[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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