Committee on Rules

October 5, 1999 (1:00 p.m.)

SUMMARY OF AMENDMENTS SUBMITTED TO H.R. 2723, THE BIPARTISAN CONSENSUS MANAGED CARE IMPROVEMENT ACT (includes amendments to other major health care bills)

(in alphabetical order)

17. Berkley: Provides a clarification regarding protection of employer advocacy, stating that an employer has a right to advocate on behalf of their employee without fear of being held liable unless the cause of the employer's action is based on the employer's exercise of discretionary authority on a decision on a claim for benefits.

39. Bliley: Ensures that premiums will not increase significantly and the number of uninsured will not increase more than 100,000 as a result of this law.

40. Bliley: Strikes the whistleblower provision from H.R. 2723.

41. Bliley: Provides that if a health plan fails to comply with an external review decision to provide the denied care or service, the patient can go to any provider (outside the plan) to get the denied care and the plan must pay for or reimburse the patient for the cost of the care.

42. Bliley: Provides for two exceptions to H.R. 2723's point-of-service mandate: (1) a health insurance issuer that contracts with a small employer (2-50 persons) would not have to provide the POS option to that employer and (2) small issuers, defined as those with fewer than 25, 000 lives (total) would be exempted from the requirement.

43. Bliley: Adds a conscience clause to the gag provisions of H.R. 2723 stating that a group health plan does not have to provide or pay for counseling or referral services if the plan objects to such services on moral or religious grounds.

44. Bliley: Gives consumers the choice to pay a lower rate for lower liability rights (similar to the way automobile insurance works today).

45. Bliley: Ensures that the public can determine whether any malpractice judgements or criminal convictions have been issued against a physician.

46. Bliley: Provides that if a device/drug or product is approved by the FDA, a company could not be assessed punitive damages.

47. Bliley: Deletes section 302 of H.R. 2723 and replaces it with civil penalties stating that if a health plan does not comply with the external review panel's determination in a timely manner, the plan shall be fined $1,000 per day until such benefit is provided, without a cap; if it can be proven by clear and convincing evidence that the plan acted in bad faith, the daily fine is $5000; in addition, if the plan misses any deadlines for complying with the external reviewer's decision, the patient can seek treatment from the provider of their choice, and the plan must pay for the care it denied; finally, repeat offenders can be fined up to $100,000.

51. Bliley: Provides that the claimant in a health care liability action may not collect punitive damages if the harm for which the claimant brought action arises out of the claimant being given a drug or medical device by a health care provider which was not approved or cleared for marketing by the FDA (including a drug or device which was under investigation), and the claimant signed a written consent, and in the judgement of the health care provider, the claimant was at risk of death. LATE

22. Boehner: Strikes section 302, removing the liability provisions and replacing them with patient oriented accountability including a binding external review process, increased penalties on providers who fail to meet certain standards, and authorization of recommended care if plan impedes independent review determination.

23. Boehner: Amendment in the nature of a substitute. Provisions include: a prohibition on gag rules; access to emergency medical care; direct access to an OB/GYN; access to a pediatrician as a primary care provider; continuity of care for patients even if a provider leaves the plan; expanded plan information; a shortened group health plan review standard; a Health Care Access, Affordability, and Quality Commission; health care lawsuit reform, including a limitation on ďnon-economic damagesĒ; and a patient choice of medical provider option.

24. Boehner: Limits "pain and suffering" damages to $250,000 while allowing patients to recover all medical expenses, lost wages, future earnings and out-of-pocket expenses; establishes a uniform statute of limitations of two years; allows periodic payments of damages that will be realized in the future; enacts joint and severable liability reform; ends double recovery of medical and other expenses by allowing juries to be informed about other recoveries to plaintiffs; and places reasonable limits on the contingency fees that attorneys charge plaintiffs.

25. Boehner: Lifts restrictions of the use of MSAs; provides for an "above the line" deduction of the premium for all Americans who purchase their own health insurance or long term care insurance; provides for a refundable tax credit for people who purchase their own health insurance; requires the HHS Secretary to make a study of the adequacy of existing state safety net health insurance programs; and permits a taxpayer to carry forward to the next year any unused benefits in a cafeteria or flexible benefit plan.

32. Boehner: Requires that claims brought against health insurance providers or employers who sponsor group plans may only be brought as individual actions, not class actions. LATE

8. Brady (TX): Maintains the intent of the Bipartisan Consensus Managed Care Improvement Act of 1999 to improve health care for all patients in covered plans, but allows states to preserve their traditional authority over state-regulated group health care plans. In other words, the amendment applies the Patient Protection Act provisions unless a state wishes to preserve its existing state regulatory authority and opts to continue its traditional role of regulating certain health plans.

37. Burr: Prohibits health plans from disallowing FDA approved drugs by deeming them "experimental" or "investigational."

38. Burr: Prohibits punitive damages from being awarded in certain situations, such as pre-market approval by the FDA, with some exceptions; also clarifies punitive damages as it relates to drug packaging.

16. Calvert: Places a limit on the amount of punitive damages that can be awarded to plaintiffs under H.R. 2723. It would not supercede any caps already in place by state law unless those caps are already over an established limit ($5 million, indexed for inflation) beginning in 2001.

57. Capuano: Expresses bipartisan Congressional support for our nationís graduate medical and pediatric teaching hospitals and expresses the intent of Congress to ensure patientís access to care as the population grows and ages in the 21st Century. LATE

34. Cox: Permits patients a choice of remedy under ERISA plans.

35. Cox: Ensures that any punitive, exemplary, or similar damages that may be awarded in a case permitted to be brought under the legislation may be awarded only to the Secretary of Health and Human Services for deposit in the Federal Hospital Insurance Trust Fund, and may be used only to provide health care services to Medicare beneficiaries.

36. Cox: Permits a tax deduction for medical expenses for taxpayers who opt to pay for their own medical insurance and expenses instead of accepting employer-provided medical insurance.

3. Davis (IL): Requires the HHS Secretary to provide guidelines for the collection of data from group health plans, health insurance issuers, doctors, and patients, and to submit an annual report to Congress regarding patient satisfaction in managed care plans.

14. DeMint: Expands the bill's current consumer access to information provisions by increasing the disclosure requirements and establishes a one year commission to study and report to Congress on ways to encourage more consumer-based decision-making about health insurance and health care.

54. Goss/Coburn/Shadegg/Thomas/Greenwood: Amendment in the Nature of a Substitute Protects patients in managed care plans by: establishing utilization review procedures; requiring an internal appeals process within specified time lines; requiring independent external review of benefit disputes within specified time lines; allowing patients to sue health plans for benefit denials that cause harm; includes strong protection for employers; requires patients to exhaust the internal and external appeal prior to court action; includes caps on damages; allowing choice of medical professionals; establishing a prudent layperson standard for emergencies; allowing access to speciality care; allowing access to OB/GYNs without referral; allowing parents to designate a pediatrician as their primary care provider; prohibiting gag clauses; expanding access to cancer clinical trials; ensuring prompt payment of claims; simplifying paperwork requirements. LATE

52. Greenwood: Allows access to pediatric nurse practitioner. The base bill only allows parents to designate a pediatrician for their child, but this amendment expands access to qualified, well-trained professionals educated in pediatrics. LATE

53. Greenwood: Requires health plans that provide prescription drugs to also provide coverage for contraception services - does not require health plans or employers to provide prescription drugs. LATE

6. Hill (MT): Ensures that agents and advisors that work with or on behalf of an employer in helping it to select a plan are subject to the same limited liability parameters as the employer under section 302 of the bill.

58. Hobson: Allows individuals which buy qualified long-term care insurance policies to protect up to 75 percent of their assets from spend down. LATE

30. Houghton/Graham/Hilleary/Gibbons: Gives people a way to get fair compensation when they are hurt by a bad decision and limit it to that; lets people sue only the final decision-maker who fails to exercise ordinary care (as defined by the bill), would not let health plans that make good decisions and play by the rules be sued; provides that patients go to external review to get the benefits first, then go to court to seek compensation for any harm; keeps employers out of court unless the employer directly participates in the final decision.

59. Houghton/Graham/Hilleary/Gibbons: Amendment in the nature of a substitute. The amendment: gives people a way to get fair compensation when they are hurt y a bad decision and limit it to that; lets people sue only the final decision-maker who fails to exercise ordinary care; provides that patients would go to external review to get the benefits first, then go to court to seek compensation for any harm; and lets people sue the employer if the employer directly participates in the final decision. LATE

9. Kelly: Seeks to conform the Internal Revenue Code to the requirements consistent with the Women's Health and Cancer Rights Act of 1998 by providing a civil monetary penalty against those health plans who fail to provide coverage for breast reconstruction following mastectomy.

10. Kelly: States that a group health plan that provides coverage for laboratory services shall not limit reimbursement to a patient who chooses to use the services of a laboratory of his or her own choosing. Additionally, a patient that uses a lab of his or her own choosing must cover the costs that exceed the benefits covered under the patient's policy.

11. Kelly: Seeks to better serve breast cancer patients by: (1) ensuring coverage of inpatient hospital care for mastectomies, lumpectomies and lymph node dissection for the treatment of breast cancer for a length of time as is determined by the attending physician and patient to be medically appropriate (guarantees that physicians will not be penalized for recommending longer hospital stays); (2) requiring insurance companies to pay full coverage for secondary consultations whenever any cancer has been diagnosed and allows the doctor to go outside an HMO for consultation by a specialist; and (3) providing a civil monetary penalty against those health plans who fail to provide coverage for breast reconstruction following a mastectomy.

12. Kelly: Prohibits insurers from discriminating against children born with deformities by denying coverage of reconstructive surgery and requires insurers to provide coverage for treatment of a child's congenital or developmental deformity due to trauma, infection, tumor or disease.

13. Kelly: Provides arbitration for those patients who choose to select it, the opportunity to appeal medical coverage decisions and to hold health insurers financially accountable for wrongful decisions in a non-threatening forum with the same protections as court, but without the cost and time consumption that court often involves.

21. Kolbe: Establishes as a preliminary qualification for external review that the item or service in dispute must be a covered benefit.

55. Kolbe: Reforms medical malpractice laws and enacts responsible changes in the legal system by imposing caps on damages; reforms the collateral source rule; creates an alternative dispute resolution system; imposes time limits on lawsuits; and requires periodic payment of damages above defined thresholds and allows for joint and several liability. LATE

48. Lazio/Salmon/Bilbray: Amends the clinical trials section (sec.119) of HR. 2723 to allow cancer patients to participate in FDA approved clinical trials.LATE

2. McCarthy (NY): Requires prompt payment of services rendered by health care professionals from managed care providers.

18. Norwood/Dingell/Ganske/Berry: Technical amendments consists of a variety of technical amendments clarifying portions of H.R. 2723.

19. Norwood/Dingell/Ganske/Berry: Clarifies provisions in the bill to ensure that employers cannot be held liable unless they are making medical decisions.

26. Norwood/Dingell/Ganske/Berry: Amendment in the nature of a substitute. Consists of H.R. 2723 with the incorporation of the three other Norwood/Dingell/Ganske/Berry amendments.

27. Norwood/Dingell/Ganske/Berry: Provides for revenue provisions designed to offset revenue losses from the bill. (Revenue losses are estimated to result from increased deductions for higher medical premiums.) The offsets would raise approximately $7 billion over the period 2000-2004. Half of the offsets totaling $3.5 billion were included in the tax bill that passed the Congress in this session. The remaining offsets consist of the elimination of corporate tax shelters. The provision codifies a court-developed doctrine that requires transactions to have economic substance in order to be respected for tax purposes. The provision would require that the transaction have a potential profit (and risk of loss) and that potential profit must be significant in relationship to the claimed tax benefits.

7. Paul: Amendment in the nature of a substitute. Makes health insurance premiums fully deductible; increases the health care deduction for the self-employed to 100% and ensures that all Americans will have access to Medical Savings Account (MSAs) by removing the barriers in federal law that limit who is able to obtain an MSA or provide disincentives for individuals to obtain an MSA.

28. Peterson (PA): Provides that if the provisions of H.R. 2723 raise costs by 5% nationally or if the number of uninsured nation-wide rises over 45,000,000 then the provisions of the bill are immediately suspended.

29. Peterson (PA): Requires that all luxuries offered to beneficiaries in private plans be offered to beneficiaries in government-run plans as well; these requirements would apply to government plans administered under Medicare, Medicaid, the Federal Employee Health Benefits Program, the Department of Veterans Affairs, and the Department of Defense.

15. Roybal-Allard: Provides that a health care plan or issuer must disclose whether it has consulted the National Practitioner Data Bank (in essence, whether a background check has been done) for each doctor or health care provider.

31. Shaw: Provides that self-insured and administered ERISA plans are not required to comply with the Act.

33. Slaughter/Ney: Prohibits enrollment restriction and premium adjustment on the basis of predictive genetic information or genetic services; prohibits health plans and insurers from requesting or requiring genetic testing; and bans health plans and insurers from pursuing or being provided information on predictive genetic information or genetic services. LATE

49. Stearns: Provides an exception for employers of small businesses (50 people or less) who receive health care through an HMO to have a point-of-service option made available to them which employees would pay for out of pocket; would also provide that health insurance issuers that cover less than 25,000 individuals would not have to provide this option to their HMO's. LATE

50. Stearns: Amends H.R. 2723 by adding a new section to prohibit discrimination on the basis of predictive genetic information with respect health insurance. LATE

4. Thurman: Prohibits retroactive termination of health insurance for an employer's failure to pay premiums by requiring that the insurance company provide 30-day notice of pending termination of coverage; requires that such employees and participants be extended HIPAA portability protections; and the HIPAA time-line (for both fully-insured and self-insured plans) would not start until the participant received notification of termination so they would still be eligible for guaranteed issue of an individual policy.

56. Traficant: Sunsets the punitive damages provision after two years, and requires the Department of Labor to report to Congress on: (1) whether the punitive damages provision poses an unnecessary burden on businesses; (2) the extent to which the provision caused an increase in premiums, and the percentage of such an increase; and (3) a recommendation on whether the punitive damages provision should be extended permanently. LATE

5. Upton: Ensures that heath plans which provide coverage for emergency ambulance services do not require prior authorization for those services or refuse to pay for those services when a "prudent layperson" could reasonably expect that the absence of such transport would seriously jeopardize an individual's health.

Amendments to H.R. 2824, the Health Care Quality and Choice Act of 1999

1. Roukema: Removes the adjective "physical" that describes the type of injury arising out of a failure to treat a mental illness or disease.

Amendments to H.R. 2990, the Quality Care for the Uninsured Act

Baldacci: Allows for a waiver to states under the Welfare to Work program to allow federal funds to be used as seed money to help establish small business health insurance purchasing alliances.

Capuano: Expresses bipartisan Congressional support for our nationís graduate medical and pediatric teaching hospitals and expresses the intent of Congress to ensure patientís access to care as the population grows and ages in the 21st Century.

20. Hobson: Allows individuals which buy qualified long-term care insurance policies to protect up to 75 percent of their assets from spend down.

* Summaries derived from information submitted by the amendment sponsors.