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   But the fact of the matter is that we can, if we treat people appropriately and fairly, and they get the type of treatment that they need at an appropriate time, then, in the long run, I think we can prevent not just additional expenses to the medical system, but we can also prevent disasters like happened to this little boy when he lost his hands and feet. And how do we calculate what his hands and feet are going to be worth to him the rest of his life?

   Mr. CAMPBELL. There is one other aspect, if the gentleman will yield, on the question of cost. But I cannot leave the gentleman's previous example without saying he is absolutely right. And for those whose only focus is cost, they will forever be subject to the predatory activities of those who offer a quality that is diminished.

   But the other aspect of the cost estimate is the CBO, in coming to the six-tenths of 1 percent, did not include the following consideration: that as dealing with HMOs becomes a little bit fairer and a little bit more enjoyable and a little bit more professional for the medical doctor , we will see doctors staying in HMOs who otherwise would have left them.

   It is true that the HMO is a lower cost effect delivery than fee-for-service has been. And so as we have more doctors going into HMOs because it is a more hospitable environment, we will actually have a depressing effect on cost. That I pointed out, but the CBO did not include in its estimate.

   So I think we can safely conclude two things: one, that the cost increase to the patient is going to be very, very small. And I will accept the six-tenths of 1 percent, as does the gentleman. But, secondly, that estimate has not considered quality. And there are many points where we simply cannot measure quality in dollars and cents. But taking the most conservative assessments, the quality increase is worth it.

   Mr. GANSKE. I wonder if the gentleman would care to comment on the opposition of the Federal Trade Commission and the Department of Justice.

   Mr. CAMPBELL. I had the honor to be director of the Bureau of Competition, Federal Trade Commission, during the administration of President Ronald Reagan. As a result, I am an FTC graduate. I used to bring antitrust lawsuits on behalf of the Federal Trade Commission. And the Federal Trade Commission, to my knowledge, has opposed every exemption from the antitrust laws ever proposed. I do not run the risk of being corrected on that.

   I remember testifying before Congress, when I was the director of the Bureau of Competition, for a limitation on the antitrust exemption for ocean shipping. In each case, the FTC and the Department of Justice do exactly what we would expect of them, and I do not fault them at all.

   Mr. GANSKE. They are protecting their turf.

   Mr. CAMPBELL. That might be a doctor's assessment of a lawyer. A lawyer might say defending his jurisdiction. Protecting his turf sounds like the same thing.

   Mr. GANSKE. I wonder if the gentleman would care to comment on the fact that the Department of Justice did not challenge a single health care merger in the last decade of all these HMOs, while the 18 largest health plans merged into just six, at least not until one of the health groups pushed the DOJ to look at the issue, and then I think they went ahead and granted the merger anyway. Would the gentleman care to comment on that?

   Mr. CAMPBELL. Indeed, I was in charge of the aspects of merger analysis that was applied by the Federal Trade Commission. And, roughly speaking, and this is ballpark but it is about right, up until 40, 50 percent market share is achieved in a merger, the FTC and the Department of Justice will permit the merger.

   It is actually more complex than that. It is done under an index called the Herfindahl-Hirschman Index. But the FTC and Justice will oftentimes make an analysis of will there be potential competition. Will another hospital enter if the existing merged entity extracts a higher price. And in so doing, the patients might suffer for a year or two until that new entrant happens. The analysis, in other words, allows a substantial accumulation of market share.

   I find myself admiring the analysis that involves economics at the Federal Trade Commission and not admiring the outcomes that, at least in this instance, allowed the accumulation of market power. The theories might have been right; but the practice, as we have seen, did not result in consumer benefit.

   Mr. GANSKE. Now, some people say that H.R. 1304 will come under the National Labor Relations Act . Is there anything in the gentleman's bill that has to do with the National Labor Relations Act ?

   Mr. CAMPBELL. Only the one sentence in the bill that it does not come under the National Labor Relations Act . I explicitly put into the bill a statement that nothing in this bill shall alter in the slightest the application of the National Labor Relations Act or extend to areas which previously it did not extend to. Absolutely false. Not a change.

   And I will put to the gentleman something he and all of us in the House know. If there were any such implication, the bill would have been referred to the Committee on Education and the Workforce, which is jealous of its jurisdiction, and it was not. It was kept in Judiciary, dealing strictly with antitrust.

   Mr. GANSKE. Now, the gentleman has wide bipartisan support of this bill. How many cosponsors does the gentleman have for this bill?

   Mr. CAMPBELL. I am proud to say we have 220 cosponsors. And as everyone here knows, 218 is a majority of the House. Of those 220, as I said, just under 100 are Republicans and the rest, slightly more, are Democrats.

   Mr. GANSKE. So it would be the gentleman's contention that since Congress is indicating now that they think that there is a problem, our leadership does too, that there is a problem with HMO abuses, that for those who think, well, let the market do its will, the market has to be able to do its will.

   Mr. CAMPBELL. Right. And we cannot have an antitrust exemption on one side and individuals unable even to call each other on the other. And market power with fewer and fewer HMOs on one side, and a doctor who cannot even express her or his revulsion against a gag order to her or his colleague, is not the market.

   I suppose if one were a real free market Ricardo economist, they might say, let us go back to the state of nature. Let us get rid of the antitrust exemption for insurance. Incidently, I actually offered that once, and it got one vote in the Committee on the Judiciary in 1989.

[Time: 20:00]

   Mr. GANSKE. I know that I have many friends who will say, well, you know, maybe we do not need to deal with this issue right now because, after all, the Managed Care Reform Act of 1999 that passed the House is now in conference with the Senate and maybe we just ought to wait and see what happens on that conference.

   My personal opinion on this is I think we probably need both. I think we need to see some regulatory oversight in the vacuum that was created by ERISA. I think we would probably need less of that if the Campbell bill passed. I do not see them as exclusive of each other.

   Furthermore, I would say this: The managed care industry is very creative. We have no way of knowing how they will change their contracts, how they will change their business practices, and what kind of quality issues will arise out of that in the next few years. And that is why I would say H.R. 1304 would address this issue because it would enable the health care providers who are having to deal with this, who are having to stand up and advocate for their patients at that time to be able to band together and advocate for those patients as new permeations arise within the industry.

   Mr. CAMPBELL. Mr. Speaker, I appreciate the point of the gentleman. As I said at the start, I admire his compassion, his knowledge, his medical as well as congressional experience.

   I took a slightly different view, as the gentleman knows on the Patients' Bill of Rights. So it is fascinating, here we are with two different positions on the Patients' Bill of Rights.

   Mr. GANSKE. Yes, Mr. Speaker, I am supporting the gentleman on his bill. I wish he would have supported me on mine, but he did not. But I understand the commitment of the gentleman when I asked him to support the bill he said I want to approach this from a different aspect, I want to try to make that market work, but in order for a market to work, you have to have fairness in terms of the bargaining positions of the participants.

   Mr. CAMPBELL. That is exactly right. And I do have ultimate trust that market solutions are better than Government-imposed solutions. And so, if we pass H.R. 1304 tomorrow and the other body passes it and the President signs it into law, we will have the opportunity to let that private ordering between the insurer and doctor prevail.

   My hesitation was the Federal Government seldom gets it right, and having Government put in terms of contracts certainly is offered as an alternative but it is an alternative I would go to as the last one rather than the first.

   Might I ask my colleague to yield on one last point, which is the amendment that will be offered by our friend the gentleman from Florida (Mr. STEARNS)?

   Mr. GANSKE. Mr. Speaker, I yield to the gentleman.

   Mr. CAMPBELL. Mr. Speaker, first of all, the gentleman from Florida (Mr. STEARNS) is a colleague of mine. We entered Congress the same year. So I have high regard for him, but I also have a friendship for him.

   The amendment he offers tomorrow, however, is a killing amendment. I just want to draw attention to this. It says that all of this may be well and good, however, the Federal Trade Commission shall have the authority to vitiate any contract reached after such process if in the Federal Trade Commission's opinion that contract does not enhance patient welfare.

   If my colleague sees my point, it is directly against the principle I just announced. Here is a Federal Government agency, which does not want this bill, which has been hostile to the concept that medicine should be a perceived as a profession rather than the

   subject of antitrust to be given the power to vitiate any contract upon its own determination that the particular contract, and here the judgment is not an economic one but a social one, does not enhance patient welfare.

   It is a killer amendment. In fact, it goes much farther than an amendment which was offered by our friend from Indiana in the committee, which said they have got to get approval from the FTC first. The theory there was let the FTC sign on or not and give them the yes or no in any particular case.

   Well, once again, we know pretty much what the FTC did. Here is the power to vitiate any contract the FTC chooses to decide that it does not benefit health care in its own essentially unreviewable discretion.

   So I say to my colleagues who might be listening or to their constituents who might wish to advise them, if they feel this bill is not good, of course vote against it, but it would be disappointing to vote in favor of the amendment being offered by our friend from Florida (Mr. STEARNS) thinking it is improving the bill when in reality it is killing the bill. Vote up or down on the merits. Do not kill by subtle amendment.

   Mr. GANSKE. Let me just go back to the nitty-gritty of the bill, and that is that physicians cannot sue under this bill.

   The most recent cost estimates by the Congressional Budget Office are six-tenths of one percent. What we are talking about is a group of physicians who do not join a labor union but are concerned about HMO practices who want to get together and tell that HMO, you know, the contract that you are giving those employees for that company where it says ``medical necessity'' means the shortest, least expensive, or least intense level of care is just not right and, together as a group, we will not sign onto a health plan where you are treating one of your subscribers in that way or, for instance, when you have provisions in your contract that says first we have to phone you before we can even tell a patient about their treatment options.

   I mean, this affects real-life people and the ability of a physician to be an advocate for your patient.

   This is a lady who was profiled in Time Magazine. She had received a recommendation for treatment. She lived in California, the home State of my colleague. She had received a recommendation for treatment from her HMO. The HMO referred her to a medical center, which I will not name, and then put undue pressure on that medical center to deny her the treatment and not tell her all of her treatment options.

   She died because of that practice. This little girl and that little boy and her husband now no longer have a mother or a wife because of that. But we have a situation now where if a group of physicians or nurses or pharmacists or other health care providers, professionals, wanted to get together to try to effect changes and to negotiate with an HMO to stop those kinds of practices, unless they were salaried, then they could be brought to court for an antitrust violation.

   I just find that that is terribly, terribly wrong. And I know that this happens. I know from practice that physicians are very, very careful about sharing information of misadventures of other HMOs for exactly this reason. Because if they get together and start talking about it sort of as a group, even if it is done on an individual basis, they decide, I am not going to renew that contract, then they could get hit with a big antitrust.

   But the fact of the matter is that now they are not even given that choice in many examples anymore because of the concentration in the industry, it may very well mean that they have just lost half of their patients without being able to effect any negotiations with any reasonable chance of success on that; and that may mean, in effect, that they can no longer practice in that community.

   Mr. CAMPBELL. I have just received a signal that we have only 2 minutes left. So I simply want to say in about 10 seconds that the whole purpose behind H.R. 1304 is to allow medical professionals to practice their profession so that they can help their patients and that what has happened is that decision has in large part been taken away from them and that is what we wish to correct.

   I thank the gentleman for sharing his hour with me.

   Mr. GANSKE. Mr. Speaker, I appreciate very much the gentleman from California (Mr. CAMPBELL) joining me in this discussion on his bill, which will reach the floor tomorrow morning at about 9 o'clock. We will have a couple hours of debate on it.

   I will encourage all of our colleagues who have cosponsored this legislation to vote against any weakening amendments and to vote for the bill, as my colleagues have indicated they would in cosponsoring this legislation.

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