[Congressional Record (Bound Edition), Volume 147 (2001), Part 10]
[House]
[Pages 14755-14757]
[From the U.S. Government Publishing Office, www.gpo.gov]



                               HMO REFORM

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 3, 2001, the gentleman from Iowa (Mr. Ganske) is recognized for 
half the time between now and midnight as the designee of the majority 
leader.
  Mr. GANSKE. Mr. Speaker, we have some important issues coming up in 
this next week, I hope. One of those, I hope, will be a full debate 
with a fair rule on a patient's bill of rights.
  We have been working on this legislation for about 5 years, and when 
we had this debate here on this floor 2 years ago, a young man and his 
mother came up from Atlanta, Georgia, to see how the debate would go. 
This little boy's name was James Adams.
  When James was 6 months old, one night about 3 in the morning, he had 
a temperature of about 105 degrees. He was a pretty sick little baby. 
His mother phoned the 1-800-HMO number and she said, my little baby is 
really sick and has a temperature of over 104, and I think he needs to 
go to the emergency room. She was following the rules to get an 
authorization.
  The HMO reviewer at the end of that telephone line said, well, I 
guess that would be all right. I will authorize you to go to this one 
particular emergency room because that is where we have our contract. 
But if you go to another one, you are on your own. So Jimmy's mother 
said, well, where is it? And the voice at the end of the telephone line 
said, I do not know, find a map.
  Well, it turned out that this authorized hospital was clear on the 
other side of Atlanta, Georgia, at least 50 miles away. So, with an 
infant who was critically ill, a mom and dad who were not health 
professionals put little Jimmy in the car, they wrapped him up, and 
started their trek to the hospital. En route they passed three 
emergency rooms, but they did not have authorization to stop at those 
emergency rooms, and they knew if they did they would be left with the 
bill.
  They were not medical professionals. They did not know how sick 
little Jimmy was.

                              {time}  2300

  So they pushed on. But before they made it to the authorized 
emergency room, little James Adams had a cardiac arrest.
  Imagine yourself as the mother of this little baby, trying to keep 
him alive, or as the father driving this car when your wife is holding 
your son. He is not breathing, and you are trying to find the 
authorized emergency room.
  Finally, he pulled into the driveway. His mother, Lamona, leaped out 
of the car screaming, ``Save my baby. Save my baby.''
  The nurse came running out and started resuscitation. They put in an 
IV. They gave him drugs. They got his heart going, and they managed to 
save his life. But you know what? They did not save all of Jimmy.
  Because of that arrest and the loss of circulation to his hands and 
to his feet he developed gangrene. Both hands and both feet had to be 
amputated. That was a medical decision that that HMO made. That 
reviewer could have said, your baby is sick. Take him to the closest 
emergency room. No. Dollars came over good sense. We have a contract 
with that distant emergency room. So we are only going to authorize 
care there.
  Mr. Speaker, I suspect that we are going to have some people on this 
floor next week or maybe in September when we debate this bill, and 
they are going to get up here and they are going to say we should not 
legislate on the basis of anecdotes. That is just an anecdote.
  I would say to those folks, that little boy is never going to touch 
the cheek of the woman that he loves with his hand. He is never going 
to play basketball. He is able to pull on his leg protheses with the 
stumps of his arm. But to get on his bilateral arm prostheses he needs 
help. He has hooks.
  I will tell you, that little anecdote, he is now about eight. He is a 
pretty good kid. He is doing all right. I think he will be a productive 
member of society. But that little anecdote, as some would call that 
little boy, if he had a finger and you pricked it, it would bleed.
  So I talk to my friends here on both sides of the aisle and I ask, 
why has it taken 5 years to rectify that? Do you know why that HMO did 
not take the proper care and precaution? Why they ``cut the corners,'' 
as a judge who looked at the case said. That HMO's margin of error was 
razor thin, razor thin that judge said about that HMO's margin of 
safety. Probably about as razor thin as the scalpel that had to cut off 
both hands and both feet.
  Do you know why that HMO did that? Because they passed here in 
Congress a law 25 years ago that said that the HMO is responsible for 
nothing but the cost of care denied. If they deny care to somebody who 
is dying and the patient dies, then they are not responsible for 
anything. In the case of this little boy, the only thing that HMO was 
responsible for was the cost of his amputation.
  That child was in an employer plan protected under a law that was 
passed here in Congress 25 years ago, never meant to be applied to the 
health system. It was a pension law meant to benefit the people who 
were to get the pensions. It was not supposed to be a protection for 
health plans.
  Mr. Speaker, how did this come about? Well, there has been a change 
in the health care system. It used to be the insurance companies, back 
25 years ago, they did not make those kinds of decisions. They did not 
manage the care like they do now. You had a fee-for-service system, but 
the system has changed. We have seen time and time again HMOs consider 
the bottom line to be better or more important than the care of their 
beneficiaries.
  That is why it is very important that we address this situation. I 
can tell one story after another, but those would just be anecdotes.
  I can tell about a woman in Des Moines, Iowa, who just a week or two 
ago came up to me with tears in her eyes. She said, Congressman, I have 
had breast cancer. I have been on chemotherapy. My doctor told me that 
I needed a test to see whether the cancer had come back. But my HMO 
would not authorize it. They said it was not, quote, medically 
necessary. And HMOs can define medical necessity any way that they 
want. Some define medically as the cheapest, least expensive care, 
quote/unquote.
  She said, I had to ask my husband to do something I had never asked 
him to do before. She said, I told my husband, Bill, you are going to 
have to fight and battle that HMO for me because they have worn me out. 
I am fighting my cancer. I need a test. All of my doctors say I do. 
There is no specific exclusion

[[Page 14756]]

of coverage in my contract, and they will not give it to me.
  Well, after a long time they finally said, yes, we will give it to 
you; and the morning she was supposed to have the test they changed 
their mind.
  Mr. Speaker, we need a way to resolve these disputes before patients 
are injured. That is why in the Ganske-Dingell-Norwood bill we have a 
way to resolve these disputes. If an HMO denies care, a patient can 
appeal it in the HMO; and if they continue to deny it and the patient 
thinks they are not being treated fairly, the patient can go to an 
independent, external review panel of physicians. Their decision will 
be binding on the plan. But their decision would not be bound by the 
plan's own arbitrary guidelines of medical necessity, and that is one 
of the crucial differences between the Ganske-Dingell bill and the 
Fletcher bill.
  If we look at the details of the language in the Fletcher bill, the 
bill supported by the leadership of this House, Members will see that 
through very, very clever, I would say cunning language, the 
independent panel can really only tell the HMO to do what an HMO 
reviewer would have done.
  Furthermore, that HMO would not be liable for anything other than 
what a person acting in a similar situation, i.e., another medical 
reviewer, would have done. Ordinary care is the definition defined in a 
way that puts into legislative language protections that the HMOs do 
not even have now. The Fletcher bill gives HMOs affirmative defenses 
that they do not have under ERISA now. What we are trying to do is fix 
the law as it exists now.

                              {time}  2310

  So I tell my colleagues and friends on both sides of the aisle, if 
you vote for that Fletcher bill, you are going to be voting for a bill 
that is worse than current law. You are going to be voting for a bill 
that protects HMOs more than ERISA does now.
  I do not know whether my colleagues want to go home and explain to 
their constituents how when we are dealing with a bill that is supposed 
to protect patients, they voted for a bill that protected HMOs. That 
does not make sense. We need a real patient protection bill.
  I could go through a long list and read in boring detail how the 
legislative language in the Fletcher bill is worse than current law. 
But let me just read a short section from a nonpartisan law professor 
at George Washington University who has analyzed the Fletcher bill and 
says of the Fletcher bill:
  First through its strong preemption language, the Fletcher bill would 
significantly restrict legal remedies that are potentially available 
now under State law in the case of death and injury caused by managed 
care organizations that operate medically substandard systems of care. 
In doing so, the Fletcher bill would displace decades of American 
jurisprudence regarding the liability of health organizations for the 
death or injury that they caused.
  The Fletcher bill basically moves State law into Federal law. So for 
all of my colleagues who have spoken highly of States rights and the 
10th amendment in the past, how are you going to justify that position 
with a vote for Fletcher? Dr. Rosenbaum says:
  Second, the Federal remedy created by the legislation fails to 
provide a minimally acceptable alternative and even this remedy is 
rendered meaningless through caveats, limitations and provisos. The 
Federal remedy would have the effect of federalizing managed care 
medical liability law.
  Now, my friends, you have an alternative. It is called the Ganske-
Dingell-Norwood-Berry bill. This bill has been debated in the Senate. A 
lot of Republican Senators worked very hard to improve that bill. For 
instance, Senators Snowe and DeWine further strengthened the bill's 
language protecting employers from liability. It allowed an employer to 
shift responsibility to a designated decision-maker and thus free 
itself from liability when it is not involved in medical decision-
making. That is important. That adds to our employer protections on 
liability that says unless you are directly participating in an HMO's 
decision, you cannot be held liable. That is fair. Almost all the 
employers in my district back home hire a PPO or an HMO, they do not 
get involved in the decisions that they make and they are not 
responsible. They would not be liable. That will be in our bill as we 
bring it to the floor.
  The DeWine amendment, Senator DeWine from Ohio, a Republican, further 
restricted the ability to file class actions. The Warner amendment, 
John Warner, Republican from Virginia, had an amendment that will be in 
our bill. It caps attorneys' fees. The Thompson amendment, Senator Fred 
Thompson, Republican from Tennessee, will be in our bill, that requires 
exhaustion of appeal remedies before a cause of action can be brought. 
The Phil Gramm amendment, Senator Phil Gramm, Republican from Texas, 
clarified that nothing in the bill prevents independent medical 
reviewers to require plans or issuers to cover specifically excluded 
items or services. That will be in the Ganske-Dingell-Norwood-Berry 
bill.
  There are a number of other important amendments that will be in our 
bill. One of them was the Santorum amendment, Senator Rick Santorum, 
Republican from Pennsylvania, defines fetuses born alive as persons 
under Federal law and makes them eligible for protection under the 
patients' rights bill. That will be in our bill. Furthermore, we have 
provisions in the Ganske-Dingell-Norwood bill that would help people 
afford health insurance. We have 100 percent deductibility for the 
self-insured, for their health premiums, as an example. We expand 
medical savings accounts. That was a significant compromise from the 
Democratic side.
  We think that the cries that the sky will fall, the sky will fall 
that we heard in Texas but never happened, that premiums would go out 
of sight, that lawsuits would just multiply, there would be an 
explosion, none of that happened. We wrote our bill several years ago 
based on Texas law. The Congressional Budget Office estimated that the 
cost of this bill in terms of insurance premiums would be a cumulative 
4 percent over 5 years. Our opposition bill based on the Breaux-Frist 
bill from the Senate would raise premiums about 3 percent cumulative 
over 5 years. That is about 1 percent difference. We are talking in 
terms of increased costs for our bill of somewhere in the order of one 
Big Mac meal per employee per month. Most people in this country think 
that that would be well worth it in order to know that their insurance 
will actually mean something if they get sick.
  There certainly has not been any explosion of lawsuits in Texas which 
our bill is modeled after. There have just been a handful. Several of 
them involve health plans that did not follow the law, demonstrating 
that there is a need for some type of enforcement. But a health plan 
ought to be liable if they are not following the law. There is a health 
plan in Texas that had a patient in the hospital who was suicidal, the 
doctor said the patient needed to stay in the hospital, the health plan 
said, ``No, in our judgment, he doesn't need to be there, we're not 
going to pay for it,'' the family could not afford it, they took him 
home, he drank half a gallon of antifreeze and committed suicide that 
night. That health plan did not follow the law, because the law said 
that if there is a dispute, you are supposed to go to an expedited 
independent review and they just ignored it. If there is not an 
enforcement provision in these bills that is worth the paper it is 
written on, then nothing else in the bill will be worth what it is 
written on.
  We have over 800 endorsing and sponsoring organizations commending 
our bill, calling for its passage. This includes most if not all of the 
consumer groups, the professional groups. They have looked at this bill 
in detail. They have looked at the Fletcher bill in detail. They know 
that if the Fletcher bill became law, it would abrogate the advances 
that have been made in States around the country in terms of protecting 
patients, particularly in the States that have placed some 
responsibility, some legal responsibility, on HMOs, States like Texas.

[[Page 14757]]



                              {time}  2320

  Now, Mr. Speaker, President Bush has issued a list of principles. We 
firmly believe that the Ganske-Dingell-Norwood bill meets those 
principles, especially after the addition of the amendments that were 
passed almost unanimously in the Senate.
  The President has rightly been concerned about increases in costs. We 
think that our bill is affordable. The estimates by the Congressional 
Budget Office confirm that. Since the President during his campaign 
spoke glowingly of the patient protection bills in Texas, this is what 
we wrote our bill after. When I look at those seven points that the 
President said he would need to have for his signature, our bill meets 
those requirements.
  Now, we are more than happy to work with President Bush on this, and 
our door is open. Members of our group have continued to discuss these 
items with the President. But it is time to move. It is time to get 
this legislation through the House and get it into the conference. We 
will be more than happy to continue discussions with the President on 
these.
  I believe President Bush wants to see a Patients' Bill of Rights 
signed into law and this is the bill that meets his requirements, and 
it would just be a darn shame not to end up at the end of the day with 
a bill that meets those requirements, as we think our bill does.
  Mr. Speaker, the Speaker of the House promised that we would have a 
vote on this patient protection bill before we left for our August 
recess. In fact, we were supposed to have this debate last week. Then 
it was postponed to this week. The word is out now that we may not have 
this vote next week either before we go home for August recess.
  I would just remind my colleagues that every day HMOs around this 
country are making health decisions that in many cases are life and 
death. Those decisions are affecting our family members, our friends, 
our colleagues, our constituents back home. There is no excuse for not 
moving ahead and allowing the will of the House to work.
  This is supposed to be a democratic institution. Let us have a fair 
debate, with a fair rule. Sure, there can be amendments. And let us let 
the will of the people work, and let us move forward in a prompt manner 
to help patients and our friends get a fair shake from their HMOs and 
their health insurers in their time of need.
  I expect that people will keep their word on this. If we do not have 
this debate next week, that would be a shame. We should at least move 
promptly in early September.
  But I will tell you, to not bring this bill up because you just 
cannot have your way, because you do not have the votes, is what I 
would call a pocket veto without a debate, and I do not believe that is 
the democratic way that we should run this House.
  Mr. Speaker, let us move to a prompt and fair debate on this bill, 
and let us get on with the people's business.

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