[Congressional Record (Bound Edition), Volume 145 (1999), Part 15]
[House]
[Pages 21959-21964]
[From the U.S. Government Publishing Office, www.gpo.gov]



                          MANAGED CARE REFORM

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 6, 1999, the gentleman from Iowa (Mr. Ganske) is recognized for 
60 minutes as the designee of the majority leader.
  Mr. GANSKE. Well, Mr. Speaker, it is a sobering time to be here on 
the floor and to listen to my colleagues describe the natural disaster 
that has occurred all along the East Coast from Hurricane Floyd. On 
behalf of the people of Iowa that I represent, and the entire State of 
Iowa, we extend our condolences and our sympathies.
  We remember very well 6 years ago when we had the floods of the 
century in our State. I represent Des Moines, Iowa, and we were without 
water, drinkable water for over 3 weeks. So we understand the problems 
that people are having, and our hearts go out to the families of people 
who were lost in this terrible storm.
  My State received a lot of help from States around the country, 
including those on the East Coast. I am sure that we have plans to 
reciprocate that generosity, and we certainly received our share of 
federal help in terms of FEMA disaster aid when we had our floods, and 
I will certainly support helping our neighbors on the East Coast with 
their terrible problems as well.
  Mr. Speaker, I want to speak a little bit about managed care reform 
tonight. I was very pleased when on this Friday past the Speaker of the 
House, the gentleman from Illinois (Mr. Hastert), said that we will 
have a debate here in the House of Representatives the week of October 
3. I would say that it is about time.
  We had a very abbreviated debate last year on patient protection 
legislation. Really only had about an hour of debate on each of the 
bills. It was not a debate that did this House a lot of credit, and I 
hope that the debate we will have in 2 weeks will be a much better one 
and a fair one as well.
  I do not expect that it will be easy for those of us who want to see 
comprehensive managed care reform pass the House. I suspect we will see 
a lot of amendments. There will be a lot of debate on alternatives. But 
I firmly believe that a vast majority of the Members of the House of 
Representatives want to pass a strong patient protection piece of 
legislation.
  We watched the debate that occurred in the other House a few months 
ago, and a large number of us were very disappointed that the other 
House did not pass a more substantive bill. We are going to get our 
chance here in the next couple of weeks.
  Why is this important? Well, for months I have been coming to the 
floor at least once a week to talk about the need for managed care 
reform. I have talked about a lot of different cases. And as I think 
about the people that have appeared before my committee, the Committee 
on Commerce, or that have appeared before other committees, victims of 
managed care abuses, I think about a family from California, where a 
father and his children came. Their mother was not with them because 
she had been denied treatment by her HMO, and it had cost her her life.
  I think about a young woman who fell off a cliff, just 60 or so miles 
from Washington. She lay at the foot of that cliff with a broken skull, 
broken arm, and broken pelvis. She was air-flighted to a hospital, and 
then the HMO denied payment because she had not phoned for prior 
authorization.
  I think about a young mother who was taking care of her little 
infant, a 6-month-old boy, who had a temperature of 104 or 105. And she 
did all the things she was supposed to with her HMO. She phoned the 
HMO. And the HMO spokesperson said, well, we will authorize you to take 
little Jimmy to an emergency room, but the only one we are going to 
authorize is 60, 70 miles away.
  So little Jimmy's mother and father were driving him to a hospital. 
They had only been authorized to go to one hospital. They had to pass 
three other hospital emergency rooms enroute, and then he had a cardiac 
arrest and his mother tried to keep him alive as his dad was driving 
frantically to the emergency room.
  They got him to the emergency room and a nurse runs out, and the 
mother leaps out of the car with her little baby and screams, Help me, 
help me. The nurse starts mouth-to-mouth resuscitation, and they put in 
the IVs and they start the medicines. They managed to save his life. 
But because of that HMOs decision, they were not able to save all of 
him. He ended up with gangrene of his hands and his feet and they had 
to be amputated. All because of that decision that that HMO made that 
prevented them from going to the nearest emergency room.
  My colleagues, under federal law, that health plan which made that 
medical decision is responsible for nothing other than the cost of his 
amputations.
  Yes, Mr. Speaker, I remember a lot of people who came before our 
committee and other committees. I remember a young woman who, with her 
husband sitting next to her, broke down in tears in describing how 
when, she had been pregnant, towards the end of her pregnancy, and she 
had a high-risk pregnancy, her doctor said that she needed to be in the 
hospital so that they could monitor her little baby, who was yet 
unborn. And the HMO said, Oh no, no, that is not medically necessary. 
You don't need that. We are not going to pay for it. You go on home. 
You go home, and we will get you a nurse to sit with you part of the 
day. And at a time when the nurse was not there, the baby went into 
fetal distress and died.
  And I can remember Florence Corcoran crying before our committee. 
But, Mr. Speaker, under federal law,

[[Page 21960]]

that HMO which made that decision on medical necessity, they are liable 
for nothing.
  There are lots of reasons and lots of people that have come before 
us, before Congress, in the last few years that have pointed out the 
need to do some real managed care reform. I remember one lady in 
particular who appeared before our committee. Her name was Linda Peeno. 
She was a claims reviewer for several health care plans, and she told 
of the choices that plans are making every day when they determine the 
medical necessity of treatment. I am going to tell my colleagues her 
story.
  She started out by saying, I wish to begin by making a public 
confession. In the spring of 1987, I caused the death of a man. 
Although this was known to many people, I have not been taken before 
any court of law or called to account for this in any professional or 
public forum. In fact, just the opposite occurred, I was rewarded for 
this. It brought me an improved reputation in my job and contributed to 
my advancement afterwards. Not only did I demonstrate I could do what 
was expected of me, I exemplified the ``good company'' employee. I 
saved a half a million dollars.
  Well, Mr. Speaker, her anguish over harming patients as a managed 
care reviewer had caused this woman to come forth and bear her soul in 
a tearful and husky-voiced account. And the audience, I remember very 
well, Mr. Speaker, the audience started to shift uncomfortably, because 
there were a lot of representatives from the managed care industry 
sitting there listening. And the audience grew very quiet. And the 
industry representatives averted their eyes. And she continued.

                              {time}  1945

  She said,

       Since that day, I have lived with this act and many others 
     eating into my heart and soul. For me a physician is a 
     professional charged with the care of healing his or her 
     fellow human beings. The primary ethical norm is ``do no 
     harm.'' I did worse, she said, I caused death.

  She went on, she said,

       Instead of using a clumsy bloody weapon, I used the 
     simplest, cheapest of tools, my words. This man died because 
     I denied him a necessary operation to save his heart. I felt 
     little pain or remorse at the time. The man's faceless 
     distance soothed my conscience.

  She was like that voice at the other end of the line of that young 
mother phoning about her child. ``Like a skilled soldier,'' she said,

       I was trained for this moment. When any moral qualms arose, 
     I was to remember I was not denying care; I was only denying 
     payment.

  Well, Mr. Speaker, I put this proviso in that. For the vast majority 
of these people, when an HMO denies payment, that is a denial of care 
because most people cannot afford the care if their insurance company 
denies it.
  She went on.

       At the time, this helped me avoid any sense of 
     responsibility for my decisions. But now I am no longer 
     willing to accept the escapist reasoning that allowed me to 
     rationalize that action. I accept my responsibility now for 
     that man's death, as well as for the immeasurable pain and 
     suffering many other decisions of mine caused.

  At that point, Ms. Peeno described many ways managed care plans deny 
care. But she emphasized one in particular, Mr. Speaker, and that is 
going to be an issue that is going to be debated here in about 2 weeks; 
and that issue is one of the crucial issues of managed care reform, and 
that is the right to decide what care is medically necessary.
  Under Federal law, employer plans can decide what is medically 
necessary. This is what Ms. Peeno had to say about that.

       There is one last activity that I think deserves a special 
     place on this list, and this is what I call the smart bomb of 
     cost containment, and that is medical necessities denials. 
     Even when medical criteria is used, it is rarely developed in 
     any kind of standard, traditional clinical process. It is 
     rarely standardized across the field. The criteria are rarely 
     available for prior review by the physicians or the members 
     of the plan.

  Then she closed with this statement that brought chills to a lot of 
people's spines because she invoked something that happened about 50 
years ago. She said,

       We have enough experience from history to demonstrate the 
     consequences of secretive, unregulated systems that go awry.

  Well, Mr. Speaker, I have spoken many times on this floor about how 
important it is for patients to have care that fits what we would call 
``prevailing standards of medical care.'' Let me give my colleagues one 
example.
  One particularly aggressive HMO defines ``medical necessity'' as the 
``cheapest, least expensive care.''
  So what is wrong with that, my colleagues say? Well, before I came to 
Congress, I was a reconstructive surgeon and I took care of a lot of 
children born with birth defects, like cleft lips, cleft palates. A 
cleft palate is a hole that goes right down the roof of the mouth. The 
child is born with this defect. They cannot eat properly. Food comes 
out their nose. They cannot speak properly because the roof of their 
mouth is not together.
  The standard treatment for that, the prevailing standard of care, is 
a surgical repair. But under this HMO's definition of ``medical 
necessity,'' they say the cheapest, least expensive care is what we 
define as ``medically necessary.''
  Do my colleagues know what that could mean? That could mean that they 
could say, hey, this kid does not get an operation. We are just going 
to provide him with a little piece of plastic to shove up into that 
hole in the roof of his mouth. After all, that will kind of help keep 
the food from going up into his nose.
  Of course he will not be able to learn to speak properly. It would be 
a piece of plastic like an upper denture, and that certainly would be 
cheaper than a surgical repair. But I tell me colleagues what, Mr. 
Speaker, that does not speak much to quality.
  Well, on this floor in a couple of weeks we are going to see a bill 
introduced by my colleague and friend, the gentleman from Ohio (Mr. 
Boehner) from Ohio, and I guarantee my colleagues that it will have in 
it a definition of ``medical necessity'' that will allow an HMO to 
continue to define ``medical necessity'' in any way that it wants to.
  I would advise my colleagues to maybe talk to the mother of this 
little boy who no longer has any hands or feet about definitions of 
``medical necessity'' or speak to this family from California whose 
mother is no longer alive because the plan arbitrarily defined 
``medical necessity'' in a way that did not fit prevailing standards of 
care. Or maybe they ought to speak to Florence Corcoran about how now 
she does not have a beautiful, little baby because of a decision that 
her HMO made on ``medical necessity.''
  Mr. Speaker, common sense proposals to regulate managed care plans do 
not constitute a rejection of the market model of health care. In fact, 
they are just as likely to have the opposite effects. I think if we 
pass strong, comprehensive, common sense managed care reform that we 
will be preserving the market model because we will be saving it from 
its most destructive tendencies.
  Surveys show that there is a significant public concern about the 
quality of HMO care; and if these concerns are not addressed, Mr. 
Speaker, I think it is likely that the public will ultimately reject 
the market model. But if we can enact true managed care reform, such as 
embodied in the Norwood-Dingell-Ganske-Berry bill, then consumer 
rejection of the market model is less likely.
  Mr. Speaker, this is not a novel situation. Congress has stepped in 
many times in the past to correct abuses in industries. That is why we 
have child labor laws and food and drug safety laws. That is why Teddy 
Roosevelt broke up the trusts. Those laws, in my opinion, help preserve 
a free enterprise system. And Congress would not be dealing with this 
issue were it not for past Federal law.
  For a long time Congress had left health insurance regulation to the 
States; and, by and large, they have done a good job. But Congress 
passed a law called the Employee Retirement Income Security Act some 25 
years ago in order to simplify pension management and, almost as an 
afterthought, employer health plans were included in

[[Page 21961]]

the exemption from State law. Unfortunately, nothing was substituted 
for effective oversight in terms of quality, marketing, or other 
functions that State insurance commissioners or legislatures have 
effectively done. That that lack of oversight, coupled with lack of 
responsibility for the medical decisions that they make, has resulted 
in the abuses for people like little Jimmy Adams or Florence Corcoran 
or a number of others.
  Under current Federal ERISA law, if they receive their insurance from 
their employer and they have a tragedy, like their little boy loses his 
hands and feet because of an HMO decision, their health plan, their 
HMO, is liable for nothing, nothing, other than the care of cost of the 
treatment, i.e., the cost of the amputations. Congress made this law 25 
years ago. Congress should fix it.
  The bipartisan Managed Care Reform Act of 1999 would help prevent a 
case like little Jimmy Adams and it would help make health plans 
responsible for their actions. To my Republican colleagues, I call out.
  We talk about people being responsible for their actions. We think a 
murderer or a rapist should be responsible for his actions. We think an 
able-bodied person should be responsible for providing for his family 
and for his children. Well, my fellow Republicans, HMOs should be 
responsible for their actions, too. Let us walk the talk on 
responsibility when it comes to HMOs just as we do for criminals and 
for deadbeat fathers.
  Now, the opponents to real managed care reform always try to inflate 
fears that the legislation is going to cause premiums to skyrocket, 
that people would be priced out of coverage. I say to that, not so.
  Studies have shown that the price of managed care reform would be 
modest, probably less than $35 a year for a family of four. In fact, 
the chief executive officer of my own Iowa Blue Cross/Blue Shield 
Wellmark plan told me they are implementing HMO reforms and they do not 
expect to see any premium increases from those changes.
  Now, the HMO industry last year spent more than $100,000 per 
congressman lobbying on this issue and they have been running ads all 
around the country in the last 2 months. Well, take their numbers with 
a grain of salt. The industry took an estimate of last year's Patients' 
Bill of Rights, which was scored by the CBO at a 4-percent cumulative 
increase over 10 years, but the industry in its ads reported the 
increase as if it were 4 percent annual instead of 4 percent over 10 
years.
  The HMO industry also conveniently ignored page 2 of the 
Congressional Budget Office summary, which said that only about two-
thirds of that 4 percent over 10 years would be in the form of raised 
premiums.
  HMOs predict our consequences if Congress passes a bill like the 
bipartisan managed care bill. They say lawsuits will run rampant. They 
say costs will skyrocket. They say managed care will shrink. And I say, 
baloney.
  These Chicken Littles remind me of the opponents to the clean water 
and clean air regulations a decade ago. They all said the sky will 
fall, the sky will fall if that legislation passed. Instead, today we 
have cheap air, and we have clean water except for those victims of the 
hurricane right now.
  Let us look at the facts. In the State of Texas, after a series of 
highly publicized hearings during which numerous citizens told of 
injury or death resulting of denial of treatment from their HMOs, the 
Texas Senate passed a strong HMO reform bill making HMOs liable for 
their decisions by a vote of 25-5. The Texas House of Representatives 
passed the bill unanimously, and Governor George W. Bush allowed it to 
become law. And he told me recently, he said, You know what Greg, I 
think that law is working pretty darn good.
  Recently the House Committee on Commerce heard testimony from Texas 
that refutes those dire predictions by the HMO industry. A deluge of 
lawsuits? There has been one lawsuit in 2 years since passage of the 
Texas Managed Care Liability Act.
  That lawsuit, Plocica versus NYLCare, is a case in which the managed 
care plan did not obey the law and a man died. This case exemplifies 
accountability at the end of the review process. Mr. Plocica was 
discharged from the hospital suffering from severe acute clinical 
depression. His treating psychiatrist told the plan that he was 
suicidal and he needed to stay in the hospital until he could be 
stabilized. Texas law required an expedited review by an independent 
review organization prior to discharge, but such a review was not 
offered to the family or to the man.
  Mr. Plocica's wife took him home. That night he drank half a gallon 
of antifreeze, and he died a horrible painful death because of that 
HMO's decision.
  Now, this case shows that an external review and liability go hand-
in-hand. Without the threat of legal accountability, HMO abuses like 
those that happened to Jimmy Adams and Mr. Plocica will go unchecked. 
But the lesson from Texas is also that lawsuits will not go crazy.
  In fact, when HMOs know that they are going to be held accountable, 
there will be fewer tragedies like this. And just as there has not been 
a vast increase in litigation, neither has there been a skyrocketing 
increase in premiums in Texas.
  The national average for overall health costs increased 3.7 percent 
in 1992, while the Dallas and Houston markets were well below average 
at 2.8 percent and 2.4 percent respectively. Other national surveys 
show Texas premium increases to be consistent with those of other 
States that do not have the extensive patient protection legislations 
that were passed by the Texas legislature. And the managed care market 
in Texas certainly has not dried up.
  In 1994, the year prior to the Texas managed care reforms, there were 
30 HMOs in Texas. Today there are 51. In a recent newspaper article, 
ETNA CEO Richard Huber referred to Texas as ``the filet mignon'' of 
States to do business in when he was asked about ETNA's plan to acquire 
Prudential that has a large amount of Texas business.
  None of these facts support the HMO's accusations that Texas patient 
protection laws would negatively impact on the desire of HMOs to do 
business in Texas.

                              {time}  2000

  Mr. Speaker, it is time for Congress to get off its duff and fix this 
problem that it created, and I call on my Republican colleagues to join 
with us in a bipartisan effort in a couple weeks here to pass this 
bill.
  Mr. Speaker, let me talk for a few minutes about the uninsured, 
because we are going to hear a lot of debate in 2 weeks about various 
provisions on the uninsured and how we should not pass patient 
protection legislation, we should really be dealing with the uninsured.
  Now I think, Mr. Speaker, that we definitely need to do something 
about the uninsured in this country, and let me give you some thoughts 
on this:
  First of all, who is the uninsured? Well, there are about 43 million 
people without any form of health insurance in this country. About 25 
percent of the uninsured are under the age of 19, 25 percent are 
hispanic, 25 percent are legal noncitizens, 25 percent are poor, which 
is noteworthy because 46 percent of the poor do not have Medicaid even 
though they qualify for Medicaid; and these groups overlap so that if 
you are below the age of 19, you are Hispanic, you are poor and a legal 
noncitizen, your chances of being uninsured are very, very high.
  A significant percentage, however, are not poor. They have incomes of 
more than two times the national poverty level, and these people tend 
to be aged 19 to 25. Fewer than 15 percent, Mr. Speaker, fewer than 15 
percent of those older than 25, are uninsured, uninsured.
  So, if we know these facts, a few solutions kind of leap out at us on 
how to fix this problem of the uninsured.
  First, there are 11 million uninsured children living in this 
country. One-quarter of the uninsured, about 5 million of these people, 
qualify for Medicaid, or they qualify for the Children's Health 
Insurance Program. But they

[[Page 21962]]

are not enrolled. Hispanic Americans represent 12 percent of the under-
65 population, but 24 percent of the uninsured. The income of many 
Hispanics qualify them for Medicaid, but they, too, frequently are not 
getting the coverage that they qualify for.
  Why is this? Well, Mr. Speaker, a lot of times it is because the 
Government has not made it particularly easy to access the system. In 
my own State of Iowa, the application is not only long, but a Medicaid 
recipient must report his income each month in order to get Medicaid. 
In Texas, to be eligible for Medicaid, the uninsured must first apply 
in person at the Department of Human Services, which is usually located 
way off the beaten track and way out of range of public transportation.
  If even one of the receipts to prove eligibility is forgotten, the 
applicant has to spend another day traveling and waiting in line. In 
California the uninsured person who is poor must first fill out, and 
get this, a 25-page application for Medicaid, often in a language they 
can barely speak or barely read, and many times English is a second 
language.
  So, Mr. Speaker, the first thing we can do to reduce the number of 
uninsured is to make sure that the poor who qualify for Medicaid are 
covered. How do you do that? Simplify forms, reach to Hispanic and 
other ethnic communities, oversee the CHIP program to see why more 
people who qualify are not taking advantage. In many cases, Mr. 
Speaker, it is as simple as the fact that the people who qualify do not 
even know about the programs.
  Now are we going to hear much debate on the floor of Congress here in 
2 weeks on doing these things? Or are we going to see some debate on 
some truly screwy ideas that could hurt the risk pool, and I will talk 
about that in a minute.
  Well, what about those who are aged 19 to 23? Many of these people 
are in college. This is a healthy group. It should not be expensive to 
cover. Some colleges say they can cover these young people for only 
$500 a year for a catastrophic coverage. That is a small price to pay 
compared to tuition. Why have we not made a commitment to health care 
coverage for this group? Maybe we should look at tieing student loans 
to health coverage, and I believe that tax policy also determines to 
some extent whether an individual has health insurance.
  Businesses get 100 percent deductibility for providing health care to 
employees. Individuals purchasing their own insurance get about 40 
percent. That is not fair; let us fix it.
  In trying to address the uninsured, however, Congress should be 
careful not to increase the number of uninsured through unintended 
consequences of potentially harmful ideas such as I am sure we are 
going to debate on the floor in about 2 weeks, ideas like health marts 
and association health plans.
  Let me explain my concern, and I hope my colleagues are listening to 
this:
  Under court interpretations of the Employee Retirement Income 
Security Act of 1974, State insurance officials cannot regulate health 
coverage by self-insured employers. This regulatory loophole, as I have 
said before, created many of the problems with association health 
plans. The benefit of being able to create a favorable risk pool 
motivated many to self-insure; but since they were exempt from State 
insurance oversight, many of these association health plans became 
insolvent during the 1970s and the early 1980s and left hundreds of 
thousands of people without coverage.
  Some of these plans went under because of bad management and 
financial miscalculations, and others were simply started by 
unscrupulous people whose only goal was to make a quick buck and get 
out without any concern about the plight of those who were covered 
under those association plans.
  I would encourage my colleagues to read Karl Polzer's article, 
Preempting State Authority to Regulate Association Plans, Where It 
Might Take Us. It is in National Health Policy Forum, October 1997.
  Mr. Speaker, we have said this before many times on the floor: those 
who do not know history are bound to repeat it. Those rash of failures 
for association health plans led Congress in 1983 to amend ERISA to 
give back to States the authority to regulate self-insured, multiple-
employer welfare associations or association health plans. Only self-
insured plans established or maintained by a union or a single employer 
remained exempt from insurance regulation; and now there are those who 
want to ignore the lessons of the past and repeat the mistakes of pre-
1983. If anything, some mismanaged and fraudulent associations continue 
to operate. Some associations try to escape State regulation by setting 
up sham union or sham employer associations; self-insure and then they 
claim they are not an EWA.
  To quote an article by Wicks and Meyer entitled, Small Employer 
Health Insurance Purchasing Arrangement, Can They Expand Coverage?, it 
says: ``The consequences are sometimes disastrous for people covered by 
these bogus schemes,''.
  Well, Mr. Speaker, if anything, Congress should crack down on these 
fraudulent activities. We should not be promoting them, but we are 
going to have a debate on this floor in 2 weeks where there are going 
to be people standing here in this well promoting those screwy ideas. I 
would encourage them to go back and look at history and not repeat the 
mistakes that were corrected in 1983.
  Wicks and Meyer summarized the two big problems with expanding ERISA 
exemption to more association health plans.
  First, if they bring together people who have below-average risk and 
exclude others and are not subject to State small-group rating rules, 
then they draw off people from the larger insurance pool, thereby 
raising premiums for those who remain in the pool. Mr. Speaker, I hope 
my colleagues are listening. If they vote for association health plans' 
expansion, your vote could result in an increase of premiums for many 
individuals in your States.
  Second, if they are not subject to appropriate insurance regulation 
to prevent fraud and ensure solvency and long-run financial viability, 
they may leave enrollees with unpaid medical claims and no coverage for 
future medical expenses. Mr. Speaker, that would not help the problem 
of the uninsured.
  Mr. Speaker, I recently asked a panel of experts that appeared before 
the Committee on Commerce if they agreed with these concerns about 
association health plans; and they unanimously did, and that panel even 
included proponents of association health plans.
  Mr. Speaker, let us pass real HMO reform. Let us learn from States 
like Texas. After all, is it not Republicans who say the States are the 
laboratories of democracy? Well, let us address the uninsured by making 
sure that those who qualify for the safety net are actually enrolled; 
and, yes, let us have equity in health insurance tax incentives, but 
let us also be very leery and wary of repeating past mistakes with 
ERISA.
  Now we are also going to have a debate on the floor here about some 
substitutes, and I just want to commend my Republican colleagues from 
Oklahoma (Mr. Coburn) and Arizona (Mr. Shadegg). They have been 
forthrightly for health plans being held liable for their negligence, 
and all of us who have worked on this issue appreciate that. However, I 
want to advise my colleagues that there is a provision in their bill, 
H.R. 2824, that is very problematic, and it goes like this:
  ``Before a patient could go to court, an external appeal entity would 
have to certify whether a personal injury had been sustained or whether 
an HMO was the proximate cause of injury.'' A finding for the HMO ends 
the lawsuit, according to this provision. A finding for the patient 
would not prevent the patient from making the same argument in court.
  So therefore, before a patient could hold a managed care company 
responsible for wrongfully denying care, he or she would first have to 
go through an internal appeal, an external review and a secondary 
external review. That is not a very timely process for a sick patient. 
And furthermore, the Supreme

[[Page 21963]]

Court has recently made clear that the Seventh Amendment means the 
right to have a jury decide all factual issues. In the case Feltner v. 
Columbia Pictures Television, in the Coburn-Shadegg bill the external 
entity would decide the elements of horror, the proximate cause and the 
breach of due care. In short, the entire case except damages.
  Well, the Supreme Court in a decision, Grandfinanciere, S.A., v. 
Nordberg, ruled that Congress may not evade the Seventh Amendment 
simply by transferring the adjudication of private claims from federal 
courts to tribunals like this one that do not have juries; and 
furthermore, the gentleman from Oklahoma (Mr. Coburn) envisions those 
tribunals to be composed of doctors who probably would not be expert in 
State or federal law.
  So why should this be a problem for anyone in this body? Well, let me 
give my colleagues an example.
  Many in Congress are interested in the rights of the unborn. Case law 
is developing in State courts on pre-birth and even pre-conception 
torts, and a majority of States allow for the recovery of pre-birth 
injuries.
  Now these sensitive policy decisions are being made by State 
legislatures and State courts in case law. They should not be left to 
private bodies who are not accountable to anyone, which is what would 
happen under this provision of the Coburn-Shadegg bill. There would be 
nothing to prevent an external appeal entity from reverting to the 
notion that a fetus is not a person, and therefore there was no 
personal injury for birth defects or other harm occurring before birth.
  And furthermore, this medical eligibility scheme would be imposed on 
non-ERISA plans. It is unfair to patients. That provision is one 
sidedly in favor of HMOs, and it is unconstitutional; and when you get 
a chance, vote against that provision, and I would point out about 14 
States where case law confirms the Supreme Court decisions as well.
  Mr. Speaker, 275 groups have cosponsored H.R. 2723, the Bipartisan 
Managed Care Consensus Reform bill. I will insert the list of these 
endorsing organizations into the Record:

             Support for H.R. 2723 is growing Exponentially


     why don't you join the members of the following 275 groups by 
                     cosponsoring h.r. 2723 today?

       Academy for Educational Development; Adapted Physical 
     Activity Council; Allergy and Asthma Network-Mothers of 
     Asthmatics, Inc.; Alliance for Children and Families; 
     Alliance for Rehabilitation Counseling; American Academy of 
     Allergy and Immunology; American Academy of Child and 
     Adolescent Psychiatry; American Academy of Emergency 
     Medicine; American Academy of Facial Plastic and 
     Reconstructive Surgery; American Academy of Family 
     Physicians; American Academy of Neurology; American Academy 
     of Opthalmology; American Academy of Otolaryngology-Head and 
     Neck Surgery; American Academy of Pain Medicine; American 
     Academy of Pediatrics; American Academy of Physical Medicine 
     & Rehabilitation; American Association for Hand Surgery; 
     American Association for Holistic Health; American 
     Association for Marriage and Family Therapy; American 
     Association for Mental Retardation; American Association for 
     Psychosocial Rehabilitation; American Association for 
     Respiratory Care; American Association for the Study of 
     Headache; American Association of Clinical Endocrinologists; 
     American Association of Clinical Urologists; American 
     Association of Hip and Knee Surgeons; American Association of 
     Neurological Surgeons; American Association of Nurse 
     Anesthetists; American Association of Oral and Maxillofacial 
     Surgeons; American Association of Orthopaedic Foot and Ankle 
     Surgeons; American Association of Orthopaedic Surgeons; 
     American Association of Pastoral Counselors; American 
     Association of People with Disabilities; American Association 
     of Private Practice Psychiatrists; American Association of 
     University Affiliated Programs for Persons with DD; American 
     Association of University Women; American Association on 
     Health and Disability; American Bar Association, Commission 
     on Mental & Physical Disability Law; American Board of 
     Examiners in Clinical Social Work; American Cancer Society; 
     American Chiropractic Association; American College of 
     Allergy and Immunology; American College of Cardiology; 
     American College of Foot and Ankle Surgeons; American College 
     of Gastroenterology; American College of Nuclear Physicians; 
     American College of Nurse-Midwives; American College of 
     Obstetricians and Gynecologists; American College of 
     Osteopathic Surgeons; American College of Physicians; 
     American College of Radiation Oncology; American College of 
     Radiology; American College of Rheumatology; American College 
     of Surgeons; American Council for the Blind; American 
     Counseling Association; American Dental Association; American 
     Diabetes Association; American EEG Society; American Family 
     Foundation; American Federation of State, County, and 
     Municipal Employees; American Federation of Teachers; 
     American Foundation for the Blind; American 
     Gastroentrological Association; American Group Psychotherapy 
     Association; American Heart Association; American Liver 
     Foundation; American Lung Association/American Thoracic 
     Society; American Medical Association; American Medical 
     Rehabilitation Providers Association; American Medical 
     Student Associatoin; American Medical Women's Association, 
     Inc.; American Mental Health Counselors Association; American 
     Music Therapy Association; American Network of Community 
     Options And Resources; American Nurses Association; American 
     Occupational Therapy Association; American Optometric 
     Association; American Orthopaedic Society for Sports 
     Medicine; American Orthopsychiatric Association; American 
     Orthotic and Prosthetic Association; American Osteopathic 
     Academy of Orthopedics; American Osteopathic Association; 
     American Osteopathic Surgeons; American Pain Society; 
     American Physical Therapy Association; American Podiatric 
     Medical Association; American Psychiatric Association; 
     American Psychiatric Nurses Association; American 
     Psychoanalytic Association; American Psychological 
     Association; American Public Health Association; American 
     Society for Dermatologic Survey; American Society for 
     Gastrointestinal Endoscopy; American Society for Surgery of 
     the Hand; American Society for Therapeutic Radiology and 
     Oncology; American Society of Anesthesiology; American 
     Society of Cataract and Refractive Surgery; American Society 
     of Dermatology; American Society of Echocardiography; 
     American Society of Foot and Ankle Surgery; American Society 
     of General Surgeons; American Society of Hand Therapists; 
     American Society of Hematology; American Society of Internal 
     Medicine; American Society of Nephrology; American Society of 
     Nuclear Cardiology; American Society of Pediatric Nephrology; 
     American Society of Plastic and Reconstructive Surgeons, 
     Inc.; American Society of Transplant Surgeons; American 
     Society of Transplanation; American Speech-Languge-Hearing 
     Association; American Therapeutic Recreation Association; 
     American Urological Association; Americans for Better Care of 
     the Dying; Amputee Coalition of America; Anxiety Disorders 
     Association of America; Arthritis Foundation; Arthroscopy 
     Association of North America; Association for Ambulatory 
     Behavioral Healthcare; Association for Education and 
     Rehabilitation of the Blind and Visually Impaired; 
     Association for Persons in Supported Employment; Association 
     for the Advancement of Psychology; Association for the 
     Education of Community Rehabilitation Personnel; Association 
     of American Cancer Institutes; Association of Education for 
     Community Rehabilitation Programs; Association of 
     Freestanding Radiation Oncology Centers; Association of 
     Maternal and Child Health Programs; Association of 
     Subspecialty Professors; Association of Tech Act Projects; 
     Asthma & Allergy Foundation of America; Autism Society of 
     America; Bazelon Center for Mental Health Law; California 
     Access to Specialty Care Coalition; California Congress of 
     Dermatological Societies; Center for Patient Advocacy; Center 
     on Disability and Health; Child Welfare League of America; 
     Children & Adults With Attention Deficit/Hyperactivity 
     Disorder; Citizens United for Rehabilitation of Errants; 
     Clinical Social Work Federation; Communication Workers of 
     America; Conference of Educational Administrators of Schools 
     and Programs for the Deaf; Congress of Neurological Surgeons; 
     Consortium of Developmental Disabilities Councils; Consumer 
     Action Network; Consumers Union; Cooley's Anemia Foundation; 
     Corporation for the Advancement of Psychiatry; Council for 
     Exceptional Children; Council for Learning Disabilities; 
     Crohn's and Colitis Foundation of America; Diagenetics; 
     Digestive Disease National Coalition; Disability Rights 
     Education and Defense Fund; Division for Early Childhood of 
     the CEC; Easter Seals; Epilepsy Foundation of America; 
     Evangelical Lutheran Church in America; Eye Bank Association 
     of America; Families USA; Family Service America; Federated 
     Ambulatory Surgery Association; Federation of Behavioral, 
     Psychological & Cognitive Sciences; Federation of Families 
     for Children's Mental Health; Friends Committee on National 
     Legislation; Goodwill Industries International Inc.; 
     Guillain-Barre Syndrome Foundation; Helen Keller National 
     Center; Higher Education Consortium for Special Education; 
     Huntington's Disease Society of America; Infectious Disease 
     Society of America; Inter/National Association of Business, 
     Industry and Rehabilitation; International Association of 
     Jewish Vocational Services; International Association of 
     Psychosocial Rehabilitation Services; International Dyslexia 
     Association; Joseph P. Kennedy, Jr. Foundation; Learning 
     Disabilities Association;

[[Page 21964]]

     Lupus Foundation of America, Inc.; Medical College of 
     Wisconsin; National Alliance for the Mentally Ill; National 
     Association for Medical Equipment Services; National 
     Association for Rural Mental Health; National Association for 
     State Directors of Developmental Disabilities Services; 
     National Association for the Advancement of Orthotics and 
     Prosthetics; National Association of Children's Hospitals; 
     National Association of Developmental Disabilities Councils; 
     National Association of Medical Directors of Respiratory 
     Care; National Association of People with AIDS; National 
     Association of Physicians Who Care; National Association of 
     Private Schools for Exceptional Children; National 
     Association of Protection and Advocacy Systems; National 
     Association of Psychiatric Treatment Centers for Children; 
     National Association of Public Hospitals and Health Systems 
     (Qualified Support); National Association of Rehabilitation 
     Research and Training Centers; National Association of School 
     Psychologists; National Association of Social Workers; 
     National Association of State Directors of Special Education, 
     National Association of State Mental Health Program 
     Directors; National Association of the Deaf; National Black 
     Women's Health Project; National Breast Cancer Coalition; 
     National Center for Learning Disabilities; National Coalition 
     on Deaf-Blindness; National Committee to Preserve Social 
     Security and Medicare; National Community Pharmacists 
     Association; National Consortium of Phys. Ed. And Recreation 
     For Individuals with Disabilities; National Council for 
     Community Behavioral Healthcare; National Depressive and 
     Manic-Depressive Association; National Down Syndrome Society; 
     National Foundation for Ectodermal Dysplasias; National 
     Hemophilia Foundation; National Mental Health Association; 
     National Multiple Sclerosis Society; National Organization of 
     Physicians Who Care; National Organization of Social Security 
     Claimants' Representatives; National Organization on 
     Disability; National Parent Network on Disabilities; National 
     Partnership for Women & Families; National Patient Advocate 
     Foundation; National Psoriasis Foundation; National 
     Rehabilitation Association; National Rehabilitation Hospital; 
     National Therapeutic Recreation Society; NETWORK: National 
     Catholic Social Justice Lobby; NISH; North American Society 
     of Pacing and Electrophysiology; Opticians Association of 
     America; Oregon Dermatology Society; Orthopaedic Trauma 
     Association; Outpatient Ophthalmic Surgery Society; Pain Care 
     Coalition; Paralysis Society of America; Paralyzed Veterans 
     of America; Patient Advocates for Skin Disease Research; 
     Patients Who Care; Pediatric Orthopaedic Society of North 
     America; Pediatrix Medical Group: Neonatology and Pediatrics 
     Intensive Care Specialist; Physicians for Reproductive Choice 
     and Health; Physicians Who Care; Pituitary Tumor Network; 
     Public Citizen* (Liability Provisions Only); Rehabilitation 
     Engineering and Assistive Technology Society of N. America; 
     Renal Physicians Association; Resolve; The National 
     Infertility Clinic; Scoliosis Research Society; Self Help for 
     Hard of Hearing People, Inc.; Service Employees International 
     Union; Sjogren's Syndrome Foundation Inc.; Society for 
     Excellence in Eyecare; Society for Vascular Surgery; Society 
     of Cardiovascular & Interventional Radiology; Society of 
     Critical Care Medicine; Society of Gynecologic Oncologists; 
     Society of Nuclear Medicine; Society of Thoracic Surgeons; 
     Spina Bifida Association of America; The Alexandria Graham 
     Bell Association for The Deaf, Inc.; The American Society of 
     Dermatophathology; The Arc of the United States; The Council 
     on Quality and Leadership in Support for People with 
     Disabilities (The Council); The Endocrine Society; The Paget 
     Foundation for Paget's Disease of Bone and Related Disorders; 
     The Society for Cardiac Angiography and Interventions; The 
     TMJ Associations, Ltd.; Title II Community AIDS National 
     Network; United Auto Workers; United Cerebral Palsy 
     Association; United Church of Christ; United Ostomy 
     Association; Very Special Arts; World Institute on 
     Disability.

  Mr. Speaker, 275 endorsing organizations, nearly all the patient 
advocacy groups in the country: American Cancer Society, National MS 
Society. I could go down the list. Nearly all the consumer groups in 
the country, Consumers Union. You look through the whole list of this; 
nearly all the provider groups, the physicians, the nurses, the 
physical therapists, the podiatrists, the opticians. And you know what? 
This is a patient protection bill.

                              {time}  2015

  There is nothing in this bill that provides an advantage for a 
provider, other than being able to be an advocate for your patient.
  This is about letting people solve problems with their HMOs in a 
timely fashion, through a due process, that gives them a chance to 
reverse an arbitrary decision of medical necessity by their plan. We 
should not hesitate about having HMOs be responsible for their 
decisions.
  Surveys show that there is a significant public concern about the 
quality of HMO care. Despite millions of dollars of advertising by HMOs 
over the last 8 years, a recent Kaiser survey showed no change in 
public opinion. Seventy-seven percent favor access to specialists; 83 
percent favor independent review; 76 percent favor emergency coverage; 
and more than 70 percent favor the right to sue an HMO for medical 
negligence; and 85 percent of the public thinks that Congress should 
fix these HMO problems.
  Mr. Speaker, in a few weeks we are going to get a chance, I hope in a 
fair way, to debate managed care reform, patient protection 
legislation. It is none too soon. While we have been dillydallying 
around for a couple of years now, patients have been injured because of 
arbitrary decisions by HMOs; and some of them have lost their lives. We 
need to address this issue soon, and we can do it in a bipartisan 
fashion. And I would encourage Members on both sides of the aisle to 
fight off the poison pill amendments that we are going to see under the 
rule, fight off the substitutes, some of which will be like the ones 
from the Senate which are really HMO protection bills, and join with 
us, 275 endorsing groups, millions and millions of people out in the 
country who are calling on Congress to pass H.R. 2723, the bipartisan 
consensus managed care reform bill.

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