[Congressional Record Volume 147, Number 100 (Wednesday, July 18, 2001)]
[House]
[Pages H4204-H4211]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PASS PATIENTS' BILL OF RIGHTS FOR MEANINGFUL HMO REFORM
The SPEAKER pro tempore (Mr. Flake). Under the Speaker's announced
policy of January 3, 2001, the gentleman from New Jersey (Mr. Pallone)
is recognized for 60 minutes as the designee of the minority leader.
Mr. PALLONE. Mr. Speaker, this evening I want to spend the time with
[[Page H4205]]
my colleague from North Carolina talking about the Patients' Bill of
Rights. I have been to the well many times to talk about this
legislation.
I know that we do have a commitment from the House Republican
leadership to bring up HMO reform, hopefully at some point over the
next 2 weeks. But what I wanted to stress tonight is if we are going to
deal with the issue of HMO reform, we have to pass real HMO reform, and
that is the Patients' Bill of Rights. It is a bipartisan bill sponsored
by the gentleman from Michigan (Mr. Dingell), who is a Democrat; the
gentleman from Iowa (Mr. Ganske) and the gentleman from Georgia (Mr.
Norwood), who are Republicans.
This bill or a similar bill passed in the last session of Congress
overwhelmingly, almost two-thirds of the Members, most Democrats, and
60-some-odd Republicans. However, once again the House Republican
leadership does not support it and does not want to bring it up and is
trying, even after a similar bill passed the other body, is trying to
kill it effectively by coming up with what I consider a sham HMO bill
and trying to get support for that sham Republican HMO bill.
I would like to speak tonight to explain not only why the real
Patients' Bill of Rights should be brought to the floor immediately and
passed but also why it is such an improvement, as opposed to the sham
bill that I fear the Republican leadership may try to slip by.
But at this time I yield to the gentlewoman from North Carolina (Mrs.
Clayton), who has worked long and hard, I think too many years that we
have worked on this bill, and we hope it will come to the floor in the
next few weeks.
Mrs. CLAYTON. Mr. Speaker, I thank the gentleman for his leadership
on this issue. He has not only been working hard, but he has been
persistent and insistent that we stay on course.
Mr. Speaker, what we want to bring to our colleagues' attention and
therefore their awareness and appreciation, not only do we think that
the American people want this but we also think that the scare tactics
that we hear that are being promoted that this bill will somehow cause
employers to have greater liability, therefore, increase the costs,
reducing the opportunity for having insurance coverage for their
employees, I think it is a scare tactic.
Indeed, the Ganske-Dingell bill does provide for accountability, but
that accountability goes only for insurance companies or individuals
who interfere in the provisions of health care. It does not hold small
businesses responsible or accountable if they indeed are not
interfering in the decision.
All this Patients' Bill of Rights does is give the patients the right
to expect and to receive what they have contracted for in their health
insurance. That is not too much to ask. That is expected in contract
law. If you enter into an agreement, there is the expectation that one
will receive the benefits for which they are paying. The reason we buy
insurance is to have that assurance that, when we need it, those
provisions within the insurance policy will be enacted.
That doctors would be able to make those decisions, that I would have
a right in the case of an emergency to go to the nearest hospital, that
I would have the right to get a second opinion or get the kind of
expert medical care that I need, that I would not be proscripted in the
sense to be limited to the minimum health care service by putting a gag
order on the doctors.
The doctors would be free to provide the kind of leadership in health
services that they and they alone are capable of doing, and that a
doctor would not be held in violation of his contract if he gave
several options and prescribed, perhaps, the option best for me that
may be a little higher cost than the health insurance desired.
{time} 2230
This is a commonsense approach, and the scare tactics that we have
heard indeed is unfounded. What this bill is not, this bill is not an
effort to increase greater liability on small employers and by and
large small employers are held liable as well. They are paying part of
the costs and these are provisions that they are paying dearly for and
they expect that their employees will receive the benefits for which
they are paying for.
My understanding as well is that this bill will amend, or is in the
process of amending itself to conform with the Senate's bill, that the
liability there would be consistent here. Only in those cases where you
are self-insured or indeed you make a decision would there be any case
of liability. Furthermore, the external appeal system in the bill does
provide for an orderly appeal process which suggests that before there
is a remedy as a lawsuit, one would be expected that they use that
appeal process before they indeed resort to the legal area.
Again the consistency between States, I know the Senate bill, my
Senator, Senator Edwards, has been working very hard with Senator
McCain and Senator Kennedy to make the bill that they pass consistent
with States and where States had stronger views, stronger provisions,
they would indeed be the ones that would govern.
So there has been every effort to speak to issues that have been
raised, and I think it is now time for the leadership of the House to
bring this bill so that we can have an up or down vote. I think the
American people want it, I think the votes are here, and I think it is
the right thing to do.
Again, I thank the leadership of the gentleman from New Jersey (Mr.
Pallone) and others who have been working on this task force and
certainly support the efforts that both the gentleman from Iowa (Mr.
Ganske) and the gentleman from Michigan (Mr. Dingell) have brought
before us. It is very similar. We were original cosponsors of the last
bill and with the gentleman from Georgia (Mr. Norwood) who is also, I
should say, a part of this. This is a good, bipartisan effort to try to
give the American people a reasonable approach and a meaningful
approach. So the scare tactics that we are hearing, I think, are
unfounded. We need to spend as much time saying what this will do as
well as what this is not. This is not an effort to put a great burden
or unnecessary liability on small businesses or employers of any size
if they are not involved in creating the injury or the health provision
that resulted in injury or death.
I thank the gentleman for allowing me to participate.
Mr. PALLONE. I want to thank the gentlewoman for all her
participation and everything that she has done to try to put this
patients' bill of rights together. There are a couple of things that
she mentioned that I wanted to repeat, and I think are important and
need to be repeated. One is that if you think about what we are really
trying to do here, there really are basically two principles: one is
that we want to make sure that decisions about what kind of medical
care a patient gets or an American gets is a decision that is made by
the physician and the patient, not by the insurance company, not by the
HMO. Too often today I get complaints from my constituents in New
Jersey who say that they were denied care, they were denied a
particular operation, they were denied to stay in the hospital a
certain number of days, they were denied a particular procedure because
the insurance company did not want to pay for it. That should not be
the way it is. Decisions about what kind of care you get, medical
decisions, have to be made by the physicians. That is why we have
physicians. That is why decisions are made collectively by physicians
and their patients.
The second thing is that if you have been denied care and you think
unjustly so, you have to have some ability to redress your grievances,
to appeal that. What we suggest in the patients' bill of rights, what
we guarantee, is that you can go to an independent review board,
outside the realm of the HMO, not appointed by the HMO, and that they
will review the decision and if they feel that you were improperly
denied care, then they can overturn the decision of the HMO or the
insurance company. Failing that, you can go to court and ask that it be
overturned or sue for damages if you have been injured and there is no
real recovery from those injuries.
These are just basic rights. Most people, until they get into a
situation where they have been denied care, have no idea that what I am
suggesting is not already the law. They think it is the law. They think
it is fairness, which is essentially all we are asking for.
[[Page H4206]]
The other thing that my colleague from North Carolina mentioned that
I think is so important is that we as Democrats and a significant
amount of Republicans as well in this Chamber, we are simply asking for
an opportunity to vote on this bill. This bill was voted on in the
other body. It is now over here. It should be taken up here in the
House of Representatives; and we should be allowed a clean vote, not
bogged down with all kinds of procedures so that we cannot vote on it,
and certainly not have an alternative bill which the Republican
leadership has put forward which is not protective in the same way of
patients. To give us the opportunity to vote on that and say that is
HMO reform and then not have the opportunity to vote on the real
patients' bill of rights I think is a travesty. And I hope that that is
not what the Republican leadership has in mind, although there is every
reason to believe that, in fact, that is the case.
I see I was joined also by my colleague from Texas. I was hoping, and
I know that he will also get into the fact that in the State of Texas,
our President Bush was the Governor of Texas and while he was there,
the Texas legislature passed a patients' bill of rights, very similar
to the patients' bill of rights that we now seek to have voted on here.
It has been a tremendous success. It has not resulted in much
litigation. People have been able to overturn denials of care on a
regular basis without having to go to court. It works well, and there
is absolutely no reason why the same type of legislation should not be
passed on a Federal level so everyone in every State can have the same
benefits that the citizens of Texas have.
I yield to the gentleman. He has also been a very active member of
our health care task force.
Mr. TURNER. I thank the gentleman from New Jersey (Mr. Pallone) for
yielding. It is a pleasure to join him in this special order hour to
talk about this very important issue for the people of America, the
patients' bill of rights. We have been working on this bill for the
last 4 years. Ever since I have been in this Congress, we have been
working trying to pass a patients' bill of rights; and I think now is
the time to pass a good, strong bill for the American people.
When I was a member of the Texas Senate, I was the Senate sponsor of
the first patient protection bill offered anywhere in the country. It
passed our legislature overwhelmingly, with very little dissent.
Unfortunately in that session of the legislature, the Governor, then
Governor Bush, vetoed that bill.
The legislature in the following regular session broke the bill down
into four parts, passed it again, overwhelmingly, the Governor signed
three of the bills and let the fourth, relating to accountability and
liability of HMOs, become law without his signature. The Governor cited
his concern that the legislation would run up health care costs and
create unnecessary litigation.
I am pleased to report that in the years since 1997 in Texas, there
have only been 17 lawsuits filed under our patient protection
legislation. There have been 1,400 patients who had the right under the
Texas bill to object to the findings of the review panel and go to the
external appeal process, which is an independent appeal process, to
have their grievance heard. In those 1,400 appeals to the external
panel, 54 percent of the time the patients have prevailed, 46 percent
of the time the HMOs have prevailed. As I said, the next step, going to
court to exercise your legal rights, that has occurred in only 17 cases
since 1997.
So in Texas, the law is working. The Norwood-Dingell-Ganske bill is
modeled after the law in Texas. It creates this independent review
panel. It allows a person, if they are not satisfied with the decision
of the external review panel, to exercise their right to go to court to
receive the treatment they are entitled to. I think the experience
across this country will be much the same as it has been in Texas, with
very minimal litigation. So I am very hopeful that this Congress and
this President will see fit to sign the Dingell-Norwood bill which I am
confident will pass. After all, it has already passed in the last
session, the 106th Congress, by a solid margin in this House.
As the gentleman will recall, it went to the Senate after it passed
in the House and died in the Senate. This year, we have an opposite
scenario. The bill has already passed in the Senate and is now back in
the House to be voted on again. I am confident that this bill will be
passed, and I hope that the President will sign it when it reaches his
desk.
I would like to share my thoughts on the differences in the Dingell-
Norwood bill and the other version of the patient protection law that
will be offered by the gentleman from Kentucky (Mr. Fletcher), a
Republican. This legislation offered by the gentleman from Kentucky
does not provide the same protections for patients as the Dingell-
Norwood bill does. It is deficient in several respects.
First of all, the bill does not provide a meaningful appeals process
for a patient. In fact, the bill provides very specifically that if the
external review panel makes a decision and the HMO follows that
recommendation and that decision, then no one has the opportunity to
appeal anywhere. That to me seems to be very unfair. Under the Norwood-
Dingell bill by contrast, once the external review panel makes a
decision, if either party is dissatisfied, they have their
constitutional right to go to the courthouse and to get a judgment that
they think is correct. It seems to be fundamental in this country that
if you set up an administrative review procedure and you do not like
the outcome that you should and do have the right under our
Constitution to an open court to be able to go in to file your
grievance and get a decision by a jury of your peers.
Some have even suggested that the Fletcher bill may, in fact, be
unconstitutional, because it prevents a patient from going to court if
they are unhappy with the decision.
We are talking here about life and death decisions. We are talking
about making HMOs accountable just as every other business organization
in our society is now accountable. There is not one entity, not one
person, not one business in this country that is not liable in the
courts of our land for their negligent acts. I have always believed if
our court system says that if a doctor makes a mistake in giving you
medical treatment, if they are guilty of malpractice and the law
provides that a patient has a remedy if malpractice is committed, then
they also should have a remedy if an HMO commits malpractice. Because
under the system of managed care that is becoming so popular in this
country, HMOs are, in fact, making medical decisions. I have talked to
many doctors who are totally frustrated with the current system, when
they have to argue for hours on the telephone with an insurance clerk
trying to get the treatment for their patients approved that they think
is medically necessary and the HMO and their representative are saying
no, in our judgment, it is not medically necessary.
Patients are entitled to quality health care in this country. We have
one of the finest health care systems in the world. And we have got to
be sure we protect it. I tell my friends in the HMO industry and the
insurance industry that they have an important obligation, too, and,
that is, to help us create a system where all of the parties will be
satisfied with the outcome, because I am a firm believer that we must
protect what we know is the best health care system in the world. And
with more and more health care being delivered by managed care, we have
got to make it work for everybody, not just the insurance companies,
but for the patients, for the health care providers, for the doctors
that are making the decisions about your health care and mine.
And if we fail to make this system work for everybody, then I hasten
to think that we might come to the point where somebody will say, we
have got to have a new system of health care, we have got to have a
system like they have in Canada, we have got to have a system like they
have in Europe; and I do not think we should go in that direction.
{time} 2245
So we all have a stake in making this system of managed care work,
and work for all of the parties in the system, not just the insurance
companies.
When we look at the Fletcher bill, we also see numerous other
deficiencies.
[[Page H4207]]
We see a provision in that bill that would require one when they do
have the opportunity, which is rare, to appeal to the courthouse, that
they have to go to Federal Court.
Now, most of us understand that most litigation regarding tort
liability is handled in the State court system. Most of us are
familiar, when we have an automobile accident, somebody has to go to
court to recover damages, they go in the courthouse in their local
county, where they usually have a State District Court. They do not
travel hundreds of miles away to have to go to the nearest Federal
court, they go the State court. Traditionally, these kinds of matters
are reserved for State courts.
The bill we passed in Texas in 1997 sets up a fair procedure for
allowing the patient, if they are dissatisfied with the review process,
to go into State court. The Fletcher bill will preempt that
legislation. It will put these kinds of cases in Federal court. It will
federalize these causes of action, take them out of the State courts
where they have traditionally been.
I believe this is an important State right that must be preserved. We
do not need to get into a system where these kinds of cases have to be
dealt with in Federal court. Most of the lawyers in your hometown and
mine are accustomed to going to State court, not to Federal court. So
we remove by one step further the ability to get redress of grievance,
if we require these kinds of cases to go to Federal court. So the
Fletcher bill basically strikes down current State law, like we have in
Texas and many other States around the country.
We also know that the Fletcher bill creates some awkward time frames
for appeal, and in many respects the legislation makes it very hard for
a patient to exercise their rights under the legislation. We know that
the independent review process is much more tilted toward the insurance
companies under the Fletcher bill than it is under the Norwood-Dingell
bill.
I think that we must face the fact that if we are really for
protecting patients, we need to support the Norwood-Dingell bill. Every
major medical group, the American Medical Association, in my State the
Texas Medical Association, hosts of patient groups, have endorsed the
Norwood-Dingell bill. It is a bipartisan piece of legislation.
The gentleman from Georgia (Mr. Norwood), the gentleman from Iowa
(Mr. Ganske), two of the Republican leaders, a respected doctor and
dentist, have been fighting for this legislation for at least 5 years.
Now is the time for action. I think that we can have a good bill, we
can pass this bill, and we can hope that the President will see fit to
sign it.
One other issue that I wanted to mention very briefly about this
legislation is the fact that were it not for an arcane Federal law, we
call it ERISA, the Employment Retirement Income Security Act that
regulates health plans and retirement plans that operate in more than
one State, is the only reason that we are in the predicament that we
are in today, having to pass legislation to be sure that patients are
protected. Because after we passed our good legislation in Texas,
which, as I said, has only resulted in 17 lawsuits in the last 4 years,
what we found is that a court decision handed down by one of our
Federal courts in a suit in which the Aetna Insurance Company was
involved, overnight made a large portion of our folks in Texas exempt
from the State laws that we had provided, because the court ruled that
part of our State law and its coverage was preempted by this arcane
Federal ERISA law.
So all we are trying to do is restore the accountability that was
provided in the law in Texas and many other States for HMOs by passing
a law that in essence repeals an exemption that most, thought was not
even in the law until the court ruled, created by a law passed by this
Congress way back in 1974.
All we are doing in this legislation really is putting the HMOs back
in the same position as every other individual and every other business
in this country, which, under the laws of our land, if they commit a
negligent act, if they wrongfully refuse to provide health care, if
they wrongfully deny medical treatment, they are ultimately accountable
in the courts of this land. So no longer will we allow HMOs to be
exempt, the only entity that is exempt, from being responsible for
their actions.
Mr. Speaker, I hope we have a good strong vote on this bill. I hope
we pass the stronger bill. I am very pleased to be able to join the
gentleman from New Jersey (Mr. Pallone) tonight in talking about this
important piece of legislation.
Mr. PALLONE. Mr. Speaker, I want to thank the gentleman, first of
all, for explaining how in his home State of Texas that this bill has
been tremendously successful and has not brought the frivolous lawsuits
that we keep hearing from the other side, and that really we have
nothing to fear. It is just basically has been a success in every way.
I know sometimes when we talk about the Patients' Bill of Rights,
maybe we sound a little too lawyerly and technical about how one goes
about appealing a denial of care. But the bottom line is, if there is
no fair way to appeal a denial of care, if you have not been able to
get the operation or procedure you need, if we do not set up a
procedure to reverse that, then we might as well not pass the law. So
it is necessary for us to go into how we go about letting people
redress their grievances, and it is also important to point out that
the Republican bill, the Fletcher bill, is not going to accomplish
that, certainly not in any way that I think is meaningful.
I did not want to dwell upon it too much, but I just wanted to
mention a couple other examples. We have to keep in mind when we talk
about these procedures to overturn a denial of care that the people
that are seeking to do that are ill. Oftentimes they are very ill. They
need action fast. They cannot sit around forever if the HMO denies them
an operation or procedure.
So it is very easy, as I think they do in the Fletcher bill, in the
Republican bill, to tweak the bill in a way so that that procedure
becomes meaningless. I do not want to dwell on it too much, but this is
one of the things I thought was so important, was in the Ganske-Dingell
proposal, the real Patients' Bill of Rights, there is a requirement
that decisions are made in accordance with the medical exigencies of
the patient's case, and there is a requirement that patients have a
right to appeal to an external review before the plan terminates care.
Those are not in the Fletcher bill. They do not take into account
timeliness, the fact that you do not have a lot of time to appeal or to
go to an external review board. There are little things like this, I am
not going to get into them, but they make it very difficult. If you are
in a situation where you are denied care and need the operation, that
you can in a timely manner reverse that decision.
So I just mention it, because I know a lot of times we talk about all
these details, Federal versus State court, whatever, but these details
are very important, because people do not have a lot of options when
they are sick and ill and need to immediately have access to the kind
of treatment that is necessary for them.
I see my other colleague from Texas has stood up, and I would like to
yield to him. I know, once again, he has been very much involved in
this issue for a number of years both on our Health Care Task Force as
well as on the Subcommittee on Health.
Mr. GREEN of Texas. Mr. Speaker, I would like to thank my colleague
from New Jersey for hosting this Special Order tonight on the need for
a meaningful Patients' Bill of Rights.
Most folks may not know that we spent 11 hours today in markup in our
Committee on Energy and Commerce on energy legislation, and my
colleague from New Jersey probably got tired of hearing about Texas so
often, but that is what we are going to talk about tonight.
The gentleman from New Jersey (Mr. Pallone) has been the leader for
several years, and I am happy to join him in calling for immediate
passage of a real Patients' Bill of Rights.
We have a real opportunity to pass a meaningful Patients' Bill of
Rights this year. After 5 years of heated debate, the U.S. Senate
passed a meaningful Patients' Bill of Rights with protections for both
patients and employers. Opponents of this measure argue that the
legislation will result in a
[[Page H4208]]
landslide of frivolous lawsuits against employers, but that is simply
not true.
We have a Patients' Bill of Rights in Texas for more than 4 years,
now since 1997. In that time, we have had only 17 lawsuits filed. That
is right, only 17 lawsuits. I know if you are watching this, you heard
that from my fellow Texan (Mr. Turner) here just a few minutes ago.
But, at the same time, we have had more than 1,000 patients cases where
patients appealed a denied claim to an independent review organization,
an IRO.
In more than half of those cases, the IRO ruled in favor of the
patient. That independent review organization more than half the time
ruled in favor of the patient.
I always use the example, I would like to have more than the luck of
a flip of a coin when it comes to health care for myself, my family or
constituents. In Texas, more than half the time the IRO found the HMO
was wrong in whatever they said they would not cover for the patient.
These independent review organizations are important not only because
they protect the patients, but they protect the HMOs as well. Under
Texas law, the HMO that follows the recommendation of that Independent
Review Organization cannot be held liable for the damages in State
court. That is right, an HMO who follows that Independent Review
Organization recommendation cannot be held liable. There may be some
other reason that they may have had a problem, but they are not
responsible for that decision that was made if they stuck with it.
If an HMO denies care and ignores the review, if the patient is
injured or dies, the HMO can be held liable in State court. Thanks to
that law, Texans have real enforceable laws to obtain health care that
they paid for.
But in the rest of the country, we do not. In fact, even in my own
district, in Houston, Texas, I have constituents who have their
insurance under Federal law. Sixty percent of people in my district
have their insurance under Federal law. So no matter what our
legislatures do in Texas, New Jersey, or the State of Washington, it
does not help us under ERISA. We have to pass a strong law here on the
House floor.
Mr. PALLONE. If I could take my time back, I think that is real
important, that people have to understand, even in Texas the majority
of the people do not have the benefit of that Texas Patients' Bill of
Rights.
Mr. GREEN of Texas. Our surveys in my own district, very urban, 60
percent of the people have group insurance under Federal law. Even
though the legislature passed something 4 years ago, most people get
their insurance under Federal law. That is why we have to pass
something here on this floor like what the Senate passed.
This legislation contains similar protections that we have had in
Texas law, including provisions for an external appeals process. More
importantly, the Senate version contains additional provisions to
safeguard employers against frivolous lawsuits. Employers can only be
held liable if they are directly responsible for the delay or the
denial of treatment. So if an employer is acting like a doctor, they
are going to be treated like a doctor.
It is time that important health decisions are made by doctors and
their patients, and not HMO bureaucrats, and it is time the House
passed the Norwood-Dingell-Ganske Patient Protection Act.
Mr. Speaker, thank the gentleman from New Jersey. He is the Chair of
our Democratic Health Task Force and we have worked with each other for
many years. Hopefully, by the time we leave for our August district
work period, we will have debated and passed a strong Patients' Bill of
Rights on this floor.
Mr. PALLONE. I want to thank the gentleman from Texas. Again, he has
been in the forefront on this issue, not only on putting together the
Patients' Bill of Rights, but trying to get it passed. Frankly, I think
we are just becoming a little impatient. This is a bill that passed in
the last session, two years ago, overwhelmingly, almost every Democrat,
about a third of the Republicans, and the only problem we have is that
the Republican leadership refuses to bring it up. All we are asking for
is a clean vote on the bill.
Mr. GREEN of Texas. We are asking for patients' rights and becoming
impatient.
Mr. PALLONE. Exactly.
I would like to yield now to the gentleman from Washington (Mr.
McDermott), who is one of very few physicians that we have in the House
of Representatives. I know that he, because of his background as a
physician, probably more than any of us knows about the problems that
patients have with HMOs and with denial of care.
Mr. McDERMOTT. Mr. Speaker, first of all, my hat is off to the
gentleman. I was sitting over in my office doing my mail, and I saw
these gentlemen out on the floor talking about this issue. I thought, I
have to go over and help them and also say some things that I think
might be useful I think for people trying to understand this whole
issue.
{time} 2300
The first one is, why do we need a national bill? Why do we not just
pass it at the State level? The gentleman from Texas (Mr. Green) sort
of alluded to the need for Federal protection because of a law called
ERISA.
ERISA was a law passed many years ago to protect pensions, and it is
now used by many corporations to protect their involvement in health
care so that it cannot be touched by insurance commissioners in States.
They say the insurance commissioner has to go away. We are covered by
the Federal law called ERISA, and you cannot monkey with how we do our
health care. So the managed care companies are hiding behind ERISA all
over this country, and that is why we need a national law. It is not
sufficient to do it just in Texas or in my own State of Washington,
where we just passed a law. We have done the best we can, but we are in
the same place Texas is: Only about 50 percent of the people are
covered by our Patients' Bill of Rights.
The second thing that is worrisome about these other bills that we
see out here, the Fletcher bill and others, is the possibility that we
will have a Federal law that overrides what is done at the State level.
Now, if we set a high standard in the State and in comes a Federal law
with a low standard, we lose; and that is why we need to have a
provision in the bill that does not allow the Federal law that we pass
here to override a higher standard that we might have in a State. The
State of Washington, the State of New Jersey may decide to do something
more than is done by the Federal law, and they should have that right.
They should be able to do that.
Now, the history of this bill is sort of interesting. The Clintons
worked very hard at getting a health care bill to cover all people that
could never be taken away. They failed for lots of reasons, but,
certainly, in the election of 1994, the Republicans took great pleasure
in saying, we saved you from government medicine, which was how they
defeated the President's attempt to give everybody universal coverage.
Everybody remembers the Harry and Louise ads where this couple is
sitting around the dining room table saying, well, can you believe it?
The government is going to come in and take over our health care.
Well, the people who said they did not want government medicine
essentially said at that same point, we are going to give health care
coverage to the insurance industry. Anything they want to do is fine,
because that is the free enterprise system. Let them squeeze the people
and let them squeeze down health care as much as possible so that they
can make more money.
There is nothing wrong with a managed care company, but it is very
simple what they do. They take in premiums and then they pay out as few
benefits as possible so they can give all the rest in dividends to
their stockholders. Now, there is nothing wrong with that, except that
it means that the patients are always being squeezed.
The first obvious one that came to the Congress back in 1994 was the
fact that women would come to the hospital at 8 o'clock in the morning,
deliver a baby, and by 5 o'clock they were in the car on the way home
before the baby had ever had a feeding or there was time to observe
whether the child had jaundice, or anything. And we called it drive-by
babies. We passed a bill through both Houses that said we cannot have a
drive-by baby system. We have to let the doctor and the patient decide
how this is going to happen.
[[Page H4209]]
Well, the next thing that happened was women went into the hospital
to have a breast removed for cancer and, lo and behold, they go in in
the morning at 8 o'clock and out at 5' clock, and they were on their
way home. So we were having drive-by mastectomies in this country
because, again, the insurance company was trying to squeeze down the
number of days they spent in the hospital so that they could save money
to give to their stockholders. The patients and the doctors were
frustrated by that, so they came up here, and we passed another bill
preventing that, saying that the doctor and the patient should decide
it.
Well, we were going one disease at a time, the disease of the day,
the disease du jour. We said, that is not going to work. We have to
have a bill that gives patients and doctors the right to make medical
decisions for people. It seems so obvious that the person that is
receiving the treatment and the person that is giving the treatment
should be the ones to decide what is appropriate.
But the insurance companies took the view that they could look over
your shoulder and decide, that is too much, or they do not need this. I
had the experience, because I am a physician; I am a psychiatrist. I
had a patient on a ward in Seattle; and they came along and said, this
patient has to be discharged. Well, this patient was suicidal. I have
to make the decision about whether I am going to put a patient that is
suicidal out of the hospital and send them home, risking that they may
kill themselves, or fight with an insurance company. So I got on the
phone. Here I am talking to some very nice woman in Omaha, Nebraska,
from Seattle, and she is telling me that I have to justify to her why
that patient can stay in the hospital another day.
Now, it is ridiculous. I am a psychiatrist. Surgeons go through that,
pediatricians go through that, obstetricians, gynecologists, all kinds
of physicians go through this all the time, fighting with insurance
companies, managed care companies that are making decisions for
patients that they have never seen. When the physician is standing
there looking at the patient and they have to get on the phone and
explain why to somebody who has never seen them, it shows us how
ridiculous it is. It seems like this bill ought to go through
immediately.
Mr. PALLONE. Mr. Speaker, if I could just interrupt a second, because
we had a hearing a couple of years ago, I think it was one of our task
force hearings, and I do not remember the details, but it directly
referred to psychiatry.
The problem was that the HMO was using a standard that was not really
acceptable by those who certify psychiatrists and basically saying
that, for a patient who had a mental illness, they would only be
entitled to, say, three visits, where maybe the standard for the
psychiatric society was 15 visits. They just made it up. I mean, they
just made up the number of days that they would provide. The testimony
showed that they were about to be acquired by another HMO, and so they
were trying to show that they were making a lot of money. They just
established that standard based on the cost, that they would save
money.
One of the things that is in the Dingell-Ganske bill, it says that,
with regard to specialty care, that the standard has to be that which
is typical for that specialty care. They use, I do not know what they
call them, the diplomacy board or whatever as the standard. That is
another major difference I think in terms of why the Patients' Bill of
Rights is such a good bill. I do not remember all the details, but I
remember specifically that.
Mr. McDERMOTT. Mr. Speaker, the gentleman is absolutely right. In
every profession, every specialty in medicine, whether it is pulmonary
surgery or pediatrics or obstetrics or whatever, there is a board that
gives people the right to say, I am an obstetrician, I am a
psychiatrist, I am a pediatrician; and those boards look at all of
these particular conditions related to that specialty and make
decisions about what is an appropriate standard of care.
Now, if an insurance company wants to just arbitrarily make their own
standards of care in contradistinction to what the doctor has been
taught, what he has agreed to as being an obstetrician, this is the way
you handle these kinds of cases, and suddenly he is told by somebody
who is not in the profession that they should do otherwise, you can see
the conflict. I mean, it is terrible for doctors. That is why doctors
hate this so much. Here you have been trained, gone to college, medical
school, an internship and a residency, all this training, and here is
somebody coming out of nowhere telling you you cannot do that; what you
have to do is what we tell you to do.
Mr. Speaker, I think that the essence of this whole thing is bringing
it back to a place where doctors and patients make the decision.
Now, the other part, and this is about deciding, what does the
ordinary citizen know? The ordinary citizen is not a physician or a
nurse or anybody in the health care profession. When they feel sick,
when they feel pain in their chest or pain in their stomach or
whatever, they go to see a physician or they go to see the emergency
room in a hospital, because they are worried.
Now, it may turn out that what they thought was a heart attack is
really related to eating spicy food or something else. It may turn out
that it was not a heart attack. But to say that the average citizen is
supposed to make that decision in their own home and diagnose
themselves, put a stethoscope on their chest and say, well, it sounds
all right to me, I mean, it is crazy. Everybody knows that. None of us
wants to go to the emergency room in a hospital, but people go, and
because it turns out it was not anything really big, why, they say we
are not going to pay for it.
{time} 2310
But people go, and then because it turns out it was not anything big,
then they say, well, we are not going to pay for it. Those kinds of
issues, sort of a reasonable person standard, what would a reasonable
person do in this case, those kinds of issues, should not be turned
back on the patients.
I had a hearing in Seattle with my constituents. I opened my door and
said, come on in. People told me all kinds of things. For instance, thy
were told by an insurance company they could not have this kind of
treatment, but somebody a thousand miles away in Kansas City or Los
Angeles was having that kind of treatment for exactly the same kind of
circumstances. So one place is doing one thing and another place is
doing another thing, and all of these differences are based simply on
insurance companies' decisions about how tightly they can squeeze this
issue down.
There is a story or a case that came up from Florida where a man, an
elderly man about 75 years old who had prostate cancer, after he had
the prostate cancer removed, then they talked about, how do you
suppress the male hormones. Now, obviously there are a couple of ways
to do that. One is to castrate him. That is a one-time $1500 operation.
Or they can put him on medication that costs about a thousand dollars a
year. So it will cost more if he lives 5 or 10 years. So they made the
decision to do the castration. The man said, I do not want that.
Again, we have these kind of things. These are tough decisions. But
they ought to be made between the doctor and the patient about what is
best for the patient, not by an insurance company saying, ``do it the
cheapest way.''
Lots of physicians are leaving medicine today. Many of my colleagues
in my class have said, ``I am through with this. I cannot fight with
insurance companies any more, because it has just taken all the joy,
all the pleasure out of being a physician because I am always caught.''
So there was a time, and the insurance companies have changed this,
but there was a point where they would say, ``You cannot even tell the
patient that there is another treatment. If we only cover x, you cannot
tell the patient there is y, or that there is another way to be
treated. If you go over to see Dr. Johnson, he'll give you another
treatment.''
Mr. PALLONE. If I could follow up on that, Mr. Speaker, that is one
of the things that is also a big difference with the Fletcher bill,
with the Republican bill. The Republican bill, as the gentleman knows,
that the leadership wants to bring out leaves out this basic right, if
you will, or basic protection that we have in the real patient bill of
rights that says doctors can communicate freely with their patients
without fear of retaliation by the HMO.
[[Page H4210]]
That guarantee, or the gag rule, is not in the Fletcher bill.
The other thing that is not in the Republican bill, it also fails to
protect against HMOs when they have these financial incentives where
they say to the doctor, if you do not provide a certain amount of care,
or if you do not have your patients use the hospital or certain
procedures and save us money, then you'll get a financial incentive,
sort of a rebate of some sort, there is nothing in the Fletcher bill
that guarantees that those kinds of arrangements could not continue.
We primarily tonight have been talking about the patients. Of course,
this impacts the patients as well, but there are a lot of protections
for physicians so they can practice freely that are in the Dingell-
Ganske bill that are not in this Republican bill. Those are two
important ones.
Mr. McDERMOTT. The whole financial incentive business of saying to
the doctors that each month they get to make 80 referrals for
consultation with outside consultants, and if they make more than 80
they will reduce the salary, and if they make less they will get more,
well, that puts that initial early primary care physician in a very
difficult position, because if we have a patient who has diabetes, for
instance, we will say, well, I could handle diabetes. I learned about
it in medical school. I am not going to refer them to a specialist in
diabetes until they get into trouble.
So they are taken care of, and then when they get in trouble at that
point they are sent in a mess to a specialist. That is not patient
care, but that is the kind of thing that physicians are put in if they
are trying to stay within these kind of limits, these financial
incentives that have been put there. They are under tremendous tension
about how many people they refer to specialists when they think, this
is something that ultimately could be a real problem. I want to have
somebody with more experience in this area to see them now.
The same is true in gynecological things or in cardiac things or in
psychiatric things. Why would he refer a patient to a psychiatrist if
he could just give them some pills and see how they do. They might do
that once and see if it works, but at a certain point it is better to
send them to somebody better trained who has more experience. For
physicians who are caught in that economic vice, that is a terrible way
to run the medical system, to say, I am going to hit you in your pocket
if you do what you think is best for your patient.
If the patient knew what was in the doctor's mind, they would be
afraid to go to him.
Mr. PALLONE. Is it not also true that in many areas, and it depends
on what part of the country one is in, but there are certain parts of
the country, and New Jersey is certainly one of them, where the
physician is really forced to join the HMO. In other words, they have a
difficult time staying independent and relying on traditional
insurance, so they are in a situation where they have to sign up and
take these contracts with gag rules and the financial incentives and
all those things. They are not free necessarily to avoid all that.
Mr. McDERMOTT. I was flying home to Seattle. Sitting next to me was a
middle-aged woman. We got to talking as we were eating dinner.
I said, What do you do? She said, I run a neurologist's office in
Vienna, Virginia. I said, Really? You are the one who handles the
billing and all that kind of stuff? She said, Yes. I said, Has he
joined any HMOs? She laughed and said, He has signed 60 agreements with
HMOs. We would have no practice if we did not sign with all these
operations.
I said, Have you read all the contracts? She said, Are you kidding?
How could I possibly read 60 contracts and still do business? I do not
know what we have signed, because we had no choice, because all of our
patients came in with insurance cards from those plans. If we were not
in the plan, we would not get paid.
That is a big part of what is going on out there, why it costs more
money, because you have people who are having to bill all these
companies with different rules. There is no single set of rules. If the
doctor makes a decision, if he has made a decision because of the way
he thought one plan worked and it is not the way the other plan worked,
then he is wrong, and they send it back to him and do not pay him. Of
course, the patient keeps getting the bills, because they say, your
doctor has not sent these in, or whatever. So there is this endless
paper mill that gets caught up. Patients really should not have to
worry about that.
I had some surgery and I wound up at home receiving all the bills
that came from the hospital. At one point they had not paid a bill. I
said, Well, this consultant came in and saw me. Why have you not paid
him? They said, We have not received any confirmation that you were in
the hospital. I said, where did you think I had the surgery, out in the
parking lot? Because until the bills came in in the right order, they
kept coming back to me.
That happens to people all over this country. Doctors spend a lot of
time and money filling out forms for their patients. There is no need
for that. There is no need for the insurance company to do that.
The reason they do that is the longer they hold on to the money, the
more they have to give to the stockholders. If they paid their bills
right away when they came in the money would be gone, but this way they
can invest it and hold on to it and give the profits to their
stockholders.
This patient bill of rights, in my view, in a democratic society
there should not be any question about this passing. It has taken us 5
years to get it to this point, and we have passed it again, again, and
again. The insurance companies have killed it either in the Senate or
in the House.
It is absolutely a crime. The American people ought to demand of
thier Members of Congress that they vote for the Dingell-Ganske-Norwood
bill.
I have to give great credit to the gentleman from Iowa (Mr. Ganske)
and the gentleman from Georgia (Mr. Norwood). They are Republicans. But
when one is sick, one is not a Republican or a Democrat, just a sick
person. They have taken this very professionally. The gentleman from
Iowa (Mr. Ganske) is a very good surgeon, and the gentleman from
Georgia also has a medical background. They have taken this and said,
We do not care what our caucus said, we are going to do what is right.
In my view, that is what Members of Congress really should do, and I
think all of them ought to do it. If the leadership does not bring it
out here pretty quick, we are going to have to make them bring it.
{time} 2320
Mr. PALLONE. I agree. And I know we are running out of time, so I
guess we will finish off here; but I want to say two things.
First of all, I really appreciate the gentleman's joining me tonight,
because I think a lot of the emphasis that we have talked about, not
only tonight but on other occasions, has been more from the patient's
point of view. And what the gentleman is pointing out is that basically
the patients' bill of rights frees up the doctors to practice medicine,
and that if we do not do this, in the long run we are going to lose a
lot of good doctors. We already have. And, of course, that is a patient
issue as well. Whatever helps the doctors certainly in these
circumstances also helps the patients.
The other thing, of course, is my fear, and the reason we are here
tonight is because we keep hearing that the Republican leadership,
which does not want this bill and has done everything over the past 5
years to kill the bill, is trying to do that again. Basically, what
they are doing is going to the 60-some odd Republicans who voted for
the Patients' Bill of Rights in the last session and trying to get them
to oppose that and support this Fletcher Republican bill, which does
not accomplish the goal. My fear is that if they do not get enough
votes to pass the Fletcher bill, the Republican leadership simply will
not bring up the Patients' Bill of Rights.
So we are just going to have to keep holding their feet to the fire,
so to speak. And as the gentleman says, if they will not bring it up, I
guess we will have to resort to a discharge petition. But these
procedural efforts are difficult. It is not easy to accomplish these
things. So as the gentleman says, if we can get the American people to
[[Page H4211]]
wake up sort of and say, look, this is something that has to be voted
on; if we can accomplish that, that is really the way to go.
But we have to continue to speak out, as we did tonight and we will
continue to, until we have a freestanding vote on this bill. It is that
important.
Mr. McDERMOTT. I think what people really need to understand, too, is
that in a democracy there should be open debate. Both sides can make
their case, and then we put it to a vote and the majority should rule.
We have the majority of votes. The leadership is just using all the
maneuvers of the parliamentary system to keep it locked up. But the
ones they are hurting, not themselves perhaps, maybe they have not had
the experience yet, but who they are hurting are the American people;
and that is unconscionable, should not happen.
We have been too long on the road on this, and I congratulate the
gentleman again for putting his time and effort into making this
happen.
Mr. PALLONE. I thank the gentleman again.
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