[Congressional Record (Bound Edition), Volume 146 (2000), Part 4]
[House]
[Pages 5293-5298]
[From the U.S. Government Publishing Office, www.gpo.gov]



                               HMO REFORM

  The SPEAKER pro tempore (Mr. Vitter). Under a previous order of the 
House, the gentleman from Iowa (Mr. Ganske) is recognized for 60 
minutes.
  Mr. GANSKE. Mr. Speaker, tonight we will talk about two aspects of 
health care that are important. The first will be about the conference 
committee that is going on in regards to the HMO reform bill that 
passed both the House and the Senate. For our colleagues and 
constituents, it should be noted that the bipartisan Managed Care 
Reform Act of 1999, the Norwood-Dingell-Ganske bill passed the House 
back in October 275 to 151. The Senate bill had passed sometime before 
that.

[[Page 5294]]

  So the Speaker of the House and the Majority Leader in the Senate, as 
well as the minority leaders in both bodies, appointed Members of 
Congress to meet together to iron out the differences between the bill 
that passed the House and the bill that passed the Senate. Once that is 
done, then the unified bill is brought back, both to the House and to 
the Senate for a vote. If it would pass in both Houses, then it would 
be sent to the President for signature and become law.
  Now, the conference committee has been meeting for some time. I am 
told that they are currently working on internal and external appeals. 
Even though I helped write the bill, I unfortunately was not named to 
the conference, and I cannot be more specific than that. I would note 
that, of all the Republicans from the House that were named to the 
conference, only one actually voted for the bill that passed the House 
with such a large margin.
  But I want to talk about one particular aspect of the Managed Care 
Reform bill that is crucial to getting it right, and that is on the 
issue of whether the HMO at the end of the day can define as 
``medically necessary'' anything that they want to. Now, my colleagues 
may say, well, how can that be? The answer, Mr. Speaker, is that, under 
a 27-year-old law that Congress passed, Federal legislation, an 
employer plan can define as ``medically necessary'' anything they want 
to, regardless of whether it meets medical standards of care.
  Now, way back in 1996, a year or so after we started debate on HMO 
reform, so it has already been 4 years, a woman who was a medical 
reviewer at an HMO gave testimony before my committee, the Committee on 
Commerce. I think it is important to go back through her testimony, 
even though I have read this testimony on the floor several times in 
the past, because it is so crucial to whether we are going to get a 
bill that is worth the paper that it is written on.
  This medical reviewer said, ``I wish to begin'', this is her 
testimony before the Committee on Commerce, ``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 that. It brought me an improved reputation in my job 
and contributed to my advancement afterwards. Not only did I 
demonstrate that I could do what was expected of me, I was the good 
company employee. I saved half a million dollars.''
  She continued, ``Since that day, I have lived with this act and many 
others eating into my heart and soul.''

                              {time}  2145

  For me, a professional is charged with the care or healing of his 
fellow human beings. The primary ethical norm is do no harm. I did 
worse, ``I caused death.'', said this HMO reviewer.
  She went on to say, ``Instead of using a clumsy bloody weapon, I used 
the simplest cleanest 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. Like a skilled soldier, I was trained for this moment. When 
any moral qualms arose, I was to remember, `I am not denying care, I am 
only denying payment.' ''
  She then listed the many ways managed care plans deny care to 
patients, but she emphasized one particular issue, the right to decide 
what care is medically necessary.
  She went on to say, ``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 necessity 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 is rarely available for prior review by 
the physicians or members of the plan.''
  She went on, ``We have enough experience from history to demonstrate 
the consequences of secretive, unregulated systems that go awry.'' And 
the thought of the Holocaust came to my mind at that point.
  She finished by saying, ``One can only wonder how much pain, 
suffering, and death will we have before we have the courage to change 
our course. Personally, I have decided even one death is too much for 
me.''
  Well, Mr. Speaker, what we are talking about here is the ability of 
an employer health plan to define as medically necessary anything they 
want to or to exclude anything they want to.
  Let me give my colleagues an example. Before coming to Congress, I 
was a reconstructive surgeon. I still go overseas and do these types of 
operations. Here was one of my patients. This was a little baby born 
with a complete cleft lip and cleft palate.
  Now, the standard of care for this birth defect is surgical 
correction of the lip and of the roof of the mouth. But, Mr. Speaker, 
there are some HMOs out there that are defining as medically necessary 
``the cheapest, least expensive care as defined by us, the HMO.''
  Now, some of my colleagues may say, what is wrong with the cheapest, 
least expensive care? Here is an example. Let us take this little baby 
with this hole in the roof of his mouth. He cannot speak normally. He 
will never learn to speak normally if that is not corrected. Food goes 
up his nose and comes out his nose. He cannot eat right. But under that 
HMO's ridiculous definition of medical necessity, the HMO could justify 
not treating this child with surgery to fix the roof of his mouth but 
by merely requiring or authorizing the construction of a little piece 
of plastic, like an upper denture; something to sort of plug the hole. 
That is wrong. Where is the quality?
  The parents of that little baby would have no recourse with their 
health plan, because a 27-year-old Federal law, the Employee Retirement 
Income Security Act, says that an employer health plan can define that 
medical care in any way they want to.
  And so what has been the result? Well, more than 50 percent of the 
reconstructive surgeons in this country who have had children with this 
type of birth defect, and who requested to perform operations to 
correct this, have been denied as not medically necessary by HMOs.
  Here is a little baby that was born with a lack of fusion of the 
bones between the eyes, so that the eyes are very widely spaced, as my 
colleagues can see. Much more widely than normal. I have treated some 
children with this defect where the eyes are almost on the sides of 
their head, almost like a fish.
  Now, there is a surgical operation, it is an intensive operation, it 
is a big operation, to fix that. It involves making an incision across 
the top of the head, peeling the soft tissues off the bones, taking 
some of the bones of the face out and the skull out, remolding them and 
putting them back together, and then bringing all the tissues back up 
so that the gap between the eyes is narrowed.
  This is a birth defect. That is not a cosmetic operation. A cosmetic 
operation is where we have a normal process, like aging, where there 
are droopy eyelids or droopy skin of the face and we make it, or we try 
to make it better than normal. A reconstructive procedure like this is 
where we are trying to get that person back to normal so that they do 
not look so abnormal that they feel like they cannot even go out in 
public.
  A few weeks ago we had a press conference here in Washington in which 
some families and some children with these types of birth defects came 
to town. Stacy Keach, a famous actor, was the emcee. He did this 
because he was born with a cleft lip and a cleft palate and he has a 
real feeling in his heart for children born with this type of deformity 
and for the problems that they are experiencing with HMOs in denying 
their treatment as not medically necessary.
  So I am going to take the opportunity tonight to read to my 
colleagues some of the statements by the mothers and fathers of some of 
the

[[Page 5295]]

children that were born with these types of defects.
  This little girl's name is Breanna Fox. Here she is before her 
operation. This is after the operation. This shows that Breanna's skull 
bones came together, grew together prematurely, and resulted in a 
significant deformity of her forehead, her eyes, and her skull. These 
are the words from her mother and the problems that they had with an 
HMO in trying to get this birth defect fixed. This is Breanna's 
mother's words.
  ``Our daughter Breanna was born July 30, 1998. We knew she would be 
arriving into this world with a craniofacial deformity, as this had 
been detected during a prenatal sonogram in my 8th month of pregnancy. 
As predicted, Breanna was born with a misshapen head and was diagnosed 
with craniosynostosis, that is where the bones of the skull fuse 
together, and a severe plagiocephaly, that is the description for the 
type of facial anomaly that she has.
  ``Before we left the hospital, we learned that a baby's skull is 
really a collection of many smaller bones adjacent to one another at 
sites known as sutures. As the brain grows, the sutures allow for 
expansion of the skull. When brain growth is complete, the sutures 
gradually become fused. In Breanna's case, two of the sutures had 
already fused. Her growing brain was forced to grow away from the fused 
sutures, resulting in an abnormally-shaped face and skull. Fortunately, 
surgery could correct her condition.
  ``Because the first year of life is when the most rapid brain growth 
takes place, surgery should be performed in early infancy. Delayed 
surgery could lead to brain damage or worsen the facial deformity 
requiring more complex and risky surgery later on. Our pediatrician, 
neonatologist and obstetrician all recommended the same skilled 
surgeon. We were comforted by the wealth of information we had obtained 
and the knowledge that this surgeon had been successfully treating 
children with craniofacial deformities for almost 30 years.
  ``Then the insurance nightmare began. When we left the hospital to 
take Breanna home, we planned to see this doctor as soon as possible. 
Our HMO told us that a craniofacial surgeon was not available in the 
physician network. We assumed that because Breanna's condition required 
a team of craniofacial specialists she would be allowed to go out of 
network to a qualified surgeon. We confidently sent our HMO a form 
requesting an out-of-network referral. Boy, was our assumption wrong. 
We had no idea that the next 3\1/2\ months would turn into a constant 
battle with our HMO.
  ``We were ready to do whatever was necessary to ensure our daughter's 
health. Our initial referral request was turned down. The insurance 
company found a surgeon in-network that performed cranial vault 
reconstruction `every now and then.' We were advised to `stay in-
network.' To appease our HMO, we made an appointment with the network 
physician. We were not satisfied with the surgeon's experience and 
qualifications. It was his opinion that only one, not two, of Breanna's 
skull sutures were fused, and had not bothered to look at her CT Scan 
results.'' The mother said, ``We shudder to think what could have 
happened.''
  Mom continued. ``We requested a reconsideration of the denial for an 
out-of-network referral. After numerous calls, the HMO authorized one 
visit to Dr. Salyer. The authorization letter stated `service 
approved', not services. We knew the battle was on.
  ``At age 7 weeks our surgeon finally examined Breanna. My husband and 
I were impressed with his qualifications and experience. We were shown 
before and after photos of other children with craniofacial 
deformities. We were assured Breanna would be fine. What a sense of 
relief. We knew we were in the right place.
  ``So we sent the HMO a request for a follow-up visit to this doctor. 
One additional visit was approved. One. The HMO asked, `We have an in-
network provider. Why can't Breanna stay in-network?' Breanna's complex 
case requires experienced specialists that are not available in-
network, we explained.
  ``During the second appointment, a January 18 surgery date was set. 
It was critical that surgery be completed on schedule to prevent brain 
damage. Our doctor explained the role of a multidisciplinary team, 
including an assisting neurosurgeon and a geneticist. The mandatory 
referral request forms were sent to the HMO, along with all the 
required medical documentation. Our HMO questioned the medical 
necessity of each and every appointment and x-ray.
  ``At this point, the sixth precertification manager,'' sixth, ``to 
follow Breanna's case continued the company line and pressured us to go 
in-network. We again explained that our little girl's complex case 
required an experienced team of specialists who were not on staff at 
the in-network hospital. We were told that we were not following 
protocol and we should have known what we were getting into when we 
signed up for an HMO.
  ``Breanna's future quality of life and health was on the line. We 
simply could not sit back and risk delaying the surgery or the 
possibility of pending brain damage. Two weeks prior to the appointment 
with the multidisciplinary team of specialists, we filed a complaint 
with the Texas Department of Insurance.
  ``Authorization for the CT Scan and specialist visit had still not 
arrived 2 days before the scheduled appointments. After numerous calls 
to the HMO, I was advised that because the primary care physician had 
not forwarded the necessary documentation, a medical necessity decision 
could not be made on the geneticist and neurosurgeon's visits.''
  This mother was furious. Why? Because this mother works for Breanna's 
primary care physician, and she had witnessed the office insurance 
manager sending the requested documentation on many occasions.
  She continued. ``I had been in communication with the HMO by phone or 
fax at least twice a week for the entire month of November. I faxed all 
the requested documentation again for the fifth time. I received 
approval for the CT Scan and the surgeon and the geneticist visit 1 day 
before the preop appointments. The HMO reported no record of a request 
to see the neurosurgeon and again accused the primary care physician of 
not supplying the necessary information.''
  Remember, this is her boss. ``I faxed the requested documentation for 
the sixth time. After repeated phone calls and complaints, I received 
the last preop appointment authorization approval at 4:45 p.m.

                              {time}  2200

  The Texas Department of Insurance's investigation of our HMO must 
have helped Breanna's case. Suddenly, the intimidation and the 
obstruction ceased.
  This mother continued. I am sure many of you have children and can 
remember a time when they were ill. Remember the pain you felt as a 
parent when you wanted so badly for them to feel better, how much you 
wanted to take away their pain. Now, imagine a child with a severe 
craniofacial deformity, and magnify that pain and misery 10 times.
  Our hope today is that insurance companies will no longer be allowed 
to intimidate the families whose children suffer from birth defects or 
deformities. Families should never have to encounter the same obstacles 
we experienced. Please do not allow insurance companies to dictate who 
can or cannot treat these children. Many children with craniofacial 
deformities require the expertise of surgeons and other skilled medical 
professionals.
  Remember this is a child's face, and all children must be allowed a 
chance at a normal life. And she finished her testimony.
  I would say to my colleagues, this mother worked in a doctor's 
office, she knew how to negotiate the system. She knew that they had 
sent from the primary care doctor's office the information six times. 
What was that HMO doing? They were doing what they do all the time, 
they were delaying. They were denying. They were obstructing, because, 
you know, they figured that if

[[Page 5296]]

they do that often enough, a lot of people will not know how to 
navigate the system, and they will just give up.
  In this case, fortunately, for this little girl, her mother was an 
insider. She worked in a doctor's office and she knew how to navigate 
the system. But I ask my colleagues, how many of our constituents would 
have been able to have done what this mother did to get her daughter 
the kind of care that she needed?
  Another mother testified, her little daughter Brenna was born August 
25, 1987. This is her picture before surgery. You will note her 
craniofacial deformity. She has protrusive eyeballs. The middle face is 
forward. She has basically no jaw. Her eyes are widely set. This is her 
mother's testimony. We knew at the time of her birth that Brenna had a 
congential birth defect, but it was not until 2\1/2\ years that she was 
diagnosed with Hajdu-Cheney syndrome.
  Brenna has the abnormal facial features characteristic of this 
syndrome. Her eyes are set too far apart, with overgrowth of the eye 
sockets causing the eyeballs to protrude unprotected. Like any preteen 
girl, this is in the mother's words, as Brenna has grown older, she has 
become more and more aware and concerned with her appearance. But, 
unlike her peers who endure the usual adolescent bad hair days, Brenna 
suffers from the knowledge that she truly does look different.
  As you may have expected, Brenna has been teased by her peers. She is 
hurt by these remarks. It is not something that someone just gets used 
to; however, despite the emotional pain, she has hope. Through 
consultation with a reconstructive surgeon, we learned that 
reconstructive surgery is available to reconstruct her face to a 
semblance of normality. However, because of this severity of her 
deformity, she will need a series of operations.
  The first surgery was scheduled, a minor procedure, to see how well 
she would tolerate surgery. The remaining procedures would be more 
intensive, involving reconstruction of the bones around her eyes.
  With high hopes, we sent the preauthorization forms to our HMO. Two 
days before Brenna's surgery, we received a letter from Cigna 
HealthCare denying the first procedure. Brenna's surgery was 
categorized as ``cosmetic'' and, therefore, not a covered defect. See, 
we are back here again to the definition of medical necessity.
  When Brenna was informed of the insurance company's denial, she 
became distraught. She was worried that she could not have the surgery 
and also worried about the financial burden it would place on her 
family. We simply cannot understand how the insurance company could 
possibly consider her surgery ``cosmetic.''
  Simple every day activities, like a trip to the mall or grocery store 
are not enjoyable for Brenna. People stare at her. The looks come from 
other children, as well as adults. I have seen people go out of their 
way to get a better look. Brenna rarely says anything about it, but I 
watch her shift her position, this is her mother telling the story, 
usually trying to get behind me to avoid the stares.
  She may suddenly claim to have a headache and want to go home. At 
times like this, her mother continued, my fierce protective instincts 
kick in, and I shield Brenna as much as possible. However, this is part 
of Brenna's life every single day. I am not with her every moment. She 
is remarkably brave, but she is a child.
  Will she limit her participation in education and social activities 
fearing that she looks like a funny-looking kid? Without the medically 
necessary care she needs, of course, I worry about the lifelong impact 
that this may have on her.
  Her mother finished by saying, Brenna's craniofacial surgery will not 
be performed on a normal face to remove wrinkles or to make her face 
appear more youthful. Her reconstructive surgery will be performed on a 
face with congential abnormalities with the goal of constructing her 
face to appear more normal. These are not cosmetic procedures.
  She finished by saying, no family should have to wonder if their 
child will receive medically necessary care. No family should be forced 
to take on a financial burden for medically necessary care the 
insurance companies refuse to pay for.
  Insurance companies should be required to cover reconstructive 
surgical procedures for those children with congential or developmental 
abnormalities.
  I would add this, a famous surgeon from the Midwest a long time ago, 
one of the founders of the Mayo Clinic, Will Mayo had this to say, it 
is the divine right of man to look human. When somebody is born with 
their eyes on each side of their head, they do not look human.
  This little girl has functional reasons why she needs surgery. Her 
eyeballs, as you can see, are very protuberant. When she grows older, 
that will get worse. It may even affect her vision, but it certainly 
leaves her eyes in an unprotected position because they are not 
surrounded as eyes normally are by a bony socket. She is at increased 
risk for trauma to her eyes.
  I would say this, even if that were not the case, it is an arbitrary 
definition by her insurance company to deny her the coverage of this.
  Let me talk about a few other types of medical necessity denials that 
HMOs have done. This woman with her family was denied a type of 
treatment for breast cancer by her HMO. She was featured on a cover 
story in Time magazine a few years ago. Her doctors and consultants 
recommended the treatment, but the HMO said it wasn't ``medically 
necessary.'' And they denied it, and this woman died.
  Mr. Speaker, I recently received a letter from an emergency room 
doctor in Iowa who had sent this letter to the medical director of an 
HMO in my home State. Let me read this letter to you. Dear Dr. so and 
so, Dear Dr. medical doctor, this letter is in response to the 
``educational'' letter I received from your HMO regarding the admission 
of, let us call him Smith, Mr. Smith presented with a hypertensive 
urgency to the emergency room, and after two doses of IV Trandate, his 
continued hypertensive urgency required hospital admission.
  He previously had a documented myocardial infarct and stent treatment 
in September 1999. He had been observed in the emergency room for 
persisting extreme elevation of his blood pressure, and he was admitted 
to the intensive care unit, because we cannot monitor patients in our 
emergency room by our hospital regulations in Marshalltown. His blood 
pressure became well controlled that night.
  He was discharged the following day. The patient's risk factors and 
extreme blood pressure elevation necessitated ICU admission for 
monitoring, and I had no recourse but to admit the patient.
  He had got an educational letter from the patient's HMO questioning 
why would that patient have to go spend a night in the hospital. He 
went on and continued, routine harassment by HMO organizations for 
cases like this demonstrates why physicians and patients will push 
Congress for legislative relief.
  I have to spend time responding to questions about a very 
appropriated mission when my time would be much better spent taking 
care of patients, especially when I was obligated by hospital 
regulations that the patient be admitted. Your HMO continues to place 
roadblocks and unnecessary obstacles in front of both patients and 
physicians for obtaining routine care.
  I will continue to fight inappropriate letters and hassles by HMOs, 
including yours, and I will do everything I can to try to see that the 
Federal regulations are changed, and HMOs have to be responsive both to 
their patients and the physicians taking care of those patients.
  Let me give you another example, Mr. Speaker, of the emergency care 
problems that could be taken care of if we could deal with the 
emergency care provisions in the Bipartisan Consensus Managed Care 
Reform Act that passed this floor, but also if we could take care of 
the problems as it relates to HMOs, employer health plans' ability

[[Page 5297]]

to define as medically necessary anything they want to.
  This is a well-known case of a young woman who fell off a 40-foot 
cliff, 50 miles, 60 miles west of Washington, D.C. When she was out 
hiking with her boyfriend, she fell off a cliff. She was lying at the 
bottom of the cliff with a fractured skull, broken arm, broken pelvis, 
semicomatose. Her boyfriend managed to get a helicopter in there.
  This is her picture as they are bundling her up to take her to the 
emergency room. They took her to the emergency room. They stabilized 
her. They put her in the hospital. She got IV morphine for the pain and 
was treated. Needless to say, she was out of touch with the world for 
several weeks.
  Her insurance company refused to pay the bill. Why, you ask. Well, 
because she did not phone ahead for prior authorization. Mr. Speaker, I 
just have to ask you, what was this young lady supposed to do? Was she 
supposed to have a crystal ball and know she was going to fall off this 
40-foot cliff and before that happened phone ahead and get prior 
authorization from her HMO?
  Then the HMO backed down a little bit and said, well, you know, once 
you were in the hospital, you should have phoned and let us know, we 
are still not going to pay your bill. She pointed out that she had been 
on IV morphine for a considerable period of time, and the thought just 
did not cross her mind that she had to phone her HMO.
  This young lady was fortunate, because the type of health plan she 
had enabled her to go to her State insurance commissioner, a State 
ombudsman, and get help, and the HMO ended up paying the bill.

                              {time}  2215

  But the problem, Mr. Speaker, is that most people in this country 
receive their health insurance through their employer, and those 
employer plans are shielded from state insurance oversight. So they 
have nowhere to turn when an HMO would arbitrarily say, you know, ``It 
does not fit our definition of medically necessary. We are just not 
going to pay for this.''
  Let me give you another example of a real live tragedy caused by an 
HMO's decision, which under current Federal law they can defend as 
``medically necessary.'' This was a little boy a few years ago, you see 
him here tugging at his sister's sleeve, who one night had a 
temperature of about 104 degrees. It is about 3 in the morning. His 
mother and dad look at him and they know he is sick and he needs to go 
to the emergency room, so they do what they are supposed to do, they 
phone their HMO. They dial that 1-800 number, and they get some clerk 
1,000 miles away, and they explain that little Jimmy here has a really 
high temperature and looks sick and he needs to go to the emergency 
room.
  That clerk makes a medical decision, over the phone, never having 
seen the child, and that decision is well, we will authorize a visit, 
but only to our hospital which is 60, 70 miles away. If you go, by the 
way, to another hospital as an emergency without our authorization, you 
will pay for that visit.
  So mom and dad bundle up little Jimmy and they start their trek about 
3:30 in the morning. It is stormy and rainy out. They live south of 
Atlanta, Georgia. The hospital that they have been authorized is clear 
on the north side, so they have to drive through Atlanta. Less than 
halfway there they past three hospitals with fine emergency rooms that 
they could have stopped at, but they did not have an authorization from 
that HMO.
  Not being medical professionals, they push on. Unfortunately, en 
route, before they get to the authorized hospital, little Jimmy has a 
cardiac arrest. Picture yourself as the dad driving frantically trying 
to find the hospital, the mother trying to keep this little baby alive. 
They go squealing into an emergency room entrance, mother leaps out 
carrying Jimmy, screaming ``help me, help me, help save my baby,'' and 
a nurse comes out, starts resuscitation. They get the IVs in, and they 
get little Jimmy back to life.
  Unfortunately, they are not able to save all of little Jimmy. At 
least as a contributing factor, his arrest en route, when he could have 
gone to a nearer hospital, Jimmy ends up with gangrene in both hands 
and both feet. No blood supply, both hands and both feet are dead. So 
the doctors have to amputate both hands and both feet. Here is a 
picture of Jimmy after his HMO treatment.
  Now, if this happens to you and your baby and your insurance is in an 
ERISA self-insured plan, an employer plan, your recourse, the 
responsibility of that health plan under Federal law, is simply to 
provide the cost of treatment, in this case the cost of Jimmy's 
amputations.
  Is that fair? Is that justice? Knowing that you, the health plan, are 
not legally liable for anything other than the cost of care denied, are 
you likely to skimp on definitions of medical necessity?
  Well, it sure happens, my friends. It sure happens, and it needs to 
be fixed, and the only way it can be fixed is for Congress to fix it.
  Jimmy today is able to pull on his leg stumps, his leg prosthesis, 
with his arm stumps, and he is able to hold a pen with his arm stumps. 
He does have bilateral arm prosthesis hooks, but he needs help to get 
them on. And he is a good little guy, and because of particular 
circumstances with his insurance, he was able to receive some 
compensation. But most people who would have gotten their insurance 
through their employers would not be able to recover anything other 
than the cost of care denied.
  So, my friends, as the conference is meeting, we need to adopt the 
provisions on external appeals that were in the bipartisan Consensus 
Managed Care Reform Act, the Norwood-Dingell-Ganske Act, that passed 
the floor of the House, and that basically said that if there is a 
disagreement between the patient or his parents and the company on a 
denial of care, that you can take that through an internal appeals, but 
then take it to an independent appeals board consisting of doctors that 
have no relationship to the HMO, and that that group of physicians is 
able to determine what is medically necessary, as long as it does not 
involve a specific exclusion of coverage in the plan, i.e., a plan 
might say our plan does not cover liver transplants. But as long as 
there is not a specific exclusion of coverage, then the independent 
panel ought to be able to make that determination, and these are the 
crucial words that need to be in the legislative language that comes 
out of the conference, that independent panel should ``not be bound by 
the plan's guidelines.''
  They can take the plan's guidelines under advisement, they can 
consider the patient's history, they can consider NIH Consensus 
Statement, they can consider the medical literature, all sorts of 
things, but they should not be bound by the plan's own guidelines.
  That is what is in the Senate bill. That is why the Senate bill is 
not worth the paper that it is written on, because it is a circular 
bill. It does not do anything. At the end of the day, it does not 
address the problem that you have to address if you are going to do HMO 
reform, and that is you have to break the Federal law that says that an 
employer health plan can define as medically necessary anything they 
want to, or can deny it, according to their own guidelines.


                                Tobacco

  Well, Mr. Speaker, I want to talk just a few minutes about probably 
the number one public health problem in the country today, and that is 
tobacco. Each year more than 400,000 people in this country die of 
disease related to tobacco. Mr. Speaker, that is more people than die 
in a single year combined from AIDS, automobile accidents, homicides, 
suicides, burns, certainly medical errors. You can add all those things 
together, and it is still less than the number of people that are dying 
each year from tobacco-related diseases.
  Each day in this country, each day, 3,000 children, 3,000 
adolescents, start smoking, and 1,000 of those kids will die of a 
disease related to smoking.
  As a surgeon, I have had to take care of people who have cancers of 
their mouth, that have required resection of most of their mandibles. 
In response to

[[Page 5298]]

that, many states have done settlements, including my own State of 
Iowa, so we are now seeing billboards like this one, which is in Des 
Moines. This was put up by the Attorney General of Iowa, Iowa 
Department of Public Health, Centers for Disease Control. It shows two 
Marlboro-type cowboys. ``Bob, I have got emphysema.'' There is another 
one in Des Moines that says ``Bob, I have lost my lung.''
  These will help, but we need to do more, because we know that the 
tobacco companies have in the past and are continuing to target and 
market kids. We know from internal tobacco company documents that they 
know that nicotine is one of the most addictive drugs we know of. It is 
more addictive, or at least as addictive, as morphine and cocaine, and 
they know that, the tobacco companies know, that the earlier they can 
get kids addicted, the harder it is to quit. That is why this cartoon 
shows big tobacco lighting up a ``kids'' cigarette with a ``victims'' 
cigarette, a chain smoker.
  And it is not just that the tobacco companies have marketed and 
targeted cigarettes towards kids. Did you know, for instance, Mr. 
Speaker, that a survey was done not too long ago that showed that 80 
percent of five-year-old children could associate cigarettes with Joe 
Camel?
  Tobacco companies are also marketing and targeting kids, especially 
high school boys, for smokeless tobacco, chewing tobacco. There are 
over 1 million high school boys today who regularly use chewing 
tobacco.
  I point out, Mr. Speaker, that we have not had tobacco spittoons in 
this House chamber for a long, long time.
  What is the consequence of chewing tobacco? Well, as a surgeon I can 
tell you firsthand what the consequences are. It is like this surgical 
specimen. This shows the teeth of the anterior lower jaw, part of the 
tongue, the lymph nodes underneath the jaw. This is a surgical 
resection for a cancer caused by chewing tobacco. And what have the 
tobacco companies done? Well, they have made that chewing tobacco taste 
good. They have tested the flavors to see which flavors would be 
enticing to kids, and that is how they get them hooked on that tobacco 
product.
  Just in Iowa alone, 37 percent of high school students smoke. Each 
year in Iowa, each year in Iowa, and we only have about 2.8 million 
people in my home state, each year 12,000 kids under the age of 18 
become new smokers. Each year in Iowa more than 3 million packages of 
cigarettes are illegally sold to kids.
  The number of people who die each year in Iowa from smoking is almost 
5,000. The number of Iowa kids alive today who will die from smoking is 
53,000.
  It annually costs Iowa $610 million to take care of diseases directly 
related to tobacco use. The Iowa government Medicaid payments directly 
related to tobacco use are $70 million.
  Mr. Speaker, I could go on with a whole bunch of statistics, but the 
reason that we are talking about this is that 3 weeks ago the Supreme 
Court by a 5 to 4 decision said Congress must authorize the Food and 
Drug Administration to regulate tobacco.

                              {time}  2230

  I can read from Sandra Day O'Connor's closing statement. The Supreme 
Court said that because there are implications for other regulatory 
agencies. But that did not mean that they did not think that Congress 
should do that, and they certainly did not think or give any 
indications that there would be anything unconstitutional with Congress 
giving the FDA that authority.
  Here is what Sandra Day O'Connor said:
  ``By no means do we question the seriousness of the problem that the 
FDA has sought to address. The agency has amply demonstrated that 
tobacco use, particularly among children and adolescents, poses perhaps 
the single most significant threat to public health in the United 
States.'' Justice O'Connor is practically begging Congress to grant the 
FDA authority to regulate tobacco.
  So last week I introduced, along with the gentleman from Michigan 
(Mr. Dingell), a bill that would do that. The bill simply says that the 
FDA has authority to regulate tobacco; that the 1996 FDA regulations 
would be law.
  Let me point out, Mr. Speaker, that this is not a tax bill. There 
would be no increases in the price of cigarettes with this bill. This 
is not a liability bill. This does not confer any legal immunity to 
tobacco companies.
  This is not a prohibition bill. I have in this bill a provision that 
says that the FDA does not need to ban this substance. All of the 
health groups agree that we cannot just cold turkey all of the addicted 
smokers out there. After all, this is a very strong addiction.
  The bill has nothing to do with the tobacco settlement.
  This bill simply recognizes the facts: Tobacco and nicotine are 
addicting. Tobacco kills over 400,000 people in this country each year. 
Tobacco companies have and are targeting children to make them addicted 
to smoking. The FDA should have congressional authority to regulate 
this drug and, as they put it, the ``delivery devices.'' That is in the 
tobacco companies' words, those cigarettes are drug delivery devices.
  Mr. Speaker, I just want to call on my colleagues to cosponsor this 
legislation. This is H.R. 4207. As I said, I introduced this with the 
gentleman from Michigan (Mr. Dingell). Here are some of the people who 
are currently already cosponsors:
  The gentleman from Iowa (Mr. Leach), the gentleman from California 
(Mr. Waxman), the gentleman from California (Mr. Cox), the gentleman 
from Iowa (Mr. Boswell), the gentleman from Utah (Mr. Hansen), the 
gentleman from Arkansas (Mr. Snyder), the gentleman from Maryland (Mr. 
Gilchrest), the gentlewoman from New York (Mrs. Maloney), the 
gentlewoman from Maryland (Mrs. Morella), the gentleman from Virginia 
(Mr. Moran), the gentlewoman from New Jersey (Mrs. Roukema), the 
gentleman from Washington (Mr. McDermott), another physician, just like 
the gentleman from Arkansas (Mr. Snyder), the gentleman from California 
(Mr. Horn), the gentleman from Texas (Mr. Brady), the gentleman from 
Arizona (Mr. Salmon), the gentleman from New York (Mr. Gilman), the 
gentleman from California (Mr. McKeon), the gentlewoman from Colorado 
(Ms. DeGette), the gentlewoman from California (Mrs. Bono), the 
gentleman from Oregon (Mr. Blumenauer), the gentleman from Florida (Mr. 
Weldon), the gentleman from Massachusetts (Mr. Markey), the gentleman 
from Illinois (Mr. Porter), Mr. Barrett, the gentleman from California 
(Mr. Bilbray), the gentleman from Massachusetts (Mr. Olver), the 
gentleman from California (Mr. Cunningham), the gentleman from Nebraska 
(Mr. Bereuter), the gentlemen from California, Mr. Gallegly and Mr. 
Hunter, the gentlewoman from New York (Ms. Slaughter), the gentleman 
from California (Mr. Campbell), the gentleman from New Jersey (Mr. 
Smith), and the gentleman from New York (Mr. Weiner).
  These are just cosponsors. Many others are looking at this bill. This 
is a very, very important issue that Congress should address. We need 
cosponsors for this. It will not be easy to get an FDA tobacco 
authority bill to the floor. But the more people that we have sign up 
for this, the better the chances are that we will have to address the 
number one public health problem in the country today, and especially 
for children.
  Once again, I call on my colleagues from both sides of the aisle to 
join in a bipartisan effort to do the right thing. As I said, this is 
not a tax bill. This is not a liability bill. This bill would allow the 
FDA to regulate tobacco, especially as it is marketed and targeted to 
children, and it would allow the 1996 regulations to go into effect.
  These are the regulations that the FDA put out that said, tobacco 
companies cannot market kids. They cannot put billboards up by schools, 
they cannot put tobacco enticement ads into children's magazines. 
Vending machines, cigarette vending machines, need to be in adults-only 
places so kids cannot just go and get cigarettes, and that kids should 
be carded to make sure they are the proper age before


they can receive cigarettes. Those are reasonable regulations.
  Also, we ought to have full disclosure on the contents of tobacco 
products as well, not proprietary trade secrets.

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