make a lot of money off of it.
  Then we had another report that came out, not too long ago, by the 
Inspector General's office. This was in February. What did they find? 
Here is the headline there from USA Today: ``Medicare HMO hit for 
lavish spending.'' One insurer, one Medicare HMO spent $250,000 on 
food, gifts and alcoholic beverages; four HMOs spent $106,000 for 
sporting events and theater tickets and another leased a luxury box at 
a sports arena for $25,000. Customers, insurance brokers, and employees 
at one HMO were treated to $37,303 in wine, flowers, and other gifts.
  As the Inspector General said, the administrative costs for some 
Medicare managed care plans are clearly exorbitant. Why did they say 
that? Well, because they found in the study that some Medicare HMOs are 
doing an okay job. They are spending as little as 3 percent 
administrative overhead on their plans.
  I do not mean to say that all Medicare HMOs are the bad guys, but 
other Medicare HMOs were spending up to 32 percent on administrative 
overhead. Think of that, 10 times the amount on administrative 
overhead. I guess that takes into account why some of these Medicare 
HMOs are buying luxury sports boxes in sports arenas, or why some of 
them are giving away expensive gifts on wine and flowers and other 
gifts and others are literally funding big parties for their employees. 
That is all money that should be going for patient care, not for the 
fat of the Medicare HMO.
  And so my suggestion would be that, you know what, we ought to be 
very careful about providing additional dollars to those Medicare HMOs. 
We ought to use that money to get back directly to the people who are 
taking care of those patients. Yes, maybe some of these Medicare HMOs 
with the low administrative overheads do need some help, but I would be 
very careful about

[[Page H7986]]

throwing $6 billion or $7 billion or $8 billion at them with the type 
of record that they have. And we know adverse selection is when they 
are treating a healthier population at a lower cost.
  We know from past studies in the past few years that when a Medicare 
HMO patient leaves an HMO, a Medicare HMO, and goes back into the fee-
for-service, that it costs the fee-for-service plan significantly more 
than what the average Medicare HMO patient costs.
  What is happening? Well, the Medicare HMOs are just fine for people 
who are healthier who do not have a problem, who do not need to see a 
particular doctor; but when a patient gets sick, then they transfer 
back to the fee-for-service side because they have more choice, they 
can get better treatment, and then that transfers a sicker patient back 
into the fee-for-service but keeps a healthier group for those Medicare 
HMOs.
  I will tell you what, I am going to shine the light on this problem 
when this bill comes to the floor, unless we have a reasonable funding 
level for those Medicare+Choice plans and unless we provide the type of 
help we need for groups like our rural hospitals.
  Now, let me briefly talk about HMOs. Last week I saw in USA Today on 
the front page one of those little charts that they have. This was from 
a Gallup poll on the confidence that the public has in certain 
institutions. At the top was the military: 64 percent of the public 
feel that they have confidence in the military as an institution; 56 
percent, organized religion; 47 percent, the Supreme Court. Congress is 
down there at 24 percent.
  HMOs are at the very bottom. Only 16 percent of the public think that 
HMOs are worthy of confidence or only 16 percent of the public have 
trust in HMOs as an institution. That is reflected, as it so 
frequently, in jokes and cartoons that we will see.

                              {time}  1645

  Here is a cartoon. It says, remember the old days when we took 
refresher courses in medical procedures? And this is at the HMO medical 
school. And it says here, and I know that it is hard for colleagues to 
see this from the back, it says, course directory, first floor, basic 
bookkeeping and accounting; second floor, this is all at the HMO 
medical school, second floor, advanced bookkeeping and accounting; and 
third floor, graduate bookkeeping and accounting.
  This is a cartoon Non Sequitur by Wiley. This is HMO bedside manner. 
Here we have a patient that is in traction, IVs running, being 
monitored, probably has some endotracheal tube, and there is a sign 
above his bed: Time is money; bed space is loss; turnover is profit. 
Remember, this is the bedside HMO manner.
  Here is a health care provider saying, after consulting my colleagues 
in accounting, we have concluded you are not well enough. Now you can 
go home. That is the HMO bedside manner.
  Here we have the maternity hospital. Remember this from a few years 
ago, the advisory group to the HMOs, a company called Milliman & 
Robertson, that sets up guidelines, quote/unquote for care, they said 
at that time, you know what, we do not think women need to stay in the 
hospital after they deliver babies. They can go home. So here is the 
maternity hospital with the drive-thru window. Now only six minutes, 
six-minute stays for new moms, and the person at the window, it is 
almost like a McDonalds, says congratulations, would you like fries 
with that? And there is the frazzled mom who has just delivered the 
baby, and down in the corner you have a little figure saying, looking a 
little like that scalding coffee situation.
  Now this is one of my favorites because when I was in practice I was 
a surgeon, and so here we have the doctor standing and next to him in 
the operating room is the HMO bean counter. The doctor says, scalpel. 
HMO bean counter says, pocket knife. The doctor says, suture. HMO bean 
counter says, Band-Aid. The doctor says, let us get him to the 
intensive care unit. The bean counter says, call a cab.
  Remember, these are all cartoons that have appeared in daily 
newspapers. This gives you an index of where the public is on this. 
These are grounded in reality because they would not be funny if there 
were not an element of truth to these.
  Here is one, the HMO claims department. We have an HMO reviewer at 
the telephone there, says, No, we do not authorize that specialist. 
Over there she says, No, we do not cover that operation. As she looks 
at her nails, she says, No, we do not pay for that medication. Then 
apparently the patient must have said something rather startling and 
she says, No, we do not consider this assisted suicide.
  And here we have an HMO doctor saying, Your best option is cremation, 
$359 fully covered. And the patient is saying, This is one of those HMO 
gag rules, is it not, doctor?
  Five years ago, I had a bill in Congress, a bipartisan bill with over 
300 bipartisan Republican and Democratic congressmen as co-sponsors, 
called the Patient Right to Know Act, which would ban gag clauses that 
HMOs were imposing on physicians where they said before you can tell a 
patient about their treatment options you first have to get an okay 
from us.
  Think about that. There I am, as a physician, a woman comes in to me, 
she has a lump in her breast, I took her history, her physical exam and 
before I can explain her three treatment options to her, if I have a 
contract with an HMO like that, I have to say, excuse me, I have to go 
out, get on the phone and say, I have Mrs. So and So with a breast lump 
and she has three options; can I tell her about that? Oh, for heaven's 
sakes, you know what, with 300-plus bipartisan cosponsors I could not 
get the leadership of this House to bring that to the floor. Can you 
imagine that?
  Well, here is another cartoon of a doctor sitting at the desk and he 
is saying to the patient sitting there, I will have to check my 
contract before I answer that question. The same thing on the gag 
rules.
  Now this is a little bit black in terms of humor. Here we have an HMO 
reviewer on the telephone saying Cuddly care HMO, how can I help you? 
She then says, You are at the emergency room and your husband needs 
approval for treatment? He is gasping, writhing, eyes rolled back in 
his head. Hum, does not sound all that serious to me. Clutching his 
throat? Turning purple? Uhm hum.
  She says down here, Well, have you tried an inhaler? The next panel, 
He is dead? Next to the last panel, Well, then he certainly does not 
need treatment, does he? And finally, the HMO reviewer says, Gee, 
people are always trying to rip us off.
  Here is another one? Patient is saying, Do you make more money if you 
give patients less care? The doctor says, That is absurd, crazy, 
delusional. The patient says, Are you saying I am paranoid? The HMO, 
Yes, but we can treat it in three visits.

  I mean, this general perception by the public based on true cases 
that you read about in newspapers or that you talk to your friends 
about at work or, heaven forbid, that your own family has had problems 
with in terms of getting HMOs to authorize and provide needed and 
necessary medical treatment is so pervasive that we are even seeing 
jokes about it made in movies.
  Remember a few years ago the movie, As Good as It Gets, where you had 
Helen Hunt and Jack Nicholson, and Helen Hunt was explaining that her 
son had asthma but that her HMO would not provide the necessary care 
for him and she described that HMO in expletives that I really cannot 
use on the floor of Congress. I was sitting in an audience in Des 
Moines, Iowa, with my wife and I saw something I never saw before. 
People stood up and started cheering and clapping when they described 
that HMO in those terms. That does not happen unless there are real 
problems.
  Well, in October of 1999, almost a year ago, here on the floor of the 
House of Representatives, we had a 3-day debate and a bill drafted by 
the gentleman from Georgia (Mr. Norwood), very conservative Republican; 
myself, a Republican from Iowa; and the gentleman from Michigan (Mr. 
Dingell), a Democrat, the Norwood-Dingell-Ganske Bipartisan Consensus 
Managed Care Reform Act, passed this House with 275 bipartisan votes. 
Despite opposition from the Republican leadership, despite intensive, 
$100 million lobbying against it by the HMO industry, an amazing thing 
happened that day when

[[Page H7987]]

we had a vote. A large number of Members on this floor said I am going 
to do what is right. I am not going to listen to that special interest 
group. My constituents back home are telling me we need some real 
patient protections. We need to prevent injuries and deaths that are 
being caused by HMOs and, furthermore, we need to make sure that those 
HMOs are responsible for their actions, because under a 25-year-old 
Federal law, if you get your insurance from your employer and your 
employer's HMO causes you to lose both hands and both feet negligently 
or negligently causes you to die, under that 25-year-old Federal law 
they are liable for the cost of the treatment, period. They would be 
liable for the cost of your amputations and in the case of the dead 
patient they would not have to pay anything because the patient is 
dead.
  I mean, is that right? Is that justice? Is there any other industry 
in this country that has that type of legal protection? I do not think 
so.
  Furthermore, the public does not like that because by a margin of 
about 75 percent, across both party lines, across all demographic 
groups, people think that at the end of the day a health insurance 
company should be responsible for its decisions if they make a 
negligent decision that results in an injury. I mean, we would not give 
that type of legal protection to an automobile industry.
  We are holding hearings right now in my committee on the Bridgestone/
Firestone tire problem. I do not see anyone proposing that we give 
legal immunity to those companies and yet for an industry that is 
making life and death decisions about your health care every day, there 
is a 25-year-old Federal law that says you are not liable for anything 
except the cost of care denied. That is not right. It needs to be 
fixed.
  Well, as I said, it has been almost one year since the House passed 
the Norwood-Dingell-Ganske Bipartisan Consensus Managed Care Reform 
Act. The Senate passed a bill, which I would charitably characterize as 
the HMO Protection Act. It actually put into statutory language 
additional protections for HMOs, not for patients. When that happens in 
Congress, when the House passes a bill and when the Senate passes a 
bill, and they differ, then they go to what is called a conference 
committee. That is made up usually of the people who wrote the bills 
and are involved with the passage. However, in this situation, because 
the gentleman from Georgia (Mr. Norwood) and I defied the House 
leadership, the Speaker of the House did not even name to the 
conference committee the two Republican Members who wrote the bill, 
that wrote the bill that passed the House with 275 votes.
  In fact, out of the 15 or 16 House Republican Members that were named 
to the conference committee, only one had actually voted for the bill 
that passed the House, the real Patient Protection Act, and many who 
were appointed were adamantly opposed to it. Now, I say what message 
does that send? Does that send a message that the leadership in 
Congress really wants to get a bona fide patient bill of rights passed? 
I do not think so. Well, needless to say, the conferees from the 
Senate, they were not that interested in really getting something done, 
either. So the conference has failed. In fact, the conference has not 
met for months and patients continue to be harmed by arbitrary and 
capricious HMO denials of care that are costing people their health and 
in some cases their lives.
  So in an effort to get patient protection legislation signed into 
law, the gentleman from Georgia (Mr. Norwood), the gentleman from 
Michigan (Mr. Dingell), myself, Senator Kennedy, we have created a new 
discussion draft of the House-passed bill seeking compromise with the 
Nickels amendment in the Senate, and we incorporated some of the ideas 
of the House substitute bills last year. We continue to think that the 
original Norwood-Dingell-Ganske bill is just fine, but we are willing 
to be flexible in order to get along.
  We and the American Medical Association and over 300 health care 
groups who supported last year's House-passed bill have developed a 
discussion draft if it helps bring Republican Senators on board. We 
have had positive responses from a number of Republican Senators, other 
than those who have previously voted for the House-passed bill.
  We remain optimistic that there is still time in this short time 
frame yet where we can break this logjam. All it takes is one or two 
more Republican Senators to say I think this compromise language is 
good language.

                              {time}  1700

  We have looked at a number of ways to seek the middle. We are giving 
Republican Senators an opportunity who truly want to pass patient 
protection legislation and see it signed into law, we are giving them 
an opportunity to come on board to a new bill, not one that they have 
voted against in the past.
  This discussion draft includes many of the protections nearly all the 
parties agree to, including the right to choose your own doctor; 
protections against gag clauses; access to specialists, such as 
pediatricians and ob-gyns; access to emergency care; and access to plan 
information. This discussion draft applies the patient protections to 
all plans, including ERISA plans, those employer health plans, non-
Federal governmental plans, and those covering individuals, so that we 
cover 190 million Americans.
  The 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 could 
challenge it, if it is inadequate. Under the new draft, doctors would 
make the 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 of physicians that is independent 
of the HMO. That external review would be binding on the plan.
  So let us say that an HMO says to someone, your father in this HMO 
does not really need to be in the hospital because he says he is going 
to commit suicide. And the doctor says, oh, yes, he does. And the 
health plan says, no, he does not. We are not going to pay for any 
more, out the door. Let us say then your dad goes home, and he drinks a 
gallon of antifreeze and he dies. Under our bill, that plan would be 
liable for that, that health plan would be liable. That is a 
hypothetical situation. That actually occurred in Texas. Texas passed a 
strong patient protection bill. Our bill in the House was modeled after 
that Texas bill.
  We should take the lead of the Nation's courts with particular 
attention given to the recent Supreme Court case, Pegram v. Hedrick. 
And our new draft reflects that emerging judicial consensus. Recent 
court decisions have suggested injured patients can hold their 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, something that 
would deny benefits or coverage or any decision not involving medical 
necessity. That is in our bill, and that is an important compromise.
  In addition to specific legislative provisions, our discussion draft 
answers continuing questions about the original bill that passed this 
House. For instance, our 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 is killed or injured.
  So, for the average business out there that simply hires an HMO to 
provide health care coverage for both the employer and the employees, 
there is no liability involved, unless the employer or the business was 
directly involved or directly participated in the decision, but that is 
not how it happens. The HMO makes the decision. The business does not.
  Explicitly in our bill, the employer would not be liable for that. I 
cannot tell my colleagues how many times I have seen ads in the 
Washington newspaper, I read about radio and television ads by the 
groups that are trying to defeat our bill, that simply do not tell the 
truth on our protections for employers. I simply have to say, read the 
bill, read the language. Those protections for businesses are real, 
unless

[[Page H7988]]

they directly participate in the decision. Even then, defendants could 
not be required to pay punitive damages unless they showed a willful 
and wanton disregard for the rights or safety of the patients.
  Another concern about our bill was whether it would affect the 
ability of health plans to maintain uniformity in different States. 
Some of the businesses that have business in many different States were 
concerned about this. Our new draft only subjects plans to State law 
when they make medical decisions that result in harm. So it does not 
affect the ability of a business to offer a uniform benefits package 
and be outside of State law as it relates to that benefits package.
  This discussion draft that we have will allow Republican Senators who 
have voted against the Norwood-Dingell-Ganske bill to vote for a real 
patient protection bill. I sincerely hope that they take that 
opportunity. It would make a tremendously positive difference for our 
country. Mr. Speaker, to be quite frank, it probably would help the HMO 
industry too, because all of these cartoons and jokes that we hear 
about are not a good thing for that industry. But if we had a fair 
process in place so that if one has a dispute with one's HMO, one would 
have a fair process to get that taken care of, and one would know that 
at the end of the day, if one did not agree with the company, we would 
have an independent panel to review it where the decision would be 
binding on the company.

  I say to my colleagues, that would not increase lawsuits, that would 
decrease lawsuits. That would help prevent injuries or deaths from 
happening. I honestly think that that would be beneficial to the 
industry itself, because boy, they have got a real problem that in my 
opinion some of them really deserve.
  So, Mr. Speaker, I am coming to an end here. I think that there are 
some ways where some common sense could help with the prescription drug 
problem, not just for senior citizens, but for everyone in terms of 
helping bring down the cost of prescription drugs. I think as we look 
at in the next week or so ways to help with some reimbursement issues 
for Medicare, we should be very careful about rewarding HMOs who, in 
many cases, are ripping off the system; and we should focus those 
dollars on the real areas that need to be fixed.
  Finally, we have about 3 weeks, by my estimate, left here in Congress 
to get something done. The way it stands right now, if the Republican 
Senators who have voted for the Norwood-Dingell-Ganske bill, Senators 
McCain, Fitzgerald, Chafee, and Specter, will stick to their past 
votes, they have already voted twice for real patient protection, if 
those Republican Senators will stick with their past votes, then if all 
of the Senators show up and we vote on that again, we have a 50-50 tie 
and Vice President Gore comes in and breaks the tie, and we will have 
signed into law a real Patients' Bill of Rights.
  However, we have an alternative. The alternative is to look at this 
compromise language, to get some additional Republican support for this 
compromise language. We can add some important aspects of access to 
health care to that, some areas of real compromise with the Democrats, 
whether it is in the area of 100 percent deductibility for the self-
employed or some additional tax credits for small businesses that offer 
health insurance, or even in the context of an overall agreement, maybe 
even an extension of medical savings accounts.
  Mr. Speaker, there is a desire to get this done. That is why we have 
come up with this new compromise language. We do not want to put 
Republican Members of the Senate in a box and ask them to change their 
vote. That is why our compromise solution is there, so that they can 
come on board to a good piece of legislation, we can get this signed 
into law, and then we can go back to our voters in November and say, we 
have overcome a $100 million effort by a special interest group to keep 
the special protection that no other American business has. We are 
doing something in a truly bipartisan fashion so that our citizens back 
home in their time of need, when they really need to have their health 
insurance work for them, health insurance that they have spent a lot of 
money on, when they really need it, it will be there, and they can have 
confidence in being treated fairly.
  That, Mr. Speaker, is what this is about. It is a big opportunity. I 
urge my colleagues on both sides of the aisle to take it.

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