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[Page: H3756] GPO's PDF---
The SPEAKER pro tempore (Mr. SOUDER). Under the Speaker's announced policy of January 6, 1999, the gentleman from Iowa (Mr. GANSKE) is recognized for 60 minutes as the designee of the majority leader.
Mr. GANSKE. Mr. Speaker, we are going to discuss managed care reform tonight. It is pertinent that we do this. Back in October this House voted 275 to 151 to pass the Norwood-Dingell-Ganske Patient Protection Act . That is in conference now. Things are going very, very slow.
Mr. Speaker, I remember back at the time of the debate that we had on managed care reform, a lot of our colleagues, primarily on the Republican side of the aisle, but some on the Democratic side of the aisle, said, Well, you know, we ought to just let the free market work this out.
I am happy tonight to have join me in this special order my colleague, the gentleman from California (Mr. CAMPBELL), who has worked so hard on this issue. We are going to discuss in some detail his bill, which will come to the floor tomorrow, the Quality Health Care Coalition Act .
I am going to yield to the gentleman to describe his bill, and then we will talk about various aspects of it.
Mr. CAMPBELL. I appreciate the gentleman yielding.
Mr. Speaker, let me just say, I am so proud to have the support of not only a brilliant man and a great colleague, but a medical doctor in the gentleman from Iowa (Mr. GANSKE). All of us here in the House that have dealt with him know that is the case. When he speaks on issues of patient care, he speaks from knowledge and compassion.
Mr. GANSKE. If the gentleman would yield, since we will be dealing with an issue related to antitrust, I very much appreciate the gentleman's expertise on this issue as a former professor of law at Stanford University and somebody well qualified to talk about the legal aspects of this bill which we are going to be talking about.
Mr. CAMPBELL. Mr. Speaker, I thank the gentleman.
Mr. Speaker, in 1914 the Sherman Act was amended to say that the labor of a human being shall not be an article of commerce. The reason it was amended was to make absolutely clear what I think most people would consider common sense, that cement and steel and petroleum are one thing, but what was quite different was when an individual did not know exactly what it was they needed, they had to go to a professional, and the professional exercised her or his judgment, and, in exercising her or his judgment, really the doctor or the professional was making a decision that the client or the patient
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The concept of a professional was quite different than the concept of commerce, because the State would regulate the professions and the professions would regulate themselves. They would have a code of ethics. For example, the doctor said that we do not want people advertising cut rate prices, because you run the risk then that some patients will get something that is not the best service because it is cheaper.
Well, that is the concept of a profession, and I respect the concept of a profession. I regret the fact that we lost a sense of that when the antitrust laws were reversed in 1975, not by action of the Congress, but by the Supreme Court in a case, sadly, that came from my profession, the attorneys. In that case the Supreme Court said not only are we going to extent antitrust to attorneys, but we are going to extend antitrust to all the professions.
The height of absurdity, in my judgment, was reached in 1982 when the Supreme Court said that a group of doctors who had band together to keep prices low in Arizona were price fixers and, hence, subject to the per se rules of the antitrust laws.
[Time: 19:15]
I really do think that we can date the decline of the profession of medicine from that 1975 original and 1982 subsequent Supreme Court date, because doctors are suddenly treated under the law as though they were the same as commercial enterprises providing steel or autos or cement.
One of the greatest artifacts of being treated the same as any article of commerce, just as an article of commerce, not a profession anymore; no more respect for the fact that a doctor is licensed and in every instance that I know of, and I am sure there is good and bad, but in every instance that I know of are dedicated individuals trying to prevent disease and cure it; one of the artifacts is that when one bargains with an HMO, it is now against the law for one to do something that is as natural as one can imagine; one is treated as though one has to take the contract or leave it.
The HMO comes up to you, and let us say you are an opthalmologist and let us say you perform cataract surgery and the HMO says, you know, we are not going to exactly say you cannot perform a cataract surgery on patients over 70, but the risk is a lot higher, and you may not get reupped next year; you may not be able to get your contract renewed next year if you perform too many cataract surgeries on patients over 70. Get the idea, Dr. Smith, Dr. Jones?
Dr. Smith says well, I am an opthalmologist. I will decide when the patient can benefit from cataract surgery. They say well, take it or leave it, because Dr. Green over here is the other opthalmologist in town, maybe there are three or four, in several small towns in America there is only one; take it or leave it. Take it or leave it. And if Dr. Smith calls up Dr. Green and says, you know what they just gave me, I think it is outrageous, at that moment, Dr. Smith has violated the antitrust laws per se and is subject to treble damage action, indeed although the Justice Department has not yet put any doctor in jail for this, it is actually a criminal offense.
Mr. GANSKE. Mr. Speaker, reclaiming my time for a moment, as the gentleman mentioned, prior to my coming to Congress, I was a reconstructive surgeon. I took care of women who had cancer operations, farmers who had put their hands into machines, children with birth defects. But when I was elected to Congress, I closed my practice, so I no longer practice, except for going overseas to do some charity work.
So I want to say this because I do not have a personal interest in this legislation. My wife is a physician, but my wife is a salaried physician. So she has an exemption to this prohibition that we are going to be talking about, because for instance, as a salaried physician, she could join a union and collectively bargain. But this is what has happened.
Let us say back in 1993 and 1994, when I was still practicing before being elected to Congress, in Des Moines, Iowa, there were probably seven or eight HMOs that were offering services. None of them controlled such a large market share that they could make or break a practice. So, for instance, if any one of them was behaving irresponsibly, not taking care of their patients properly, I could get on the phone, give them a call and say, I think you are not treating this patient right. I hope you change your mind. You could lobby on behalf of your patient. They might actually listen to you at that time. But what has happened since then?
Mr. Speaker, in the last 5 or 6 years, since 1994, there have been 275 mergers and acquisitions of health plans around the country. So, for instance, in Des Moines, Iowa, essentially there are two HMOs. For instance Blue Cross/Blue Shield in Iowa controls the health care of 98 percent of hospitals and 90 percent of doctors. One insurance company controls the access and cost of health care for 60 percent of insured Oregonians.
Market competition in Texas is all but gone. Mr. Speaker, 24 competing companies have been compressed into 4 mega-managed care companies. Sixty percent of the Pittsburgh market is controlled by one plan. Half of the Philadelphia market is controlled by one plan. Each of those plans maintains its dominance by virtue of an agreement not to compete with each other. One insurance company dictates health care to over half of Washington State. In Seattle, the figure is higher. In eastern Washington, 70 percent of the patients are controlled by one plan.
What does this mean? It means, for instance, that an HMO can devise a contract like this one. We define
medical necessity as the short test, least expensive or least intense level of treatment as determined by us, the health plan. Then they can give the physicians, let us say we are talking about eastern Washington where this HMO controls 70 percent of the population. They can give that contract to employees; they can also give a contract to the physicians or the nurses, or, for that matter, the pharmacists, and they can say, take it or leave it.
Now, in the old days, and this is where the market competition comes in that my friend who opposed the managed care reform bill said, well just let the market work. Well, in the old days, you could. You could say, I am sorry, I am not going to sign that contract with you when you define medical necessity that way. But today, if they control 70 percent of the patients and they say take it or leave it, one may be left not being able to pay mortgage payments or pay for your daughter's education. That is tough. That is a tough decision. It could break your practice. It could mean you could no longer practice in eastern Oregon, for example.
So you say, well, what is the problem with signing that contract that has that clause in it?
Let me give an example, and then I will yield back to the gentleman. As a reconstructive surgeon I used to take care of, and I still take care of overseas kids that are born with this type of birth defect, a cleft lip and palate. Under that plan's arbitrary definition in their contract, they could say, we are not going to authorize surgical correction of that huge hole in the roof of this baby's mouth; we are just going to authorize you using a little piece of plastic to shove up in there to close the hole, it is called a plastic obturator. They can do that according to the contract. If I came back to them and I said, that is egregiously wrong; that is keeping this child from being able to learn to speak properly. If I then went to some of my medical colleagues and I started to talk to them about that HMO's practices and we mentioned to each other gee, we do not think that we can support or sign up for an HMO that does that kind of practice, my friend from California, what would happen to us?
Mr. CAMPBELL. Mr. Speaker, you would be sued for treble damages by the insurance company that made the offer to you.
Mr. GANSKE. And what effect would that have on the ability of this child to get this?
Mr. CAMPBELL. Mr. Speaker, if I were the gentleman's attorney, I would advise the gentleman not to treat that child, because he would run the risk not only of financial damage, but he also might run the risk of a conviction,
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Mr. GANSKE. Mr. Speaker, let me continue then about another type of contract provision that HMOs force on providers, and that is what is called gag rules. That is where, for instance, Aetna has said, providers shall not provide or threaten to provide inferior care or imply to members that their care or access to care will be inferior due to source of payment.
In other words, there are some HMOs that say, before you can tell a patient all of their treatment options, you must first get an okay from us. And if you do not do that, we are going to deselect you from our plan. If our plan happens to cover 50 percent of your patients, tough luck.
The point is this: by using their market share, they have a huge amount of leverage on the individual practitioners that can then significantly interfere with the physician in his professional duty of being the advocate for the patient.
Mr. CAMPBELL. Mr. Speaker, if the gentleman would
yield, that example is even worse than the first. One's obligation as a physician to advise a patient on what the patient's best choice of treatment should be seems to me paramount and ought to be untouchable. Yet, what we have allowed to develop in this country, through contract, not through any Federal law, but through contract and the force of power of the HMO or the insurance company on the other side of the contract, is that you do not offer that advice. You are gagged. You are subject to the gag rule.
Mr. GANSKE. Mr. Speaker, reclaiming my time, what happens then? The company uses its ability to gag you or deny necessary care, and so you have a baby born with that birth defect that does not get the treatment that they need.
Mr. CAMPBELL. Would the gentleman yield?
Mr. GANSKE. I yield to the gentleman.
Mr. CAMPBELL. Mr. Speaker, it is most galling that this situation persists because the insurance company has an antitrust exemption, and what we are trying to do in the bill that we will vote on tomorrow is to say that a medical doctor ought to be treated no worse than the insurance company on the other side of the bargaining table. What happened is remarkably fascinating to the situation at hand.
Mr. Speaker, the Supreme Court said that insurance was not subject to the antitrust laws for about 50 years, and then in the 1940s, they held that it did apply. Do my colleagues know how long it took before the insurance industry got an exemption from insurance from antitrust through this Congress? It took less than 2 years. And so today, we are left with insurance having an antitrust exemption to the extent that it is regulated by State law, the business of insurance is exempt from antitrust.
Mr. GANSKE. Mr. Speaker, let me get this straight, reclaiming my time. So while the insurance industry is critical of the bill, they, at the same time, have an antitrust exemption. Is that right?
Mr. CAMPBELL. Mr. Speaker, the gentleman is quite right. In fact, they ought to consider emulation is the highest form of flattery. They came to Congress and got an exemption from antitrust for their industry and they begrudge those who they say are exploiting on the other side of the bargaining table.
Mr. Speaker, I go back to the example of take it or leave it. Take it or leave it was something that employers used to say to employees too, and the employees said, I am not taking it. I am joining the union. In 1914, the Clayton Act was passed that created an exemption from antitrust for labor unions for exactly the same reason, that it was not fair for the powerful employer in a particular area to say, take it or leave it. Even worse is the insurance company, because the employer would have market power just by reason of being large; the insurance company has market power in some instances because of the antitrust exemption. So in the case of labor, if a doctor is a member of a labor union, the doctor can say, no, I am not taking it or leaving it, and neither is my brother and neither is my sister.
What we are trying to do in this bill is not force every doctor to join a labor union. Indeed, this bill is quite explicit. It does not touch the question of a doctor being in a labor union; it explicitly says the bill gives no right to any doctor to strike, but it says one very important thing, that the doctor or the medical professional shall be allowed the same degree as though they were in a labor union an exemption from the antitrust laws solely in the context of bargaining, just getting the terms of that contract so that one can treat that child with a cleft palate, so that one can communicate with one's patient and tell her or him all of the options available.
Mr. GANSKE. Mr. Speaker, reclaiming my time, practically speaking, what has happened is this: we have seen a number of HMO abuses around the country. Eighty percent of the public thinks that Congress should do something to fix this problem. Almost everybody knows a friend or a family member or a fellow worker, an employee who has not been treated fairly and gotten the type of treatment that they need. There are two approaches to fixing this.
The first approach is a regulatory approach.
[Time: 19:30]
When Congress took away from the States for employer plans the ability to oversee the quality of those health plans, those insurance plans through the Employee Retirement Income Security Act , it basically left a vacuum. It did not fill in that traditional State oversight by a State insurance commissioner, and so people, most of the people in this country who are working get their insurance from their employer. Most of them are surprised to know that if their State legislature has passed some type of patient protection, it probably does not even apply to them.
So what we did back in October was, we started to fill in the gaps in terms of patients being treated with due process, the regulatory gap at the Federal level. But we had a lot of comment on that. People said, well, you know, maybe we just ought to let the market work better.
Well, what we are talking about tonight is that because of market concentration where we now essentially have six large HMOs in the country, the free market is not working right. I mean, the gentleman could probably give me analogies better to what it was like for a farmer having to deal with a railroad monopoly.
Mr. CAMPBELL. Mr. Speaker, will the gentleman yield?
Mr. GANSKE. I yield to the gentleman from California.
Mr. CAMPBELL. Mr. Speaker, the gentleman makes an excellent point, because this is another example, it is called the Capper-Volstead Act , and the farmers of the United States have an antitrust exemption. And the reason was that Congress was scared, worried, troubled that the great purchasers, the railroad cooperative or the purchaser, I hesitate to use a company name, but let me say in the past what you might have called Cargill or Archer Daniels & Midland, I am not in the slightest alleging that they are engaged in exploitative practices now or that they ever were specifically, but use them as an example, a large purchaser might be able to tell the farmer, hey, we are not buying your crop, go put it back in the ground.
Mr. GANSKE. Reclaiming my time, I believe there have also been some antitrust exemptions for fisherman.
Mr. CAMPBELL. For the same reason, the Fisherman's Cooperative Antitrust Exemption Act , because once you catch the fish, you cannot put them back in the ocean and hope to collect them again. And what is common, whether we are speaking about the labor union or the farmer or the fisherman, is that there is unequal bargaining power, because the other purchaser, the other side of the contract, the purchaser is able to say take it or leave it.
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