[Congressional Record Volume 146, Number 148 (Tuesday, December 5, 2000)]
[House]
[Pages H12012-H12016]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PROVIDING PATIENT PROTECTION LEGISLATION
The SPEAKER pro tempore (Mr. LaTourette). 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 speak for a while today about
an issue that has been before Congress for several years now and that
will be an important issue in the 107th Congress that will start in
January, and that is the issue of providing patient protection
legislation to all the people in this country, protection from abuses
by managed care organizations, HMOs.
Let me just review for my colleagues, maybe some of the new
colleagues who may still be here in Washington after their orientation,
where we have been; why we want to do this legislation; why 85 percent
of the people in this country think that Congress should pass a strong,
a real patient protection bill of rights and it should be signed by the
next President of the United States.
A few years ago, there were a series of articles in the New York
Post. They had headlines like these, HMOs cruel rules leave her dying
for the doc she needs; or this headline, these are the types of
headlines that people have seen all around the country, they are not
just localized to New York City, The New York Post, what his parents
did not know about HMOs may have killed this baby.
As the public became more and more aware of HMO abuses on denials of
care that people truly deserved, they needed it to preserve their
health and, in many cases, their lives, a perception began that set in
in the public about the type of job that HMOs were doing in providing
health care for the people who were in those HMOs, that perception was
that they were not doing a very good job.
{time} 1300
Once that perception sets in, then one starts to see a phenomenon
where people can make jokes about that. In fact, we had a situation in
a movie a few years ago with Helen Hunt and Jack Nicholson from a movie
``As Good As It Gets,'' if you will remember, where Helen Hunt is
explaining how this HMO is denying treatment to her son in the movie
with asthma. Then she uses a string of expletives in describing her
HMOs, and something happened that I have never seen happen in a movie
theater before. I was there with my wife in Des Moines, Iowa. People
actually stood up and clapped and applauded her line because they
realized the truth of what she was saying.
Then we started to see cartoons in the newspapers. Here is one: the
HMO claims department. We have an HMO claims reviewer. ``No, we do not
authorize that specialist. No, we do not cover that operation. No, we
do not pay for that medication.''
Then the reviewer hears something over her little earpiece telephone;
and then she crossly says, ``No, we do not consider this assisted
suicide.''
Here is another cartoon that appeared in a national newspaper. This
[[Page H12013]]
was Don Wasserman from the Boston Globe; it also appeared in the Los
Angeles Times: the patient is telling his doctor, ``Do you make more
money if you give patients less care?'' The doctor says, ``That is
absurd, crazy, delusional.'' Then the patient says, ``Are you saying I
am paranoid?'' The doctor says, ``Yes, but we can treat it in three
visits.''
Now, this is one of the blackest humor cartoons I have ever seen: we
have here a medical reviewer for an HMO. She says, ``Kudly Care HMO.
How may I help you? You are at the emergency room, and your husband
needs approval for treatment? Gasping, writhing, eyes rolled back in
his head? Hum, does not sound all that serious to me.'' Over there,
``Clutching his throat, turning purple? Um-hum. Have you tried an
inhaler?''
Then she says, ``He is dead? Well, then, he certainly does not need
treatment, does he?'' Then she looks at us and says, ``People are
always trying to rip us off.''
Now, I just recently learned something about this cartoon. The person
who drew this cartoon did it from personal experience, from problems
that a family member was having with his HMO. But it is not all just
jokes, because behind that humor are some real-life cases.
This is a picture of a woman surrounded by her children and her
husband who was featured in a Time Magazine cover story a few years
ago. She lost her life because her HMO did not provide her with proper
care and tried to and did influence the type of treatment she was
getting. This little girl and boy would have a mother today maybe if
that HMO had not tried to deny her care, had not denied her care.
A few years ago, a young woman was hiking in the mountains about 40
miles, 50 miles west of here. She fell off a 40-foot cliff. She broke
her skull, she broke her pelvis, broke her arm. She was lying at the
bottom of this 40-foot cliff. Fortunately, her boyfriend had a
cellular. They were able to get a helicopter in. This shows her
trundled up. She was life-flighted into an emergency room and taken
care of. Her life was saved. She was in the intensive care unit for a
month or so.
Then do you know what her HMO did? They denied to pay for her
treatment. One would say, why would that be? I mean, this was a
traumatic accident. Was there something in the contract that the HMO is
not liable for taking care of accidents? No. The HMO said, ``You know,
according to our rules, before you go to an emergency room, you are
supposed to phone ahead for prior authorization.''
Well, I want to ask my colleagues something. What was she supposed to
do in her semi-comatose state as she is lying at the bottom of her 40-
foot cliff, with her nonbroken arm, pull out a cellular phone and dial
a 1-800 number and get ahold of somebody 2,000 miles away and say, ``By
the way, I just fell off a cliff. I have a broken skull, a broken
pelvis, and will you authorize me to go to an emergency room''? I mean,
come on. But those are the types of games the HMOs have played.
Prior to coming to Congress, I was a reconstructive surgeon in Des
Moines, Iowa. I took care of children that were born with birth defects
like this. This is a little baby with a cleft lip and a cleft palate.
One can see the hole on the roof of the mouth. Do my colleagues know
what? In the last few years, more than 50 percent of the reconstructive
surgeons in this country have had cases like this denied by the HMOs
because they are, quote, ``cosmetic.'' I mean, is that a travesty? That
is a travesty.
Some really serious things can happen when an HMO makes a medical
judgment and then something goes wrong.
This is a little boy here clutching his sister's shirt. One night
about 3:00, he had a temperature of about 104, 105. He was really sick.
So his mom did the right thing, according to the HMO. She phones the
HMO and says ``My little baby boy James looks really sick. I think he
needs to go to the emergency room.''
Well, this voice at the end of a 1,000-mile telephone line says,
``Well, I guess I could authorize that, but I am only going to
authorize it for this one particular hospital because that is who our
HMO has the contract with.''
A medical judgment was made at that moment by that medical reviewer
who said we will only pay for your treatment if you go to this one
emergency room, not realizing the seriousness of this condition and
telling the mom take baby James to the closest emergency room right
away. No, that is not what the HMO reviewer said. We will only
authorize treatment at this one hospital.
Mom said, ``Well, where is that hospital?'' HMO reviewer said,
``Well, I do not know. Find a map.''
Well, it turns out that it is about 60 or 70 miles away on the other
side of metropolitan Atlanta. So Mom and Dad wrap up little James. They
get him into the car. They start driving. They pass three hospitals
that had emergency rooms capable of taking care of him. But they are
not medical people. They have been told to go to this one emergency
room where they have authorization from their HMO. Mom and Dad do not
know exactly how sick he is. They know he is pretty sick. So they push
on.
Before they get there, little Jimmy has a cardiac arrest. So picture
Mom and Dad, Dad driving like crazy to find the hospital, Mom trying to
keep him alive. They finally pull into a hospital emergency room. Mom
leaps out screaming, ``Save my baby, save my baby.'' The nurse comes
outside, starts resuscitation, gets some drugs in, gets the IVs going.
They keep him alive. They save his life. But, unfortunately, they do
not save all of James. Because of that medical judgment that delayed
his getting to an emergency room in a reasonable period of time and
because of his cardiac arrest that resulted en route, Jimmy ends up
with gangrene of both hands and both feet, which then have to be
amputated.
Here is James, minus his hands, minus his lower legs, the direct
result of a medical judgment by that HMO. Do my colleagues know
something? Under Federal law, if James' insurance is through his
parents' employer, then the only thing that can be recovered for James
under Federal law is the cost of treatment denied; or in this case, the
HMO has to pay for his amputations.
But James gets to live the rest of his life with no hands and no
feet. He is doing pretty well. He is older now. He has prostheses that
he pulls on to his legs with his stumps. He needs some help getting his
bilateral hooks on. But do my colleagues know what, it is pretty hard
for him to play basketball. He will never be able to touch the face of
the woman that he marries with his hand.
That HMO, under Federal, if this is simply an employer plan, a self-
insured plan, then that HMO would be liable for nothing other than the
cost of paying for his amputations. That is part of the reason why 85
percent of the public is saying why is it taking so darn long for
Congress to fix this thing which Congress made the problem in the
beginning with this law about 25 years ago.
We had a lot of testimony before Congress on Patients' Bill of
Rights. Four years ago now, we had testimony before the House Committee
on Commerce. This was testimony from a medical reviewer. Her testimony
had been buried in the fourth panel of the day, way late in the day
after all the TV cameras had gone. But I think my colleagues ought to
know what she said. She had been a claims reviewer for several HMOs.
Here is what she said: ``I wish to begin by making a public
confession. In the spring of 1987, I caused the death of a man.
Although this was known to many people, I have not been taken before
any court of law or called into account for this by any professional or
public forum. In fact, just the opposite occurred. I was rewarded for
this. It brought me an improved reputation in my job. It contributed to
my advancement afterwards. Not only did I demonstrate I could do what
was expected of me, I was the good company medical reviewer. I saved a
half million dollars.''
Well, I remember this testimony because, as she was speaking, a hush
came over that hearing room. One could have heard a pin drop. The
representatives of the HMOs and the insurance industry who were still
there kind of looked down at the floor. Well, her voice was pretty
husky, and I could see tears in her eyes.
[[Page H12014]]
She went on, ``Since that day, I have lived with this act and many
others eating into my heart and soul. For me, a physician is a
professional charged with the care or healing of his or her human
patients. The primary ethical norm is do no harm. I did worse. I caused
death. Instead of using a clumsy bloody weapon, I used the simplest,
cleanest of tools, my words.
``This man died because I denied him a necessary operation to save
his heart. I felt little pain or remorse at the time. The man's
faceless distance on that long telephone line soothed my conscience.''
Like a skilled soldier, she went on, ``I was trained for this moment.
If any moral qualms would arise, I was to remember I am not denying
care, I am just denying payment.''
Well, by this time, the trade association representatives were a
little pale in the room. Ms. Peeno's testimony continued: ``At the
time, this helped me avoid any sense of responsibility for my
decision.''
{time} 1315
Now I am no longer to accept the escapist reasoning that allowed me
to rationalize that action. I accept my responsibility now for that
man's death, as well as for the immeasurable pain and suffering many
other decisions of mine caused. And she then listed many of the ways
that managed care plans deny care to patients, but she emphasized one
particular issue, and that is the HMO's right to decide what care is
``medically necessary.''
She said, ``There is one last activity that I think deserves a
special place on this list, and this is what I call the smart bomb of
cost containment, and that is medical necessities denials. Even when
medical criteria is used, it is rarely developed in any kind of
standard traditional clinical process. It is rarely standardized across
the field. The criteria are rarely available for prior review by the
physicians or members of the plan. We have enough experience from
history to demonstrate the consequences of secretive, unregulated
systems that go awry. One can only wonder,'' she finished, ``how much
pain, suffering and death will we have before we have the courage to
change our course. Personally, I have decided that even one death was
too much for me.''
Well, after that testimony, and lots of other examples of HMO abuse,
we had a full debate on the floor of Congress, October 1999, and we
passed a bill called the Bipartisan Consensus Managed Care Reform Act
of 1999, the Norwood-Dingell-Ganske bill, with 275 bipartisan votes.
Sixty-eight Republicans defied the leadership of the House and made the
right principled decision, something that would address specifically
the type of problem that we have, where under Federal law the HMOs,
these employer HMOs, can decide to provide whatever treatment they
think is necessary according to their own definition of what is
necessary; and can then put their definition into a contract with the
employer and, according to Federal law, it is then okay, as long as
they follow their own definition.
Let me give an example. One HMO said, ``We defined medical necessity
as the cheapest, least expensive care.'' The cheapest, least expensive
care. The picture I showed of the baby with the cleft lip and cleft
palate, under that plan's definition, instead of standard surgical
correction to allow the palate to work properly so that a kid can speak
and eat without food going out their nose, instead of the standard
treatment, which would require an operation, anesthesia, and a stay in
the hospital, that plan can say, no, we are just going to provide what
is called an obturator. It is like an upper denture plate. It is a
piece of plastic. We could put that up there in that little baby's
mouth and then food might not come out the nose so much. Would that
little baby ever learn to speak correctly? It does not matter under
that plan's definition because, after all, the piece of plastic is the
cheapest, least expensive care. That is all they would be obligated to
give. They could do that under Federal law, and that is why we need to
fix that.
There were a number of other substitutes that came up before the
House for a debate. They were all defeated in the House. And the devil
really is in the details of those substitutes and in the bill that
passed the Senate as well. By a very slim vote, along party lines, the
bill that passed the Senate is, in my opinion, more of an HMO
protection bill more than a patient protection bill.
Let me give an example of why some of these details are so important,
because towards the end of our regular session this year, some
Congressmen, friends of mine, classmates of mine from that
revolutionary class of 1994, whose hearts are in the right places, but
the Coburn-Shadegg ``compromise bill'' would have been a step
backwards. It is important for people, especially as we are looking at
having votes again on the floor of both the House and the Senate this
coming year, it is important that people understand specifically why
some of the specific language is so important.
The Shadegg bill would preempt State law. It would cut off developing
State law. Every case against a health plan would have to go to Federal
Court, regardless of whether it involved benefit questions or medical
facts. That is page 84, line 9; page 91, line 3.
The Coburn-Shadegg compromise bill attempted a targeted removal of
ERISA preemption, but in the same session reversed field from the
Norwood-Dingell-Ganske bill and sends us back to current ERISA law, the
type of law that has spawned so many problems. Page 90, lines 11
through 25.
Under the Shadegg bill, all emerging case law holding that quality of
care cases can be decided by State courts would be cut off and
reversed. Page 84, line 9.
Their bill would require injured patients to prove ``bad faith,''
that is a contract term, ``against a health plan's designated
`decisionmaker,' in order to prove a negligence action.'' Those
requirements would make it almost impossible to hold health plans
accountable for the types of decisions that resulted in that little
boy losing both hands and both feet because of that HMOs medical
judgment decision. That is on page 84, lines 9 through 37 of their
bill.
Under their bill, the health plan's own definition of medical
necessity, just what the medical reviewer who testified before the
Committee on Commerce was saying is such a problem, the plan's own
definition would be controlling. Bad definitions of medical necessity
and other health plan contract terms would prevail in the review
provisions of the Coburn-Shadegg bill. The cross-references to the
terms and conditions are significantly different from the Norwood-
Dingell bill. Page 86, lines 23 through 26.
The Shadegg bill then dropped language that would have automatically
incorporated patient protections into all of the plan contracts. By
dropping that language, he would allow flawed plan contract language to
govern patient disputes, short of litigation. And in subsequent
lawsuits, plans would be able to argue that the patients waived their
statutory rights when they entered the plan contracts.
The gentleman from Georgia (Mr. Norwood), a stalwart on this issue,
and I have gone around and around with the gentleman from Oklahoma (Mr.
Coburn) on the issue of whether external review has to be completed
before a lawsuit is initiated. What about this little boy who lost both
hands and both feet? He would not have gone through an internal appeals
process, an external appeals process. He was injured from the getgo. He
ought to have relief. And furthermore, the Supreme Court has ruled that
quasi-legal boards determining whether a suit can proceed are
infringements of seventh amendment protections. Some have even tried to
get provisions into other patient protection bills that say that if any
part of the bill is deemed unconstitutional all the rest of it is void.
I am very hopeful that, after this election, in the 107th Congress,
that will start January 3, we have a great opportunity to finally pass
a real patient protection bill. So I want to speculate a little bit on
how Congress would interact with Governor Bush, should he become
President.
What is the outlook for the 107th Congress and a Bush administration
on a patient bill of rights? Well, here is what Governor Bush wrote in
the October 19, 2000 edition of the New England Journal of Medicine.
``During my tenure in office, Texas enacted one of the most
comprehensive patient protection
[[Page H12015]]
laws in the Nation. Our law gives patients the right to seek legal
action if they have been harmed. I allowed it to become law because
there was a strong independent review process, previously enacted tort
reform, and other protections designed to encourage a quick resolution
rather than costly litigation.''
Well, my colleagues, there are a lot of provisos in that statement.
And I might also add that the Texas House and Senate passed the Texas
bill with a veto-proof majority, in fact almost unanimously, after
Governor Bush vetoed a patient protection bill the first time. But I am
hopeful because Governor Bush many, many times during the campaign
talked about the need for a real patient bill of rights, and one that
included the right for legal redress.
So I want to help a President Bush, should he be declared the final
victor. I want to help him get off to a great start in his
administration by getting as big a vote in the House and in the Senate
for a real patient bill of rights as we can. I think we are very close
to 60 votes in the Senate. I am confident that we will get well over
280 votes here in the House, and we will be very close to veto-proof
figures.
I have gone through the comments of many of the new Members and
through their positions on a patient bill of rights. Many of our new
Members made campaign promises in support of patient protection
legislation. Many voted for strong patient protection as members of
their State legislatures, so they have a past voting record. For my new
colleagues, I ask them to be aware of the campaign of lies the HMO
industry is spreading about our bipartisan bill. Most importantly, my
colleagues should note that under our bipartisan bill, unless that
employer has exercised medical judgment that has resulted in harm or
injury, employers cannot be held liable for damages in our bill. If an
employer is not involved in the HMO's decision, there is no employer
liability.
Now, a number of States, like California, Texas, and Maine have
passed patient protection bills since 1997, and 27 others have debated
them this past year. An awful lot of legislatures are going to be
debating bills reintroduced in January. A New Jersey bill passed its
State Senate 38 to 0, and I am sure will be reintroduced.
My point is this. A lot of what we have done in Congress has had
salutary effects throughout the country. State legislatures are doing
some of our job, but there are some aspects to Federal law particularly
as it relates to the Employee Retirement Income Security Act. This was
originally designed to be a consumer bill to ensure that employee
pensions were protected but has since become a way for employers to
provide less than adequate HMO care, and we need to fix that.
In the last few days, we have found out that Steve and Michele
Bauman, are suing Aetna Health Care. They are claiming that its former
policy of discharging newborns from hospitals after 24 hours led to the
death of their first baby, Michelina, a day after she was sent home in
1995.
{time} 1330
This was one of the political cartoons that came out after the HMOs,
as you will remember, said, we are going to institute a policy of
drive-through deliveries. Here is the maternity hospital. You have your
drive-through window. ``Now only 6-minute stays for new moms.'' You
have Mom and Dad with crying baby and the hospital person saying,
``Congratulations. Would you like fries with that?''
Well, it was not so funny for the Baumans because their daughter was
sent home immediately. She passed away within 24 hours. They make the
case that that was improper medical judgment by their HMO to do that.
Now, the interesting thing about that is that they have taken their
case all the way to the United States Supreme Court and the United
States Supreme Court upheld a Federal Appeals Court ruling that the
couple could bring suit against the HMO for malpractice in State court.
That is what they are now doing.
So as we are moving at the Federal level here to enact a broad
Patients' Bill of Rights protecting the rights of States in these
areas, there will be, I predict, a strong move by the HMOs to try to
get all of these State jurisdictions moved to Federal jurisdiction.
That would be a huge mistake.
My colleague from Georgia (Mr. Norwood), a fellow stalwart on patient
protections, certainly one of the more conservative Members of the
House, a coauthor of the Norwood-Dingell-Ganske Bipartisan Consensus
Managed Care Reform Act, had this to say in debate in October of 1999
on moving these suits to Federal court. This is what my colleague said:
``The Houghton amendment would make insurers liable in Federal court
rather than State court. That is sort of the bottom line. Our bill,
H.R. 2723, the Bipartisan Consensus Managed Care Reform Act, and every
bill incidentally I have introduced on liability, ensures we want them
to face State liability.''
I would just like my colleagues to consider a thought. This is the
gentleman from Georgia (Mr. Norwood), my compatriot on this. Consider
this quote from Chief Justice Rehnquist: ``Congress should commit
itself to conserving the Federal courts as a distinctive judicial forum
of limited jurisdiction in our system of federalism. Civil and criminal
jurisdiction should be assigned to the Federal courts only to further
clearly define and justify national interests, leaving to the State
courts the responsibility for adjudicating all other matters.''
The gentleman from Georgia (Mr. Norwood) continued, ``In the Federal
courts today, there are 65 vacancies and the courts anticipate another
16 vacancies forthcoming. Twenty-two courts are considered to be under
emergency status. They do not have appropriate coverage from the bench
to consider the cases before them. To this situation we are going to
add a Federal tort?''
The gentleman from Georgia (Mr. Norwood) continues, ``The Speedy
Trial Act of 1974 requires the Federal bench to give priority to
criminal cases over civil cases. In 1998, criminal case filings were up
15 percent. A single mother whose child needs constant care because of
a decision made by an HMO will have to stand in line behind all of the
drug dealers before she can try to hold the HMO liable for its
action.''
The gentleman from Georgia (Mr. Norwood) continues, ``State courts
are easier for patients to access. Almost every town in America has a
State court. Federal courts are few and far between. States like Texas
and Georgia and California already have moved to make insurers
accountable for their actions. State courts are a more appropriate and
accessible venue for personal injury and wrongful death.''
The gentleman from Georgia (Mr. Norwood) continues, ``Considering the
problems that patients will have in accessing Federal court, it is hard
to imagine that HMO liability meets the Chief Justice's definition of
``national interest.'' It certainly does not meet the single mother's
definition. Like all politics, all health care is really local. H.R.
2723 holds insurers liable for their decisions that harm or kill
someone in the most appropriate venue, State courts.''
And I could not say it any better than my colleague, the gentleman
from Georgia (Mr. Norwood), on this issue.
But I predict, as we are moving through this in the year 2001, the
HMOs are going to try to stick language into a bill that would move
this developing case law, certified by the U.S. Supreme Court decision
in the case of the Baumans losing their baby, they are going to try to
move this by statute in the Federal courts.
There are a lot of reasons why we should not do it. But I will tell
you what. I am a Republican. And my Republican colleagues on this side
of the aisle, we have stood down here in the well many times arguing
that the Federal Government should not be involved in areas where the
States have traditional responsibilities. In fact, I believe that is an
amendment in the Constitution.
So, my friends, when we look at this legislation this coming year,
let us not preempt the work that has already been going on at the State
level; but let us try to set up some standards for everyone, and let us
go back and fix the problem that Congress created 25 years ago when
they gave the HMOs legal carte blanche to do whatever they wanted to do
regardless of the consequences.
[[Page H12016]]
I do not know any other industry in the United States that has that
kind of legal protection. I think that if Congress brought a bill to
the floor today to give that type of legal protection to Bridgestone-
Firestone, I think every Member who voted for that would be voted out
of office.
Now, that was what, 118 or 120 deaths caused by faulty tires. We are
talking about millions of decisions made every day by the HMO industry
that can affect a person's health, maybe their hands or their feet, or
even their life. How can anyone reasonably argue that the House plan,
the HMO, should be liable only for the cost of care denied when they
make a medical judgment that is clearly negligent and hurts somebody?
I do not know what kind of responsibility we are talking about. We
Republicans have been on this floor many, many times talking about how
welfare recipients ought to be responsible. By George, if you are able-
bodied and you get education and you get help in child care, you are
going to have a limited time and you are going to go out and be
responsible and get a job. But some people would argue that we ought to
not have plans that are making life-and-death decisions responsible.
Somehow there is an inconsistency there.
Well, my prediction for this coming year is that we are going to have
a very good debate on this issue. If we see Governor Bush in the White
House, I wish him the best. I want to see President Bush succeed by
being a uniter, not a divider. I want to see him work in a bipartisan
fashion. And one of the earliest things that we can do in this coming
year is to pass the latest version of the Norwood-Dingell-Ganske bill,
pass it by a big margin in the House, big margin in the Senate, send it
to President Bush, and have him sign that bill. And I will tell you
what. That would go a long ways to getting his administration off to a
good start. And I would love to see that.
Well, Mr. Speaker, I think that we are going to have a lot to do in
this coming year. It is a narrow margin that we have here in the House.
It is 50-50 tie in the Senate. Some people say, oh, you know, there
will just be gridlock and chaos. I am an optimist. I do not see the
glass that is half empty. I see this glass as half full. And I think we
have a real opportunity to do some things that will benefit our
constituents.
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