[Congressional Record (Bound Edition), Volume 147 (2001), Part 10]
[House]
[Pages 14165-14171]
[From the U.S. Government Publishing Office, www.gpo.gov]



   PATIENTS' BILL OF RIGHTS: EMPOWERING PHYSICIANS AND THEIR PATIENTS

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 3, 2001, the gentlewoman from Connecticut (Mrs. Johnson of 
Connecticut) is recognized for 60 minutes as the designee of the 
majority leader.
  Mrs. JOHNSON of Connecticut. Mr. Speaker, I rise in strong support of 
the Fletcher-Peterson-Johnson bill, and I appreciate the opportunity to 
talk to people about the strength of our approach to providing people 
with the right to sue if they have been harmed by a plan or a decision 
that their plan made. It is absolutely wrong for an HMO to have the 
power to deny needed medical care to a participant in that plan. That 
is something that, frankly, we all agree on.
  What we do not agree on exactly is the process by which we achieve 
that goal. I want to make sure that at the same time we provide 
patients with a right to sue their HMO, we do it in a way that returns 
power and control over our health care system back to physicians. I do 
not want a solution to patients' rights that empowers lawyers over 
doctors, or puts in place such a complex system that resources 
hemorrhage out of our health care system into our legal system, 
diminishing not only the rights of patients but the possibilities of 
those who participate in plans for medical care.
  Mr. Speaker, I think through this discussion tonight we can make 
clear that our goal is to empower physicians, to return control of our 
health care system to physicians and patients, to doctors and the 
people they care for, where it ought to be; and to make sure that in 
the process of reform, we create new rights of access, we guarantee a 
new and objective external appeal process, but we do not transfer power 
that plans now have and should not have to lawyers for them to have, 
when they should not have it. So this is all about patients' rights and 
doctor power, and that is what we want to talk about tonight.
  Mr. Speaker, I yield to the gentleman from Kentucky (Mr. Fletcher), 
who is the lead sponsor of this legislation.
  Mr. FLETCHER. Mr. Speaker, I thank the gentlewoman. I certainly 
appreciate all the work that we have done together and the 
gentlewoman's help in making sure that we have a piece of legislation 
that truly is focused on patients and focused on getting patients the 
health care that they need.
  Mr. Speaker, all of us have heard the tragedies of HMOs, and there 
are many out there, and I think we can all relate to that. As a 
practicing family physician, I remember many episodes where I had a 
conflict with the HMO, trying to get the treatment that the patient 
needed. So I think all of us agree that there are tragedies out there 
where patients did not get the treatment they needed, or where they 
were misdirected to a distant ER and something happened. We want to 
make sure that we correct those problems and that we get patients the 
care that they need.
  That is why when the gentlewoman from Connecticut (Mrs. Johnson) and 
the gentleman from Minnesota (Mr. Peterson) worked on this bill, and a 
number of others who have worked very hard on it, we focused primarily 
first on patients and getting the care. We wanted to make sure that we 
no longer saw a system where insurance bureaucrats made medical 
decisions but rather physicians made medical decisions.
  We also did not want to go to the extreme of other folks saying, let 
us let lawyers and judges make the medical decisions. That is not right 
either. First off, the ability to get that treatment is impaired. It 
may take years to get a settlement, well after the medical treatment is 
needed. Secondly, judges and lawyers are not trained to make those 
medical decisions. So we established a bill that focused on getting the 
care patients need.
  Now, let me compare, because I have a chart here that compares the 
basic elements of the patient protections in the two bills. Our bill, 
which is the Johnson-Fletcher-Peterson bill versus the Ganske bill, or 
the Kennedy-McCain bill. First, emergency access. We both ensure that 
the patient can get the emergency room care that they need.
  We also ensure something called point of service. What that means is 
that one has an option of going to any physician. If one wants to get 
that plan, one can go to any physician out there. They may not be a 
physician that is part of even that network of the HMO, and a company 
will offer a plan that you can purchase that will allow you to see a 
physician that you trust that may not be a member of that network. You 
can see your OB-GYN doctor directly. You can take your children, and I 
know that this is very important for families, to ensure that their 
children have access to that pediatrician that has been trained 
especially to take care of the problems of children. We provide direct 
access to pediatricians.
  Specialty care. To make sure that there is an adequate coverage of 
specialists out there to bring the latest, the state-of-the-art of 
medicine, to the patient's bedside. We want to make sure that there is 
continuity of care, that if, all of a sudden, the contract is removed 
from the physician, that there is a solution.
  For instance, if you are a young lady and you are being covered by a 
physician or he or she is your attending physician and you are about to 
deliver a child, we make sure that you can continue that continuity of 
care, that you can continue to see that physician, and that you get the 
care that you need throughout, even though they are no longer working 
with that HMO, that they can do that until the delivery is completed 
and postpartum care is completed as well.
  We do not allow any gag clauses. We do not allow HMOs to tell 
physicians, you cannot tell your patients what medical treatment they 
need. So we stop all of that, just like the other bill.
  Clinical trials. We make sure that if there is a clinical trial that 
is out there that may give someone a hope of a cure for a disease that 
we make that available.
  We make sure that you get plan information, just like the other bill.
  We make sure that there is an appeals process; that if an HMO says, 
we do not think that is covered, that you can get an internal and 
external appeal. What does that mean? That means that you can appeal it 
to a panel of experts. We have set quality number one in this bill. We 
have established a criteria for this external review, the highest 
standards in the country, a consensus of experts of national opinions 
and what we call the referee journals, those medical journals that 
drive the state of the art of medicine. So we establish the highest 
quality of any bill. Actually, our quality of care standards are higher 
than any other bill here.
  We make sure that the prescription drugs that you need are there, 
that if it is not on the formulary and you cannot tolerate the drug 
that is on the formulary, that there is access to a drug that may not 
be on the formulary, but because you cannot take the medication that is 
on the formulary, you get another medication.
  We make sure that there is the liability, that there is the redress 
so that one can hold HMOs accountable.
  Now, one way we hold them accountable is we make sure that if an 
insurance company does not comply with this panel of expert physicians, 
this high gold standard, that if they do not comply with that and give 
the treatment that one needs, we hold an HMO liable in exactly the same 
manner that a physician is liable.
  The other side has about 19 pages of criteria that have to be met. 
Nobody knows how the States are going to respond to that. We are seeing 
a decision from the Department of Justice saying that we are not sure 
how the States are going to respond to 19 pages of Federal mandates on 
State courts. That is unprecedented. But we make sure that the HMO is 
held accountable if they do not comply with those panel of expert

[[Page 14166]]

physicians, the same way a physician is held accountable.

                              {time}  1945

  There is no difference in our bill. We make sure that there is tight, 
focused accountability.
  We also provide, and let me talk about it, immediate access and 
instant remedy. When we focus on patients, that is what we want to see.
  We also provide the opportunity for small businesses to come together 
and to offer a national health plan. That will save an estimate of 10 
percent to 30 percent on premiums.
  I have not talked to anyone out there, Mr. Speaker, that is not 
interested in the cost of health care and of seeing that going up 
double digits this year. So being able to decrease the cost of health 
insurance, make that more accessible, allow more small businesses to 
offer health insurance is one of our goals. I believe we accomplished 
it.
  It is estimated that 8.5 million Americans will be able to get 
insurance that do not have insurance today. We hold HMOs accountable; 
and we weed out bad players, as I have said. We make sure that the 
medical decisions are made by doctors.
  The Kennedy bill and the Ganske-Dingell bill, what they say is that 
if one does not get the treatment immediately, if they just allege 
harm, they can go to court. What does that do? That does not, first, 
get the patient the treatment they need, and it also increases the 
number of junk or frivolous lawsuits. We will talk about that in a 
minute and what effect that has on patients' ability to get affordable 
health care.
  We make sure that one does not have to go to a judge, that one can go 
to a doctor to get an opinion. Then if the HMO is a bad player, we hold 
them accountable.
  We enable small businesses, as I said, to offer health insurance. 
Most importantly, when we talk to the American people, Mr. Speaker, 
what we find out is that the American people are very, very concerned 
about the health care they get through their job. I have some farmers 
in my district whose spouses go to work simply so they can get that 
health care.
  The other bill may impact that to the point where individuals will 
lose the health care they get through their work. In Kentucky, that 
estimate is 40,000 to 80,000 Kentuckians will lose their health 
insurance because of the Ganske-Dingell bill.
  Again, we protect the health care Americans get through their jobs. 
We provide all patients with patient protections. By setting that gold 
standard by that independent review of panels, we raise the standard of 
the quality of health care.
  When we look at insurance premiums, ours, when we figure the total 
bill with those association health plans and something else called 
Medical Savings Accounts, where one can set aside some money to use for 
health care expenses, ours shows that we will have a net decrease, if 
we look at the premiums. Theirs will increase by about 4.2 percent.
  We do not think we will increase lawsuits. Actually, we will get the 
care and have less lawsuits than they will, but yet we will weed out 
bad players.
  We estimate that we may decrease totally by 7 million the number of 
uninsured. They may increase it for some up to 9 million.
  Health care quality, we believe we can actually increase health care 
quality with this bill, which is a primary concern.
  We want remedy, we do not want retaliation. We know there is a lot of 
emotion. As a physician, I can say there are many times when HMOs 
angered me. But the motivation for passing a good patients' bill of 
rights is remedy, not retaliation. We want to make sure one gets 
immediate help, not unlimited or frivolous lawsuits.
  We want to make sure one has access to State courts if the managed 
care company refuses to give what the experts say. There are no caps on 
many of their decisions, and that means premiums are going to go up. We 
have access also to Federal courts if it is a coverage decision.
  Why is it very important to make sure that we provide health 
insurance? Why are we so concerned about the uninsured? I am 
disappointed in the other side. I think we both have a very similar 
motive, but their bill has what I call truly a flagrant disregard for 
the uninsured.
  When we look at the simple fact, and this comes out of the Journal of 
American Medical Association from November 19, 1997, this was an 
article that said that a patient without health insurance is three 
times more likely to die than patients with health insurance. So when 
we talk about driving up the number of uninsured, we have a tremendous 
impact on the health and well-being of Americans. That is why it is so 
important to focus on the uninsured.
  Look at this map. We currently have 43 million Americans uninsured. 
If we look at, under the Ganske bill, there are 4 million more 
uninsured. If we look at the blue States and if we were to take the 
population of all those blue States, that is equal to the population of 
the number of people in the United States that have no insurance. That 
is where we should be focused.
  That means that 43 million Americans now are not able to go see their 
physician, not able to get the preventive health care they need, so 
when they do arrive in the emergency room their disease is further 
along. It is more advanced and less curable.
  If we pass the Ganske-Dingell bill, it is estimated that those red 
States, a population equal to the population of those red States would 
lose their health insurance. I do not think that is something we can 
afford in America.
  Let me say this, as we look at the differences, I think both of us 
have the same goal. That is to make sure we provide good patient 
protection. I think in their liability portion they are very misguided 
in the sense they turn decisions over to judges and lawyers instead of 
physicians. I think it is bad legislation, particularly for those that 
I call ``near-uninsured.''
  Who is it going to impact most? Low-income and minorities, that is 
who it is going to impact. I am surprised that the Democrats would take 
up this issue, because that is a constituency they always speak about 
having compassion for, yet their bill will impact them worse than any 
other portion of our society. Low-income and minority people are the 
ones that stand to lose the health insurance, those who are barely 
getting along, those families who are having to decide between putting 
food on the table and providing health care for their children.
  Under their bill, they may end up having to say, I am not going to 
take the food off the table, so I will have to drop health insurance. 
That is not right for America. That is not good for those most 
vulnerable in our country.
  I appreciate the opportunity, I say to the gentlewoman from 
Connecticut (Mrs. Johnson), to speak with her, and I thank her for all 
her work on this bill. I think we have an excellent bill. I thank the 
gentlewoman for the opportunity to share this time with her.
  Mrs. JOHNSON of Connecticut. Mr. Speaker, I thank the gentleman for 
joining us.
  I want to ask just one question to the gentleman, as a physician. Is 
it not true that under our emergency services section, where we 
guarantee people the right, if one's pain is severe enough that any 
prudent layperson would think someone needed to go to the emergency 
room, they can go to the emergency room and get care under our bill and 
under the other bill?
  But there is a unique aspect to our bill. That has to do with very, 
very young infants, where of course ``the prudent layperson'' rule is a 
little hard to apply. So we do take a different tack in that portion of 
the bill. If the gentleman would just talk about that, I think it would 
help people understand how thoughtful our legislation is.
  Mr. FLETCHER. Mr. Speaker, we wanted to make sure that the access 
there to the emergency was available to everyone, regardless of their 
age and regardless of their ability to be able to define what a 
layperson's definition is.
  So we make it very clear, and I think that is one of the reasons 
that, when we talk to the emergency room physicians across this Nation, 
they prefer

[[Page 14167]]

our provisions, so that no patient is without access to the emergency 
room.
  I mentioned in the beginning that some of the problems have been that 
a patient may call the HMO and they send them to a distant emergency 
room. We have eliminated that problem. We have solved that problem. We 
make sure that if one has an emergency, if one has severe pain or 
something where one feels or a layperson feels like it could threaten 
their health, they can go to the nearest emergency room, get that 
treatment from those physicians and health care providers, and they can 
be assured of being reimbursed for that.
  Mrs. JOHNSON of Connecticut. If they have a very sick infant and go 
to the emergency room, and in the opinion of the health professional, 
the prudent opinion of the health professional, that infant needs 
certain care, that infant can have the care that they need on the word 
of the health professional, as opposed to the prudent layperson's 
standard that pertains to me, if I were in pain or another adult if 
they were in pain.
  Mr. FLETCHER. Let me address this. A young mother sometimes is not 
sure whether an infant needs to come. I recall a situation where a 
young mother came and she gave me, after a few questions, a short 
history of this infant. She was not sure whether or not that infant 
needed to come in.
  At that point, I told her that, no, I think you need to come in 
immediately. When that child arrived there, it was very, very ill. The 
gentlewoman is absolutely right that it is very difficult sometimes on 
a layperson's judgment to define whether a young infant, a very young 
infant, is truly at a great deal of risk with their health care, and 
yet it requires health care professionals.
  So our provision for that gives a lot more protection to those young 
mothers and young infants.
  Mrs. JOHNSON of Connecticut. Mr. Speaker, I thank the gentleman very 
much for his time tonight. It is a pleasure to know that the emergency 
physicians were very involved in writing that provision, and we have 
very strong coverage and protection for emergency room care.
  Mr. Speaker, I yield to the gentleman from Georgia (Mr. Collins), 
from the Committee on Ways and Means.
  Mr. COLLINS. Mr. Speaker, I thank the gentlewoman for yielding to me.
  I really enjoyed the explanation of the gentleman from Kentucky on 
the health care provisions in both plans. That is what people are 
concerned about at home, that they want to better understand their 
health care insurance, what their coverage is, and what the plan 
consists of, more so than anything else.
  I have very few, and I cannot recall any, really, who have been to my 
office and said, ``Mac, I want you to pass legislation to let me sue my 
insurance plan and my employer.'' That is not what is on their mind. 
What is on their mind is the information that the gentleman from 
Kentucky (Mr. Fletcher) shared with us: ``What am I going to do about 
health insurance and health care coverage for me and my family?'' Those 
are the concerns.
  I have very few to call the office concerned about the denial of a 
service that they may need in the private sector. I do have quite a few 
calls when it comes to some of the, what I will call government-run 
HMOs, health management organizations, and those are Medicare and 
Medicaid.
  Thanks to the new administration and some of the things that are 
happening over at the Center for Medicare Services now, though, those 
calls have become fewer and fewer.
  We used to have a lot of calls about the Veterans Administration, but 
fortunately, we have had a lot of good, positive changes, especially in 
the Atlanta Region, with the VA. I have not received, in years, many 
calls.
  These are things that, as a Member of Congress, it is pleasing, 
because I feel like my constituency is being better served by those 
particular agencies.
  I say to the gentlewoman from Connecticut (Mrs. Johnson), there are a 
couple things I do have complaints about. One is the cost of health 
care. People say, ``Congressman, why is my health care so high? It is 
to a point where I cannot afford it. Why is insurance so high? I cannot 
afford coverage. I cannot afford the insurance. What am I going to do? 
What am I going to do?''
  One thing we should not do is subject the marketplace to provisions 
of law that may increase those numbers who cannot afford insurance or 
cannot afford to pay their health care costs. That is just something we 
do not need to do. I am afraid what we are looking at with this 
particular patients' bill of rights is the fact that we may increase, 
if we pass one particular provision, and that is the bill that the 
other parties have offered, the Ganske-Dingell bill, the McCain-Kennedy 
bill, that possibly we will increase the number of uninsured and raise 
the cost to a point that many cannot afford it.
  I have had health care management organizations to come by the office 
in Georgia, particularly the Jonesboro office, because it is closer to 
the Atlanta area, and talk to me, it has been 3 or 4 years ago, about 
health care and what they were going to do, how they were going to take 
care of the uninsured. One had some pretty slick brochures, they were 
just fancy, and they probably spent a lot of money on preparing them.
  I looked at them. We talked for a while. I said, ``These things are 
pretty. They are slick. A lot of good information here. My advice to 
you is to do what you say you are going to do in these brochures, and 
that is take care of those that you insure.'' I said they should heed 
the warning, because if they did not, there was going to be legislation 
before the Congress that will make them wish they had. That type of 
legislation I do not believe will be good for the marketplace, for 
those who are uninsured, or those who insure.
  Some companies have heeded that warning and made some changes, but 
many have not. I think the marketplace is where things should take 
place and where the reform in HMOs should take place. Employers, as 
they select plans, they select plans based on competition in the 
workplace for employees. It is a benefit. Some plans are better than 
others because some businesses can pay better than others.
  Labor contracts, many times labor in their negotiation will use 
health care coverage as part of their negotiation or their leverage. 
Insurance companies themselves providing insurance, they are 
competitive. They are competitive businesses.
  There is not just one insurance company, like we have with the 
insurance for our seniors, Medicare, or insurance for the poor, 
Medicaid. There are a lot of private sector insurance companies who 
compete for business. They compete on the basis of what they have to 
offer, the price of what they have to offer, and the satisfaction of 
those who receive the coverage under their plans.
  That is where the HMO reform should take place. That is the 
marketplace. But it is not. It is taking place right here in the halls 
of Congress. It worries me.
  We have, as we all know, the patients' bill of rights. Unfortunately, 
as I hear the coverage at home on the national media, they do not talk 
about provisions that the gentleman from Kentucky (Mr. Fletcher) talked 
about. They talk about ``this bill is all about people have the right 
to sue the insurance company.''
  Do Members know, I believe they have that right today. If someone is 
harmed by another individual, whether that individual is an entity or 
is a person, they have a remedy of law. They have a right to recover.
  I do not think what we are doing here is absolute in what we are 
trying to do as far as the marketplace is concerned. We have a choice, 
as I mentioned earlier. We have the Ganske-Dingell bill.

                              {time}  2000

  A lot of people at home know it as the Norwood bill, very similar to 
the one that passed over in the Senate. But I have to say that, based 
on my experience in business, my experience of having been in the 
Congress now for 8\1/2\ years, my understanding of people and a common 
sense approach to this issue, I do believe the gentlewoman has the 
better approach of all that has been

[[Page 14168]]

presented. I believe it has a less negative impact on employers. I 
believe it has a less negative impact on employees.
  Let us face it, most people obtain their health care insurance 
coverage at the workplace. That is where it happens. That is the 
benefit. That is the incentive that an employer offers to have someone 
work for them, or part of the incentive program. And the gentlewoman's 
bill puts at risk in a lesser fashion the employer when it comes to 
liability. As an employer for 38 years myself and in the type of 
business that I am in, trucking, have been since I was 18 years old, a 
lot of miles on the road, a lot of employees in accidents, I have been 
in court, and it is not cheap to go to court to defend yourself.
  I know that a lot of employers, if they are going to have to subject 
themselves to additional cost, the additional time and trouble of 
defending themselves based on a suit that may not be a viable suit, it 
may not be a real liability to them, but they have to go to court to 
prove that it is not or to have themselves removed from the case, what 
will happen, I am afraid, is that many employers will just say, hey, I 
am not going to do this. I am just not going to provide it.
  What if they do? What if they say, I will continue on. I will take 
that chance. What will be the result? I think it will be based on 
passage of legislation, whether it be either bill. I like the idea that 
the gentleman from Kentucky (Mr. Fletcher) put forth, that this may 
actually reduce costs, and I hope it does. I think the majority of the 
time, though, anytime the Congress gets involved in something, it 
always increases the cost, whatsoever it may be.
  But let us just look at a couple of comments that a group on Wall 
Street made about the potential of the McCain-Kennedy, or the Kennedy-
McCain, now that the Democrats are in the majority over there in the 
other body, or the bill that is before us from our side, the Ganske-
Dingell bill.
  These are the four things that they say could happen. They say, first 
of all, if the President were to sign either one of those two bills 
that they think that, similar to some insurance companies that are 
already out there, that they would just draw language for their plans 
that would more carefully and extensively exclude areas of services, 
regardless whether they are medically necessary. They would exclude 
them by taking out the words ``medically necessary.''
  They think that the plans would eliminate preauthorization so that 
they would not have to delay or deny care but merely make retrospective 
coverage decisions on claims after the care was rendered. Now, how 
would my colleagues like to get a notification saying, wait a minute, 
that $100,000 operation you had was investigative surgery, because the 
words medically necessary are no longer there? That would be stunning. 
It would be to me, anyway.
  Third, this group thinks that plans would raise premiums and fees to 
address potential costs of expanded liability and other patient bill of 
right provisions.
  And, fourth, businesses will adjust. If they decide to stay in the 
marketplace and provide the incentive for their employees, they will 
make the adjustments. I know they will. I have been there for 38-plus 
years and have made a lot of adjustments based on government 
regulations.
  They say that we think the sponsors, those who buy and make the 
decisions to purchase the insurance, would increase the beneficiary 
costs, the employees' cost with cost sharing, with higher deductibles, 
or coinsurance, or co-payments to offset such increases. So it will 
cost employees as well as possibly employers.
  The Ganske-Dingell bill, and I hate to take up so much of the 
gentlewoman's time here, but this thing has been bothering me for a 
long time and I just have not spoken out much on it, but it has 
bothered me as a Member of Congress and as an employer. They say 
employees are protected, but are employers protected? If they are, why 
do we not just say so with maybe some language that says the decision 
to purchase health insurance as an employee benefit is not subject to 
liability, because it is not a health care decision. Now, the 
gentlewoman has. The gentlewoman has accepted that type of language 
very similar to that, and that is good language because that protects 
that employer and the employee by not discouraging the employer to stay 
in the marketplace.
  I say to my colleagues, let us not jeopardize the insured that are 
out there today by jeopardizing the employers, their workplace; not 
only jeopardizing them for the possible loss of insurance coverage but 
jeopardizing from the standpoint that their share of the insurance 
coverage for their families more than likely will be increased.
  Well, that is all I am going to say for now, but I appreciate the 
gentlewoman's thoughtfulness. I know she has worked diligently on this 
legislation, and I hope that my colleagues will work and pay close 
attention to how this whole process will affect employees, insured, and 
employers who provide the coverage as a benefit.
  Mrs. JOHNSON of Connecticut. My colleague, the gentleman from Georgia 
(Mr. Collins), has made a series of very important points, but the most 
important point is that health insurance is the most important benefit 
that employees receive from employers and that in fact the only place 
people can get affordable health insurance is through their place of 
employment.
  If we provide access to specialist care and all of those access 
rights that we provide in this bill, which both bills provide and which 
do not in themselves cause any of the problems the gentleman is talking 
about; and if we provide a national process of independent review of 
decisions made by insurers to guaranty that those decisions do not deny 
needed care, which both bills provide and 41 States provide, that will 
not have the consequences that the gentleman fears. But if we provide 
the right to sue wrong, we will have the consequences the gentleman 
fears. And if businesses think they can be sued for what are 
essentially malpractice decisions, they will drop their plans or 
increase costs.
  Just to give my colleagues a little example of how important this is, 
in last year's alternative bill we had a system for protecting 
employers. The employers, frankly, did not think we were right, and 
they did not support it. But it was the best we could think of at the 
time. It said if you did not directly participate in the decision, then 
you could not be sued. But direct participation turned out to be a 
pretty long chain, and a lot of people got swept into it.
  So this year, as we move forward, we thought harder about that issue 
of protecting the employer, who, after all, is only doing his employees 
the good service of having a plan and paying for it for them. So we 
came up with a new way of protecting employers. And one of the things 
about our bill, the Fletcher-Peterson-Johnson bill is that it has a 
simple, clean mechanism for protecting employers. The employer simply 
appoints a dedicated decisionmaker, and under his plan he then is 
protected from suit.
  Now, in the other bill, realizing what a good idea we had, in the 
Senate they added that designated decisionmaker into the bill. But they 
just laid it on top. So now their bill has two systems. What that does 
is to create court cases about which system. That is the kind of way in 
which the other bill, in its complexity, invites litigation, explodes 
litigation, drives up costs, drives up premiums or copays, or reduces 
coverage or, in fact, forces employers to drop their plans.
  So when we talk about the fact that our bill better protects 
employers and protects the employees' insurance, it is right there in 
black and white. It is in the provisions. Their provisions drive 
inappropriate litigation. Our provisions only help the person who was 
harmed by not getting the medical care they deserved. And that person, 
under our bill, has the right to sue.
  I thank the gentleman from Georgia for joining us and talking about 
this.
  Mr. COLLINS. If the gentlewoman will yield further, they should have 
that right, and I think they have that right today.

[[Page 14169]]

  I am still very concerned about the language, though, of appointing a 
decisionmaker. Because that can be questioned, too. But if the decision 
to purchase the insurance is not subject, because it is definitely not 
a health care issue.
  Mrs. JOHNSON of Connecticut. That is right, and that is very clear 
under our bill, that that is not a health care decision.
  Mr. COLLINS. Well, I hope it is, and I think it is, because I have 
been assured that that is my amendment that the gentlewoman has 
accepted. I thank her.
  Mrs. JOHNSON of Connecticut. That is right.
  Now, I would like to recognize my colleague from Arizona (Mr. 
Hayworth), also a member of the Committee on Ways and Means, and I 
appreciate his being with us tonight.
  Mr. HAYWORTH. Mr. Speaker, I thank the gentlewoman from Connecticut 
for yielding to me. I listened with great interest to the gentleman 
from Georgia and, preceding me in this well of the House, the gentleman 
from Kentucky (Mr. Fletcher), the principal sponsor of the true 
bipartisan Patients' Bill of Rights. Because make no mistake, my 
colleagues, we have a clear choice on this floor for all of America 
later this week: Will this House stand for a true patients' bill of 
rights or, in the games of special interests, will this House, instead, 
pass a trial lawyer's right to bill.
  The gentleman from Kentucky made the case. The gentleman from Georgia 
made the case. Let us reaffirm the principles so important to us. As I 
see here tonight we are joined also by the gentleman from Pennsylvania 
(Mr. English), whose district, as most districts in this country, 
really embraces the work ethic and the notion of getting one's money's 
worth and the quality of life, and I think these underlying principles 
form the foundation of our actions.
  Number one, when someone is sick, they do not go to see a lawyer. 
They want to see a health care professional, a health care provider of 
their choice, a doctor to help them solve that problem.
  Number two, should there be a dispute about insurance, most 
individuals want health care professionals who understand the concept 
of continuity of care, who understand the concept of the illness that 
that person faces making decisions, rather than ending up in court.
  The basic thought, Mr. Speaker, is this: We all want help from 
medical professionals rather than a court date that can stretch on and 
on ad infinitum instead of getting quality health care. That is the key 
decision we confront.
  Mr. Speaker, I was frankly amazed to hear my good friend, the 
gentleman from Illinois (Mr. Davis), come up a bit earlier this evening 
and talk about the profit motive and the evils that were imputed to 
profits. Because were we to follow the line of reasoning as relevant as 
headlines in The New York Times of 3 weeks ago, how shocking was the 
news we had about the trial lawyers' lobby and the dispute involving 
the Ford Motor Company and the Firestone Tire Company. The New York 
Times, not exactly a conservative journal, the New York Times pointed 
out that the trial lawyers involved in that case made a conscious 
decision to conceal the facts. To help protect public safety? No, to 
protect their case in court. And almost 200 fatalities resulted in the 
time from the discovery of the defect until the courtroom shenanigans 
to get a big decision.

                              {time}  2015

  When we talk about the common interest in the public health and 
public welfare, who is culpable there? I say we better not go down that 
path, we better not surrender health care rights to the trial lawyers' 
lobby. Yet, the choice we will have on this floor is crystal clear.
  We can succumb to the siren song of the clever and those who wrap 
their message of higher fees in the language of love and counterfeit 
compassion; or, instead, we can vote for a bipartisan measure, the 
principal architect of whom has dealt with patients in his primary 
calling in life in a bipartisan way to focus on health care for 
Americans. That is the simple choice when we take it all away. Are we 
for lawyers or are we for doctors and health care professionals helping 
Americans make the right decisions for their health care? That is what 
we will confront this week on the floor.
  Mr. Speaker, I yield back to the gentlewoman from Connecticut (Mrs. 
Johnson).
  Mrs. JOHNSON of Connecticut. Mr. Speaker, I think the gentleman from 
Arizona (Mr. Hayworth) is absolutely right. This is about whether 
doctors will regain control of America's health care system.
  At the hearing before our subcommittee of the Committee on Ways and 
Means, every single example that the trial lawyers gave could have been 
solved more rapidly under the system in our bill and for $50.
  I ask, what is in the patients' interest? What is in the patients' 
interest is that they get the care they need and they get the care they 
need when they need it, that they do not go to court and face the long 
dragged out process of the court and face the high cost of a court 
case.
  It was really sad to sit there and hear every single example the 
trial lawyers' representatives gave and to see how this could have been 
resolved so much more rapidly, with so much less suffering and harm on 
the part of the patient and their whole family and of the caring 
physician under our system.
  My colleague is absolutely right. This is a big vote about whether 
patients and doctors are going to be at the heart of America's health 
care system in the future.
  Mr. Speaker, I thank the gentleman from Arizona (Mr. Hayworth) for 
joining us today. Mr. Speaker, I welcome my colleague from Pennsylvania 
(Mr. English), who has been very active in so many issues that touch on 
the heart and life of the people of his district, to this discussion.
  Mr. ENGLISH. Mr. Speaker, I want to thank the gentlewoman from 
Connecticut (Mrs. Johnson) for yielding to me. I particularly want to 
thank her and the gentleman from Kentucky (Mr. Fletcher) for their 
leadership along with the gentleman from Minnesota (Mr. Peterson) in 
moving this debate forward.
  I believe that the House is going to make a momentous decision in the 
next few days. A decision which could either lead our health care 
system forward on a path of quality or, on the other hand, could lead 
to an unraveling of our longstanding system of health care based on 
employer-provided benefits. My fear is that the House may make the 
wrong decision. But thanks to the heroic efforts of the gentlewoman 
from Connecticut (Mrs. Johnson) and the gentleman from Kentucky (Mr. 
Fletcher) and others, there is an alternative, a commonsense 
alternative.
  Mr. Speaker, I came to the House in 1994 as an advocate of health 
care reform. I have concluded, Mr. Speaker, that today the best 
medicine for patients is a modernization, an improvement of the health 
care systems for all Americans, while at the same time having an 
initiative to make it more affordable and accessible. We must make sure 
that our health care system works while preserving competition in the 
free market. Every family deserves health care that can never be taken 
away.
  Congress must move this week to adopt health care reform that moves 
us down the path toward universal access to affordable care. In my 
view, the version of the patients' rights bill of the gentleman from 
Kentucky (Mr. Fletcher) is the one that does precisely that. I am an 
original co-sponsor of this bill because it recognizes that 
strengthening patients' rights is the first and seminal step to 
successfully reforming health care.
  Mr. Speaker, I am urging all of my colleagues tonight to back the 
Fletcher bill because ensuring patient access to affordable quality 
health care should be the focus of any reform effort. We need to put 
patients back in charge. That means establishing quality standards for 
all health plans, allowing doctors and patients to make health care 
decisions.

[[Page 14170]]

  Mr. Speaker, I am happy to say that after years of examining managed 
care reform legislation and as a member of my colleague's subcommittee, 
a great deal of consensus exists as to what a Federal patient 
protection bill should include. I believe there is also strong 
bipartisan agreement that Congress should act quickly to extend patient 
protections to all Americans. The plan of the gentleman from Kentucky 
(Mr. Fletcher) does exactly that, by providing patients with the tools 
they need to protect themselves and to ensure that they have quality 
health care coverage now and in the future.
  This bill provides patients with better access to information about 
their health care coverage. It requires plans to provide patients with 
detailed plan information with an explicit list of covered and excluded 
services and benefits.
  Unlike other proposals, the plan of the gentleman from Kentucky (Mr. 
Fletcher) requires the plan to disclose their formulary if requested. 
H.R. 2315 reopens the door that allows patients and doctors to work 
directly together to decide the best course of treatment, rather than 
focusing on insurance company guidelines and regulations. It ensures 
that patients have the right to choose their doctor with continuity of 
care protections. These protections allow patients who have an ongoing 
special condition such as cancer or even a pregnancy to have continued 
access to their treating specialist in cases where the specialist has 
been terminated from the plan or if the plan is terminated.
  H.R. 2315 eliminates the so-called gag rule by prohibiting health 
plans from restricting physicians giving patients advice about their 
health and what is the best for them. Additionally, this legislation 
does not forget the special health care needs of women and children by 
allowing immediate access to gynecologists, obstetricians, and 
pediatricians. It also provides access to specialists.
  The bill of the gentleman from Kentucky (Mr. Fletcher) provides a 
provision that says patients cannot be denied emergency care coverage 
because the visit was not preapproved. The plan says if a prudent 
layperson believes that a symptom requires immediate medical attention, 
including emergency ambulance services, then the insurer must pay for 
the care regardless of whether it is a network facility. We do not want 
to let insurance providers drive the industry to a point where, in an 
emergency, patients are calling their insurance companies before 
dialing 911.
  The plan also requires coverage of routine medical costs for patients 
enrolled in any government-sponsored cancer clinical trial which 
includes FDA trials under which about two-thirds of all clinical trials 
occur. It also prohibits insurance providers from denying coverage on 
FDA-approved drugs or medical devices by classifying them as, quote, 
``experimental'' or ``investigational.''
  This legislation provides patients with the best access to 
prescription drugs by allowing doctors to request off-formulary drugs 
for their patients and for plans to consider side effects and efficacy 
in their determination.
  Mr. Speaker, American families are concerned about their health care; 
but we cannot address the quality of care without addressing the cost. 
Those without health insurance are not just the indigent. It is the 
small business owners, the self-employed who cannot afford the 
premiums. It is young people. It is a broad cross-section of America. A 
staggering 44 million Americans cannot afford or do not have health 
insurance.
  Studies show that other proposals being offered in the House as an 
alternative to the bill of the gentleman from Kentucky (Mr. Fletcher) 
could force 6 million more Americans into the ranks of the uninsured. 
On the other hand, studies show the plan of the gentleman from Kentucky 
(Mr. Fletcher) would help provide 9 million uninsured Americans vital 
access to coverage by expanding association health plans and repealing 
all restrictions on access to medical savings accounts, tax-favored 
accounts that give the patients themselves ultimate control over their 
own health care.
  Another notable feature that puts the proposal of the gentleman from 
Kentucky (Mr. Fletcher) above the other proposals which claim to 
protect patients is support from the Bush administration. President 
Bush has promised to sign this bill saying, ``I believe the Fletcher 
bill will help enhance the great medical care that we have in our 
country.''
  I could not agree more, and I am pleased that the President has put 
the needs of patients first by lending his support to this bill. Health 
care reform is complicated, much more complicated than many would have 
us believe. We must protect patients by advocating strong patient-
focused health care reform.
  Mr. Speaker, I will reiterate, strengthening patient protections, 
strengthening patients' rights is the key to reforming health care. I 
strongly support H.R. 2315. I salute the gentleman from Kentucky (Mr. 
Fletcher) and the gentlewoman from Connecticut (Mrs. Johnson) for their 
efforts.
  Mr. Speaker, I support this as a plan to reform managed care that 
promotes quality care and restores the doctor-patient relationship. My 
hope is that my colleagues can join us in rallying behind this 
initiative as a bipartisan basis for moving finally a patients' bill of 
rights forward, moving it back to the Senate, and getting a consensus 
that we can get a Presidential signature on.
  I believe this is all achievable in the immediate future if we can 
work together on a bipartisan basis in this body. I thank the 
gentlewoman for playing a critical role in creating that bipartisan 
environment that is allowing us to move forward and have this vote and 
hopefully move forward to success.
  Mrs. JOHNSON of Connecticut. Mr. Speaker, I thank the gentleman from 
Pennsylvania for his comprehensive remarks on this issue. This is an 
extremely important debate we are going to have. I personally believe 
that every patient, everyone who has health insurance and needs medical 
care, has the rights of access to quality care that are guaranteed in 
our bill and in the other bills. That is the right for a woman to 
choose an OB-GYN specialist, the right to choose pediatric care, and 
other specialists, to emergency care, to continuity of care, to access 
to proper information about one's plan, access to treatment under 
clinical trials, something I fought 5 years for for Medicare recipients 
so they could have the benefits of clinical trials, protection from gag 
rules, and things like that.
  These patients' rights embodied in our legislation are extremely 
important. Yes, they can only be enforced if a patient who is denied 
access has the right to sue. I am proud to say that in our bill, a 
patient who is denied needed care and harmed by that decision has the 
right to sue and gets redress. But the program we put out to guarantee 
patients the right to sue under our bill is a legal structure that is 
simple, that is direct, that makes it clear to employers that they 
cannot be sued if they are not making medical decisions; and, 
therefore, it is affordable and will not push costs up.
  Mr. Speaker, we limit liability in a responsible fashion, just as 
they do in Texas and in many, many States that provide the right to 
sue. By doing that, again, we control costs and we protect the 
employers who are the primary folks who are providing health insurance 
to the people of our country.
  Mr. Speaker, I am very proud that the gentleman from Kentucky (Mr. 
Fletcher) and others have been part of the team that have developed 
this legislation, that it offers to the American people all of the 
access rights, all of the protections they need to both continue to 
enjoy health insurance through their place of work and to have the 
right to all needed medical care. This is a patients' bill of rights. 
This is a doctor-power bill.

                              {time}  2030

  But if we do this wrong, if we do not really listen to what might 
happen if we write these provisions in a way that is insensitive to 
what happens when

[[Page 14171]]

frivolous suits are brought to the table, when costs shoot up for all 
the wrong reasons, then in fact we will do damage to the rights of 
patients and we will deny many currently covered the great privilege 
and pleasure of health security through health insurance.
  I enter this week with high hopes that we in the House can do the 
right thing to provide access and care to all who have insurance. I am 
proud to say that the American College of Surgeons, the College of 
Cardiologists, the thoracic surgeons, the orthopedic surgeons, the 
neurologists, and I could go on and on, enough groups of doctors 
support this bill so that we have that same doctor power behind this 
bill as the AMA that supports the other bill.
  But it is very interesting. The groups that support our bill are the 
very groups who are most concerned about patient access to their 
services, because they are the specialist groups. They are the ones 
that under the current system most frequently are not able to reach the 
patients that need their care.
  So I am proud of this legislation. It will serve the people of 
America well. The bills have much in common. I hope working together we 
in this House and our colleagues in the other body can send to the 
President's desk a Patients' Bill of Rights that will serve patients, 
doctors and all Americans and maintain the strong system of employer-
provided health insurance that has made the American health care system 
the best there is in the world.

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