John Edwards

Mr. EDWARDS

Mr. EDWARDS. Yes.

Mr. EDWARDS. That is absolutely true. These are lawyers hired by the insurance companies.

Mr. EDWARDS. Absolutely. What will happen is that the lawyers will write the plans, and under every single thing we have passed during the course of this week, the plan controls; the insurance company controls. If anyone thinks for a minute that the lawyers who are hired by these insurance companies are not going to write the plans in a way that protects the plan and the HMOs and never protects the patient, they are living in never-never land. That is exactly what will happen. As a result, in its simplest terms, the insurance company and their team of lawyers have won this battle. The patients have lost. One last thing. We have heard lots of talk about cost from the other side. That is a false argument. It is a false argument for a simple reason. No. 1, what will happen under our real Patients' Bill of Rights is that we get patients to emergency rooms, to specialists, to the doctors who they really need to see as quickly as possible. That has an extraordinarily important cost effect, which is they get treated more quickly, their condition and disease is diagnosed more quickly, and as a result the long-term costs associated with that are reduced. Our bill will reduce costs over the long haul. It will absolutely reduce costs when the long-term expenses and costs are considered. Second, when an HMO or health insurance company acts recklessly and irresponsibly and a child, for example, is severely injured and that child incurs millions and millions of health care costs over the course of his or her lifetime, the health insurance will not be held accountable. No way are they held accountable. Those costs--the millions and millions of dollars--don't go away. The question is, Who pays? The American people pay. The American taxpayers pay. They pay through Medicaid. That is the only way those costs will be paid. Instead of an HMO being responsible for paying, the American taxpayer pays. The people listening to this pay.

Mr. EDWARDS. Mr. President, let me address the external appeals part of this amendment. Yesterday afternoon, we had a debate, at which time I brought to the attention of my colleagues on the other side the fact that, essentially, we had no enforcement mechanism for any of the provisions passed because there was no meaningful external review, the reason being insurance companies got to write the language on what is medically necessary, and the only thing that was appealable was what is medically necessary. That being the case--that the insurance company totally controlled whether there could be an appeal at all--not having a meaningful appeal is similar to having a law without a police force or a court system. There is no way to enforce it. The law is meaningless. All of these provisions we pass are meaningless unless they are enforceable. This amendment attempts--and I applaud my colleagues for making this effort. I think it is the result of a discussion we had yesterday. It attempts to address that problem, but it still has an enormous problem in it. There are two parts of an appeal process. The first is, do you get to appeal? The second is, if there is an appeal, what can be considered? What they have offered by way of different language today, for the first time in the course of this week, is some change in what can be considered if there is an appeal. They don't change, in any way, what is appealable. Once again, the only thing appealable is medical necessity. You can't appeal whether you have access to a specialist. You can't appeal whether you were reasonably prudent in going to the emergency room. All that long list of things which are contained in the various provisions that have been considered are not appealable. The only thing appealable is medical necessity. The insurance company writes what medical necessity means. They can write it any way they want. So the problem is, while they have attempted to address the second part of the appeals process--and I applaud them for that --they have not addressed in any way the first part, which means the insurance company lawyers can write the contracts in a way that essentially makes appeals impossible by simply drafting very narrow language of what medical necessity means. If they do that, then nobody gets their foot in the door. What we have done basically is we have taken a door that was completely closed and put a very tiny crack in it. That is all that has happened. Instead of what we ought to be doing, which is to have a simple, plain provision--and I don't know why my colleagues won't agree with this; maybe they will if we talk about it--a plain provision which says any right provided in any part of these amendments and bills that have been passed is appealable. Why not make them all appealable? That way, we have an enforcement mechanism. We have a police force, a court system, and we have a way to make the rights that we are attempting to create meaningful because if we don't do that, essentially what happens is we pass laws that are totally unenforceable. The result is the insurance company totally controls what occurs. What we have today is a situation where HMOs and insurance companies are totally in control. That is what we are about this week. We are about changing that. I do applaud my colleagues for making some effort to address that issue. But what has happened is they only address the second part, which is what can be considered. They still, I might add, allow the party considering the appeal, which is chosen by the insurance company through another entity, to consider what the HMOs' own plans and procedures are. So the bottom line is this, Mr. President--

Mr. EDWARDS. Mr. President, I rise in strong support of this amendment. I particularly want to address the issue of financial incentives, which this amendment addresses, which essentially is HMOs and health insurance companies providing financial incentives for physicians to provide less than appropriate care to limit the treatment options for patients or, in the case I am about to talk about, not calling in other physicians or doctors when they may be needed under the circumstances. This is the story of something that actually happened in North Carolina. A young mother was in labor. During the course of her labor, she was being overseen by an obstetrician/gynecologist who was responsible for her care. Unfortunately, this single OB/GYN was responsible for the care of a number of mothers in labor on this night. During the course of the evening and the morning, the mother developed severe complications with her labor. There were clear signs the baby was in serious trouble and was having trouble getting oxygen and needed to be delivered. Something needed to be done immediately. The nurses taking care of this mother did exactly what good nurses would do under the circumstances: They paged the doctor. They called the doctor who was on call. They could not get him there. They had no understanding of why he was not responding to the call. They notified, by way of the call, that it was an emergency situation. Still no response. More and more time was passing when the child within the mother's womb was not receiving the oxygen it needed and continued to suffer injury and damage. Finally, the doctor appeared and delivered the baby by cesarean section. Unfortunately for this child and the family, it was too late. The child suffered severe and serious permanent brain injury. The child has severe cerebral palsy and, essentially, will require extensive medical care for the course of its life. Later we learned that what happened was the physician who was in charge of this patient's care had a financial incentive, because of his contract with the HMO, not to call in additional physicians. In other words, he was rewarded where, on a consistent basis, he did not call in backup help--even though in this situation he was taking care of too many patients, too many mothers. There was an emergency, and the bottom line is this: Because of a financial incentive, an insurance HMO credit with its doctor, we have a young child who will have cerebral palsy for the rest of his life. This is the kind of thing that should not happen in America. This is what this amendment addresses. It specifically deals with the issue of financial incentives in a thoughtful, intelligent way, limiting the financial incentives that can be allowed and requiring their disclosure--both of which are absolutely needed and absolutely necessary. I might add one final thought. This child, who for the rest of his life will be severely brain damaged, will require extensive medical care, very expensive medical care, running in the many millions of dollars. His family, who are responsible for this child's care, who live with this problem 24 hours a day, day in and day out, year after year--this child's medical care is being paid for by Medicaid.

Mr. EDWARDS. If I may have 30 more seconds?

Mr. EDWARDS

Mr. EDWARDS. On my time, I am only asking the Senator, if that is true, why does he have any objection to a simple sentence in this amendment that says denial of services under any of those areas is directly appealable to an independent body? Does the Senator object to that?

Mr. EDWARDS. Let me finish the question. I don't mean to interrupt you. Can he show me anyplace, in anything we have passed, where we have put any confines, any kind of restrictions on how the HMO or health insurance company can define what is medically necessary? Can he show me anything to prevent them from defining what is medically necessary any way they want?

Mr. EDWARDS. I am reading from your bill, where it specifically says what is appealable is what is medically necessary and appropriate ``under the terms and conditions of the plan''--under the terms and conditions of the plan written by the health insurance company. Your own bill specifically says that the only thing that is appealable is what the insurance company's written plan says is medically necessary. How does that change the power from the insurance company having total control over the enforcement mechanism?

Mr. EDWARDS. Can he show me that in any bill, in anything we have passed----

Mr. EDWARDS. Mr. President, I have two questions. First, let me ask the Senator, is it his understanding that the insurance company, the HMO, writes in the contract what the definition of what medically necessary is?

Mr. EDWARDS. Is it the Senator's understanding that what is appealable is based upon the insurance company's definition that is contained in the contract?

Mr. EDWARDS. Will the Senator yield for a question? I request permission to ask the Senator a question.

Mr. EDWARDS. Will the Senator yield for a question?

Mr. EDWARDS. I respectfully suggest that what I am reading from is the actual bill. Let me ask the Senator one last, simple question. If what he is saying is true, is the Senator willing to put in the amendment presently before us OB/GYN care, specialty care, and emergency room care? On those three provisions, is he willing to put in a specific provision that says denial of any of those services is directly appealable to an independent body? Would he be willing to do that?

Mr. EDWARDS. Is the Senator not willing to do it?

Mr. EDWARDS. Mr. President, first, I join my colleagues, Senators Bingaman and Harkin, in support of their amendment. I strongly support it. They have made great cases for it. There is another issue I will address that goes to this amendment but also goes to the amendment presently pending from the other side which deals with issues of specialty care, emergency room care, and OB/GYN care. I want the American people who are listening to this debate to listen carefully to what I am about to say. There is a huge, fundamental issue we are debating in the Senate this week. That issue is, are health care decisions going to be made by doctors and patients, or are they going to be made by insurance companies and HMOs. Every provision that has passed and has been proposed, including this amendment presently before us, leaves power in the insurance company. It leaves power in the HMO. The arguments we hear that these bills are true patient protections are entirely circular. If the American people believe insurance companies and HMOs should continue to make all the decisions, should continue to have control of the process, then they should support what our colleagues on the other side have been supporting. If they believe there needs to be a change in that system, then they should support what we are proposing and supporting. The very simple reason--it is easy to understand--why their bills change nothing about the present system is because there is no way to enforce them. They allow appeals only on the issue of what is medically necessary. It is the only thing that is appealable. What is medically necessary is determined by the HMO and the health insurance company. They write in the contract what is medically necessary. So no matter what we do in the Senate, no matter what we pass, so long as the insurance company and the HMO can define what is medically necessary-- and we have seen some ludicrous definitions discussed on the floor, including, for example, that it shall be in the sole discretion of the HMO and health insurance company to determine what is medically necessary, which means they can do anything they want, since that is the only thing that is appealable and, therefore, the only thing that is enforceable--the HMO has total control over this process. The patient has no power whatsoever. To me, it is as if having a law saying you can't steal money from people but not having a court system to enforce it, not having a police force to enforce it. So when somebody steals something from you, you say: Wait a minute, you can't do that. That is against the law. And the person who has just stolen from you says: So what? What are you going to do about it? What we have done is left the power entirely in the hands of the HMO to determine what is medically necessary and, as a result, to determine what is appealable. The only enforcement that any patient has is the appeal, which means the health insurance company has total control of the entire process. This argument is completely circular. It makes no difference what we pass. We can pass anything--OB/GYN reform, emergency room reform, specialists reform. It doesn't matter. The health insurance company gets to determine what is medically necessary. The health insurance company gets to determine, therefore, what is appealable. Those things have already passed, before this debate that is going on right now. The bottom line is this: Patients have no power; they have no ability to enforce anything. As long as the health insurance company maintains control over the appeal and grievance process, as long as they maintain control over the only enforcement mechanism that exists, we have no police, we have no court, we have no way to hold the HMOs accountable. When we finish the debate this week, and whatever passes here, HMOs are going to have a field day. They are going to go back with their teams of lawyers, and they are going to write contracts that completely protect them from any patient ever being able to appeal anything. That is all they have to do. There is nothing in anything we have passed thus far that will prevent them from doing that. They can write their contracts any way they want. They get to decide what is medically necessary. What I have just talked about applies to everything; it applies to everything that has passed thus far. I will say what my colleagues have said. If what I am saying is not true, why don't we simply say, for example, in the amendment that is presently pending from the other side, which deals with OB/GYN, emergency room care, specialist care--why don't we put one sentence in that says: Any denial of services under this amendment shall be subject to independent appeal and review. That is all it would take. Then it is enforceable. Then you have police and a court system. But when that doesn't exist --and it doesn't exist, in my opinion, for a reason, in that amendment. I might add, that it is clearly stated in the amendment that Senator Bingaman has just offered. There is a direct, independent appeal if the HMO denies service. It is very simple. It is a question of who has power. The way we live in the health care system in this country, the power rests with the HMO and the health insurance company. I hoped that the debate on the floor this week would be about how we can go about shifting that pendulum so we put more power in the hands of patients, more power in the hands of doctors, that we would pass some thoughtful, moderate legislation that would move the pendulum back to the middle. Unfortunately, as long as there is no way to enforce it, as long as the HMO can write the contract any way they want, they can define medical necessity. They define the appeal process and, therefore, they can eliminate the right to enforce anything. The power rests entirely with the HMO and entirely with the health insurance company, which is where it is today, and that is what I believe we need to do something about. Mr. JEFFORDS addressed the Chair.

Mr. EDWARDS. I am reading from your bill, page 173, where it says what is appealable is what is medically necessary and appropriate ``under the terms and conditions of the plan.''

Mr. EDWARDS. Mr. President, I say to my colleagues and to the Senator from Tennessee that I suffer from the disadvantage of having seen this amendment only for a short period of time, as my other colleagues have. But just in that short period of time, I have found what appear to me to be--and I am perfectly willing to listen to an explanation--three gaping holes in this amendment, particularly as it relates to the issue of specialty care. I think our amendment completely closes those holes. Hole No. 1: Even though the bill provides for timely specialty care in accordance with the exigencies of the case of access to primary and specialty care specialists--that on the surface sounds wonderful--here is the problem. There are three huge holes in that provision. No. 1, the plan can still do anything it wants to control costs, which means the plan can have a provision that essentially wipes out access to some particular specialty, or some particular kind of specialty care, in order to control costs. All they have to do is justify it on that basis, which is to control costs. So they can essentially eliminate the value and substance of this provision by simply saying, as they do every day now: We are doing this on the basis of cost. That is the reason the HMO is doing this. We have to do it for cost control--so they can keep kids from seeing specialists and so they can keep adults from seeing specialists. And their justification is, they are controlling costs. Huge gaping loophole No. 2: They can still condition access to a specialist in a treatment plan, which means the HMO can provide a treatment plan that is completely contrary to what the medical professionals taking care of the patient believe the patient needs to see in terms of a specialist. If that treatment plan--written by the health insurance company, written by the HMO--is inconsistent with what the doctor is doing in taking care of, for example, a young child whom he believes he needs to see in terms of a pediatric specialist, then the right to see a pediatric specialist is gone. So we already have two huge gaping holes: No. 1, the HMO can keep people from seeing specialists by just saying, we are controlling costs. That is as simple as that. It is over. Control is in the hands of the health insurance company. No. 2, if they say we have a treatment plan that is different from what the treating doctors say the child needs, they can keep the child from seeing a specialist, completely eliminating the right. And the killer is gaping hole No. 3, particularly working in combination with the other two, which is, there is no right to an external appeal. The result of this is, if the HMO says, we are not going to let you see a specialist because of cost, we are not going to let you see a specialist because we have a treatment plan that is inconsistent with what the treating doctors say, the patient is completely out of luck. They can't do a single thing about it. They have no right to an external appeal. They are completely stuck. The power remains entirely in the hands of the HMO and the health insurance company. It doesn't cure it in any way because of the extraordinary problems we have with access to specialty care today. Thank you, Mr. President.

Mr. EDWARDS. What is the right to do it?

Mr. EDWARDS

Mr. EDWARDS. No, I will not. It is not based on what some insurance company has written into a HMO or health insurance contract.

Mr. EDWARDS. There is a very simple, straightforward answer to the question. I understand the Senator is reading the old bill. He is not reading the bill that is presently before the Senate.

Mr. EDWARDS. May I respond?

Mr. EDWARDS. My response is very simple. The language on the preceding page requires that the independent external review entity be designated by the State. That is, if I am reading the language correctly, contained on the preceding page. That is designated by the State. In fact, we say--this is at page 11, I say to the Senator--that ``No party to the dispute shall be permitted to select the entity conducting the review.'' So there are two things operating, I think, in combination in our bill. No. 1, the State has to designate an independent body, and, No. 2, we specifically require that no party to the dispute be involved in designating the reviewing entity. I might add to that, I think it is also critically important who determines what is medically necessary and what the appeal decision body is bound by in terms of what is medically necessary because I think all of this becomes meaningless if they are bound by what the HMO or health insurance company wrote.

Mr. EDWARDS. I will give the Senator an opportunity to respond. My question is whether they will agree, No. 1, with the State choosing a truly independent reviewing body, and, No. 2, whether they will agree that the reviewing body is not bound by a definition written by the health insurance or HMO company. I yield for a question.