[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.

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