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PATIENTS' BILL OF RIGHTS -- (House of Representatives - September 21, 1999)

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   The SPEAKER pro tempore. Under the Speaker's announced policy of January 6, 1999, the gentleman from New Jersey (Mr. PALLONE) is recognized for 60 minutes as the designee of the minority leader.

   Mr. PALLONE. Mr. Speaker, I must say that I am so pleased to be following the special order of my colleague, the gentleman from Iowa (Mr. GANSKE), because he addressed the same issue that I would like to address this evening and that is the need for HMO reform and the need to bring legislation to the floor of this House which we refer to as the Patients' Bill of Rights because it provides protection for Americans who are patients who happen to be members of HMOs or managed care organizations; and those protections are needed right now.

   They were needed a long time ago, but it is really time that the Republican leadership of the House of Representatives allow this bill to come to the floor to be debated, and I believe it will pass overwhelmingly.

   I must say, I have been on this floor many times over the last year, or even beyond, asking that the Republican leadership allow the opportunity for the Patients' Bill of Rights to come to the floor, and we were told last Friday for the first time that the Speaker has set the week of October 4, approximately 2 weeks from now, for that opportunity.

   Although I have to say that I am suspicious of the way that this will be brought to the floor and the procedure and the rules that will be followed; and I know that my colleague, the gentleman from Iowa (Mr. GANSKE), mentioned that as well. I must say that I am pleased that we will be debating HMO reform and that one of the bills that we have been promised by the Speaker that will be brought to the floor is the Patients' Bill of Rights.

   I really need to emphasize this evening, as I have so many other times on the floor and this well, that there are differences between the various managed care reform proposals that have been proposed here and that even though it is true that the Republican leadership now says that they will allow debate on the Patients' Bill of Rights, they have also made it quite clear that they are going to favor bills other than the Patients' Bill of Rights and that there may and certainly will be an effort to pass alternative legislation to the Patients' Bill of Rights.

   I need to urge my colleagues not to fall into the trap of thinking that anything other than the new bipartisan Patients' Bill of Rights is acceptable, not only to us but to the American people.

   I wanted to point out that it has been very interesting. Really, just last Wednesday, I guess, September 13, in the New York Times, there was an article that talked about how the GOP leadership was very cool on our patients' rights plan and how they were

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sort of scouring and looking at all kinds of ways of avoiding passage of the Patients' Bill of Rights. And I just wanted to, if I could, either summarize or read through some of the interesting aspects of this article because, as we know back in August, just before the summer break, in the first part of August, this was on August 6, just before we left for the summer recess, at that point the Speaker indicated that he was going to allow a Republican group, a group of Republicans, to put together a bill that he and the Republican leadership would find acceptable in terms of HMO reform .

   There was no question in my mind that this was a bill, this was an effort by the Republican leadership, to essentially bypass or kill the bipartisan Patients' Bill of Rights that had been drafted by my colleague, the gentleman from Georgia (Mr. NORWOOD); the gentleman from Michigan (Mr. DINGELL), who has long been an advocate and who formulated the original Patients' Bill of Rights; the gentleman from Iowa (Mr. GANSKE); myself; and others, who had basically come up with a bipartisan Patients' Bill of Rights that would have achieved real HMO reform . At the time on August 6, the Speaker said, well, I am not in favor of that bill, the Patients' Bill of Rights, but I will let the gentleman from Oklahoma (Mr. COBURN) and a few other Members of Congress on the Republican side see what they can come up with for us to consider in September that perhaps the Republican leadership would support.

   As we know, and I am again referring to this article in the New York Times, when the gentleman from Oklahoma (Mr. COBURN), who is a physician from Oklahoma, and the gentleman from Arizona (Mr. SHADEGG), who is a Republican Member, disclosed the text of their bill last week when we came back after the August break, Speaker HASTERT had no comment. Senior House Republicans, including the chairmen of several committees and subcommittees, expressed grave reservation about the bill that theoretically they had asked the gentleman from Oklahoma (Mr. COBURN) and others to put together as their alternative to the Patients' Bill of Rights.

   The gentleman from Texas (Mr. ARMEY), who is the

   House majority leader, described the Coburn-Shadegg bill as the least worst way to do the wrong thing, and he said the provisions of the bill authorizing patients to sue HMOs for injuries caused by the negligence of a health plan still bothered him.

   The gentleman from Virginia (Mr. BLILEY), the chairman of our House Committee on Commerce, said he too was reluctant to create a new right to sue.

   Basically, what we see here is the Republican leadership once again backing off a bill which theoretically they had asked their own Members to put together, and the reason clearly was because they saw the Coburn-Shadegg bill as too much like the Patients' Bill of Rights, the bipartisan Patients' Bill of Rights, particularly with regard to the liability provisions.

   Now we read, or we find out, that even though the Speaker has said that he is going to allow managed care reform to come to the floor on the week of October 4, that not only will the Patients' Bill of Rights be an option, not only will the Coburn-Shadegg bill be an option, but it is very possible that another bill, which I think really expresses what the leadership wants, and this is the bill that came out of the House Committee on Education and the Workforce, and it was sponsored by the gentleman from Ohio (Mr. BOEHNER), basically what his bill does is, I think, take a piecemeal approach to HMO reform that is totally unacceptable and shows very dramatically where the Republican leadership is going on the important issue of HMO reform .

   I think what is going to happen, and we are basically seeing indications of that, is that the House Republican leadership will endorse the Boehner bill and try to get that through the rules that they will use to bring this legislation to the floor as the bill that we finally vote on as opposed to the Patients' Bill of Rights or even the bill that the gentleman from Oklahoma (Mr. COBURN) and the gentleman from Arizona (Mr. SHADEGG) have come up with.

   I want to stress this evening that if that is what happens, if in fact the procedures that come out of the Committee on Rules that are set forth and the procedures by which we debate HMO reform on this floor the week of October 4 basically allow the Boehner bill to be the order of the day and that is the bill that the leadership supports, then we will have achieved nothing effectively in terms of HMO reform and this whole effort to try to come up with something that will help and protect the average American will have actually done the opposite, and HMO reform will be killed.

   I just want to explain, if I could briefly, where the Boehner bill is such a bad bill by comparison to the Patients' Bill of Rights that my colleague, the gentleman from Iowa (Mr. GANSKE), the gentleman from Georgia (Mr. NORWOOD), the gentleman from Michigan (Mr. DINGELL), and so many others of us who care about HMO reform have put forward on a bipartisan basis.

   The Boehner bills leave out most Americans. The bills cover only people who obtain health insurance through their employer. The bills fail to extend needed patient protections to the millions of people that purchase health insurance individually; and what we are basically saying, and the Boehner bills do not do, is that the protections that we are seeking through the Patients' Bill of Rights, those protections should apply to all health plans, regardless of whether it is employer sponsored, whether it is individually purchased, whether it is ERISA, whether it is Medicare, whatever it happens to be, all health plans should have these same basic protections from HMOs or managed care .

   The other thing and this is most important, if we look at the Boehner bills, they pretend to secure patients' rights but they contain no way to enforce those rights other than the weak penalties currently available under ERISA, and enforcement is so important. It is not that those of us who support the Patients' Bill of Rights want everybody to sue. In fact, the example in Texas, which is one State that has passed, as the gentleman from Iowa (Mr. GANSKE) has mentioned, a very progressive Patients' Bill of Rights in Texas, where there is the ability to sue now and there has been for 2 years, only one or two lawsuits have actually been filed. Because once those patient protections are in place, there is no reason to file a lawsuit because there are basic protections under the law.

   So what we are saying is, even though we would provide for a right to sue, even though we would have an external review and a procedure for that, it is only because we want the practical enforcement to be there, to guard against the abuses of HMOs.

   What the Boehner bills do is it is basically a very narrow, piecemeal approach. For example, H.R. 2043, which is supposed to protect against the so-called gag clauses, does not prohibit plans from retaliating against doctors who discuss the plan's financial incentives. One of the worst offenses right now with HMOs is the fact if the plan does not cover a particular procedure, the

   doctor is gagged and cannot say anything about that procedure. A lot of HMOs right now have that kind of rule, gagging, not allowing a doctor to say what procedure a person needs because they will not cover it. What a terrible thing, and there is no protection against that in the Boehner bills.

   Let me just give a few other indications of the inadequacies in the Boehner bills and why I dread the fact that the House leadership, the Republican leadership, may try to have this be the final product of this debate the week of October 4.

   The Boehner bills require direct access to physicians only for routine OB-GYN care . They do not allow persons with chronic or serious medical conditions to have direct access to specialists. Nor do the Boehner bills permit persons with conditions requiring ongoing care to obtain standing referrals to a needed specialist. The bills do not include a requirement that a plan have a provider network with a sufficient number and variety of providers who are available and accessible in a timely manner. In addition, there is no requirement that a plan cover the services of a specialist who is not in the plan's network if the network lacks the provider expertise or capacity to treat the enrollee's condition.

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   One of the biggest concerns that I hear from my constituents with HMOs is inadequate access to specialists. We need to provide for that and that is what the Patients' Bill of Rights does. That is what the Boehner bills do not do.


[Time: 20:30]

   Continuity of care . The Boehner bills do not protect patients from abrupt changes in ongoing treatment when their provider is dropped from the plan's network or their employer changes health plans. They have no provision to limit excessive provider financial incentives arrangements. This is another big complaint. Right now, there are incentives in a lot of HMOs for one's doctor not to provide health care in many cases, or not to provide treatment in certain instances, because there is a financial incentive if he provides less care . Now, this is not always true, but it is one of the abuses that we find from time to time, and we do not want it to be there; we want to make sure it does not happen, that there is no such financial incentive.

   Another thing in the Boehner bills: emergency care . One of the biggest complaints I hear about HMOs is that if I have to go to an emergency room because I feel the necessity, I have chest pain, I feel I have to go to a hospital, oftentimes I need prior authorization, or I can only go to an emergency room for a hospital that is maybe 50 miles away instead of the one that is down the street. Well, that has to be changed. But H.R. 2045, one of the Boehner bills, fails to insure that people can obtain emergency care when and where the need arises without fear of excessive charges.

   Under this bill, if a plan and the emergency room physician disagree on what emergency care is necessary, the patient can be stuck holding the bill. I use the example of severe pain. Severe pain does not count as an emergency if an individual with severe chest pains risks having to pay for services out of pocket, or if he or she goes to an emergency room without getting prior authorization. So again, one does not have protection that one can make sure that if one has severe pain and thinks they are having a heart attack, they can go to an emergency room down the street and they do not have to worry about prior authorization.

   I just want to mention one more thing about the Boehner bills because I think the enforcement aspect is so important. What we are saying about the patients' bill of rights and really the two things that are the hallmark of the patients' bill of rights, the bill that should pass this House, and I hope that it does, one is the definition of ``medical necessity,'' what is necessary, what kind of operation is necessary, how long one has to stay in the hospital, whether one has a particular procedure or a particular operation. That definition of what is ``medically necessary'' is made by the physician and the patient, not by the insurance company.

   The second hallmark of the patients' bill of rights is that if one has been denied care , one can go to an outside panel or an outside review board that is not influenced by one's HMO and ultimately, if that fails, that one can bring suit in court.

   Well, under the Boehner bills, H.R. 2089, they purport to create an independent external appeals system, but it is biased against the patients and allows the health plans to control virtually all aspects of the external review process. The bill requires external reviewers to uphold plans as long as the plans follow their own definitions, no matter how arbitrary the definitions. A plan could define ``medical necessity'' to be nothing more than care defined under whatever treatment guidelines and utilization protocols the plan adopts, even if the guidelines and protocols are not backed by any clinical evidence or good professional practice.

   What we say in our patients' bill of rights is the decision about what is medically necessary is made by the doctor and the patients. How we effectuate that is that we use the standards of care that are applicable for that particular specialty. So if the Board of Cardiology has certain procedures which they consider the norm in the practice of cardiology, those are the procedures that apply in terms of determining what is medically necessary. But under the Boehner bills, it is up to the HMO to decide that. They do not have to make reference to the local Board of Cardiology; they do not have to make reference to any studies at all. They just define what is ``medically necessary'' on their own based, on whatever cost containment is beneficial to them, in many cases.

   That is what we do not want. We do not want the external review process to be limited to what the HMO defines as medically necessary. Of course, we want to make sure that there is an outside external review, unbiased, not under the influence of the HMO, and that ultimately one has the right to sue.

   Mr. Speaker, I could talk more this evening about what is important in our patients' bill of rights and why it is so much preferable to the Boehner bills and other bills that might come to the floor; but I think the most important thing is that if the Republican leadership is really serious about allowing the opportunity for a full and fair debate during the week of October 4 on patient protections, they have to craft the rule in such a way that there is a clear opportunity for us and for the majority of this House to support the patients' bill of rights. I am fearful that that is not going to happen.

   I will be watching, as my colleague from Iowa mentioned, over the next few weeks to see what kind of rule comes out of the Committee on Rules, but we are going to be very careful to monitor that, because if there is going to be a promise that we have an opportunity to bring real protections to this floor, then it has to be a promise that is fulfilled pursuant to the rules of this House. I hope that that is the case, and I will continue to look at it over the next 2 weeks.


   Mr. PALLONE. Mr. Speaker, I wanted to turn briefly, if I could tonight, to a couple of international issues unrelated to the issue of HMO reform . As many of my colleagues know, I am very much involved in both the Armenia caucus as well as the India caucus that we have here in the House of Representatives, and I wanted to take a few moments initially to talk about the anniversary, if you will, of Armenia's independence, and then I would like to talk a little bit about some issues relative to India that will be coming up in the next few weeks in the context, most likely, of some of the appropriations bills and conference reports that we will be considering here on the floor of the House.

   Mr. Speaker, if I could turn initially to the Republic of Armenia. Today, Tuesday, September 21, is actually the eighth anniversary of the independence of the Armenian Republic, and it is celebrated by the citizens of Armenia, as well as people of Armenian dissent here in the United States and around the world.

   The United States, as the leader of the free world, has welcomed the arrival of Armenia into the family of democratic nations, and I am proud that this Congress has consistently voted to provide humanitarian and economic development assistance to help Armenia preserve democracy and the institutions of civil society and to continue the transition to a free market economy. I am proud that our administration has made a priority of achieving a negotiated settlement to the Nagorno Karabagh conflict, which is vital to bringing stability and economic integration to the southern Caucasus region.

   However, I believe there is a lot more that America can do to help Armenia achieve its rightful place as a free nation with a secure future, and to do so is not only in Armenia's interests. The United States has a fundamental national interest in bringing about stability in the strategically located Caucasus region and in supporting those emerging nations like Armenia that share our values.

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