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Washington, D.C. – U.S. Senator Mike Enzi, R-Wyo., said today that the Patient's Bill of Rights being debated this week in the Senate must put patient's first.

The Senate is considering a proposal by Senator Ted Kennedy, S.1052, that includes patient protections, most of which were passed by the last Congress as part of bills that Enzi had cosponsored. But Enzi and other senators who are readying their own proposed improvements believe the bill before the Senate now needs to be modified before it is sent to the President.

Enzi said he would, however, support a final bill if it includes the patient protections that current proposals have in common such as, the liability in the first Breaux bill, S. 889. Enzi also believes the final bill should have wording that protects the way states regulate their insurance plans.

Enzi said the Kennedy bill must be revised before its final passage.

"Allowing medical decisions to be made by doctors and not health plans and increasing access to affordable health insurance are key components of a plan that would protect patients," said Enzi. "The Kennedy legislation would force employers to drop health insurance plans and would dramatically increase health insurance costs, ultimately resulting in people losing their health insurance. That doesn't sound like a patient's bill of rights to me," said Enzi.

Enzi also said that many Americans are already in health plans regulated by state law and many states have already passed patient protection legislation that is specific to the needs of the respective state. Revising those efforts hurts, not helps patients.

"The Kennedy plan, however, would require states to forsake laws they have already passed if they are not the same as the proposed new federal standards. It would determine what's best for everyone and not what's best for Wyoming," said Enzi. "Requiring Wyoming to enact a series of additional laws that don't have any bearing on consumers in our state is at best a poor use of time and resources, particularly in a citizen legislature."

Enzi is a member of the Senate Health, Education, Labor and Pensions (HELP) Committee and was on the House-Senate conference committee for last year's Patient's Bill of Rights legislation.

Debate on the health care proposals is expected to continue throughout the week.

Enzi's complete comments follow.

Statement by Senator Mike Enzi
Patients' Bill of Rights
Opening Statement/General Remarks
June 19, 2001

Mr. President. I rise today to join all of my colleagues in calling for a Patients' bill of Rights. The President has clearly stated his desire to sign a bill into law, but has also been very clear on what he won't sign. I support his goal of protecting Americans that have been mis-treated by their HMO, and I also support his goal of only enacting a bill that will preserve access to insurance for those that already have it, and increase access for those Americans that are un-insured. The legislative and political history on this matter stretches back a ways. In fact, in three of the four-and-a-half years I have been in the Senate, we have passed a Patients' bill of Rights. I hope to keep that streak going this year, only I hope what we pass finally gets signed into law to the benefit, not the detriment, of consumers.

While there is a lot of consensus between all parties on the need for a number of patient protections, a strong internal and external appeals process, a right to hold health plans accountable in certain instances, and an assurance that all Americans be afforded such protections, there remains some disagreement on key issues. First, the appeals process should be meaningful and required because it gets people the right care, right away. Second, limitless lawsuits help lawyers, not patients. Third, turning state regulation of health care on its head is a losing prospect for consumers whose needs have historically been better served by their own insurance commissioner. While I would like to spend my time today making a general statement about the need for a Patients' bill of Rights, I plan to revisit in detail the issues I just mentioned as the debate moves ahead.

During both the Floor debate and earlier in the Health, Education, Labor and Pensions Committee consideration of the Patients' bill of Rights, I asserted strong positions on several key components of the managed care reform debate. I wish, once again, to reiterate my support for adoption of a bill that protects consumers, improves the system of health care delivery and shrinks the rolls of the uninsured.

I believe that as we consider a bill as important as the Patients' Bill of Rights, we must never lose sight of our shared goal of having a strong bill. The politics should be left at the door in our effort to emerge with the best policy for patients. That was the process I had thought we laid out last year when we undertook a conference on the bill. That was the commitment the principles in the conference made to the public more than a year ago. I really can't go further without commenting on that conference. I have been told by my more senior colleagues that members have never logged as many hours in trying to thoroughly understand and cobble a bill as we did last year. That effort was not in vain. We learned a tremendous amount about the value of enacting a good Patients' bill of Rights. We also learned that preserving access to quality health care is the most important patient protection we can provide to consumers. Senators Gregg, Frist, Gramm, Jeffords, Hutchinson and Chairman Nickles demonstrated every day their commitment to doing the right thing for patients. I'd like to offer a special thanks to Senator Nickles for being a patient gentleman as he led us in our negotiation process.

All of the bills that we've ever considered, including the bill before us today, have offered a series of patient protections to consumers. Direct access to OB-GYN and pediatric providers, a ban on gag clauses, a prudent layperson standard for emergency services, a point-of-service option, continuity of care and access to specialists that would provide all consumers many of the same protections already being offered to state-regulated health plan participants. Additionally, health plans would be required to disclose extensive comparative information about coverage of services and treatment options, networks of participating physicians and other providers, and any cost-sharing responsibilities of the consumer. All of these new protections are crowned by the establishment of a new binding, independent external appeals process, the lynch pin of any successful consumer protection effort.

While I still do not believe that suing health plans is the biggest concern of consumers, holding health plans accountable for making medical decisions is a key component of a Patients' bill of Rights. For the record, I believe the biggest concern of patients is getting the best health care they can right when they need it. Most people I know value their health over all else. Money doesn't buy happiness, but good health can make a nice down payment.

Our success will absolutely be measured by whether we get patients the medical treatment they need right away. Everyone agrees the essential mechanism is an independent, external appeals process. The last thing we should do is establish a system which would require patients to earn their care through a lawsuit. It is for this very reason that the bill I will support securely places the responsibility for medical decisions in the hands of independent medical reviewers whose standard of review is based on the best available medical evidence and consensus conclusions reached by medical experts. These decisions would be binding on health plans. One of the specific concerns that will be directly addressed by the independent review process is that of the "medical necessity or appropriateness" of the care requested by the patient and their physician. Consumers and health care providers have repeatedly requested that there be a prohibition on health plans manipulating the definition of "medical necessity" to deny patient care. I think all the bills have attempted to address this concern. I do, however, have concerns about how the bill before us goes beyond addressing this concern and obviates the health care contract altogether. That provision will have to be fixed in a final bill.

The issue of ensuring that patients receive the medically necessary and appropriate care they've been promised in their contract has been addressed by a number of the states already through appeals processes they have established. Many employers and health plans already voluntarily refer disputed claims to an independent medical review. But when it comes to formal federal action pertaining to the employer plans regulated solely by the Department of Labor, we are just now examining how to proceed. Since its inception in 1974, this is the first major reform effort of ERISA, the Employee Retirement Income Security Act, as it pertains to the regulation of group health plans. The focus of the mission -- regardless of politics -- should be to protect patients. Protecting patients means not only improving the quality of care but expanding access to care and allowing consumers and purchasers the flexibility to acquire the care that best fits their needs.

This leads me to another concern I have with the bill before us. It requires states to forsake laws that they have already passed dealing with the patient protections included in the bill, if they are not the same as the new federal standards. The technical language in the bill reads "substantially equivalent," "does not prevent the application of" and, under the process of certifying these facts with the Secretary of HHS, the state will have to prove that their laws are "substantially equivalent and effective patient protections." The proponents of this language say that it won't undo existing state laws that are essentially comparable, but that's not what their bill requires. Instead, when I see the requirement of "substantially equivalent" I read that, if there's any difference, then they're obviously not equivalent and don't meet that test. What does "substantial" mean and how does it modify "equivalent" at the end of the day? These questions aren't being answered. Is it that the proponents aren't overly concerned with the implementation of the law versus being able to say that their bill meets the political test of covering all Americans, regardless of existing, meaningful protections that state legislatures have enacted? If the laws just have to be comparable, then why don't we use that phrase? I will get into this issue in more detail as the debate proceeds, and I do believe we can strike a compromise on the matter of scope, but I cannot state strongly enough my objection to wrenching from states their authority to regulate on these matters. The only hard proof we have right now is that states are, by and large, good regulators, while the federal government has done a lousy job regulating on behalf of health care consumers. The General Accounting Office has been reporting that to us since we passed the Health Insurance Portability and Accountability Act (HIPAA) in 1996. And that's the "consumer protection and enforcement" mechanism the bill before us is written around!

I know I'm on the verge of sounding like a broken record, but I would like to sketch out the effect of this bill's scope as currently drafted. It's done best with a story about Wyoming. Wyoming has its own unique set of health care needs and concerns. Every state does. For example, despite our elevation, we don't need the mandate regarding skin cancer that Florida has on the books. My favorite illustration of just how crazy a nationalized system of health care mandates would be comes from my own time in the Wyoming legislature. It's about a mandate that I voted for and still support today. You see, unlike in Massachusetts or California, for example, in Wyoming, we have few health care providers; and their numbers virtually dry up as you head out of town. So, we passed an "any willing provider" law that requires health plans to contract with any provider in Wyoming who's willing to do so. While that idea may sound strange to my ears in any other context, it was the right thing to do for Wyoming. But I know it's not the right thing to do for Massachusetts or California, so I wouldn't dream of asking them to shoulder that kind of mandate for our sake when we can simply, responsibly, apply it within our borders. What's even more alarming to me is that Wyoming has opted not to enact health care laws that specifically relate to HMOs, because there are, ostensibly, no HMOs in the state! There is one, which is very small and is operated by a group of doctors who live in town, not a nameless, faceless insurance company. Yet, under the proposal the Democrats insist is ‘what's best for everybody,' the state of Wyoming would have to enact and actively enforce at least fifteen new laws to regulate a style of health insurance that doesn't even exist in the state!!!!

What Wyoming does currently require is that plans provide information to patients about coverage, co-pays, and so on, much as we would in this bill; a ban on gag clauses between doctors and patients; and, an internal appeals process to dispute denied claims. I am hopeful that the state will soon enact an external appeals process, too. This is a list of patient protections that a person in any kind of health plan needs, which is why the state has acted. But requiring Wyoming to enact a series of additional laws that don't have any bearing on consumers in our state is an unbelievable waste of the citizen legislature's time and resources.

Speaking of limited resources, I would be remiss if I didn't touch once more on our most important charge in the debate – to preserve Americans' access to health insurance. If we make it too difficult for employers to voluntarily provide health care to their employees, then it should come as no surprise to any of us that they will simply stop volunteering to do so. I won't support a bill that denies people access to health care. If my colleagues don't believe me now, they can bet their constituents will come calling when they lose their insurance or have it priced forever beyond their reach. I will make a promise to my own constituents right now that I will work hard to enact a meaningful Patients' bill of Rights, but I will fight any measure that threatens their access to health care.

I will reserve further remarks until we delve into the process of considering the different provisions of the bill. I again extend the hand of compromise and the offer to all of my colleagues that we rally around our common position on many of the patient protections and forge ahead on the rest of the bill towards an end that has an eye on what's best for patients. This bill is about them. If someone else is benefitting from a provision, then I would suggest that our drafting is not quite right.

I look forward to my continued role in the process.

Thank you, Mr. President. I reserve the balance of my time.