Congressional Record, Volume 147 Issue 103 (Monday, July 23, 2001)

[Congressional Record Volume 147, Number 103 (Monday, July 23, 2001)]
[House]
[Pages H4411-H4417]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

PATIENTS' BILL OF RIGHTS: EMPOWERING PHYSICIANS AND THEIR PATIENTS

The SPEAKER pro tempore. Under the Speaker's announced policy of
January 3, 2001, the gentlewoman from Connecticut (Mrs. Johnson of
Connecticut) is recognized for 60 minutes as the designee of the
majority leader.
Mrs. JOHNSON of Connecticut. Mr. Speaker, I rise in strong support of
the Fletcher-Peterson-Johnson bill, and I appreciate the opportunity to
talk to people about the strength of our approach to providing people
with the right to sue if they have been harmed by a plan or a decision
that their plan made. It is absolutely wrong for an HMO to have the
power to deny needed medical care to a participant in that plan. That
is something that, frankly, we all agree on.
What we do not agree on exactly is the process by which we achieve
that goal. I want to make sure that at the same time we provide
patients with a right to sue their HMO, we do it in a way that returns
power and control over our health care system back to physicians. I do
not want a solution to patients' rights that empowers lawyers over
doctors, or puts in place such a complex system that resources
hemorrhage out of our health care system into our legal system,
diminishing not only the rights of patients but the possibilities of
those who participate in plans for medical care.
Mr. Speaker, I think through this discussion tonight we can make
clear that our goal is to empower physicians, to return control of our
health care system to physicians and patients, to doctors and the
people they care for, where it ought to be; and to make sure that in
the process of reform, we create new rights of access, we guarantee a
new and objective external appeal process, but we do not transfer power
that plans now have and should not have to lawyers for them to have,
when they should not have it. So this is all about patients' rights and
doctor power, and that is what we want to talk about tonight.
Mr. Speaker, I yield to the gentleman from Kentucky (Mr. Fletcher),
who is the lead sponsor of this legislation.
Mr. FLETCHER. Mr. Speaker, I thank the gentlewoman. I certainly
appreciate all the work that we have done together and the
gentlewoman's help in making sure that we have a piece of legislation
that truly is focused on patients and focused on getting patients the
health care that they need.
Mr. Speaker, all of us have heard the tragedies of HMOs, and there
are many out there, and I think we can all relate to that. As a
practicing family physician, I remember many episodes where I had a
conflict with the HMO, trying to get the treatment that the patient
needed. So I think all of us agree that there are tragedies out there
where patients did not get the treatment they needed, or where they
were misdirected to a distant ER and something happened. We want to
make sure that we correct those problems and that we get patients the
care that they need.
That is why when the gentlewoman from Connecticut (Mrs. Johnson) and
the gentleman from Minnesota (Mr. Peterson) worked on this bill, and a
number of others who have worked very hard on it, we focused primarily
first on patients and getting the care. We wanted to make sure that we
no longer saw a system where insurance bureaucrats made medical
decisions but rather physicians made medical decisions.
We also did not want to go to the extreme of other folks saying, let
us let lawyers and judges make the medical decisions. That is not right
either. First off, the ability to get that treatment is impaired. It
may take years to get a settlement, well after the medical treatment is
needed. Secondly, judges and lawyers are not trained to make those
medical decisions. So we established a bill that focused on getting the
care patients need.

Now, let me compare, because I have a chart here that compares the
basic elements of the patient protections in the two bills. Our bill,
which is the Johnson-Fletcher-Peterson bill versus the Ganske bill, or
the Kennedy-McCain bill. First, emergency access. We both ensure that
the patient can get the emergency room care that they need.
We also ensure something called point of service. What that means is
that one has an option of going to any physician. If one wants to get
that plan, one can go to any physician out there. They may not be a
physician that is part of even that network of the HMO, and a company
will offer a plan that you can purchase that will allow you to see a
physician that you trust that may not be a member of that network. You
can see your OB-GYN doctor directly. You can take your children, and I
know that this is very important for families, to ensure that their
children have access to that pediatrician that has been trained
especially to take care of the problems of children. We provide direct
access to pediatricians.
Specialty care. To make sure that there is an adequate coverage of
specialists out there to bring the latest, the state-of-the-art of
medicine, to the patient's bedside. We want to make sure that there is
continuity of care, that if, all of a sudden, the contract is removed
from the physician, that there is a solution.
For instance, if you are a young lady and you are being covered by a
physician or he or she is your attending physician and you are about to
deliver a child, we make sure that you can continue that continuity of
care, that you can continue to see that physician, and that you get the
care that you need throughout, even though they are no longer working
with that HMO, that they can do that until the delivery is completed
and postpartum care is completed as well.
We do not allow any gag clauses. We do not allow HMOs to tell
physicians, you cannot tell your patients what medical treatment they
need. So we stop all of that, just like the other bill.
Clinical trials. We make sure that if there is a clinical trial that
is out there that may give someone a hope of a cure for a disease that
we make that available.
We make sure that you get plan information, just like the other bill.
We make sure that there is an appeals process; that if an HMO says,
we do not think that is covered, that you can get an internal and
external appeal. What does that mean? That means that you can appeal it
to a panel of experts. We have set quality number one in this bill. We
have established a criteria for this external review, the highest
standards in the country, a consensus of experts of national opinions
and what we call the referee journals, those medical journals that
drive the state of the art of medicine. So we establish the highest
quality of any bill. Actually, our quality of care standards are higher
than any other bill here.
We make sure that the prescription drugs that you need are there,
that if it is not on the formulary and you cannot tolerate the drug
that that is on the formulary, that there is access to a drug that may
not be on the formulary, but because you cannot take the medication
that is on the formulary, you get another medication.
We make sure that there is the liability, that there is the redress
so that one can hold HMOs accountable.
Now, one way we hold them accountable is we make sure that if an
insurance company does not comply with

[[Page H4412]]

this panel of expert physicians, this high gold standard, that if they
do not comply with that and give the treatment that one needs, we hold
an HMO liable in exactly the same manner that a physician is liable.
The other side has about 19 pages of criteria that have to be met.
Nobody knows how the States are going to respond to that. We are seeing
a decision from the Department of Justice saying that we are not sure
how the States are going to respond to 19 pages of Federal mandates on
State courts. That is unprecedented. But we make sure that the HMO is
held accountable if they do not comply with those panel of expert
physicians, the same way a physician is held accountable.

{time} 1945

There is no difference in our bill. We make sure that there is tight,
focused accountability.
We also provide, and let me talk about it, immediate access and
instant remedy. When we focus on patients, that is what we want to see.
We also provide the opportunity for small businesses to come together
and to offer a national health plan. That will save an estimate of 10
percent to 30 percent on premiums.
I have not talked to anyone out there, Mr. Speaker, that is not
interested in the cost of health care and of seeing that going up
double digits this year. So being able to decrease the cost of health
insurance, make that more accessible, allow more small businesses to
offer health insurance is one of our goals. I believe we accomplished
it.
It is estimated that 8.5 million Americans will be able to get
insurance that do not have insurance today. We hold HMOs accountable;
and we weed out bad players, as I have said. We make sure that the
medical decisions are made by doctors.
The Kennedy bill and the Ganske-Dingell bill, what they say is that
if one does not get the treatment immediately, if they just allege
harm, they can go to court. What does that do? That does not, first,
get the patient the treatment they need, and it also increases the
number of junk or frivolous lawsuits. We will talk about that in a
minute and what effect that has on patients' ability to get affordable
health care.
We make sure that one does not have to go to a judge, that one can go
to a doctor to get an opinion. Then if the HMO is a bad player, we hold
them accountable.
We enable small businesses, as I said, to offer health insurance.
Most importantly, when we talk to the American people, Mr. Speaker,
what we find out is that the American people are very, very concerned
about the health care they get through their job. I have some farmers
in my district whose spouses go to work simply so they can get that
health care.
The other bill may impact that to the point where individuals will
lose the health care they get through their work. In Kentucky, that
estimate is 40,000 to 80,000 Kentuckians will lose their health
insurance because of the Ganske-Dingell bill.
Again, we protect the health care Americans get through their jobs.
We provide all patients with patient protections. By setting that gold
standard by that independent review of panels, we raise the standard of
the quality of health care.
When we look at insurance premiums, ours, when we figure the total
bill with those association health plans and something else called
Medical Savings Accounts, where one can set aside some money to use for
health care expenses, ours shows that we will have a net decrease, if
we look at the premiums. Theirs will increase by about 4.2 percent.
We do not think we will increase lawsuits. Actually, we will get the
care and have less lawsuits than they will, but yet we will weed out
bad players.
We estimate that we may decrease totally by 7 million the number of
uninsured. They may increase it for some up to 9 million.
Health care quality, we believe we can actually increase health care
quality with this bill, which is a primary concern.
We want remedy, we do not want retaliation. We know there is a lot of
emotion. As a physician, I can say there are many times when HMOs
angered me. But the motivation for passing a good patients' bill of
rights is remedy, not retaliation. We want to make sure one gets
immediate help, not unlimited or frivolous lawsuits.
We want to make sure one has access to State courts if the managed
care company refuses to give what the experts say. There are no caps on
many of their decisions, and that means premiums are going to go up. We
have access also to Federal courts if it is a coverage decision.
Why is it very important to make sure that we provide health
insurance? Why are we so concerned about the uninsured? I am
disappointed in the other side. I think we both have a very similar
motive, but their bill has what I call truly a flagrant disregard for
the uninsured.
When we look at the simple fact, and this comes out of the Journal of
American Medical Association from November 19, 1997, this was an
article that said that a patient without health insurance is three
times more likely to die than patients with health insurance. So when
we talk about driving up the number of uninsured, we have a tremendous
impact on the health and well-being of Americans. That is why it is so
important to focus on the uninsured.
Look at this map. We currently have 43 million Americans uninsured.
If we look at, under the Ganske bill, there are 4 million more
uninsured. If we look at the blue States and if we were to take the
population of all those blue States, that is equal to the population of
the number of people in the United States that have no insurance. That
is where we should be focused.

That means that 43 million Americans now are not able to go see their
physician, not able to get the preventive health care they need, so
when they do arrive in the emergency room their disease is further
along. It is more advanced and less curable.
If we pass the Ganske-Dingell bill, it is estimated that those red
States, a population equal to the population of those red States would
lose their health insurance. I do not think that is something we can
afford in America.
Let me say this, as we look at the differences, I think both of us
have the same goal. That is to make sure we provide good patient
protection. I think in their liability portion they are very misguided
in the sense they turn decisions over to judges and lawyers instead of
physicians. I think it is bad legislation, particularly for those that
I call ``near-uninsured.''
Who is it going to impact most? Low-income and minorities, that is
who it is going to impact. I am surprised that the Democrats would take
up this issue, because that is a constituency they always speak about
having compassion for, yet their bill will impact them worse than any
other portion of our society. Low-income and minority people are the
ones that stand to lose the health insurance, those who are barely
getting along, those families who are having to decide between putting
food on the table and providing health care for their children.
Under their bill, they may end up having to say, I am not going to
take the food off the table, so I will have to drop health insurance.
That is not right for America. That is not good for those most
vulnerable in our country.
I appreciate the opportunity, I say to the gentlewoman from
Connecticut (Mrs. Johnson), to speak with her, and I thank her for all
her work on this bill. I think we have an excellent bill. I thank the
gentlewoman for the opportunity to share this time with her.
Mrs. JOHNSON of Connecticut. Mr. Speaker, I thank the gentleman for
joining us.
I want to ask just one question to the gentleman, as a physician. Is
it not true that under our emergency services section, where we
guarantee people the right, if one's pain is severe enough that any
prudent layperson would think someone needed to go to the emergency
room, they can go to the emergency room and get care under our bill and
under the other bill?
But there is a unique aspect to our bill. That has to do with very,
very young infants, where of course ``the prudent layperson'' rule is a
little hard to apply. So we do take a different tack in that portion of
the bill. If the gentleman would just talk about that, I think it would
help people understand how thoughtful our legislation is.
Mr. FLETCHER. Mr. Speaker, we wanted to make sure that the access

[[Page H4413]]

there to the emergency was available to everyone, regardless of their
age and regardless of their ability to be able to define what a
layperson's definition is.
So we make it very clear, and I think that is one of the reasons
that, when we talk to the emergency room physicians across this Nation,
they prefer our provisions, so that no patient is without access to the
emergency room.
I mentioned in the beginning that some of the problems have been that
a patient may call the HMO and they send them to a distant emergency
room. We have eliminated that problem. We have solved that problem. We
make sure that if one has an emergency, if one has severe pain or
something where one feels or a layperson feels like it could threaten
their health, they can go to the nearest emergency room, get that
treatment from those physicians and health care providers, and they can
be assured of being reimbursed for that.
Mrs. JOHNSON of Connecticut. If they have a very sick infant and go
to the emergency room, and in the opinion of the health professional,
the prudent opinion of the health professional, that infant needs
certain care, that infant can have the care that they need on the word
of the health professional, as opposed to the prudent layperson's
standard that pertains to me, if I were in pain or another adult if
they were in pain.
Mr. FLETCHER. Let me address this. A young mother sometimes is not
sure whether an infant needs to come. I recall a situation where a
young mother came and she gave me, after a few questions, a short
history of this infant. She was not sure whether or not that infant
needed to come in.
At that point, I told her that, no, I think you need to come in
immediately. When that child arrived there, it was very, very ill. The
gentlewoman is absolutely right that it is very difficult sometimes on
a layperson's judgment to define whether a young infant, a very young
infant, is truly at a great deal of risk with their health care, and
yet it requires health care professionals.

So our provision for that gives a lot more protection to those young
mothers and young infants.
Mrs. JOHNSON of Connecticut. Mr. Speaker, I thank the gentleman very
much for his time tonight. It is a pleasure to know that the emergency
physicians were very involved in writing that provision, and we have
very strong coverage and protection for emergency room care.
Mr. Speaker, I yield to the gentleman from Georgia (Mr. Collins),
from the Committee on Ways and Means.
Mr. COLLINS. Mr. Speaker, I thank the gentlewoman for yielding to me.
I really enjoyed the explanation of the gentleman from Kentucky on
the health care provisions in both plans. That is what people are
concerned about at home, that they want to better understand their
health care insurance, what their coverage is, and what the plan
consists of, more so than anything else.
I have very few, and I cannot recall any, really, who have been to my
office and said, ``Mac, I want you to pass legislation to let me sue my
insurance plan and my employer.'' That is not what is on their mind.
What is on their mind is the information that the gentleman from
Kentucky (Mr. Fletcher) shared with us: ``What am I going to do about
health insurance and health care coverage for me and my family?'' Those
are the concerns.
I have very few to call the office concerned about the denial of a
service that they may need in the private sector. I do have quite a few
calls when it comes to some of the, what I will call government-run
HMOs, health management organizations, and those are Medicare and
Medicaid.
Thanks to the new administration and some of the things that are
happening over at the Center for Medicare Services now, though, those
calls have become fewer and fewer.
We used to have a lot of calls about the Veterans Administration, but
fortunately, we have had a lot of good, positive changes, especially in
the Atlanta Region, with the VA. I have not received, in years, many
calls.
These are things that, as a Member of Congress, it is pleasing,
because I feel like my constituency is being better served by those
particular agencies.
I say to the gentlewoman from Connecticut (Mrs. Johnson), there are a
couple things I do have complaints about. One is the cost of health
care. People say, ``Congressman, why is my health care so high? It is
to a point where I cannot afford it. Why is insurance so high? I cannot
afford coverage. I cannot afford the insurance. What am I going to do?
What am I going to do?''
One thing we should not do is subject the marketplace to provisions
of law that may increase those numbers who cannot afford insurance or
cannot afford to pay their health care costs. That is just something we
do not need to do. I am afraid what we are looking at with this
particular patients' bill of rights is the fact that we may increase,
if we pass one particular provision, and that is the bill that the
other parties have offered, the Ganske-Dingell bill, the McCain-Kennedy
bill, that possibly we will increase the number of uninsured and raise
the cost to a point that many cannot afford it.
I have had health care management organizations to come by the office
in Georgia, particularly the Jonesboro office, because it is closer to
the Atlanta area, and talk to me, it has been 3 or 4 years ago, about
health care and what they were going to do, how they were going to take
care of the uninsured. One had some pretty slick brochures, they were
just fancy, and they probably spent a lot of money on preparing them.
I looked at them. We talked for a while. I said, ``These things are
pretty. They are slick. A lot of good information here. My advice to
you is to do what you say you are going to do in these brochures, and
that is take care of those that you insure.'' I said they should heed
the warning, because if they did not, there was going to be legislation
before the Congress that will make them wish they had. That type of
legislation I do not believe will be good for the marketplace, for
those who are uninsured, or those who insure.
Some companies have heeded that warning and made some changes, but
many have not. I think the marketplace is where things should take
place and where the reform in HMOs should take place. Employers, as
they select plans, they select plans based on competition in the
workplace for employees. It is a benefit. Some plans are better than
others because some businesses can pay better than others.
Labor contracts, many times labor in their negotiation will use
health care coverage as part of their negotiation or their leverage.
Insurance companies themselves providing insurance, they are
competitive. They are competitive businesses.
There is not just one insurance company, like we have with the
insurance for our seniors, Medicare, or insurance for the poor,
Medicaid. There are a lot of private sector insurance companies who
compete for business. They compete on the basis of what they have to
offer, the price of what they have to offer, and the satisfaction of
those who receive the coverage under their plans.
That is where the HMO reform should take place. That is the
marketplace. But it is not. It is taking place right here in the halls
of Congress. It worries me.
We have, as we all know, the patients' bill of rights. Unfortunately,
as I hear the coverage at home on the national media, they do not talk
about provisions that the gentleman from Kentucky (Mr. Fletcher) talked
about. They talk about ``this bill is all about people have the right
to sue the insurance company.''
Do Members know, I believe they have that right today. If someone is
harmed by another individual, whether that individual is an entity or
is a person, they have a remedy of law. They have a right to recover.
I do not think what we are doing here is absolute in what we are
trying to do as far as the marketplace is concerned. We have a choice,
as I mentioned earlier. We have the Ganske-Dingell bill.

{time} 2000

A lot of people at home know it as the Norwood bill, very similar to
the one that passed over in the Senate. But I have to say that, based
on my experience in business, my experience of having been in the
Congress now for 8\1/2\ years, my understanding of people and a common
sense approach to this issue, I do believe the gentlewoman has the
better approach of all that has been presented. I believe it has a less
negative impact on employers. I believe it

[[Page H4414]]

has a less negative impact on employees.
Let us face it, most people obtain their health care insurance
coverage at the workplace. That is where it happens. That is the
benefit. That is the incentive that an employer offers to have someone
work for them, or part of the incentive program. And the gentlewoman's
bill puts at risk in a lesser fashion the employer when it comes to
liability. As an employer for 38 years myself and in the type of
business that I am in, trucking, have been since I was 18 years old, a
lot of miles on the road, a lot of employees in accidents, I have been
in court, and it is not cheap to go to court to defend yourself.
I know that a lot of employers, if they are going to have to subject
themselves to additional cost, the additional time and trouble of
defending themselves based on a suit that may not be a viable suit, it
may not be a real liability to them, but they have to go to court to
prove that it is not or to have themselves removed from the case, what
will happen, I am afraid, is that many employers will just say, hey, I
am not going to do this. I am just not going to provide it.
What if they do? What if they say, I will continue on. I will take
that chance. What will be the result? I think it will be based on
passage of legislation, whether it be either bill. I like the idea that
the gentleman from Kentucky (Mr. Fletcher) put forth, that this may
actually reduce costs, and I hope it does. I think the majority of the
time, though, anytime the Congress gets involved in something, it
always increases the cost, whatsoever it may be.
But let us just look at a couple of comments that a group on Wall
Street made about the potential of the McCain-Kennedy, or the Kennedy-
McCain, now that the Democrats are in the majority over there in the
other body, or the bill that is before us from our side, the Ganske-
Dingell bill.
These are the four things that they say could happen. They say, first
of all, if the President were to sign either one of those two bills
that they think that, similar to some insurance companies that are
already out there, that they would just draw language for their plans
that would more carefully and extensively exclude areas of services,
regardless whether they are medically necessary. They would exclude
them by taking out the words ``medically necessary.''
They think that the plans would eliminate preauthorization so that
they would not have to delay or deny care but merely make retrospective
coverage decisions on claims after the care was rendered. Now, how
would my colleagues like to get a notification saying, wait a minute,
that $100,000 operation you had was investigative surgery, because the
words medically necessary are no longer there? That would be stunning.
It would be to me, anyway.
Third, this group thinks that plans would raise premiums and fees to
address potential costs of expanded liability and other patient bill of
right provisions.
And, fourth, businesses will adjust. If they decide to stay in the
marketplace and provide the incentive for their employees, they will
make the adjustments. I know they will. I have been there for 38-plus
years and have made a lot of adjustments based on government
regulations.
They say that we think the sponsors, those who buy and make the
decisions to purchase the insurance, would increase the beneficiary
costs, the employees' cost with cost sharing, with higher deductibles,
or coinsurance, or co-payments to offset such increases. So it will
cost employees as well as possibly employers.
The Ganske-Dingell bill, and I hate to take up so much of the
gentlewoman's time here, but this thing has been bothering me for a
long time and I just have not spoken out much on it, but it has
bothered me as a Member of Congress and as an employer. They say
employees are protected, but are employers protected? If they are, why
do we not just say so with maybe some language that says the decision
to purchase health insurance as an employee benefit is not subject to
liability, because it is not a health care decision. Now, the
gentlewoman has. The gentlewoman has accepted that type of language
very similar to that, and that is good language because that protects
that employer and the employee by not discouraging the employer to stay
in the marketplace.
I say to my colleagues, let us not jeopardize the insured that are
out there today by jeopardizing the employers, their workplace; not
only jeopardizing them for the possible loss of insurance coverage but
jeopardizing from the standpoint that their share of the insurance
coverage for their families more than likely will be increased.

Well, that is all I am going to say for now, but I appreciate the
gentlewoman's thoughtfulness. I know she has worked diligently on this
legislation, and I hope that my colleagues will work and pay close
attention to how this whole process will affect employees, insured, and
employers who provide the coverage as a benefit.
Mrs. JOHNSON of Connecticut. My colleague, the gentleman from Georgia
(Mr. Collins), has made a series of very important points, but the most
important point is that health insurance is the most important benefit
that employees receive from employers and that in fact the only place
people can get affordable health insurance is through their place of
employment.
If we provide access to specialist care and all of those access
rights that we provide in this bill, which both bills provide and which
do not in themselves cause any of the problems the gentleman is talking
about; and if we provide a national process of independent review of
decisions made by insurers to guaranty that those decisions do not deny
needed care, which both bills provide and 41 States provide, that will
not have the consequences that the gentleman fears. But if we provide
the right to sue wrong, we will have the consequences the gentleman
fears. And if businesses think they can be sued for what are
essentially malpractice decisions, they will drop their plans or
increase costs.
Just to give my colleagues a little example of how important this is,
in last year's alternative bill we had a system for protecting
employers. The employers, frankly, did not think we were right, and
they did not support it. But it was the best we could think of at the
time. It said if you did not directly participate in the decision, then
you could not be sued. But direct participation turned out to be a
pretty long chain, and a lot of people got swept into it.
So this year, as we move forward, we thought harder about that issue
of protecting the employer, who, after all, is only doing his employees
the good service of having a plan and paying for it for them. So we
came up with a new way of protecting employers. And one of the things
about our bill, the Fletcher-Peterson-Johnson bill is that it has a
simple, clean mechanism for protecting employers. The employer simply
appoints a dedicated decisionmaker, and under his plan he then is
protected from suit.
Now, in the other bill, realizing what a good idea we had, in the
Senate they added that designated decisionmaker into the bill. But they
just laid it on top. So now their bill has two systems. What that does
is to create court cases about which system. That is the kind of way in
which the other bill, in its complexity, invites litigation, explodes
litigation, drives up costs, drives up premiums or copays, or reduces
coverage or, in fact, forces employers to drop their plans.
So when we talk about the fact that our bill better protects
employers and protects the employees' insurance, it is right there in
black and white. It is in the provisions. Their provisions drive
inappropriate litigation. Our provisions only help the person who was
harmed by not getting the medical care they deserved. And that person,
under our bill, has the right to sue.
I thank the gentleman from Georgia for joining us and talking about
this.
Mr. COLLINS. If the gentlewoman will yield further, they should have
that right, and I think they have that right today.
I am still very concerned about the language, though, of appointing a
decisionmaker. Because that can be questioned, too. But if the decision
to purchase the insurance is not subject, because it is definitely not
a health care issue.
Mrs. JOHNSON of Connecticut. That is right, and that is very clear
under our bill, that that is not a health care decision.

[[Page H4415]]

Mr. COLLINS. Well, I hope it is, and I think it is, because I have
been assured that that is my amendment that the gentlewoman has
accepted. I thank her.
Mrs. JOHNSON of Connecticut. That is right.
Now, I would like to recognize my colleague from Arizona (Mr.
Hayworth), also a member of the Committee on Ways and Means, and I
appreciate his being with us tonight.
Mr. HAYWORTH. Mr. Speaker, I thank the gentlewoman from Connecticut
for yielding to me. I listened with great interest to the gentleman
from Georgia and, preceding me in this well of the House, the gentleman
from Kentucky (Mr. Fletcher), the principal sponsor of the true
bipartisan Patients' Bill of Rights. Because make no mistake, my
colleagues, we have a clear choice on this floor for all of America
later this week: Will this House stand for a true patients' bill of
rights or, in the games of special interests, will this House,
instead, pass a trial lawyer's right to bill.

The gentleman from Kentucky made the case. The gentleman from Georgia
made the case. Let us reaffirm the principles so important to us. As I
see here tonight we are joined also by the gentleman from Pennsylvania
(Mr. English), whose district, as most districts in this country,
really embraces the work ethic and the notion of getting one's money's
worth and the quality of life, and I think these underlying principles
form the foundation of our actions.
Number one, when someone is sick, they do not go to see a lawyer.
They want to see a health care professional, a health care provider of
their choice, a doctor to help them solve that problem.
Number two, should there be a dispute about insurance, most
individuals want health care professionals who understand the concept
of continuity of care, who understand the concept of the illness that
that person faces making decisions, rather than ending up in court.
The basic thought, Mr. Speaker, is this: We all want help from
medical professionals rather than a court date that can stretch on and
on ad infinitum instead of getting quality health care. That is the key
decision we confront.
Mr. Speaker, I was frankly amazed to hear my good friend, the
gentleman from Illinois (Mr. Davis), come up a bit earlier this evening
and talk about the profit motive and the evils that were imputed to
profits. Because were we to follow the line of reasoning as relevant as
headlines in The New York Times of 3 weeks ago, how shocking was the
news we had about the trial lawyers' lobby and the dispute involving
the Ford Motor Company and the Firestone Tire Company. The New York
Times, not exactly a conservative journal, the New York Times pointed
out that the trial lawyers involved in that case made a conscious
decision to conceal the facts. To help protect public safety? No, to
protect their case in court. And almost 200 fatalities resulted in the
time from the discovery of the defect until the courtroom shenanigans
to get a big decision.

{time} 2015

When we talk about the common interest in the public health and
public welfare, who is culpable there? I say we better not go down that
path, we better not surrender health care rights to the trial lawyers'
lobby. Yet, the choice we will have on this floor is crystal clear.
We can succumb to the siren song of the clever and those who wrap
their message of higher fees in the language of love and counterfeit
compassion; or, instead, we can vote for a bipartisan measure, the
principal architect of whom has dealt with patients in his primary
calling in life in a bipartisan way to focus on health care for
Americans. That is the simple choice when we take it all away. Are we
for lawyers or are we for doctors and health care professionals helping
Americans make the right decisions for their health care? That is what
we will confront this week on the floor.
Mr. Speaker, I yield back to the gentlewoman from Connecticut (Mrs.
Johnson).
Mrs. JOHNSON of Connecticut. Mr. Speaker, I think the gentleman from
Arizona (Mr. Hayworth) is absolutely right. This is about whether
doctors will regain control of America's health care system.
At the hearing before our subcommittee of the Committee on Ways and
Means, every single example that the trial lawyers gave could have been
solved more rapidly under the system in our bill and for $50.
I ask, what is in the patients' interest? What is in the patients'
interest is that they get the care they need and they get the care they
need when they need it, that they do not go to court and face the long
dragged out process of the court and face the high cost of a court
case.
It was really sad to sit there and hear every single example the
trial lawyers' representatives gave and to see how this could have been
resolved so much more rapidly, with so much less suffering and harm on
the part of the patient and their whole family and of the caring
physician under our system.
My colleague is absolutely right. This is a big vote about whether
patients and doctors are going to be at the heart of America's health
care system in the future.
Mr. Speaker, I thank the gentleman from Arizona (Mr. Hayworth) for
joining us today. Mr. Speaker, I welcome my colleague from Pennsylvania
(Mr. English), who has been very active in so many issues that touch on
the heart and life of the people of his district, to this discussion.
Mr. ENGLISH. Mr. Speaker, I want to thank the gentlewoman from
Connecticut (Mrs. Johnson) for yielding to me. I particularly want to
thank her and the gentleman from Kentucky (Mr. Fletcher) for their
leadership along with the gentleman from Minnesota (Mr. Peterson) in
moving this debate forward.
I believe that the House is going to make a momentous decision in the
next few days. A decision which could either lead our health care
system forward on a path of quality or, on the other hand, could lead
to an unraveling of our longstanding system of health care based on
employer-provided benefits. My fear is that the House may make the
wrong decision. But thanks to the heroic efforts of the gentlewoman
from Connecticut (Mrs. Johnson) and the gentleman from Kentucky (Mr.
Fletcher) and others, there is an alternative, a commonsense
alternative.
Mr. Speaker, I came to the House in 1994 as an advocate of health
care reform. I have concluded, Mr. Speaker, that today the best
medicine for patients is a modernization, an improvement of the health
care systems for all Americans, while at the same time having an
initiative to make it more affordable and accessible. We must make sure
that our health care system works while preserving competition in the
free market. Every family deserves health care that can never be taken
away.
Congress must move this week to adopt health care reform that moves
us down the path toward universal access to affordable care. In my
view, the version of the patients' rights bill of the gentleman from
Kentucky (Mr. Fletcher) is the one that does precisely that. I am an
original co-sponsor of this bill because it recognizes that
strengthening patients' rights is the first and seminal step to
successfully reforming health care.
Mr. Speaker, I am urging all of my colleagues tonight to back the
Fletcher bill because ensuring patient access to affordable quality
health care should be the focus of any reform effort. We need to put
patients back in charge. That means establishing quality standards for
all health plans, allowing doctors and patients to make health care
decisions.
Mr. Speaker, I am happy to say that after years of examining managed
care reform legislation and as a member of my colleague's subcommittee,
a great deal of consensus exists as to what a Federal patient
protection bill should include. I believe there is also strong
bipartisan agreement that Congress should act quickly to extend patient
protections to all Americans. The plan of the gentleman from Kentucky
(Mr. Fletcher) does exactly that, by providing patients with the tools
they need to protect themselves and to ensure that they have quality
health care coverage now and in the future.
This bill provides patients with better access to information about
their health care coverage. It requires plans

[[Page H4416]]

to provide patients with detailed plan information with an explicit
list of covered and excluded services and benefits.
Unlike other proposals, the plan of the gentleman from Kentucky (Mr.
Fletcher) requires the plan to disclose their formulary if requested.
H.R. 2315 reopens the door that allows patients and doctors to work
directly together to decide the best course of treatment, rather than
focusing on insurance company guidelines and regulations. It ensures
that patients have the right to choose their doctor with continuity of
care protections. These protections allow patients who have an ongoing
special condition such as cancer or even a pregnancy to have continued
access to their treating specialist in cases where the specialist has
been terminated from the plan or if the plan is terminated.
H.R. 2315 eliminates the so-called gag rule by prohibiting health
plans from restricting physicians giving patients advice about their
health and what is the best for them. Additionally, this legislation
does not forget the special health care needs of women and children by
allowing immediate access to gynecologists, obstetricians, and
pediatricians. It also provides access to specialists.
The bill of the gentleman from Kentucky (Mr. Fletcher) provides a
provision that says patients cannot be denied emergency care coverage
because the visit was not preapproved. The plan says if a prudent
layperson believes that a symptom requires immediate medical attention,
including emergency ambulance services, then the insurer must pay for
the care regardless of whether it is a network facility. We do not want
to let insurance providers drive the industry to a point where, in an
emergency, patients are calling their insurance companies before
dialing 911.
The plan also requires coverage of routine medical costs for patients
enrolled in any government-sponsored cancer clinical trial which
includes FDA trials under which about two-thirds of all clinical trials
occur. It also prohibits insurance providers from denying coverage on
FDA-approved drugs or medical devices by classifying them as, quote,
``experimental'' or ``investigational.''
This legislation provides patients with the best access to
prescription drugs by allowing doctors to request off-formulary drugs
for their patients and for plans to consider side effects and efficacy
in their determination.
Mr. Speaker, American families are concerned about their health care;
but we cannot address the quality of care without addressing the cost.
Those without health insurance are not just the indigent. It is the
small business owners, the self-employed who cannot afford the
premiums. It is young people. It is a broad cross-section of America. A
staggering 44 million Americans cannot afford or do not have health
insurance.
Studies show that other proposals being offered in the House as an
alternative to the bill of the gentleman from Kentucky (Mr. Fletcher)
could force 6 million more Americans into the ranks of the uninsured.
On the other hand, studies show the plan of the gentleman from Kentucky
(Mr. Fletcher) would help provide 9 million uninsured Americans vital
access to coverage by expanding association health plans and repealing
all restrictions on access to medical savings accounts, tax-favored
accounts that give the patients themselves ultimate control over their
own health care.
Another notable feature that puts the proposal of the gentleman from
Kentucky (Mr. Fletcher) above the other proposals which claim to
protect patients is support from the Bush administration. President
Bush has promised to sign this bill saying, ``I believe the Fletcher
bill will help enhance the great medical care that we have in our
country.''
I could not agree more, and I am pleased that the President has put
the needs of patients first by lending his support to this bill. Health
care reform is complicated, much more complicated than many would have
us believe. We must protect patients by advocating strong patient-
focused health care reform.
Mr. Speaker, I will reiterate, strengthening patient protections,
strengthening patients' rights is the key to reforming health care. I
strongly support H.R. 2315. I salute the gentleman from Kentucky (Mr.
Fletcher) and the gentlewoman from Connecticut (Mrs. Johnson) for their
efforts.
Mr. Speaker, I support this as a plan to reform managed care that
promotes quality care and restores the doctor-patient relationship. My
hope is that my colleagues can join us in rallying behind this
initiative as a bipartisan basis for moving finally a patients' bill of
rights forward, moving it back to the Senate, and getting a consensus
that we can get a Presidential signature on.
I believe this is all achievable in the immediate future if we can
work together on a bipartisan basis in this body. I thank the
gentlewoman for playing a critical role in creating that bipartisan
environment that is allowing us to move forward and have this vote and
hopefully move forward to success.
Mrs. JOHNSON of Connecticut. Mr. Speaker, I thank the gentleman from
Pennsylvania for his comprehensive remarks on this issue. This is an
extremely important debate we are going to have. I personally believe
that every patient, everyone who has health insurance and needs medical
care, has the rights of access to quality care that are guaranteed in
our bill and in the other bills. That is the right for a woman to
choose an OB-GYN specialist, the right to choose pediatric care, and
other specialists, to emergency care, to continuity of care, to access
to proper information about one's plan, access to treatment under
clinical trials, something I fought 5 years for for Medicare recipients
so they could have the benefits of clinical trials, protection from gag
rules, and things like that.
These patients' rights embodied in our legislation are extremely
important. Yes, they can only be enforced if a patient who is denied
access has the right to sue. I am proud to say that in our bill, a
patient who is denied needed care and harmed by that decision has the
right to sue and gets redress. But the program we put out to guarantee
patients the right to sue under our bill is a legal structure that is
simple, that is direct, that makes it clear to employers that they
cannot be sued if they are not making medical decisions; and,
therefore, it is affordable and will not push costs up.
Mr. Speaker, we limit liability in a responsible fashion, just as
they do in Texas and in many, many States that provide the right to
sue. By doing that, again, we control costs and we protect the
employers who are the primary folks who are providing health insurance
to the people of our country.
Mr. Speaker, I am very proud that the gentleman from Kentucky (Mr.
Fletcher) and others have been part of the team that have developed
this legislation, that it offers to the American people all of the
access rights, all of the protections they need to both continue to
enjoy health insurance through their place of work and to have the
right to all needed medical care. This is a patients' bill of rights.
This is a doctor-power bill.

{time} 2030

But if we do this wrong, if we do not really listen to what might
happen if we write these provisions in a way that is insensitive to
what happens when frivolous suits are brought to the table, when costs
shoot up for all the wrong reasons, then in fact we will do damage to
the rights of patients and we will deny many currently covered the
great privilege and pleasure of health security through health
insurance.
I enter this week with high hopes that we in the House can do the
right thing to provide access and care to all who have insurance. I am
proud to say that the American College of Surgeons, the College of
Cardiologists, the thoracic surgeons, the orthopedic surgeons, the
neurologists, and I could go on and on, enough groups of doctors
support this bill so that we have that same doctor power behind this
bill as the AMA that supports the other bill.
But it is very interesting. The groups that support our bill are the
very groups who are most concerned about patient access to their
services, because they are the specialist groups. They are the ones
that under the current system most frequently are not able to reach the
patients that need their care.
So I am proud of this legislation. It will serve the people of
America well.

[[Page H4417]]

The bills have much in common. I hope working together we in this
House and our colleagues in the other body can send to the President's
desk a Patients' Bill of Rights that will serve patients, doctors and
all Americans and maintain the strong system of employer-provided
health insurance that has made the American health care system the best
there is in the world.

____________________