[Congressional Record (Bound Edition), Volume 145 (1999), Part 10]
[Senate]
[Pages 14255-14256]
[From the U.S. Government Publishing Office, www.gpo.gov]



                        PATIENTS' BILL OF RIGHTS

  Mrs. FEINSTEIN. Mr. President, I don't want to be redundant, but I 
would like to continue the statement I began to make earlier this 
morning. Let me quickly put it in perspective.
  The statement further explains an amendment that I have at the desk, 
which essentially says that a group health plan or an insurance issuer 
may not arbitrarily interfere with, or alter, the decision of the 
treating physician with respect to the manner or the setting in which 
particular services are delivered if those services are medically 
necessary or appropriate.
  It then goes on to define ``medically necessary'' as ``that which is 
consistent with generally accepted principles of professional medical 
practice.'' The amendment, of course, means that the doctor can 
determine what is a medically necessary length for a hospital stay, and 
the doctor can determine the kind of treatment or drug the patient can 
be best treated with.
  I know some people wonder why am I so vociferous about physicians 
making medical decisions. California has the largest number of 
individuals in managed care. We have around 20 million people in 
managed care plans in California.
  I have heard of many different cases. Let me just give you one other 
case--I just talked about the person with the brain illness. I can also 
give you the case of the Central Valley man, 27 years old who had a 
heart transplant and was forced out of the hospital after 4 days 
because his HMO would not pay for more days. That constituent of mine 
died. That is the reason I feel so strongly.
  Additionally, I know--and the Washington Post this morning 
documents--that doctors are increasingly frustrated, demoralized, and 
hamstrung by insurance plans' definitions of medical necessity. An 
American Medical Association survey reported in the March 2, 1999, 
Washington Post, quoted an AMA spokeswoman who said that some managed 
care companies have begun to define explicitly what treatments are 
``medically necessary,'' and they have chosen to define them in terms 
of lowest cost.
  She says:

       Doctors used to make that decision solely on the basis of 
     what was best for the patient.

  She stressed that doctors are unhappy that managed care organizations 
are ``controlling or influencing medical treatment before the treatment 
is provided.'' She said, ``Denials and delays in providing care 
directly harm the health and well-being of the patients.''
  A fall 1998 report found that ``patients and physicians can expect to 
see more barriers to prescriptions being filled as written,'' according 
to the Scott-Levin consultant firm, because HMOs are requiring more 
``prior authorizations'' by the plans before doctors can prescribe 
them.
  Then, as I spoke of a little earlier, there is the issue of financial 
incentives, another form of interference in medical necessity 
decisions. In November, the New England Journal of Medicine pointed 
out:

       Many managed care organizations include financial 
     incentives for primary care physicians that are indexed to 
     various measures of performance. Incentives that depend on 
     limiting referrals or on greater productivity applies 
     selective pressure to physicians in ways that are believed to 
     compromise care.

  That is what we are trying to stop.

       Incentives that depend on the quality of care and patients' 
     satisfaction are associated with greater job satisfaction 
     among physicians.

  Let me describe how Charles Krauthammer put it in writing in the 
January 9, 1998 Washington Post under the headline, ``Driving the Best 
Doctors Away'':

       The second cause of [doctors leaving the profession] is the 
     loss of independence. More than money, this is what is 
     driving these senior doctors crazy: some 24-year-old 
     functionary who knows as much about medicine as he does about 
     cartography demanding to know why Mr. Jones, a diabetic in 
     renal failure, has not been discharged from the hospital yet. 
     Dictated to by medically ignorant administrators, questioned 
     about every prescription and procedure, reduced in status 
     from physician to ``provider,'' these doctors want out.

  Mr. President, that is a sorry commentary, and it is the truth.

       One of my deepest interests is cancer. I cochair the Senate 
     Cancer Coalition with the distinguished Senator from Florida, 
     Senator Connie Mack. Let me quote from a report of the 
     President's Cancer Panel:
       Under the evolving managed care system, participating 
     physicians are increasingly being asked to do more with 
     less--to see a greater volume of patients and provide 
     significantly more documentation of care with less assistance 
     or staff. In addition, managed care has dictated a major 
     shift to primary care gatekeepers who are under pressure to 
     limit referrals to specialists and care provided in tertiary 
     care facilities, and may be

[[Page 14256]]

     financially rewarded for their success in doing so.

  Nancy Ledbetter, an oncology nurse and clinical research nurse 
coordinator for Kaiser Permanente said, ``. . . necessary care is being 
withheld in order to contain costs.'' This is from the June 16, 1999 
Journal of the National Cancer Institute.
  A breast cancer surgeon wrote me:

       Severe limitations are being placed upon surgeons in giving 
     these women [with breast cancer] total care . . . Patients 
     feel that their care is reduced to the mechanics of surgery 
     alone, ignoring the whole patient's medical, emotional, and 
     psychological needs.

  Surely, one of the oldest axioms of medicine, and the way my father 
used to practice medicine, is that you can't just treat the wound, you 
have to treat the whole patient as an individual, as a human being.
  In my State, again, over 80 percent of people who have insurance are 
in managed care. Forty percent of California's Medicare beneficiaries 
are in managed care. Some say Californians have been pioneers for 
managed care. Some even say Californians have been the Nation's 
``guinea pigs.''
  The complaints don't abate: delaying diagnoses and treatments as 
tumors grow; trying the cheapest therapies first, instead of the most 
effective; refusing needed hospital admissions; refusing to refer 
patients to specialists who can accurately diagnose conditions and 
provide effective treatments; we hear complaints about shoving patients 
out of the hospitals prematurely, against doctor's wishes. We hear 
complaints about misclassifying medically necessary treatments as 
``cosmetic.''
  We hear about plans demanding that doctors justify their care and 
second-guessing doctors' medical judgments.
  We have had heard about doctors exaggerating the patient's condition 
to be able to give them a certain drug, or keep them in a hospital 
beyond a certain length of time, to get plans to pay for care.
  I hope this amendment can restore some balance to the system by 
empowering patients and the medical profession to provide the kind of 
quality medical care that people not only pay for but that they 
deserve.
  That is why I feel so strongly about this amendment.
  Again, I harken back to the day when I had the first example in 1997 
of a woman in a major managed care plan undergoing an outpatient 
radical mastectomy--7:30 in the morning, surgery; 4:30, out on the 
street with drains hanging from her chest, and unable to know where she 
was going.
  That is not good medicine.
  I can only end my comments on this amendment by saying that the 
amendment is sincerely presented.
  The amendment is the heart of a Patients' Bill of Rights.
  The amendment should not increase premium costs.
  The amendment is what the American people expect.
  And the amendment simply says that an insurance company cannot 
arbitrarily interfere with the doctor's decision with respect to 
treatment or hospitalization.
  I don't think that is too much to ask this body to legislate and to 
state unequivocally, and I think every single person in my State, as 
well as every State, will be much better off once this is accomplished.
  Let me end by saying that I believe that Senator Daschle is willing 
to work out an agreement which allows a number of amendments to come to 
the floor and be debated, provided that these amendments can be voted 
up or down.
  I suspect that what we are going to really end up with is a 
bipartisan Patients' Bill of Rights. I suspect that if we can get this 
unanimous consent agreement, we will find that there will be many on 
the other side of the aisle who will vote for this amendment, and there 
will be some of us who will vote for some of the amendments on the 
other side as well.
  It seems to me that when you have a situation whereby the physicians 
in America have reached the point where they have decided to unionize 
and collectively bargain that this should be a very loud call that all 
is not well with the practice of medicine in the United States of 
America.
  It should be a very loud call for a unanimous consent agreement which 
will allow us, on the floor of the Senate, to work out a series of 
amendments which can provide the kind of quality care that the people 
of the United States are entitled to, and that certainly 20 million 
Californians in managed care are.
  I thank the Chair.
  I yield the floor.

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