Congressional Record, Volume 147 Issue 109 (Tuesday, July 31, 2001)

[Congressional Record Volume 147, Number 109 (Tuesday, July 31, 2001)]
[House]
[Pages H4976-H4982]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

HMO REFORM AND THE REAL PATIENTS' BILL OF RIGHTS

The SPEAKER pro tempore (Mr. Shuster). Under the Speaker's announced
policy of January 3, 2001, the gentleman from Pennsylvania (Mr.
Pallone) is recognized for 60 minutes as the designee of the minority
leader.
Mr. PALLONE. Mr. Speaker, this evening I plan to talk about HMO
reform and what I call the real Patients' Bill of Rights.
Mr. Speaker, I have been here many times before in the last few weeks
and even in the last few years to talk about this issue, because I do
think it is so important to the American people. We know about many
abuses that have occurred within managed care where people have HMOs as
their insurance; and frankly, almost a day does not pass by without
somebody mentioning to me the problems that they have had with HMOs.
Over the last few years our concern over this, particularly in our
Health Care Task Force on the Democratic side, has manifested itself by
supporting a bill called the Patients' Bill of Rights, which is
sponsored by the gentleman from Michigan (Mr. Dingell), a Democrat, the
gentleman from Iowa (Mr. Ganske), and the gentleman from Georgia (Mr.
Norwood), who happen to be two Republicans.
We had a vote in the House of Representatives in the last session of
Congress, at which time almost every Democrat supported the Patients'
Bill of Rights, and 68 Republicans also supported it. Unfortunately,
the Republican leadership here in the House of Representatives has
never supported the bill, and continues to oppose it. Also
unfortunately, now President Bush has indicated since he took office
his opposition to this legislation.
What is happening now is that we had a commitment from the Speaker to
bring up the Patients' Bill of Rights over the last few weeks, and
specifically last week; but he announced last week that that vote was
postponed and delayed because the votes did not exist for an
alternative HMO reform bill sponsored by the gentleman from Kentucky
(Mr. Fletcher).
I hate to say it, Mr. Speaker, but the bottom line is that this
alternative Fletcher bill is not a real Patients' Bill of Rights; it is
a much weaker version, if you will, of HMO reform. I could make a very
good case for saying that it does not accomplish anything at all and
continues the status quo.
What we hear today is that the Republican leadership plans to bring
up HMO reform on Thursday of this week. In fact, in just a few hours
there might actually be a markup in the Committee on Rules on the
legislation.
But again, the issue, Mr. Speaker, is what are we going to be able to
vote on. Will we be able to vote on the real Patients' Bill of Rights,
the Dingell-Ganske-Norwood bill, or are we going to see the Fletcher
alternative or some other weakening effort, so we do not have a clean
vote on the Patients' Bill of Rights?
Unfortunately, Mr. Speaker, I was reading in Congress Daily, the
publication that we receive about what is going on on Capitol Hill. It
actually indicates tonight that the Republican plan is to somehow
separate out various pieces of the Fletcher bill and propose them as
amendments to the real Patients' Bill of Rights.
I do not really know what the Republicans' procedure is going to be;
but if this is the case, once again, it is a sort of insidious way of
trying to kill the real Patients' Bill of Rights.
The Congress Daily says that ``likely amendments include the Fletcher
liability provisions, an access package of proposals seeking to expand
insurance, possibly an amendment replacing the bipartisan bill's
patient protections with those in the Fletcher bill. Also possible is
an amendment to impose caps on medical malpractice awards.''
Let me tell the Members, if any of these things do in fact happen, if
this is how the Republican leadership intends to proceed, it once again
indicates that they are not in favor of a real Patients' Bill of
Rights; that they are not making an effort to bring up this bill, but
rather, to kill the bill. I think that is very unfortunate.
I have some of my colleagues here, and I will yield to them. But I
just wanted to point out why this Fletcher bill is nothing more than a
fig leaf for real HMO reform. It is an effort essentially to peel off
votes from the bipartisan Patients' Bill of Rights and undermine the
effort to pass real HMO reform this year.
Just as an example, the Fletcher bill contains almost no protections
for patients; and it gives patients almost no ability to appeal their
HMO's decisions to an independent panel, or to take HMOs to court when
they are denied treatment or harmed in any other way.
The real key to HMO reform that is personified, if you will, that is
manifested in the Patients' Bill of Rights, the Dingell-Ganske-Norwood
bill, is the ability to say that your physician and you as a patient
would make decisions about what kind of medical care you get, not the
insurance company.
The second most important aspect of the real Patients' Bill of Rights
is that if one is denied care because the HMO does not want to give it
to us, we have a right to redress our grievances and go to an
independent panel, separate and independent of the HMO, to overturn
that initial decision. If the Fletcher bill basically does not
accomplish those goals, which it does not, then it does not achieve
real HMO reform.
I have a lot of other things that I could talk about this evening,
and hopefully that we will get to, but I have two of my colleagues here
who happen to be both of them from the State of Texas. The State of
Texas has a real Patients' Bill of Rights in effect. It has had that
since 1997.
I heard some of my Republican colleagues on the other side of this
issue say, We do not want the Dingell-Norwood-Ganske bill to pass
because if it does, it will mean there will be a lot more lawsuits. The
cost of health care will go up, health insurance will go up,

[[Page H4977]]

and people will lose their health insurance.

{time} 2130

Well, the Texas experience tells us that that is simply not the case.
In Texas, over the last 4 years, there have only been 17 suits filed.
In Texas, the cost of health insurance has gone up somewhat, but not as
much as the national average. So it simply is not the case.
The one thing that I think is most crucial, that I want to mention
before I introduce and yield to my two colleagues from Texas, is that
what the Fletcher bill does is to preempt a lot of the rights and
patient protections that Texas and other States have. Because the
Fletcher bill essentially preempts the States' rights and makes all the
protections under the Federal law.
What that would mean for States like Texas and New Jersey and about
11 other States that have good patients' bills of rights on the State
level, is that they would even be undermined because of what is
happening with the Fletcher bill. This is just the opposite of what we
would like to see and what we have all been striving for here. It is
very unfortunate that we might see this Fletcher bill, or some parts of
it, become the focus of debate on Thursday, when this bill comes up.
Mr. Speaker, I wish to yield to a colleague who has been very active
on health care issues, not only this one but many of the other health
care issues, and who has been speaking out on this issue for a long
time, the gentleman from Texas (Mr. Turner).
Mr. TURNER. Mr. Speaker, I appreciate very much the opportunity to
share this hour with the gentleman from New Jersey (Mr. Pallone) and
with my colleague, the gentleman from Texas (Mr. Lampson).
We do have a unique perspective on this issue, being from Texas,
because Texas was one of the first States in the Nation to pass patient
protection legislation. I am sure that there are people tonight
listening to us talk about this issue who really wonder what is the big
deal about this patients' bill of rights debate in Washington.
We are gathered here tonight on the eve of the consideration of this
very important legislation on the floor of this House. We have been at
least led to believe that it will be considered either Thursday or
Friday. Now, this is not the first time this bill has been on the
floor. We considered it over a year ago. We passed it in the House. At
that time, the bill died in the Senate.
This year, we have a situation where the bill has passed in the
Senate; and it is now up to the House to move on the same legislation.
The bill in the Senate, sponsored by Senator McCain, Senator Kennedy,
Senator Edwards is almost identical to the bill that we support here in
the House, the Norwood-Dingell-Ganske-Berry bill. That is the patients'
bill of rights that we believe the American people deserve.
All of this really comes down to one central thought, and that is
that when an individual is lying flat on their back in the hospital,
fighting for their life, they should not have to be fighting their
insurance company. It is important, we believe, to guaranty that
patients and their doctors will make the decision about their health
care rather than some insurance company clerk in some far away city.
Because managed care companies, HMOs, assume the role of determining
whether certain treatment prescribed by an individual's doctor is
medically necessary, their opinions often conflict with what a doctor
recommends as treatment. Countless doctors have reported to us that
they spend hours, literally hours on the telephone arguing with some
insurance clerk representing a managed care company trying to get
treatment approved, when in many cases we know that mere minutes can
mean the difference in life and death.
So the Norwood-Dingell-Ganske bill is a strong piece of legislation
designed to ensure certain basic rights and protections for patients:
to be sure patients are treated fairly, to be sure they have the
opportunity to have the best medical treatment available, to be sure
that doctors and not insurance companies practice medicine.
We are very hopeful that this good strong bill will pass this House
intact. Now, as the gentleman from New Jersey (Mr. Pallone) mentioned,
there has been another version of the patients' bill of rights
sponsored by the gentleman from Kentucky (Mr. Fletcher). It is a much
weaker bill, in my opinion; and it creates many unusual rights for
insurance companies, basically designed, in my opinion, to protect them
from accountability.
We all believe in this society in personal responsibility, personal
accountability. In Texas, we have some good strong patient protection
laws. They are working well. What we found in Texas is that when we
proposed the legislation in 1995, and I carried that bill as a member
of the State Senate, the opponents of the bill said, well, it is going
to cause health insurance premium costs to rise and it is going to
result in a lot of litigation.
We passed that bill in the State Senate 27 to 3. The House of
Representatives in Texas passed it by voice vote. Then Governor Bush
vetoed the bill after the legislative session was over. We had no
chance to override the veto. The next session of the legislature, in
1997, the identical bill was broken down into four parts. Three of
those bills passed and received the Governor's signature. The fourth,
passed by an overwhelming majority, related to insurance company
accountability and insurance company liability. Then Governor Bush let
that one become law without his signature.

Again, the opponents of the bill said it is going to result in higher
insurance premiums and it will result in a flood of litigation. We have
had that bill in place as law in Texas for 4 years. The record is
clear: health insurance rates in Texas have risen at approximately half
of the national average. And as we look at the litigation, we see that
there has really been very little litigation. What has happened under
the bill is that 1,400 patients and their doctors disagreed with the
decision of the insurance company about their treatment, and they
utilized the protections of Texas law to appeal that insurance
company's denial of care.
Fourteen hundred patients in Texas in 4 years have exercised their
right to appeal an insurance company decision. In 52 percent of those
cases, the patient prevailed. In 48 percent of the cases, the insurance
company prevailed. In the cases where the patient was denied the care
that the patient and their doctor sought, only 17 lawsuits have
resulted. I hardly call that a flood of litigation, as the opponents
asserted when the bill was passed in 1997.
The Norwood-Dingell-Ganske-Berry bill is modeled after the Texas law,
and it is very similar to laws in many of our States designed to
protect patients. So the States are way ahead of the Federal Government
in this area. Today, the Texas law stands as a model for the Nation.
Unfortunately, only about half of those enrolled in managed care in
Texas are covered by the Texas law. When we passed the legislation in
1997, we really thought all patients in managed care were covered. But
it turned out that a Federal Court ruled in a lawsuit involving Aetna
Insurance Company, that basically did not like the Texas law, that an
arcane Federal law, called the Employee Retirement Income Security Act,
passed in 1972, which was a bill that was thought by most people to
cover retirement plans, that that also covered managed care insurance
plans that operate in more than one State. Thus, the Federal Court
ruled that those enrolled in managed care plans that operate in more
than one State are not covered by these State patient protection laws.
That is about half the people in Texas and in most other States.
So that is why we are having this debate in Washington. That is the
genesis. Because we have the unusual situation in law today that
because of this 1972 ERISA law, insurance companies who have managed
care health plans stand as the only business in America that have no
liability for their wrongful and negligent acts.
So the Norwood-Dingell-Ganske bill is designed to fix that. It is
designed to say that every managed care insurance company in this
country will be personally responsible and personally accountable, and
they will be accountable under the Norwood-Dingell-Ganske bill in the
same way that every business and individual in this country is
accountable under the laws of our land.
So we believe that this bill is essential to eliminate a loophole
that exists

[[Page H4978]]

in the law that allows managed care health insurance companies to be
the only business in America without responsibility.
The Norwood-Dingell bill has many protections for patients. It sets
up a review procedure allowing a patient to make an appeal of a managed
care health care decision internally within the plan. If they are
dissatisfied, they can appeal to an external independent review panel.
And if they are dissatisfied with that decision, they have the right
every other business and individual in America has, and that is to go
to a court of law and have that matter heard by a jury of one's peers.
That is what our legislation is all about. The Fletcher bill denies
that. And I am sure that when the Norwood-Dingell-Ganske bill comes to
the floor of this House, there will be many who will do the bidding of
the managed care industry and try to carve out a special status under
law for the managed care industry.
In Texas, in 1995, we had a major piece of legislation commonly
referred to as tort reform. It was one of four planks of Governor
Bush's platform when he ran and was elected as governor. He pushed that
in the legislature and the legislature agreed that we needed managed
care reform in Texas. It resulted in some limits on the amount of
damages that can be awarded in lawsuits. It limited what we call
punitive damages. That is those damages that can be awarded against a
defendant when it turns out that that defendant has acted willfully and
wrongfully and with malice and has committed such a grievous tortuous
act that they should be punished. That is punitive damages.

And in Texas, in the tort reform effort, the governor and the
legislature limited the amount of punitive damages that can be awarded
in litigation, and it did so by a formula. That formula says that
punitive damages shall be kept at whatever a judge or jury finds to be
the economic damages, that is the loss in earnings and wages,
multiplied by two, plus up to $750,000 of noneconomic damages, pain and
suffering and those things that cannot be equated easily to dollars.
But that was a cap that the legislature and the Governor signed on
punitive damages.
Frankly, what we see in the Fletcher bill is a limit on damages that
far exceeds any limit we put in the law in Texas. And when we saw the
Governor and the legislature pushing tort reform and limits on punitive
damages, nobody suggested that there should be a special carve-out, a
special exception, a special rule for the HMOs in the managed care
industry. Because common sense would tell us that managed care
insurance companies should have the same limits of liability, the same
degree of accountability, the same degree of responsibility as any
other business or individual when faced with an action in the courts of
our land.
The Fletcher bill, and some of the amendments I suspect that will be
proposed to the Norwood-Dingell-Ganske bill will attempt to carve out a
special status for the managed care health insurance industry. And that
is wrong. And I think the American people understand that, and that is
why I would call upon this Congress and our President to do what we did
in Texas when we pursued tort reform and make sure that everybody is
treated the same, everybody is equally accountable, everybody is
equally responsible for their negligent acts.
That is why we have insurance, because we all know we can make
mistakes in business. We can make mistakes in driving an automobile.
That is why we have insurance coverage. And there is absolutely no
reason to think that a managed care insurance company should have a
special set of rules that applies to them. Furthermore, there is no
reason to think that the Federal Government ought to get in the
business of creating Federal causes of action when it involves tortuous
acts.
In law, we talk a lot about torts. That is intentional injuries.
Negligent acts resulting in injury. We talk about contracts.

{time} 2145

The Norwood-Dingell-Ganske bill makes the logical distinction between
those two things. It says matters of contract, matters of health care
plan administration shall be subject to the Federal courts if it is a
multistate health insurance plan, but it preserves the historic right
of the States to pass the laws that govern in the area of personal
injury. That is the way it should be.
When we look at the Fletcher bill and some of these amendments that
will probably be offered to the Norwood-Dingell-Ganske bill, what we
see is an effort to federalize these kinds of issues that traditionally
have been the rights of our States.
I know that the members of the Texas legislature are proud of the
patient protection legislation that they passed. I know that they
believe in States' rights, and I think it would be wrong in an effort
by those who would seek to carve out a special exception for the
managed care industry to try to federalize a cause of action to create
a Federal cause of action that would be able to be tried separate and
apart from the protections of law in every State in this country.
That is what this debate is all about: are we going to hold insurance
companies who have managed care health insurance plans accountable on
the same basis as every other business and individual in our respective
States are held accountable and responsible. I hope that when it comes
to the debate this Thursday or Friday, that the point of view that I am
expressing will prevail because it is consistent with States rights,
with the best protections for our patients; and it will get us back to
the point where patients and their doctors practice medicine and not
insurance companies.
Mr. PALLONE. Mr. Speaker, I thank the gentleman; and I know that he
raises a number of points. I think one of the major things I do need to
stress, and again because I have two colleagues here from the State of
Texas which was the first State to pass a really good Patients' Bill of
Rights, it is very unfortunate that the Fletcher bill, the Republican
leadership bill, would seek to preempt State laws like those in Texas;
and I think this is another indication that the purpose of the Fletcher
bill is not to provide for greater protections for people who are in
HMOs, but rather to weaken existing protections and essentially kill
the effort we have here to have a strong Patients' Bill of Rights.
There is no better manifestation than the fact that the Fletcher bill
preempts stronger State laws that protect patients. The Supreme Court
made it clear that patients can seek compensation in State courts; yet
this Republican bill effectively blocks action in State court and
forces patients to pursue these limited remedies in Federal court,
which is a much more difficult place to achieve relief. Going to
Federal court is not easy. It costs more, it takes longer, and it is a
much more difficult place to get any kind of relief.
As the gentleman says, the Fletcher bill continues to shield the HMOs
from accountability in State courts where doctors and hospitals are
currently held accountable. It is real unfortunate because as the
gentleman said, what we have been trying to do with the Patients' Bill
of Rights is extend the kinds of protections that exist in Texas to
everyone throughout the country, particularly those people who, as the
gentleman says, are under ERISA right now, a majority of Americans, who
do not even receive protections if they happen to be in Texas or
another State which happens to have these good laws.
Mr. Speaker, I yield to the other gentleman from Texas (Mr. Lampson),
who also has been in the forefront on this and other health care
issues.
Mr. LAMPSON. Mr. Speaker, I thank the gentleman from New Jersey (Mr.
Pallone). It has been interesting listening to the gentleman and also
the gentleman from Texas (Mr. Turner), my close neighbor from southeast
Texas, talk about this most important issue and the concern we all have
about bringing the Patients' Bill of Rights to the floor of the House
of Representatives.
I think my colleague from Texas has been too modest. He did not talk
about the fact that it was he who played a significant role in the
development of that legislation in the Texas senate. It is a lot of his
words that became the law in the State of Texas. For him then to be
able to have the ability to come to the United States House of
Representatives and try to craft the same kind of legislation that he
was able to mold in our great State I think is significant. I am proud
of him and his

[[Page H4979]]

service, and I am proud of the fact that he had the concern of people
then in his mind when he tried to fix the problems that we faced in the
State of Texas and now has the ability to come here to the United
States House of Representatives and try to do the same thing for all of
citizens of our country because this is a most, most important concern
for everyone in this country.
Mr. Speaker, we need to live up to the promises that we have made to
the American people. Bring this truly bipartisan Patients' Bill of
Rights that will put medical decision-making back into the hands of
physicians and patients here to the floor of the House of
Representatives and let us have this debate properly.
I know that we passed it overwhelmingly last year, and it got hung up
in a conference committee where there was an intentional effort to
appoint those people who had voted against the bill to guarantee that
it would not move and it would not become the law of this land and that
it would not help people, like a lady who was a friend of mine who was
a schoolteacher in Needlewood, Texas, Regina Cowles. She contacted our
office after she learned that she had been diagnosed with breast
cancer. She found a treatment for that cancer that was growing in her
body in Houston, but her insurance company said that that was one
particular treatment that they did not recognize, and that they were
not going to pay for it. If she wanted to have it, she had to do it on
her own.
That was one of many stories that I had heard, and my office became
involved, and other offices as well became involved; and several months
went by, but ultimately Regina was able to get that treatment that she
needed. But unfortunately, it was too little too late, and she died of
that ailment.
I wondered then how many more people were going to have to die before
we brought this issue to the people's House and resolved it; that we
get our colleagues to realize that we are playing not with words on
paper, but with people's lives. And to act on it. To change it, to make
it right for me and you, everyone that is watching here.
Mr. Speaker, I guess it came home to me in two ways. One of them was
one day that I spent, and the gentleman from Texas (Mr. Turner) talked
about the time doctors spend in trying to precertify patients based on
what insurance companies will determine they are willing to pay to the
doctor to make that treatment possible. I periodically do these
programs called Worker for a Day, and one day I was working at a
cardiologist's office in Texas, and the doctor had me spend some time
with one of his aides in the office making telephone calls to insurance
companies to precertify the patients that had come to his office for
treatment. I was flabbergasted, to say the least. I spent a significant
amount of time talking with people, and I intentionally asked what
their background was; and oftentimes I was talking with people who had
no medical training and they were making the decision as to whether Dr.
de Leon would be able to treat the patients who walked into his office
complaining about a particular problem.
It does not take very long to realize that is not the way that these
decisions need to be made in this country. I do not want someone who
has not been to medical school or some particular program that gave
them some serious knowledge about medical care, health care, telling a
doctor what is going to happen in my life if I need help. I want a
qualified health care professional making the decisions that are going
to allow me to live and to allow me to live the kind of quality life
that I want to be able to live.
I quickly became involved in this piece of legislation following
that. It was not long after that I had another incident occur. This
time it happened within my own family. I had two different doctors tell
my daughter that she was in need of an operation. My own insurance
company, the one that represents us here in the House of
Representatives, said no, that is cosmetic surgery, we are not going to
pay for it. Two different doctors said it was important for her to have
this operation.
Well, I did everything that I could possibly do to help my daughter,
and she got her operation and she is fine and the insurance company
relented. But it made me wonder, what if most people, as most people
are in this country, not as aggressive as I am or was in the case of my
own daughter and fought for a week or 10 days or whatever it took me
before we got the agreement to go forward with that operation. How many
of them will take the answers that they get the first or second or
third time and put it off and say, well, that is the rule and I guess I
will have to go and mortgage my home to make this happen because I want
my daughter to have the chance that other people's daughters will have
in growing up.

Those are not decisions that we need to be making in our lives. When
someone works hard, does the right thing, provides for their families,
makes sure that they have insurance coverage for catastrophic problems
that face them, and then are turned down because someone decides that
it is cosmetic or experimental or that it does not match their specific
criteria that they laid down on their papers based on what profit they
can make for their company, that is absolutely wrong and we cannot
stand for it in the United States of America.
Managed care reform is an issue of the absolute, utmost importance.
As more and more stories about HMOs denying care are publicized, it
brings it to the forefront of what we need to do to pass this
legislation. The public and health care providers have witnessed
firsthand that while managed care organizations such as HMOs may have
helped to hold down the cost of medical care, they too have frequently
done so at the cost of denying needed care to patients.
Unfortunately, the Republican leadership continues to block
consideration of the Ganske-Dingell-Norwood Patients' Bill of Rights
that passed overwhelmingly, I think 275 votes last year. They continue
to stall on a vote and have introduced their own bill, the Fletcher
bill, that the gentleman from Texas (Mr. Turner) and the gentleman from
New Jersey (Mr. Pallone) have talked about in an attempt to poison this
Patients' Bill of Rights that we have been trying so hard to pass.
The assertion that they have crafted a responsible plan is simply
untrue. Their plan prevents doctors from disclosing all medical options
to patients. It creates a review process that is stacked against the
patient, and it removes medical decision-making power from the hands of
doctors and patients.
Mr. Speaker, I said a minute ago, 275 members of the House of
Representatives voted for a Patients' Bill of Rights that would create
a system of accountability for insurance companies and HMOs that
routinely and unfairly deny care to patients. This year we again
consider legislation that would hold HMOs liable for denial and delay
of care. If insurers are going to practice medicine and determine the
necessity of care, then they will be held accountable for their
decisions.
I join my colleagues and I again want to praise the gentleman from
Texas (Mr. Turner) for the work that he did in Texas and the gentleman
from New Jersey (Mr. Pallone) for continuously bringing this important
issue before us.
I urge my Republican colleagues and President Bush both to quit
stalling and do what Americans want and need, pass and sign a
meaningful patient protection bill that puts control of medical
decisions back into the hands of patients and doctors. I thank the
gentleman for allowing me to participate this evening.

{time} 2200

Mr. PALLONE. I want to thank my colleague, because I think, number
one, when you give examples and particularly one from your own personal
life, it really highlights and makes people understand, both our
colleagues and the public, what we are talking about and how
significant it is to pass a Patients' Bill of Rights.
The other thing that my colleague from Texas did which I think is
very important is that he pointed out some of the patient protections
that are in the real Patients' Bill of Rights, the Dingell-Norwood-
Ganske bill, and why they do make a difference. One of the concerns
that I have is that, as I mentioned earlier, one of the possible
amendments that we may get or that the Republican leadership may make
in order and try to push if this bill

[[Page H4980]]

comes up on Thursday is replacing the patient protections in the
Dingell-Norwood-Ganske, the bipartisan bill, with the patient
protections in the Fletcher bill, in the Republican leadership bill. I
assure my colleagues that effectively there are no significant
protections in the Fletcher bill.
If I could just contrast that a little bit to give us an idea of the
differences, some of those differences were mentioned by the gentleman
from Texas. He talked about the gag rule and how under the Fletcher
bill HMOs could continue to tell physicians that they are not entitled
to tell their patients about procedures or medical activity or medical
equipment or stay in a hospital or any kind of medical procedure that
the HMO does not plan to cover. It is called the gag rule because you
never find out what the doctor really thinks you should have done to
you because he is not allowed to tell you if the HMO says he is not
allowed to.
The other one that comes to mind is the financial incentives. Right
now a lot of the HMOs have financial incentives so that if the HMO
wants to give the physician a little more money because he is not
providing as much care or not having as many operations or not having
his patients stay in the hospital for too long, they can provide a
financial incentive to him at the end of the month so he gets more
money if those things occur, which is an awful thing; but it is the
reality with many of the plans today.
The other thing that I think was so important is when the gentleman
from Texas (Mr. Lampson) talked about how some of these things work out
in terms of actual protections for particular kinds of procedures. For
example, one of the concerns is that access to specialty care is
severely limited both under current law and can be limited by the HMO
under the Fletcher bill. The Fletcher bill really does not do much to
provide access to specialty care. That can manifest itself in a number
of ways. For example, with regard to some of the patient protections
for women. In the real Patients' Bill of Rights, the Dingell-Norwood-
Ganske bill, you get direct access to OB-GYN care. But the Fletcher
bill allows plans or HMOs to require prior authorization for items of
services beyond an annual prenatal or perinatal exam.
The Fletcher bill also creates a loophole which allows plans to avoid
the requirement of saying that you can go directly to the OB-GYN. It
lets the HMOs off the hook for providing direct access to OB-GYN care
if they merely allow patients a choice of primary care providers that
includes at least one OB-GYN provider.
There are a lot of other differences with regard to care that impacts
women. Breast cancer treatment, for example; the hospital length of
stay. The Dingell-Norwood-Ganske bill requires coverage for the length
of the hospital stay the provider and patient deem appropriate for
mastectomies and lymph node dissections for the treatment of breast
cancer. The Fletcher bill omits this coverage as well as coverage for
second opinions.
Emergency care, another example that affects not only women but
anyone. The Fletcher bill uses a prudent health professional standard
rather than the prudent layperson for neonatal emergency care. Let me
give Members an example. Right now, as many people in HMOs know, they
often cannot go to the emergency room of the hospital closest to them
but rather may have to travel 50, 60 miles away to a different
hospital. What we are saying is that in the case of an emergency, if
the average person would think that they cannot travel that distance
and they have to go to the local hospital because otherwise, for
example, if they have chest pain and they think that they are having a
heart attack, well, that is the prudent layperson's standard, which
basically says that if the average person would think that if I get
chest pains of this severity that I have got to go to the local
hospital rather than 50 miles away, then I go to the local hospital and
the HMO has to pay for it. You do not have that kind of standard in the
Fletcher bill with regard to neonatal emergency care.
There are so many other cases. Clinical trials. An astonishing number
of women suffer from Alzheimer's, Parkinson's, cystic fibrosis and
other debilitating disorders. Under the Dingell-Ganske-Norwood bill, it
covers all FDA clinical trials. But the Fletcher bill, the Republican
leadership bill, only covers FDA cancer trials, preventing women with
other serious conditions from receiving potentially lifesaving care.
There are so many examples like this. The bottom line is the Fletcher
bill makes it very difficult to access specialty care.

We used another example the other night on the floor about
pediatricians. Under the Dingell-Norwood-Ganske bill, you have direct
access to a pediatrician for your child. You do not have to have prior
authorization. But you also have the opportunity to go to a pediatric
specialist which now, I have three children, and now you often go to a
pediatric specialist rather than a pediatrician, who is almost like a
general practitioner. What happens under the Fletcher bill is you do
not have that option. So a lot of these specialty-care initiatives
which are a very important part of the patient protections simply do
not exist under the Republican leadership alternative.
As I said, what we are hearing is that it is very likely that the
Committee on Rules tonight will allow all these different provisions in
the Fletcher bill that weaken patient protections to be included as
amendments and voted on in an effort to try to achieve a bill that is a
lot weaker than the real Patients' Bill of Rights. I could go on, but I
see that another colleague from Texas is here and she again has been
here many nights talking about the Patients' Bill of Rights and has
been a champion on the issue. I yield to her at this time.
Ms. JACKSON-LEE of Texas. I thank the gentleman. I could not help, as
I was viewing the presentation on this debate, to remember that we were
together just last week, I believe, making the point that the debate on
this bill is long overdue. The reasons for this bill, the purpose of
going forward is so clear that I question whether or not the will of
the American people really is being understood by this body. I think
when the American people are frustrated, it is because they have made
in every way their voices or their beliefs known to us about the
fairness in health care as the Ganske-Dingell bill evidences, and they
just do not know why we cannot get it done.
We understand that this bill is likely to come to the floor of the
House at the end of the week. I hope so. As you noted, I am delighted
to join my colleagues from Texas who have obviously already spoken
about how this bill has worked and how it has been effective in the
State of Texas. First of all, there has been no increase in premiums
and the increase in premiums nationwide generated without a Patients'
Bill of Rights. We have not seen an increase in the uninsured which the
opponents of the bill have represented would occur. We have not seen a
proliferation of frivolous lawsuits. We have not even seen a
proliferation of lawsuits under this legislation. It comes to mind that
there have been maybe about 27, all meritorious, over the 4 years that
the State of Texas has had the opportunity to hold HMOs accountable.
So the real question for the House leadership is why. Why, since this
bill in its present form, with a few enhancements, meaning the Ganske-
Dingell bill, passed two terms ago, why can this not be the bill that
we all conclude is the right direction to go? What is the purpose of
putting forward a bill with the idea that it represents an alternative
when that is not accurate? Because the Fletcher bill has a number of
poison pills. It has medical savings accounts. Not to say those are not
meritorious legislative initiatives that this body should not address,
but what the American people want most of all now is that when they do
have an HMO, which most of the employers are involved in and utilize to
create coverage for their employees, that that HMO does not intervene,
intercede and stop good health care and procedures for you or your
loved one. How clear can we get?
I, when we spoke the last time, noted a lot of tragic stories: the
woman in Hawaii who could not get care in Hawaii while she was there
because her HMO denied it. She had to get on a plane to Chicago, and my
recollection of that final result is that she did not survive, because
they denied her the ability to secure health care in Hawaii, because
she was not from Hawaii. The tragedy of being denied the most
accessible emergency room; the tragedy of

[[Page H4981]]

being denied pediatric specialists; the unseemly result of not allowing
a woman to choose an OB-GYN specialist as her primary caregiver. That
is allowed in the Ganske-Dingell bill.
There are so many positives that the American people have decided
that they need and want that are in the bill that we are proposing and
supporting, the real Patients' Bill of Rights, along with the array of
diverse medical groups that are supporting it, including, I think, one
of the strongest medical groups, of course, is the American Medical
Association, that has not moved from its position that this is the only
bill that they will support and that we should support, and, that is,
to ensure the sanctity, if you will, of the patient-physician
relationship.

I would like to thank my good friend for his leadership, and I could
not help but join you in hoping that someone might hear us this
evening. And, of course, sometimes our words are distant. They fall
distant because we are here in Washington. But I can tell you in the
conversations that I have had with my constituents who are physicians,
the difficulty that they have had in plainly giving good health care,
in making the decisions on good medicine, the stories that they have
generated, the frustration that they have experienced, the fact that
HMOs are able by bureaucrats and computers to deny services to patients
is a difficult and overwhelming experience and has changed the practice
of medicine to the point of making it distasteful, because our friends
who are doctors are there to heal and to help. And lo and behold in the
middle of that healing comes a red stop sign that says that there is no
more medicine at this door, no more treatment for this patient, no more
experimental opportunities to make that patient improve. I think enough
is enough.
I would hope that my friends in this House would take heed of the
voices of the American people, physicians everywhere, employers
everywhere who desire that the HMO coverage that they have for their
employees is the best; and might I say we of course have fixed that
aspect of concern dealing with employers, and we are ready to move
forward. I would hope that they would listen to us on that very issue.
I would note as I close just simply, I brought it up the last time,
is the disparity in health care in many of our rural and urban areas
and in many of our minority communities. We hear many times some of the
higher statistics are certain diseases in one community versus another.
Then it makes it very difficult if a bureaucrat tells a physician who
treats a particular ethnic group that has a high percentage of a
certain disease that you must care for them in one certain way, sort of
the boxcar way as opposed to responding to the disparate needs of
Americans in their different environmental backgrounds. That will be
prevented if we do not pass the Dingell bill and pass the so-called
alternative. I thank the gentleman for giving me this time.
Mr. PALLONE. I want to thank the gentlewoman for coming down again
tonight as she has so many other times to express her opinion on the
Patients' Bill of Rights. I know it is tough for us because we keep
hearing that this bill is going to come up. We are hearing again that
it is going to come up this Thursday.

{time} 2215

I guess we are at the point we will not believe it until it actually
occurs. The gentlewoman mentioned a few points that I have to bring up,
because we did not include them as part of the debate tonight, and I
think they are very important.
One is the number of health professional groups that support the real
Patients' Bill of Rights, the Dingell-Norwood-Ganske bill. The
gentlewoman mentioned the American Medical Association, the Nurses
Association, all the specialty doctors groups. I think there are
something like 700 different groups, all the major health care
professional groups.
The bottom line is it is because they are very concerned about the
fact they cannot provide care now with the way some of the HMOs
operate, and they want the freedom and sort of the ability, we call it
the American way, to be able to provide the best care that they think
is necessary for their patients.
The other thing that the gentlewoman mentioned, which I think is so
important, is, again, the Texas experience; the fact that even though
President, then Governor, Bush complained at the time when this
legislation was being considered in the Texas legislature that it was
going to increase costs for health insurance and was going to cause all
this litigation. None of that turned out to be true.
The gentleman from Texas (Mr. Turner) mentioned earlier that the
increased costs for health insurance in Texas is half of the national
average. The gentlewoman mentioned approximately 20 or so lawsuits that
have been brought in 4 years, which is nothing. What is that, that is
like five per year. Because basically what happens is now people have
the ability to go to an external independent review to overturn the HMO
if they did the wrong thing. We have had almost 1,500 cases of that,
and they are handled easily and that is the end of it.
The other thing the gentlewoman mentioned, which I think is so
important, I said earlier this evening that my fear is the Committee on
Rules, when they meet later this evening, I think they are supposed to
go in at midnight, which says a lot about the procedure around here
with the Republican leadership, that they may put in order some of
these poison pills from the Fletcher bill.
I mentioned earlier in Congress Daily they said likely amendments
include a so-called access package, a proposal seeking to expand
insurance through broader access to medical savings accounts and
creation of association health plans. Further, it says in Congress
Daily, it is possible there will be an amendment to impose caps on
medical malpractice awards.
Now, I do not happen to like the medical savings accounts. I think
they are sort of a ruse. But whether or not you approve of MSAs or
approve of caps on malpractice or approve of these association health
plans, the bottom line is there is no reason why these need to be
included in this legislation. We know that the majority of the House
supports the Patients' Bill of Rights, and they support it because of
the patient protections. We do not need to deal with these other much
more controversial issues like malpractice and medical savings accounts
in the context of this bill.
The only reason the Fletcher bill includes some of those things and
the only reason why those parts of the Fletcher bill would be
considered under the procedure is because the Republican leadership
wants to throw them in, mess this whole thing up, and create a
situation where it goes to conference, like it did last time, between
the House and Senate, and nothing happens because there is too much
controversy over all these other things that are unrelated. That is
what I am fearful of, to be honest.
I know we do not have a lot of time left here tonight, but I would,
again, appeal to the Republican leadership: All we are asking for is to
bring this bill up and allow us a clean vote on the real Patients' Bill
of Rights. You can have all the other votes you want, but let us have a
clean vote on this bill.
I am confident that if that happens, this bill will pass, because I
know that almost every Democrat will vote for it, and that there are
probably a significant number of Republicans that will as well.
But I am fearful, honestly, that we are not going to have that
opportunity, because we do not control the process. The Republican
leadership controls the process. They are particularly mad right now.
As the gentlewoman knows, their wrath is against some of the
Republicans that are willing to join us and support the real Patients'
Bill of Rights, they are being criticized, hauled down to the White
House and being told you are not a real Republican. This is not about
who is a real Republican or who is a real Democrat, this is about who
is a real American and who is going to stand up for the people that
need help.
Ms. JACKSON-LEE of Texas. I thank the gentleman very much. As the
gentleman was speaking, I was thinking of one point I wanted to add.
You have heard those of us from Texas speak about the Texas law, and we
are very proud that bill passed out of the State legislature, the House
and the Senate. Of course, the gentleman realizes the bill was not
signed by the President, it

[[Page H4982]]

was simply allowed by our laws in the State of Texas to go into law
because there was no action. However, I think the evidence of its
success should be very evident for our President, and he would see that
we could live with accountability and in fact not have a disastrous
situation.

But I do want to note for those who are thinking, well, you have it
in the State of Texas, but in many states that do have some form of an
HMO accountability plan, it does not cover everyone. So the reason why
it is important for this to be passed at a Federal level is that when
you pass it at a Federal level, all states must be in compliance. The
Patients' Bill of Rights then becomes the law of the land, and whatever
your HMO is, you have the opportunity, whether you are in Iowa, in New
Jersey, California, New York or Texas, that you have the opportunity to
ensure that there is accountability for the HMO.
I think that is very important, because the question has been raised,
well, a number of states already have done it, why do you have to do
it? Because you have states that have done it, but do not have full
coverage, and you have states that have not done it and, therefore, it
is important for Federal law for us to act.
Mr. PALLONE. I agree. Reclaiming my time, the bottom line is that
even in the states that have strong patient protections, like Texas, a
significant amount of people, sometimes the majority, are not covered
by those protections, because of the Federal preemption.
I would say right now there are only about 10 states that have
protections as strong as Texas, my own being one of them. But the other
40, some have no protections, some have much weaker laws. So this
notion that somehow everybody out there is already getting some kind of
help is not really accurate for most Americans. That is why we really
need this bill.
I think we only have a couple of minutes, so if I could conclude and
thank the gentlewoman and my other colleagues from Texas for joining us
tonight in saying that we are going to be watching. We will be here
again demanding that we have a vote on the real Patients' Bill of
Rights. Let us hope we have it on Thursday. But, if we do not, we will
continue to demand that the Republican leadership allow a vote.

____________________