[Congressional Record (Bound Edition), Volume 147 (2001), Part 7]
[House]
[Pages 9323-9325]
[From the U.S. Government Publishing Office, www.gpo.gov]



                     PATIENT PROTECTION LEGISLATION

  The SPEAKER pro tempore (Mr. Grucci). Under the Speaker's announced 
policy of January 3, 2001, the gentleman from Iowa (Mr. Ganske) is 
recognized for 22 minutes.
  Mr. GANSKE. Mr. Speaker, we are about ready to head home on recess, 
so I want to speak to my colleagues about something that I think that 
we should address when we come back from this recess. That is the issue 
of patient protection legislation.
  We have been dealing with this for several years. I have just a few 
minutes left before we close down for the evening.
  This is a really important issue. HMOs are making hundreds of 
thousands if not millions of decisions each day that can adversely 
affect the health and lives of the people who are supposed to get their 
insurance from them.
  Mr. Speaker, remember a few years ago the movie As Good as It Gets? 
We had Helen Hunt talking to Jack Nicholson during the movie about her 
son who had asthma and was not getting the proper authorization for 
treatment by her HMO.
  She then went into a long string of expletives about her HMO, and I 
saw something happen in a movie theater I never saw happen at any other 
time. People stood up, applauded, and clapped for the sentiment that 
Ms. Hunt was expressing about her HMO.

[[Page 9324]]

  In fact, we know the sentiment is widespread when we start to see 
humor, even if it is black humor. Here we have a cartoon about HMOs. We 
have a doctor at an operating table. We have the HMO bean counter next 
to him. The doctor says, ``scalpel.'' The HMO bean counter says 
``pocket knife.'' The doctor says ``suture.'' The HMO bean counter says 
``bandaid.'' The doctor says, ``Let's get him to an intensive care 
unit.'' The doctor says, ``call a cab.''
  Now, Members may think that is just a joke, it is just funny, except 
for the fact that down in Texas there was a suicidal man. His doctor 
recommended that he stay in the hospital. The HMO said, ``No, we are 
going to make the medical judgment that he does not need to be in the 
hospital. If he stays, we are not going to pay for it.''
  The families, like most families, they cannot afford an out-of-pocket 
expense like a hospitalization, so they took this poor patient home. 
That night, sure enough, he drank half a gallon of anti-freeze and he 
committed suicide.
  That HMO should be liable. They did not even follow the Texas law, 
which says that in that type of case, they ought to get an expedited 
external review.
  That is why, for instance, stories appear all across the country 
every so often, things like in the New York Post, ``HMO's cruel rules 
leave her dying for the doc she needs.''
  Here is another cartoon. The doctor is reading to a patient. The HMO 
physician says, ``Your best option is cremation, $359 fully covered,'' 
and the patient says, ``This is one of those HMO gag rules, isn't it, 
Doctor?''
  Mr. Speaker, 5 years ago now, Members co-signed a bill that I wrote, 
300-plus bipartisan cosponsors, that would ban those HMO gag rules, the 
rules that would keep a doctor from telling a patient all of their 
treatment options.
  Do Members know what? We could not get the leadership to bring it to 
the floor, even though I had been promised, even though we could have 
brought it to the floor under suspension with no amendments, and it 
would have passed overwhelmingly. We could not get it to the floor. 
Why? Because the HMO industry is a powerful special interest group.
  How about this headline: ``What his parents didn't know about HMOs 
may have killed this baby.'' Maybe that headline, that real-life 
headline, spawned this cartoon. We have the maternity hospital. We have 
a drive-through window. ``Now only 6-minute stays for new moms.'' 
Remember those HMO rules, drive-through deliveries? The hospital 
technician says, ``Congratulations. Would you like French fries with 
that?'' as mom and dad are pulling out with newborn baby.
  How about this cartoon. HMO Claims Department: ``No, we don't 
authorize that specialist. No, we don't cover that operation. No, we 
don't pay for that medication.'' Then the HMO reviewer hears something 
over the telephone and ends up saying, ``No, we don't consider this 
assisted suicide.''
  Do Members know what? That joke may be funny to some, but it is not 
funny to this family, this little girl and boy and the father. Because 
the HMO did not inform their mom that they were putting screws on one 
of the health centers not to provide her necessary treatment, she ended 
up dying. This case ended up being covered on the front cover of one of 
the national news magazines as an example of HMO abuse.
  Now, this is really black humor. Here we have an HMO receptionist 
saying, ``Cuddly Care HMO. How can I help you? You are at the emergency 
room and your husband needs an approval for treatment? Oh, he is 
gasping, writhing, eyes rolled back in his head? Doesn't sound that 
serious to me. Clutching at his throat? Turning purple? Uh-huh.'' Then 
the reviewer says, ``Well, have you heard about an inhaler?'' Then the 
next one is ``He is dead?'' And the next one says, ``Well, then he 
certainly doesn't need treatment.'' And finally, the reviewer looks at 
us and says, ``People are always trying to rip us off.''
  How about the case where this young woman fell 40 feet off a cliff 
about 70 miles from Washington, D.C. She had to be evacuated to an 
emergency room and intensive care. She had a broken pelvis, a fractured 
skull, a broken arm. Her HMO would not pay her bill. She had not phoned 
ahead for prior authorization. I guess she was supposed to know she was 
going to fall off a cliff.
  Gee, it would be just like that prior cartoon, the HMO saying, 
``Those patients, they are always trying to rip us off.''
  Speaking about emergency care, this little boy, when he was 6 months 
old and needed emergency care in the middle of the night, he had a 
temperature of about 105, 104, 105, mom phoned the 1-800 number and was 
told to take him to one specific hospital, the only one the HMO 
contracted with. Mom said, ``Where is it?'' The answer on the 
telephone, ``I don't know. Find a map.'' It turned out it was 70 miles 
away. ``But we are only going to authorize that one hospital.''
  So they passed several other hospitals, not knowing how sick their 
little boy is. He has a cardiac arrest. En route, they are lucky, they 
manage to keep him alive. His mom leaps out of the car carrying the 
little baby. When they finally get to the emergency room, they put an 
IV in. They save his life, but they do not save all of this little 
baby, because he ends up with gangrene of both hands and both feet, 
which have to be amputated, because that HMO made a medical judgment.
  Instead of saying, ``Take that little boy to the nearest emergency 
room right away,'' they said, ``We do not think it is that important. 
Take him to this one that is 70 miles away, because we can save money 
that way. We have got a contract with that emergency room.''
  Before coming to Congress, I was a reconstructive surgeon. I took 
care of little babies with cleft lips and pallates like this baby. 
Guess what, 50 percent of the surgeons in this country that do this 
kind of surgery in the last 2 years have had cases denied like this 
because this is, according to the HMO, a cosmetic condition.
  How did we get to this sorry state? We got to this because 25 years 
ago, Congress passed a law called the Employee Retirement Income 
Security Act, which was primarily a pension law meant to be for the 
benefit of the employee. But somehow or other, health plans got 
included in this, and along came managed care, which was much more 
intrusive, and all of a sudden we now have a situation where, under 
employer plans, health plans do not have to follow any State 
regulations.
  Furthermore, they are not liable or responsible for any of their 
decisions. Think about this. As far as I know, there is only one group 
of people or an institution in this country that is free of 
responsibility for their decisions, that is foreign diplomats, except 
for the HMOs and employer health plans.
  That little boy who lost both hands and his feet, under Federal law 
that plan is responsible for nothing except the cost of his 
amputations.
  That, unfortunately, has led employer health plans to cut corners. 
Not all of them. Some plans try to do the right thing. But some plans 
have definitely cut corners in order to save money, in order to satisfy 
their stockholders.

                              {time}  2350

  That has resulted in unfair processes and unfair denials. And, 
furthermore, under this Federal law, it basically says that a health 
plan can define medical necessity in any way they want to.
  They can say in their contract that we define medical necessity as 
the cheapest, least expensive care. That means, for instance, that the 
little child that had the cleft lip that I just showed my colleagues 
would not be able to get that. The HMO could deny a surgical correction 
which is standard of care. Maybe we would just put a piece of plastic 
in the roof of his mouth, because after all that would be the cheapest 
least expensive care.
  Mr. Speaker, that is the way it works under this Federal law, which 
took away the oversight from States where it had resided for 200-plus 
years in this country.
  I think that is unconstitutional. I think that is an abridgement of 
the

[[Page 9325]]

10th amendment, but it is incumbent on Congress to fix that, because it 
was Congress that created this problem 25 years ago.
  Now, I am not the only one who thinks this. The Federal judiciary 
thinks this, too. In fact, Judge Pickering, the father of one of our 
colleagues here in the House, told me that he thinks we need to fix 
this. He has come up against cases like this. Here we have a statement 
from Judge Arbis in Pomeroy v. John Hopkins. He says the prevalent 
system of utilization review now in effect in most health care programs 
may warrant a reevaluation of ERISA by Congress so that its central 
purpose of protecting employees may be reconfirmed.
  Another judge, Judge Gorton, in Turner v. Fallon says even more 
disturbing to this court is the failure of Congress to amend a statute 
that, due to the changing realities of the modern health care system, 
has gone conspicuously awry from it original intent.
  We are talking about ERISA. We are talking about messages coming to 
us from the Federal bench.
  Judge Bennett says in Prudential Insurance v. National Park Medical 
Center, if Congress wants the American citizens to have access to 
adequate health care, then Congress must accept its responsibility to 
define the scope of ERISA preemption and to enact legislation that will 
ensure every patient has access to that care.
  The Supreme Court has looked at this and the Federal courts are 
working their way towards this goal case by case modifying this ERISA 
law, because they are seeing gross inequities, but it is a slow 
process.
  Mr. Speaker, what are the courts doing? They are remanding these 
medical judgment cases back to the States.
  The Supreme Court in Pegram v. Herdrich said decisions involving 
benefits stay in ERISA, but decisions involving medical judgment should 
go to the States where they have traditionally resided, where we have 
200 years of case law. That is what they should be doing. That is what 
is in the Ganske-Dingell bill, the McCain-Edwards bill that should come 
before the House and before the Senate.
  But there is an alternative. The alternative is, oh, let us just move 
all of that into the Federal courts. I cannot believe that Republicans 
would propose federalizing an entire area of health care.
  Are we not the party that traditionally says this should be a purview 
for States? There are about how many States, there are now nine States 
that have passed HMO accountability laws, Arizona, California, Georgia, 
Louisiana, Maine, Oklahoma, Texas, the home State of President Bush, 
Washington, and West Virginia.
  They have all enacted legislation that permits injured patients or 
their estates to hold health plans responsible for negligent decisions.
  You know what? One of the bills on the other side of the Capitol, the 
House rules prevent me from naming names, not the McCain-Edwards bill, 
let us just say the Breaux-Frist bill, the Breaux-Frist bill would move 
all of that jurisdiction into Federal courts. That is a bad idea. It is 
unconstitutional if my colleagues care about the 10th amendment. But 
more than that, there are a lot of other reasons.
  Let us look at them. We need to decide, should the proposed 
legislation, is it within the core functions of the Federal system? I 
am going to talk about that. Whether Federal courts have the capacity 
to take on that new business without additional resources; whether the 
Federal courts have the capacity to form their core functions and to 
fulfill their mandate for just, speedy and inexpensive determination of 
actions.
  Chief Justice Rehnquist said this, the principle was enunciated by 
Abraham Lincoln in the 19th century. Dwight Eisenhower in the 20th 
century, matters that can be handled adequately by the States should be 
left to them; matters that cannot be handled should be undertaken by 
the Federal Government.
  In a proposal for a long-range plan for the Federal courts, Rehnquist 
has said, Congress should commit itself to conserving the Federal 
courts as a distinctive judicial forum. Civil and criminal jurisdiction 
should be a sign to the Federal courts only to further clearly define 
justified national interests leaving to the State courts the 
responsibility for adjudicating all other matters, and that means 
specifically health care.
  Federal courts are not the appropriate forum for deciding cases from 
HMO negligent decisions.
  Just last year, the Judicial Conference of the United States stated 
``personal injury claims arising from the provision or denial of 
medical treatment have historically been governed by State tort law and 
suits on such claims have traditionally and satisfactorily been 
resolved primarily in the State system.''
  The State courts have significant experience in personal injury 
claims and would be an appropriate forum to consider personal injury 
actions pertaining to health care treatment. Federal courts cannot 
handle this. They already have a huge number of judicial vacancies 
under Federal law.
  They are obligated to give priority to criminal cases. Criminal case 
filings go up every year. You could not get a speedy resolution to 
these types of decisions, especially if we are coupling this with a 
review system.
  I say to my colleagues we are going to have this debate soon. The 
gentleman from Georgia (Mr. Norwood), the gentleman from Michigan (Mr. 
Dingell), I, and others, we have modified our bill. We have taken 
language from Senator Nickles. We have taken language from the 
gentleman from Tennessee (Mr. Hilleary). We have taken language from 
the gentleman from Arizona (Mr. Shadegg).
  We have made a good-faith effort to come up with a bill that includes 
a lot of ideas from other people. We have significant protections for 
employers. Employers cannot be responsible unless they directly 
participate in a decision.
  The vast majority of employers do not want to have anything to do 
with a medical decision. They do not even want to know what is going on 
medically with their employees. It is a matter of privacy, and their 
employees do not want the employers to know.
  So those are real and solid protections. The cost factor for our bill 
in terms of liability would be less than $2 per month per employee. 
That is less than the cost of a Big Mac meal.
  We should remand these medical judgment decisions back to the States. 
We should fix the ERISA portion, and we should make sure that people 
get a fair shake from their HMOs.
  This is something, Mr. Speaker, that I expect will come up shortly in 
the Senate and then come shortly to the House. I implore my colleagues 
to do the right thing, become familiar with the provisions of our bill, 
the Ganske-Dingell Bipartisan Patient Protection Law of 2001.
  Let us pass this finally and let us do something for all of our 
constituents, all of them have experience with this through either a 
friend, a family member, a fellow worker. Eighty-five percent of the 
country has indicated that they think that Congress should pass a law 
to protect patients from HMO abuses.
  Let us get this done finally, and let us put it on the President's 
desk. Our bill satisfies the President's principles. It is modeled 
after Texas law, and it would be a great victory for our constituents 
and the people who get their health care from their employers.

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