[Congressional Record Volume 147, Number 21 (Wednesday, February 14, 2001)]
[Senate]
[Pages S1368-S1369]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PATIENT PROTECTION LEGISLATION
Mr. EDWARDS. Madam President, for too long the law has been on the
side of HMO's and big insurance companies. It is time we give power
back to patients and families and doctors. Nearly every one of us has
had some sort of bad experience with an HMO or an insurance company,
either personally or through a family member or a friend. Sometimes the
problems are frustrating, sometimes the problem is just red tape and
bureaucracy, sometimes it is simply impersonal treatment.
Sometimes the problems are much more serious than that. Sometimes the
problems are dangerous: when an HMO, for example, refuses to authorize
a visit to a specialist or the nearest emergency room, or denies
treatment that is desperately needed by a patient, or refuses to be
held accountable for any of the decisions it makes. Americans have the
right to expect that decisions about their health care and their
family's health care will only be made by the patient, in consultation
with physicians and family members, and that physicians will be able to
help them make those decisions on the basis of the patient's best
medical interests. Those decisions should not be made by HMOs and
insurance companies concerned only about the bottom line.
That is why we need a Patients' Bill of Rights. That is why last week
I joined Senator John McCain, along with a bipartisan group of Members
of the House and the Senate, to introduce a bill that builds on the
progress that has already been made in this Congress to pass a
Patients' Bill of Rights.
The Bipartisan Patient Protection Act provides comprehensive patient
protection for all Americans. It will, No. 1, guarantee access to
specialists for all people who have private insurance, so that women,
for example, can go directly to an OB/GYN or a child can go directly to
a pediatrician for care. No. 2, it strengthens the right to go to an
emergency room, to the ER, immediately after an emergency arises,
without first having to be concerned about calling some 1-800 number
and asking permission from an insurance company or an HMO.
When a family is involved in a medical emergency, the last thing they
need to be worried about is calling the insurance company. They need to
be able to do what is best for their family and go immediately to the
emergency room that is closest to them. Our bill provides for that.
We also eliminate the gag rule. What we need to do is give doctors
the ability to speak freely with their patients about the treatment
options that ought to be considered by the patient. What we have done
is prohibit clauses between insurance companies and doctors--the so-
called ``gag rule''--that restrict doctors from talking to their
patients about the various treatment options, and instead only allow
doctors to talk about the cheapest treatment options. We prohibit that
practice and prohibit gag rules.
Scope. Our bill covers every single American who has private
insurance through an HMO or an insurance company. Some of my colleagues
have argued, during the course of the debate about a real Patients'
Bill of Rights, for a more limited approach. I do not agree. I believe
every single American who has health insurance or receives coverage
through an HMO deserves, and is entitled to, exactly the same rights.
The same basic rights and freedoms that we provide for some people
ought to be available for every single American who has HMO or health
insurance coverage.
Make no mistake, in States like Texas where strong protections
already exist under State law, the State's own efforts in this area
should be respected. Under our bill, if the State law is comparable or
more protective of patients than those we enact here in the Congress,
State law will remain in effect.
In most cases, HMOs and other health care providers respect the
decisions that are made by patients and doctors. This is usually not a
problem. The people get the treatment they are entitled to, the
treatment their doctor recommends, and they get better. But if the
patient or the doctor believes that the quality of their health care
may be at risk because of what the HMO is doing, because of some
bureaucrats sitting behind a desk somewhere who decides that they know
better what care or treatment the patient should receive, that they
know better than the doctor or specialist who is taking care of the
patient, then we need to provide some way for the patient to appeal
that decision.
What we have done here is provide an alternative recourse whenever
the HMO or insurance company decides that coverage for treatment should
be denied. Under existing law, the HMO's decision is final. If the HMO,
no matter what its reasoning for the decision is, decides that this
care, this treatment--for example, that a sick child should not be able
to go directly to a pediatric oncologist--the patient, the family, the
child can do nothing. The HMO holds all the power. The law is
completely on the side of the HMO and the insurance company, and
patients are left totally defenseless.
What we are doing today, through this legislation, is putting
accountability back into the system so that, like all other Americans,
HMO's are held accountable for what they do.
As a first resort, patients are guaranteed both an internal and an
external appeals process. If they go to an HMO and the HMO says that
they won't pay for a particular treatment or a particular doctor,
patients have a place to go to appeal. All patients will have a right
to appeal treatment denials to an external review authority with
outside medical experts, which is critical. The independence of the
appeals process is crucial. We have provided for extensive protections
to ensure that the independence is in fact there. Once the appeal is
made and the independent board decides that coverage should have been
provided, the decision is final and binding on the HMO or the insurance
company.
As a matter of last resort--and I emphasize last resort--if the HMO
has denied coverage, and the appeals process fails, the patients should
have the ability to go to court.
I want to emphasize that the ability to go to court is a matter of
absolute last resort. For example, in States such as Texas that have
enacted legislation--about 3 years ago, Texas enacted legislation
providing patients the right to go to court--experience has proven that
actual litigation virtually never happens. It does not happen for a
very practical reason: because, first of all, the HMO has to deny
coverage; second, there is an internal review and appeal process; and
third, there is an external appeal process to an independent body. So
it is a very rare circumstance where anybody feels the need to go to
court. In States such as Texas that have enacted patient protection
legislation, there have been very few lawsuits filed.
What the Bipartisan Patient Protection Act does is ensure that
medical judgment cases go to State court. The basic reasoning here is
that if the HMO or the insurance company is making a medical judgment,
if they make the decision that they are going to insert their judgment
in the place of the physician or the health care provider, then
normally those are cases that are decided in State court, under State
law, using State standards. Our belief is that the HMO, if they are
going to exercise medical judgment, if they are going to substitute
their own judgment for the judgment of the doctor involved, ought to be
subject to the same standards to which doctors are subject. If a case
were brought against a doctor for exercising his or her medical
judgment, that case would go to State court.
What we have provided here is simple: when the HMO steps in and
inserts itself into the process of exercising medical judgment, their
case goes to State court just as a medical negligence case would go to
State court. We should not preempt State law. State law has
traditionally controlled these kinds of cases. Under our bill, the law
that the Governor at the time--now President Bush--enacted in Texas,
the HMO protection law would be respected, as would HMO patient
protection laws that exist all over the country. So essentially what we
are doing
[[Page S1369]]
in our legislation is deferring almost entirely to the oversight of
medical judgment that has traditionally been regulated by State law.
I point out that the Judicial Conference of the United States has
spoken on this issue. The Chief Justice of the United States, Chief
Justice Rehnquist, is the presiding officer of the Judicial Conference
of the United States.
The Judicial Conference, through its executive committee, adopted the
following position on February 10, 2000:
The Judicial Conference urges Congress to provide that in
any managed care legislation agreed upon--
This is the legislation we are talking about today--
that State courts be the primary forum for the resolution of
personal injury claims arising from the denial of health care
benefits.
The Judicial Conference of the United States, a nonpartisan,
nonpolitical body headed by the Chief Justice, decided that cases
involving medical judgment should go to State court. These types of
cases have been traditionally resolved in State court.
Federal courts, of course, are courts of limited jurisdiction. And
these are not cases that should go to Federal court. Our bill does
exactly what the Judicial Conference, headed by our Chief Justice, has
recommended. It sends these cases to the place where they have
traditionally been decided.
Contract cases, based solely on what the terms of the contract are--
for example, if there were a provision requiring that insurance
coverage be in place for 60 days before payment can be made for any
particular treatment--if there were a dispute about whether 60 days had
actually passed, or whether the coverage or the contract applies, that
would be an interpretation of the contract and would go to Federal
court. In those limited cases where there is a dispute about the actual
language of the contract, those cases go to Federal court.
There are limitations contained in our bill about any recovery in
Federal court. The basic structure here is simple: medical judgment
cases, where the HMO is inserting its judgment for that of the health
care provider, go to State court. Cases that have always traditionally
been decided in State court go to State court, just as our Chief
Justice in the Judicial Conference is recommending. The only cases that
go to Federal court, a court of limited jurisdiction, are cases
involving pure interpretation of the contract--cases that have
historically been decided in Federal court under ERISA. So they
essentially maintain the same bifurcation that the U.S. Supreme Court
suggested.
We have included a balanced approach and imposed some limitations.
Under our bill, there are no class actions. Appeals have to be
exhausted, except for the very rare circumstance where the patient can
show an immediate and irreparable harm. In all other cases, internal
and external appeals have to be exhausted before a patient can go to
court.
Third, the vast majority of cases go to State court and are therefore
subject to whatever State court limitations apply. For example, the
limitations that exist under State law in Texas would apply to cases
that go to State court in Texas.
We are attempting to balance interests and create really meaningful
and enforceable rights for the patient, giving the patient the ability
to enforce those rights through an appeals process, and then, as a
matter of absolute last resort--and as history has proven, it happens
very rarely--giving them the right to take the HMO to state court,
where these kinds of cases are traditionally decided.
We have debated this issue over and over on the floor of the Senate.
Many Members of the Senate have been involved. Congressmen Norwood and
Dingell have led the effort on the House side in the debate. It is time
for us to get past simply talking about this issue and debating the
various parties' positions. Senator McCain and I, along with others in
support of this bill, are making an effort to resolve our differences
and get this legislation enacted. It is time, finally, that we enact
legislation that puts law on the side of the patients, on the side of
families, and on the side of doctors, and not on the side of big HMOs
and insurance companies.
I yield the floor.
The PRESIDING OFFICER. The Senator from Ohio is recognized.
Mr. VOINOVICH. Madam President, I ask unanimous consent to speak for
up to 5 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
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