Congressional Record, Volume 142 Issue 50 (Thursday, April 18, 1996)

[Congressional Record Volume 142, Number 50 (Thursday, April 18, 1996)]
[Senate]
[Pages S3578-S3609]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

HEALTH INSURANCE REFORM ACT

The Senate continued with the consideration of the bill.
Mr. HATCH. Mr. President, I understand the pending business is the
Brown amendment. It is my understanding that he will make his arguments
and then withdraw the amendment; am I incorrect on that?
Mr. BROWN. Mr. President, the Senator is correct.
Mr. HATCH. I am correct.
Mr. SIMPSON. I yield the floor.
Mrs. KASSEBAUM addressed the Chair.
The PRESIDING OFFICER. The Senator from Kansas.
Mrs. KASSEBAUM. Mr. President, prior to returning to Senator Brown's
amendment, if I may propose a unanimous consent request on behalf of
Senator Dole.
Let me yield and say, evidently, this has not been cleared fully on
both sides, so we will return to Senator Brown's amendment.
Mr. KENNEDY addressed the Chair.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, we want to try and accommodate the
greatest number of Members. We have several Senators who are here with
their amendments ready to address them and ready to act on them. We
believe that if we are able to do that, we can afford, whoever wants to
speak, as much time as they want to speak on other kind of matters. But
we are here to deal with this legislation.
We have been urging Senators to come over here and offer their
amendments. They are here now, and we can either do this later--I plan
to stay here until it is done, but the greater numbers of Members would
like to have at least some finality to the legislation. I believe we
can do it. It is 6 o'clock now and we had the chance for general
discussion during the course of the day. Many of our colleagues have
come over here to address these issues and to vote on them, and they
have been waiting as well.
I hope we will urge our colleagues who are not going to talk on these
matter--we know they can; people can get up and address any other
matters--but out of consideration of other Members, please try and see
if we cannot focus on the matter that is at hand, and that is the
Kassebaum-Kennedy bill, which is of enormous importance to many
American families.
I see other Members here, and I am sure they will do what they have
to do, but we are trying to conclude this and then to let others speak
so that at least others will not be here tomorrow. We are going to end
up being here tomorrow as sure as I am standing here unless we are able
to make progress. That is fine with me, if that is what it is. But with
some cooperation of the Members, we have a very good chance of
finishing this. Otherwise, Members ought to understand we are going to
be here late tonight voting and end up starting the votes later this
evening and tomorrow.
We are just about to ask for the final list so that we can agree with
that. But in the meantime, we have the Senators who are here who are
prepared to move ahead. Senator Brown is here, and Senator Jeffords was
here just a few moments ago to deal with an extremely important measure
and has been here now for an hour and a half trying to gain the floor.
Mr. CHAFEE addressed the Chair.
The PRESIDING OFFICER. The Senator from Rhode Island.

Amendment No. 3678

Mr. CHAFEE. Mr. President, I am going to address the amendment that
is before us, the Brown amendment,

[[Page S3579]]

but I say to the managers of the bill, I join with them in their
enthusiasm to finish it up. I do not see why we do not seek time
agreements, in case we get off on another Social Security argument,
whatever it might be. But that is up to the managers.
Mr. President, I have a statement that I wish to make that deals with
the subject Senator Brown has been addressing, and Senator Pryor,
likewise, and which I joined in the past.
All I can say, Mr. President, is I just wish we would address this
matter, both in the committee, and I understand Senator Brown has been
trying to achieve that, but also on the floor of the Senate. We have
had one vote. It was a one-vote margin difference. Perhaps people's
minds have been changed since then. Nonetheless, I support the efforts
of Senators Brown and Pryor.
Congress and the administration made a simple--but costly--error in
drafting the Uruguay Round Agreements Act of 1994. That inadvertent
error is costing consumers, State governments, and the Federal
Government millions of dollars, while providing an unintended windfall
to a handful of drug companies. I don't believe we should let that
error stand.
What happened? The facts of the case are straightforward. Back in
1994, Congress was drafting omnibus trade legislation designed to bring
the United States into conformity with the important new global trade
agreement known as the GATT. As part of our commitment to fulfill our
new GATT obligations, the United States pledged to increase patent
protection for future patents. In addition, the United States also
pledged to boot protection for patents already in existence--a key
point that goes to the heart of the issue before us today.
Accordingly, the trade bill that Congress wrote, boosted existing
patent terms by up to 3 years, giving current patentholders a valuable
extension on their patents. To be fair to generic manufacturers who had
been preparing to go to market on the old patent expiration date,
Congress fashioned a compromise: generic companies who had made a
substantial investment in preparing for market would be allowed to
proceed as planned, but would have to pay equitable remuneration--that
is, a royalty--during the extended term. This carefully balanced
compromise became law as part of the 1994 Uruguay Round Agreements Act.
However, in drafting this 653-page bill, Congress and the
administration made a small--but very costly--mistake. A simple
conforming amendment to an FDA statute was omitted. Yet the impact was
enormous: the omission singlehandedly prevented the generic drug
industry from going to market during the extended term. The result is
that a handful of brand-name drug companies have received a staggering
$4.3 billion windfall, at the expense of consumers, that Congress,
United States trade officials, and even the brand-name companies
themselves, neither intended nor expected.
The cost to consumers is enormous. The drugs that are covered by the
windfall are widely prescribed, and are used for everyday ailments that
affect millions of Americans. Keeping the generic version off the shelf
for up to 3 years means that Americans--including and especially older
Americans--are paying far more than was ever intended for their
medications.
Not only are consumers paying for this error, but so are State
governments and the Federal Government--in the form of higher
reimbursements for prescription drugs for the elderly, veterans, and
low-income Americans.
This is not right. We made a mistake. We should fix it. In this case,
the solution is obvious and easy: simply enact the missing conforming
amendment. That is exactly what Senator Pryor, Senator Brown, and I--
and many others--have been working to do.
Let me take a moment to put to rest a few red herrings. Our amendment
would not affect our GATT commitments or our efforts to promote patent
protection worldwide. Our amendment would not upset the balance in U.S.
drug patent laws, nor impede research and development of new drugs. If
any of these misrepresentations were true, we simply would not be
sponsoring this amendment. It is that simple.
It is time to correct this injustice--an injustice to consumers in
our Nation, an injustice to the Federal and State governemnts that are
paying extra and needless sums into Medicaid and Medicare and an
injustice to the generic manfuactures who made the investment in
reliance on the law as it was supposed to be.
It is time we fixed this unfairness.
Mr. BROWN addressed the Chair.
The PRESIDING OFFICER. The Senator from Colorado.
Mr. BROWN. Mr. President, it is my intention to try and expedite the
deliberations here tonight. In that regard, my thought would be to make
a statement, hopefully, shedding some light on this amendment. I know
Senator Pryor has worked so hard in this area. He wants to make a
statement, and then it will be my intention to withdraw the amendment.
I withdraw it reluctantly, because I think it needs to be considered
and dealt with as soon as possible. But I am persuaded that we will not
have some votes that we need to adopt it if we insist on attaching it
to this measure.
Having said that, let me simply outline the issue that is before us.
It is well described in a New York Times editorial of February 28. I
will quote a portion of that, because I think it is quite succinct and
to the point:

Congress finds it hard to remedy the simplest mistakes when
powerful corporate interests are at stake. In 1974, when
Congress approved a new trade pact with more than 100 other
countries, it unintentionally handed pharmaceutical drug
companies windfall profits. More than a year later, Congress
has yet to correct the error. The trade pact obliged the
United States to change its patent laws to conform with those
of the rest of the world. They had the effect of extending
some American patents for up to 20 months.

Mr. President, those are the opening lines of the editorial.
The simple fact is this. We had people research drugs and put the
investment into it and receive the full length of their exclusivity
that this Congress has supported and put into statute. The GATT
agreement gave a serendipitous extension to that. In other words, under
the GATT agreement and the conforming changes of law that this Congress
adopted, people who had invested in and relied on our laws got a longer
period of patent protection than they have ever planned for. But the
GATT agreement also had a provision, an exception for that extended
protection when someone had made a substantial investment in reliance
on our laws in providing competitive products.
In other words, what we propose in this amendment is nothing more
than absolutely the process that was contemplated and planned for under
GATT. And, I might mention, Mr. President, many countries have done
exactly the same thing. As a matter of fact, this country has done a
similar kind of thing with other products.
What this amendment simply suggests is that where we have given
someone an unexpected, unplanned extension in their patent protection,
that we make an exception for that extension where someone else has
made a substantial investment in producing and providing a competitive
product--in this case, a generic drug.
If we do not adopt this, we will have said to people who produce
products in reliance to our laws, ``After you have made the investment,
after you have put the money into it, after you have made under the
terms of what will be the statute a substantial investment on reliance
of our laws, we are going to pull the rug out from under you and change
the rules retroactively.''
Mr. President, that is not right. That is not honest. That is not
fair. That is not a good way to do business. We have talked about the
horrible damage--and it is enormous damage--done to consumers by this
unjustified quirk of the ratification document.
But I want to focus the Members' attention on what is unfair to
business. I believe it is unfair to business to say, ``Look, here are
the laws. Here is how long you have for patent protection. And by the
way, we're going to change the law retroactively, and even though you
made substantial investment in producing a competing product, we're not
going to let you compete.'' Now, that is what has happened.
If we do not pass this bill as it is in committee or the amendment as
we offer it on the floor, what you are going to do is not only impact
consumers to the tune of billions of dollars, but you are going to say
to businesses that have relied on the law, that it is tough luck, you
should not have believed us. You should not have relied on what we did.

[[Page S3580]]

Why is it important to pass it on this bill or pass it quickly? I
think that is a fair question. I must tell the Members, I am
disappointed I have not been able to persuade all the other people who
support the concept that it is important to pass it on this measure.
It is important because the impact of this, if it goes uncorrected,
could be over $2 billion, according to the Washington Post. It is
important because this costs consumers up to $5 million a day while we
delay. Mr. President, let me repeat that because I am not sure people
have focused on the impact of delay. It costs up to $5 million a day to
consumers in this country if we do not act. Some estimates indicated it
may have cost consumers already $700 million.
Mr. President, this is not anything other than fairness. This is not
anything other than saying the patent protection that was planned in
the law ought to be delivered as it was planned in the law.
Mr. President, I will not prolong the argument. I know the
distinguished Senator from Arkansas has worked on this and has some
remarks, but I ask unanimous consent to have printed in the Record the
editorial from the Washington Post, a letter from The Seniors
Coalition, a letter from the National Committee to Preserve Social
Security and Medicare, a letter from the National Women's Health
Network, a letter from the Citizen Action, a letter from the Gray
Panthers, a letter from the Generic Drug Equity Coalition, a letter
from the Consumer Federation of America, and a letter from the Citizen
Advocacy Center, all pertaining to this subject and advocating the
position of this amendment. I ask unanimous consent that all of these
letters be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

[From the Washington Post, Dec. 4, 1995]

The Zantac Windfall

All for lack of a technical conforming clause in a trade
bill, full patent protection for a drug called Zantac will
run 19 months beyond its original expiration date. Zantac,
used to treat ulcers, is the world's most widely prescribed
drug, and its sales in this country run to more than $2
billion a year. The patent extension postpones the date at
which generic products can begin to compete with it and pull
the price down. That provides a great windfall to Zantac's
maker, Glaxo Wellcome Inc.
It's a case study in legislation and high-powered lobbying.
When Congress enacted the big Uruguay Round trade bill a year
ago, it changes the terms of American patents to a new
worldwide standard. The effect was to lengthen existing
patents, usually by a year or two. But Congress had heard
from companies that were counting on the expiration of
competitors' patents. It responded by writing into the trade
bill a transitional provision. Any company that had already
invested in facilities to manufacture a knock-off, it said,
could pay a royalty to the patent-holder and go into
production on the patent's original expiration date.
But Congress neglected to add a clause amending a crucial
paragraph in the drug laws. The result is that the
transitional clause now applies to every industry but drugs.
That set off a huge lobbying and public relations war with
the generic manufacturers enlisting the support of consumers'
organizations and Glaxo Wellcome invoking the sacred
inviolability of an American patent.
Mickey Kantor, the president's trade representative, who
managed the trade bill for the administration, says that the
omission was an error, pure and simple. But it has created a
rich benefit for one company in particular. A small band of
senators led by David Pryor (D-Ark.) has been trying to right
this by enacting the missing clause, but so far it hasn't got
far. Glaxo Wellcome and the other defenders of drug patents
are winning. Other drugs are also involved, incidentally,
although Zantac is by far the most important in financial
terms.
Drug prices are a particularly sensitive area of health
economics because Medicare does not, in most cases, cover
drugs. The money spent on Zantac is only a small fraction of
the $80 billion a year that Americans spend on all
prescription drugs. Especially for the elderly, the cost of
drugs can be a terrifying burden. That makes it doubly
difficult to understand why the Senate refuses to do anything
about a windfall that, as far as the administration is
concerned, is based on nothing more than an error of
omission.
____

The Seniors Coalition, Protecting the Future You Have
Earned,

Washington, DC, April 17, 1996.
Hon. Hank Brown,
U.S. Senate,
Washington, DC.
Dear Senator Brown: The Seniors Coalition urges you to
support legislation offered by Senator Brown in the Judiciary
Committee to correct an egregious mistake made in the
implementation of the GATT treaty. This mistake has cost the
consumers, and primarily the elderly, of this nation millions
of dollars. This loophole has allowed a few drug companies to
take advantage of a situation that was unintended and to line
their pockets with unearned money from American citizens.
I ask you to read the article ``What you don't know about
brand name drugs is costing you millions'' (pp. 4-5) in our
latest edition of The Senior Class which outlines the problem
and then to vote to support the correction. Your support for
this effort is critical to the financial well being of
thousands of senior citizens.
I submitted testimony to the Senate Judiciary Committee on
this issue when the committee held hearings on this issue in
February. At that time I called for the Congress to correct
the mistake and reject the efforts of brand name companies to
thwart the correction. The so-called ``compromise'' that has
been drafted by Glaxo and may be offered by a member of the
Judiciary Committee is nothing more than a thinly veiled
effort to codify the mistake that was made. A careful reading
of the language will find that it does even more damage to
the ability of consumers, especially seniors, to find safe
and affordable pharmaceutical products in the marketplace.
Again, please support Senator Brown and his effort to
correct this mistake. Now is the time for the Congress to do
something for the American public.
Sincerely,
Thair Phillips,
CEO.
____

National Committee to Preserve Social Security and
Medicare,
Washington, DC, March 27, 1996.
Honorable Hank Brown,
Senate Judiciary Committee, U.S. Senate, Hart Senate Office
Building, Washington, DC.
Dear Senator Brown: We understand the Senate Judiciary
Committee plans to mark-up legislation addressing and General
Agreement of Tariff and Trade (GATT) patent pharmaceutical
issue tomorrow. We urge you to support legislation (S. 1277)
sponsored by Senators Chafee, Pryor, and Brown to correct an
oversight in the GATT implementing legislation that will save
consumers and taxpayers billions of dollars in prescription
drug costs. We urge you to oppose any alternative measures
that would maintain this costly and unintended loophole under
GATT.
As you know, because of an oversight in patent changes
approved under the GATT treaty implementing legislation, the
availability of lower-priced generic versions of more than 25
widely-prescribed drugs must be delayed for up to an
additional three years. As a result, seniors and other
consumers will wait longer for access to less-costly generic
drugs.
Every day Congress delays in correcting this oversight
costs consumers $5 million dollars in additional prescription
drug costs. In fact, the delay has already cost consumers an
additional $500 million dollars. The biggest losers among
U.S. consumers are senior citizens, as older Americans
consume about one-third of the prescription drugs sold in the
United States. On fixed incomes and with no pharmaceutical
coverage under Medicare, three out of four seniors cite
prescription drugs as their largest out-of-pocket expense.
On behalf of our millions of members and supporters, the
National Committee to Preserve Social Security and Medicare
urges you to support and report out of Committee the Chafee/
Pryor/Brown generic drug legislation.
Sincerely,
Martha A. McSteen,
President.
____

National Women's Health Network,

Washington, DC, March 21, 1996.
Dear Judiciary Committee Member: In this time of federal,
state and local budget-cutting, threats to Medicare and
Medicaid, and continually rising medical costs, health care
savings are more important than ever to the American public.
Given the seriousness of skyrocketing health care costs, it
is unconscionable that Congress has so far failed to address
an error that needlessly increases the cost of health care
for millions of Americans, and unnecessarily boosts costs to
the federal government, as well.
More than a year ago, Congress discovered that the
legislation implementing the GATT Treaty contained an
unintended loophole for some pharmaceutical drug companies.
An error of omission granted the manufacturers of brand-name
drugs treatment unique in all of American industry.
By failing to include generic drugs in its rules concerning
transition to new patent terms under the GATT Treaty,
Congress has done a disservice to women's health,
specifically, and to consumers and taxpayers, generally.
While the mistake was unintentional, the consequences are
grave. Each day that passes without Congressional action to
correct this error costs millions of dollars; the total cost
is expected to exceed $2 billion.
The beneficiaries of the current situation are the handful
of giant pharmaceutical corporations that will enjoy windfall
profits for three additional years. Their glee at this
unanticipated windfall is evidenced by the fierceness with
which the lobbyists for these companies are fighting to
preserve their protected status.
The exemption of drug companies from the GATT transition
rules was a mistake. It

[[Page S3581]]

would be intolerable to compound this mistake by failing to
correct it. Please support the solution proposed by Senators
Brown, Chafee and Pryor.
Sincerely,
Cynthia Pearson,
Program Director.
____

Citizen Action,

Washington, DC, March 26, 1996.
Dear Judiciary Committee Member: On behalf of Citizen
Action and our three million members, I would like to ask
your support for a proposal which will shortly be offered by
Senators Brown, Chafee and Pryor. This proposal would undo a
legislative error which, if not corrected, will cost U.S.
consumers hundreds of millions of dollars in unnecessary
prescription drug costs.
When Congress passed new patent terms under the GATT
Treaty, it failed to include prescription drugs under its
transition rules. GATT extends patent terms of U.S. products
from 17 to 20 years. Because many manufacturers had already
invested millions of dollars in competing products in
expectation of the 17-year limit, Congress adopted transition
rules to allow those companies to introduce generic
alternatives on the date that the 17-year patent would have
expired.
The omission of prescription drugs in the transition rule
means that makers of lower-cost generic drugs will be unable
to bring their products to market until the full 20-year term
of patent protection has expired. This loophole will allow a
few large pharmaceutical companies to reap more than $2
billion in windfall profits. Because lower-cost generics will
be kept off the market, consumers will be forced to pay
higher prices for more than a dozen drugs, including big-
sellers Zantac and Capoten.
Without a correction, taxpayer-funded federal and state
health programs, as well as individual purchasers of
prescription drugs, will be forced to pay higher than
necessary costs. The Department of Veterans Affairs estimates
that it alone will spend $211 million in additional costs
over the next three years.
The Judiciary Committee has an opportunity to correct a
provision that will have grave consequences for consumers.
Again, Citizen Action urges that you act now to remove this
unique loophole which rewards certain large pharmaceutical
companies at the expense of taxpayers and consumers.
Sincerely,
Cathy L. Hurwit,
Legislative Director.
____

Gray Panthers Project Fund,

Age and Youth in Action,

Washington, DC, February 29, 1996.
Hon. Hank Brown,
U.S. Senate, Senate Hart Office Building, Washington, DC.
Dear Senator Brown: Attached please find copies of
Tuesday's ABC World News Tonight news story focusing on the
negative impact that the GATT loophole will have on American
consumers like Eleanor Black and her mother Sally. In
addition, attached are copies of the testimony submitted to
the Judiciary Committee from Ms. Black and myself, as well as
Wednesday's New York Times editorial on the issue.
With the Senate Judiciary Committee hearings on GATT now
behind us, Senators Chafee, Brown, and Pryor have vowed to
introduce legislation within the next few weeks that will
correct this loophole and bring relief to millions of
consumers like the Blacks who rely on the savings that
generic pharmaceuticals offer.
In December, an effort to bring the Chafee-Brown-Pryor
amendment to the Senate floor was narrowly defeated by one
vote. When the Chafee-Brown-Pryor amendment is introduced in
the near future, I urge you and your colleagues to do the
right thing and correct this Congressional oversight and save
American taxpayers from a costly mistake.
Please support the Chafee-Brown-Pryor amendment and close
the GATT loophole.
Sincerely,
Dixie D. Horning,
Executive Director.
____

Generic Drug Equity Coalition,

Washington, DC, March 29, 1996.
To: Members, United States Senate
FR: Generic Drug Equity Coalition
RE: No More Delays, Pass Chafee/Pryor/Brown

When the Senate adjourns today for the Spring recess,
consumers and taxpayers will have paid $580 million more for
prescription drugs than they should have because of a mistake
Congress and the administration made in December 1994, $580
million. Everyday that passes costs consumers and taxpayers
$5 million more.
By the time you return in two weeks, the cost to consumers
and taxpayers will have reached $650 million.
Yet, despite written commitments to markup a bill to close
the GATT loophole in the Senate Judiciary Committee in March,
nothing has happened.
A few companies continue to reap unintended windfall
profits at the expense of American consumers, taxpayers and
generic drug manufacturers.
While you are away observing the Easter and Passover
Holidays be sure to think about Americans like 69-year old
Eleanor Black and her 89-year old mother Sally who spend $339
a month, one quarter of their monthly income, for Zantac
because of the GATT loophole.
The Generic Drug Equity Coalition urges you to support the
Chafee/Pryor/Brown proposal and close the GATT loophole.
The Judiciary Committee leadership has missed its own,
self-imposed deadline. It is time for a vote on the Senate
floor.
____

Consumer Federation of America,

Washington, DC, March 27, 1996.
Dear Senate Judiciary Committee Member: The Senate
Judiciary Committee plans this week to examine the loophole
in the General Agreement on Tariffs and Trade (GATT) which
exempts the pharmaceutical industry from patent transition
terms. We urge you at this time to support the efforts of
Senators Brown, Chafee, and Pryor to redress this unintended
and potentially costly, effect of the GATT Treaty.
As you know, an error of omission in the legislative
language implementing the GATT Treaty has exempted the
pharmaceutical industry from the patent transition terms. As
a result, the pharmaceutical drug industry--alone among all
industries--enjoys a 20-year patent term, and generic
manufacturers are unable to market long-planned products.
The unintended effects of the patent extension include
diminished market competition, an undeserved windfall to pre-
GATT patent holders, and further inflated costs to millions
of Americans. The Congressional Budget Office (CBO) has
estimated that this simple mistake will cost consumers and
taxpayers as much as $2 billion as drug companies reap
windfall profits in the absence of competition. This windfall
was not intended by Congress, nor envisioned in the GATT
treaty itself.
Senators, Brown, Chafee, and Pryor have proposed closing
the loophole, thereby protecting consumers' health and
taxpayers' wallets. This solution would not convey special
status on the generic drug industry; instead, this amendment
provides for equal treatment, and would compel brand-name
drug manufacturers to live under the same rules as every
other American industry.
In the interest of consumers, taxpayers and fairness, we
urge you to support the efforts Senators, Brown, Chafee, and
Pryor have made to redress this costly error.
Sincerely,

Mern Horan,

Legislative Representative,
Consumer Federation of America.
____

Citizen Advocacy Center,

Elmhurst, IL, March 25, 1996.
Dear Judiciary Committee Member: An oversight in the
legislation implementing the GATT Treaty has granted the
pharmaceutical industry a privileged status at the expense of
consumers and taxpayers. More than a year after the
implementing legislation was adopted, Congress has yet to
correct this windfall benefit. Now, Senators Brown, Chafee,
and Pryor have developed a solution that is fair and
reasonable and deserving of your support.
GATT is premised on opening world markets to competition.
Under our implementing legislation, however, manufacturers of
generic drugs, alone among all industries in the United
States, are prohibited from bringing products to market until
the full twenty-year patent term has expired for brand-name
drugs. This anticompetitive windfall is estimated to be worth
two billion dollars in profits. Health care consumers are
thus forced to pay higher costs, as will taxpayers, who fund
drug purchases through a number of government programs. The
City of Elmhurst has a high percentage of Senior Citizens, a
group that is disproportionately harmed by high health care
costs, and the adverse effects of the as yet uncorrected
legislation.
Congress did not intend to bestow this windfall on drug
companies when it adopted the transitional rules for GATT. We
urge you, in the interest of consumers, seniors, and
taxpayers, to correct this oversight and to not be lulled
into inaction by the multi-million dollar lobbying blitz of
the companies enjoying this windfall daily.
Senators Brown, Chafee and Pryor have proposed a simple
solution that would protect the balance of interest between
generic and brand-name manufacturers envisioned in the Hatch-
Waxman Act of 1984. It's time to support their proposal.
Very truly yours,

Theresa Amato,

Executive Director,
Citizen Advocacy Center.

Mr. PRYOR addressed the Chair.
The PRESIDING OFFICER. The Senator from Arkansas.
Mr. PRYOR. Mr. President, my apologies to the Senator from Colorado.
Has the Senator from Colorado finished his statement?
Mr. BROWN. Yes.
Mr. PRYOR. Mr. President, I will take but a few moments of the
Senate's time this evening. We need to move on. The distinguished
managers have requested that we move to final resolution of this very
important measure. But I would like to take, Mr. President, in opening,
a few moments to discuss our particular concerns over this uncorrected
error in our laws which has led to unnecessarily high drug prices.
I would like to quote from my good colleague who is departing the
Senate and is a great friend, Senator Paul Simon of Illinois. Senator
Simon recently spoke on the issue of correcting

[[Page S3582]]

this problem in the GATT treaty. I quote from Senator Simon when he
said, ``This is a classic example of special interests versus the
public interest.''
Mr. President, that is what this debate, I am afraid, has boiled down
to. I know my friend from Colorado, Senator Brown, in his eloquent
statement has placed into the Record a recent editorial of December 4,
1995 from the Washington Post. I will read a paragraph from that
editorial:

I continue quoting from the Washington Post editorial:

The patent extension postpones the date at which generic
products can begin to compete with it and pull the price
down. That provides a great windfall to Zantac's maker, Glaxo
Wellcome, Inc.

That is the beginning paragraph, Mr. President, of the Washington
Post editorial. To conclude from that editorial, let me read:

That makes it doubly difficult to understand why the Senate
refuses to do anything about a windfall that, as far as the
administration is concerned, is based on nothing more than an
error of omission.

Well, once again, this issue is with us. We failed by one vote back
on December 7 to rectify this mistake. Since that time, a few companies
like Glaxo Wellcome have earned more than $600 million in extra
revenues because of a congressional error. It also means that the
Veterans Administration, the Medicaid programs, the consumers of
America, and especially the elderly of America are having to pay double
for Zantac than what they would be paying had we allowed a generic to
come into the marketplace and compete.
This is not fair, Mr. President. We know that this is not fair. The
Judiciary Committee this morning had scheduled a markup, one which has
already been delayed from last month. They continue to promise that
they are going to mark up S. 1277, the measure offered by Senator Brown
and Senator Chafee and myself to correct this mistake in the GATT
treaty.
But, once again, this morning an unnamed Senator objected to the
Senate Judiciary Committee marking up this measure, and, once again, it
means more and more windfall profits for undeserving companies at the
expense of consumers. These delays are completely unacceptable and
unwarranted. The American public simply cannot abide further delays on
behalf of special interests.
What is at stake? Back on November 27, 1995, an editorial in the Des
Moines Register stated that:

A month's supply of Zantac ordinarily sells for around
$115; the generic price--meaning the same drug without the
Zantac label--would be around $35, the generic makers
contend.

Mr. President, I ask unanimous consent that a copy of that Des Moines
Register editorial be printed in the Record.
There being no objection, the editorial was ordered to be printed in
the Record, as follows:

[From the Des Moines Register, Nov. 27, 1995]

A Costly Oversight

fine print in gatt law could cost zantac users millions

The nation's prescription drug makers are at war again,
with a $1 billion-plus purse going to the winner. If the
brand-name drug manufacturers win, the losers will include
the millions of Americans who suffer from ulcers or
heartburn, and take the drug Zantac regularly to combat the
problem. It's going to cost each of them about $1,600.
Zantac is made by GlaxoWellcome, the biggest in the
business.
Here's what started the current war:
When a new prescription drug hits the market, generic drug
manufacturers await the patent expiration so they can enter
the market with the same drug. They offer it for sale without
the brand name, usually at a fraction of the brand-name
price.
The new international GATT treaty signed by the United
States and 122 other countries sets the life of a patent at
20 years from the date of application. Former U.S. law
provided patent protection for pharmaceuticals for 17 years
from the date of approval. Because the difference could have
a significant impact on the number of years a firm could
market its patented drug without competition. Congress made
special provisions for drugs under patent at the time GATT
was approved last summer.
But when the legal beagles got done reading all the fine
print, it turned out that Zantac was granted a 19-month
extension of its patent life--and it is such a hugely popular
drug that that translates into a multimillion-dollar
windfall.
Generic drug makers call the windfall a congressional
oversight, and estimate the difference is worth $2.2 billion
to Glaxo, because the generics can't enter the market for 19
more months. Glaxo counters that Congress made no mistake,
that the extension was part of the compromise with generics.
It won't wash. Nothing in the GATT treaty was intended to
further enrich the happy handful of brand-name drug makers
who hold lucrative patents--or to personalize the users of
the drugs.
A month's supply of Zantac ordinarily sells for around
$115; the generic price--meaning the same drug without the
Zantac label--would be around $35, the generic makers
contend. Unless Congress changes the wording of the law
regarding transition to GATT provisions, Zantac users will
pay the difference for 19 months longer.
Some generic drug manufacturers had already spent a bundle
preparing to enter the market before the GATT treaty took
effect. They lose. So do taxpayers, who pay for Medicaid
prescriptions. The Generic Drug Equity Coalition estimates
that the higher costs of Zantac and some other drugs affected
by the mistake (such as Capoten, for high blood pressure)
will cost Iowa Medicaid $3.5 million. Further, say the
generic drug makers, it will tack another $1.2 million onto
the cost of health-insurance premiums for Iowa state
employees.
Glaxo's political action committee has doubled its
contributions to Congress in recent months. Glaxo wants the
mistake to stay in the law. Generic drug manufacturers want
it out.
So should ulcer sufferers. So should taxpayers. So should
Congress.

Mr. PRYOR. Mr. President, finally, let me say we all know what this
issue is about. We have debated this issue to some extent on the floor
of the Senate and to a great extent in the Judiciary Committee. We
heard our U.S. Trade Representative, Ambassador Kantor conclusively
explain the situation, and I quote:

The provision was written neutrally because it was intended
to apply to all types of patentable subject matter, including
pharmaceutical products. Conforming amendments should have
been made to the Federal Food, Drug and Cosmetic Act and
section 271 of the U.S. Patent Act, but were inadvertently
overlooked.

One other quote from Ambassador Kantor:

We intended to apply this grandfather provision to the
pharmaceutical area. S. 1277 would result in a level of
protection that is consistent with our original intent.

Mr. President, let me say, Senator Brown, Senator Chafee and myself
have tried to proceed in good faith. There are Members on each side of
the aisle that have stated their concern about, and in some cases their
objection to, certain language that we had in this legislation. We have
attempted to meet with them. We have attempted to compromise. We have
certainly gone to the negotiating table and attempted to bargain in
good faith and see what their concerns are.
Truly, Mr. President, I believe that we now have come together and
crafted an amendment that is acceptable to all those concerned with
doing what is right for consumers, businesses which have relied upon
the law in good faith and for our compliance with a very important
treaty. The amendment represents the simplest and best means for us to
correct the egregious flaw that persists today because of
unconscionable delays and the efforts of special interests.
Mr. President, I want to say in conclusion that I have thoroughly
enjoyed working with Senator Brown of Colorado and Senator Chafee of
Rhode Island, my colleagues on the other side of the aisle. I hope we
can bring this matter to a resolution in the very near future.
The PRESIDING OFFICER (Mr. Gorton). The Senator from Colorado.
Mr. BROWN. Mr. President, the vote on this measure was close, as has
been noted. Since that time, I believe we have persuaded others to join
us in advocating this amendment. The amendment has been compromised to
the point that specifically we have spelled out in the compromise
version that is before the Senate right now a very clear, bright-line
test of what substantial investment is. It is easy and clear to work
with. I think we have addressed the problems. I am confident we have
the votes.
However, because of the urgency of the particular underlying measure
that is here, some Members whose votes we need and count on are unable
to support this amendment because they fear

[[Page S3583]]

it would bring controversy to the bill. It is, therefore, necessary for
me to reluctantly withdraw this measure.
I must mention, Mr. President, it does seem to me this is the
appropriate kind of thing that ought to be considered on a prompt
basis. Literally, to fail to act costs consumers $5 million or more a
day, and literally if we fail to act very promptly, the issue becomes
moot because the time simply runs out. I believe in fairness to
companies that have reinvested, and, in fairness to consumers, we
should and must act quickly.
I simply want to serve notice that we will be looking for other
vehicles to offer on this floor in a rather prompt fashion.
With that, I reluctantly withdraw the amendment.
The PRESIDING OFFICER. The Senator has the right to withdraw the
amendment.
So the amendment (No. 3678) is withdrawn.
Mrs. KASSEBAUM. Mr. President, I very much appreciate the sponsors of
the amendment withdrawing it. Senator Brown and Senator Pryor are very
persuasive in their arguments, as Senator Chafee was as well. I am
sympathetic to the purpose of the amendment.
As was noted by the sponsors, it is controversial. For that reason,
we would have to oppose it on the health insurance reform bill. I
appreciate the thoughtfulness in their withdrawal.

Unanimous-Consent Agreement

Mrs. KASSEBAUM. Mr. President, I put forward on behalf of the
majority leader a unanimous-consent agreement.
I ask unanimous consent during the remainder of the Senate's
consideration of S. 1028, the following amendments be the only first-
degree amendments in order, that they may be subject to relevant
second-degree amendments, and following the disposition of the listed
amendments and the committee substitute, the bill be advanced to third
reading, and the Senate then proceed to the House companion bill, that
all after the enacting bill be stricken, the text of the Senate bill be
inserted, the bill be advanced to third reading and the Senate proceed
to vote on passage of H.R. 3103, as amended, without any intervening
action or debate.
The list that I have of the amendments would be: Nickles, relevant;
Jeffords, lifetime caps; Thomas, rural health; McCain, biological
medical devices; Gramm, relevant; Coats, medical volunteer liability
coverage; Domenici, mental health; Specter, public health; pecter,
public health; Specter, public health; Gregg, choice care; Helms, study
of access by HHS; Senator Brown has withdrawn his amendment; McConnell,
medical malpractice; Bond, administration simplification; Pressler,
CRNAS; D'Amato, fair tax treatment; Kassebaum, relevant; Dole,
relevant; Roth, relevant; Simpson, commission; Bennett relevant; Burns,
telemedicine; Boxer, ban HMO gag rules; Conrad, nurse practitioner,
nurse anesthetists, advance nurse practitioner; Feinstein, nonprofit
insurance; Graham-Baucus, Medicare fraud; Harkin, fraud and abuse;
Harkin, fraud and abuse; Kennedy, relevant; Pryor relevant; Wellstone,
two domestic violence; Simon is a sense-of-the-Senate resolution;
Dorgan, organ donations; Lieberman, MM data banks; Kennedy, nursing
care; Daschle, relevant; Boxer, biomed devices.
Mr. KENNEDY. Would the Senator add Wellstone, relevant, sense of the
Senate.
The PRESIDING OFFICER. Is there objection to the unanimous consent
request?
Without objection, it is so ordered.
Mrs. KASSEBAUM. Mr. President, I believe Senator Jeffords has been
waiting, and I believe he is next to be recognized.
Mr. JEFFORDS. Mr. President, I yield to the Senator from Arkansas.
Mr. PRYOR. Mr. President, if we could ask a question, Mr. President,
while the two distinguished managers are on the floor. It is 6:15; I
did not realize there were quite as many amendments.
Mrs. KASSEBAUM. Neither did we.
Mr. PRYOR. Are we planning to go on into the evening?
Mrs. KASSEBAUM. Yes, Mr. President, I say to the Senator from
Arkansas, I think it is the hope not only of the managers but also of
the minority leader and the majority leader that we finish tonight.
Mr. PRYOR. Good night, Mr. President, thank you.

Amendment No. 3679

(Purpose: To establish a minimum amount that may be applied as an
aggregate lifetime limit with respect to coverage under an employee
health benefit plan or a group health plan)

Mr. JEFFORDS. Mr. President, I have an amendment at the desk.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

The Senator from Vermont [Mr. Jeffords] proposes an
amendment numbered 3679.

Mr. JEFFORDS. Mr. President, I ask unanimous consent reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.

At the end of section 103, add the following new
subsection:
(g) Limitation on Lifetime Aggregate Limits.--
(1) In general.--Except as provided in paragraph (2), an
employee health benefit plan or a health plan issuer offering
a group health plan may not impose an aggregate dollar
lifetime limit of less than $10,000,000 (such amount to be
adjusted for inflation in fiscal years subsequent to the
fiscal year in which this subsection becomes effective) with
respect to coverage under the plan.
(2) Small employers.--Paragraph (1) shall not apply to a
group health plan offered to or maintained for employees of a
single employer that employs 25 or fewer employees.
(3) Rule of construction.--Paragraph (1) shall not be
construed as prohibiting the application by an employee
health benefit plan or a health plan issuer offering a group
health plan of any limits, exclusions, or other forms of cost
containment mechanisms with respect to coverage under the
plan other than the aggregate limit permitted under paragraph
(1).
(4) Disclosure.--Any limits, exclusions, or other cost
containment mechanisms permitted under paragraph (3) shall be
disclosed as provided for in section 105(c).
(5) Application of subsection.--This subsection shall not
apply to a health maintenance organization that meets the
requirements of title XIV of the Public Health Service Act.
(6) Effective date.--This paragraph shall become effective
with respect to health plans on the date that is 2 years
after the date of enactment of this Act.
At the end of section 105, add the following new
subsection:
(c) Disclosure of Limits and Exclusions.--An employee
health benefit plan or a health plan issuer offering a group
health plan shall disclose, as part of its solicitation and
sales materials and in a form and manner that is conspicuous
and understandable to a reasonable individual, any limits,
exclusions, or cost containment mechanisms with respect to
coverage provided under the plan.
Section 3711 of title 31, United States Code, is amended by
adding at the end the following new subsections:
``(g)(1) If a nontax debt or claim owed to the United
States has been delinquent for a period of 180 days--
``(A) the head of the executive, judicial, or legislative
agency that administers the program that gave rise to the
debt or claim shall transfer the debt or claim to the
Secretary of the Treasury; and
``(B) upon such transfer the Secretary of the Treasury
shall take appropriate action to collect or terminate
collection actions on the debt or claim.
``(2) Paragraph (1) shall not apply--
``(A) to any debt or claim that--
``(i) is in litigation or forelosure;
``(ii) will be disposed of under an asset sales program
within 1 year after the date the debt or claim is first
delinquent, or a greater period of time if a delay would be
in the best interests of the United States, as determined by
the Secretary of the Treasury;
``(iii) has been referred to a private collection
contractor for collection for a period of time determined by
the Secretary of the Treasury;
``(iv) has been referred by, or with the consent of, the
Secretary of the Treasury to a debt collection center for a
period of time determined by the Secretary of the Treasury;
or
``(v) will be collected under internal offset, if such
offset is sufficient to collect the claim within 3 years
after the date the debt or claim is first delinquent; and
``(B) to any other specific class of debt or claim, as
determined by the Secretary of the Treasury at the request of
the head of an executive, judicial, or legislative agency or
otherwise.
``(3) For purposes of this section, the Secretary of the
Treasury may designate, and withdraw such designation of debt
collection centers operated by other Federal agencies. The
Secretary of the Treasury shall designate such centers on the
basis of their performance in collecting delinquent claims
owed to the Government.
``(4) At the discretion of the Secretary of the Treasury,
referral of a nontax claim may be made to--
``(A) any executive department or agency operating a debt
collection center for servicing, collection, compromise, or
suspension or termination of collection action;

[[Page S3584]]

``(B) a contractor operating under a contract for servicing
or collection action; or
``(C) the Department of Justice for litigation.
``(5) nontax claims referred or transferred under this
section shall be serviced, collected, or compromised, or
collection action thereon suspended or terminated, in
accordance with otherwise applicable statutory requirements
and authorities. Executive departments and agencies operating
debt collection centers may enter into agreements with the
Secretary of the Treasury to carry out the purposes of this
subsection. The Secretary of the Treasury shall--
``(A) maintain competition in carrying out this subsection;
``(B) maximize collections of delinquent debts by placing
delinquent debts quickly;
``(C) maintain a schedule of contractors and debt
collection centers eligible for referral or claims; and
``(D) refer delinquent debts to the person most appropriate
to collect the type or amount of claim involved.
``(6) Any agency operating a debt collection center to
which nontax claims are referred or transferred under this
subsection may charge a fee sufficient to cover the full cost
of implementing this subsection. The agency transferring or
referring the nontax claim shall be charged the fee, and the
agency charging the fee shall collect such fee by retaining
the amount of the fee from amounts collected pursuant to this
subsection. Agencies may agree to pay through a different
method, or to fund an activity from another account or from
revenue received from the procedure described under section
3720C of this title. Amounts charged under this subsection
concerning delinquent claims may be considered as costs
pursuant to section 3717(e) of this title.
``(7) Notwithstanding any other law concerning the
depositing and collection of Federal payments, including
section 3302(b) of this title, agencies collecting fees may
retain the fees from amounts collected. Any fee charged
pursuant to this subsection shall be deposited into an
account to be determined by the executive department or
agency operating the debt collection center charging the fee
(in this subsection referred to in this section as the
`Account'). Amounts deposited in the Account shall be
available until expended to cover costs associated with the
implementation and operation of Governmentwide debt
collection activities. Costs properly chargeable to the
Account include--
``(A) the costs of computer hardware and software, word
processing and telecommunications equipment, and other
equipment, supplies, and furniture;
``(B) personnel training and travel costs;
``(C) other personnel and administrative costs;
``(D) the costs of any contract for identification,
billing, or collection services; and
``(E) reasonable costs incurred by the Secretary of the
Treasury, including services and utilities provided by the
Secretary, and administration of the Account.
``(8) Not later than January 1, of each year, there shall
be deposited into the Treasury as miscellaneous receipts an
amount equal to the amount of unobligated balances remaining
in the Account at the close of business on September 30 of
the preceding year, minus any part of such balance that the
executive department or agency operating the debt collection
center determines is necessary to cover or defray the costs
under this subsection for the fiscal year in which the
deposit is made.
``(9) To carry out the purposes of this subsection, the
Secretary of the Treasury may prescribe such rules,
regulations, and procedures as the Secretary considers
necessary.
``(h)(1) The head of an executive, judicial, or legislative
agency acting under subsection (a)(1), (2), or (3) of this
section to collect a claim, compromise a claim, or terminate
collection action on a claim may obtain a consumer report (as
that term is defined in section 603 of the Fair Credit
Reporting Act (15 U.S.C. 1681a)) or comparable credit
information on any person who is liable for the claim.
``(2) The obtaining of a consumer report under this
subsection is deemed to be a circumstance or purpose
authorized or listed under section 604 of the Fair Credit
Reporting Act (15 U.S.C. 1681b).''.
Mr. JEFFORDS. Mr. President, I know that we have had a difficult day
today. We are having a difficult time trying to face the facts of life
that the bill we are amending is a very important one, one which I have
been an original cosponsor and one which part of the bill is mine. It
is something that I worked very hard on. I believe it is an excellent
job.
However, I also believe that it has a very serious flaw in it. Thus,
at the time the committee was meeting--and I want to point out that we
have already made an exception today--the Finance Committee came and
said, ``Hey, we have a bunch of amendments.'' Most of them have been
accepted. So we have already made several exceptions to the
nonamendment rule. I want to remind people of that.
Now, I submitted this amendment, which I have before this body, at
the committee. I am a member of the committee, ranking Republican on
the committee. At that time it was said, ``Hey, we want to get out of
here a unanimous bill. We may have problems.'' So I said, ``OK, I will
wait until the floor.'' So I come to the floor to offer an amendment,
which I think about everybody agrees ought to be on it, and they said,
``No. No amendments--except for the Finance Committee amendments.''
I understand that the ranking Republican and the chairman of the
committee are bound by their commitment to no amendments, but nobody
else is. Nobody else is in this body. So I hope Members would say he
deserves to be heard. He has told me I could raise this amendment on
the floor, and here it is.
Now we will talk about what the amendment is and why we are here. The
bill is one which provides, if a person is working for a business and
changing jobs, or whatever else, has a health problem, that they are
guaranteed an issuance of a policy or a continuance of a policy,
notwithstanding the fact that they are sick. That is very important.
This is an important breakthrough. That is why I supported the bill.
However, what we were not aware of at the time and I brought to the
committee's attention, but perhaps there was too little time to
consider it, is the fact that there is no requirement now under the
Federal law for any kind of a certain level of cap.
Now, what could happen to us is, OK, we require the insurance company
to take a sick person, but then the insurance company has the right to
change its benefits, or it can say, ``OK, we will lower the lifetime
cap. So when we take you on, as soon as we pay whatever level of funds
we reduce the limit to, you are gone, finished, you have no more
coverage.''
Well, this amendment would rectify that and say we have to put--as a
nationwide standard, with the exception, we admit it could cause some
problems with small businesses, so we exempt 25 and under. We say you
have to have $10 million of coverage. Why the $10 million? The $10
million lifetime cap is because the standard for the industry for many
years was a million dollars. But that was 20 years ago. That million
dollars is worth about $100,000 now. So we say, let us go back to the
standard of 20 years ago and put on that cap.
I want to point out that when we do this, we are obviously going to
cause some costs. I will explain that later. But let us take a look at
who we are talking about when we are talking about those covered under
this provision. We are talking about those that are working for
businesses, as I say, that get sick. All of a sudden they have some
pretty big bills. Remember, some of the lifetime caps out there on
these insurance plans are $50,000. That is one day in a hospital
sometimes. So you go in there sick, and all of a sudden you have no
coverage. We are trying to correct that.
Now, let me point out to you, again, what we are talking about from a
national policy perspective. What happens now to that sick person? That
person is sick. They have been allowed to be covered and then chopped
off because they have reached the lifetime limit of, say, $50,000. What
happens? Under the law right now, in order for them to qualify for
Medicaid, they cannot have resources beyond a certain level. So what we
are talking about--and I will give some examples in a minute--is middle
income people, or even higher income people, who suddenly are placed in
a position where the only way they can get care for their loved one is
to get rid of all of their assets and then they will qualify for
Medicaid. So the household has to go through that--getting rid of its
assets--and then they qualify for Medicaid. Should our policy in this
Nation do that? I say no, and I am sure you will, too. This is not good
policy.
Let me talk a little about some of the people involved. I think all
of you have probably heard the ads of Christopher Reeve, or watched
them on television, or read the editorials in the newspapers and the
stories that have covered this. If you want an example as to whether or
not it could happen to you, here is ``Superman,'' who was involved in a
very serious accident. He was thrown off his horse and he becomes a C-
2, which is a broken neck. He has lost the functions below the neck
level, without some assistance. He has a cap of $1.2 million, and it is
costing him $400,000 a year. In 3 years, he will be past that cap.

[[Page S3585]]

Let us take Jim Brady, who is another one--not an example of the
lifetime cap, because he is on worker's compensation, but he had a head
injury caused by a bullet when he was with President Reagan. He would
be far beyond a million-dollar cap, to say nothing of a $50,000 cap at
this time.
Let me talk about some of the people that do not have the resources
of a Christopher Reeve, or the protection of the law with respect to
worker's comp, like Jim Brady. Let me go through some of these so that
you understand better what kind of people we are talking about.
This story is about Donelle and Kyle Meniketti, from the Washington
Post. For 4 years, Donelle Meniketti waged a tremendous fight to save
her son Kyle from suffering death or severe brain damage as a result of
a rare breathing disorder that struck when he was 18 days old. It says:

When he sleeps, said the Livermore, CA, woman, his airway
collapses and his brain does not tell him to breathe.
He needs a breathing machine at night and an oxygen
monitor. When he sleeps, he must have someone there all
the time to make sure he is breathing.
Home nursing care costs alone can be $10,000 a month, and even though
Mrs. Meniketti has spent sleepless nights watching over her son rather
than pay for a nurse, his medical care is making constant claims on the
health insurance plan of her husband Keith. As these claims mounted,
they face the terrible prospect of the child's expenses soon reaching
the million-dollar cap.
He is 4 years old. So far he has escaped it. But they will be forced
into Medicaid if this amendment does not succeed.
Then there is Heather Fraser. I wish you would have seen her. She
appeared at our press conference the other day. She is 23 years old and
suffers from cystic fibrosis. She has suffered already many times. She
does not know from one day to the next whether she is going to have one
of these respiratory infections. She has had chronic problems of all
different kinds and will continue to do so. She graduated from college,
is 23, and is looking forward to the future. What is going to happen?
The average cost per year to treat a moderate case of cystic fibrosis
is $46,000. More severe cases cost roughly $79,000. To date, Heather's
medical expenses have exceeded $800,000. Research is going on, but
right now she will be beyond the cap and on Medicaid.
Another one is Lauren Yandell of Williston, VT. Her policy has a cap
of $1 million. Lauren has a son who has suffered from a chronic and
very rare neurological disease since birth. Because of medications and
frequent surgery and personal care, his medical expenses are extremely
high--last year alone, over $70,000. He is only 5 years old. At this
rate, Lauren believes her son will exhaust the limit within 10 years.
Barbara Church, in Shelburne, VT--these are Vermonters, but there are
people like this all over the Nation. Barbara has a 12-year-old son who
was in a car accident 3 years ago. He has a very similar condition to
Christopher Reeve. Since the accident, medical expenses have ranged
from $20,000 to $50,000 annually. Her policy through her employer does
not have a cap, and she is wary because if she loses her job, as it is
under this law now, and she tries to go somewhere, she will not have
the cap, or it may be only $50,000. There is no protection for her.
These are the kinds of real-life situations. Is it appropriate for us
to say that the way these people should get their continuous care is to
get rid of all their assets and live in poverty for the rest of their
lives, as long as their child survives? No, that is not what the policy
of this Nation ought to be. This amendment would make sure that those
occurrences do not occur.
I hope that people will take into consideration that this is an
amendment which will correct the deficiencies in the bill before us by
saying that there will be a cap out there, which will be sufficient to
take care of the expenses of these people to whom we are saying, ``You
have a good deal because you can continue your coverage.'' Right now,
the expectations are not there, and they can be changed at any moment.
So I want to urge you to consider that this is something that is
important to the bill before us. It is an amendment to the bill before
us. It is to correct the serious problem in the bill before us. What we
are talking about here, as far as the impact, is, obviously, if
somebody is paying some money, somebody is going to have to shell out
some money somewhere else. If they are being paid to have their health
taken care of--first of all, let me review for a moment the kinds of
costs involved with these actions.
Look at this chart. It will show you about children with hemophilia.
There are about 7,000 children with hemophilia, not many in terms of
250 million. The average cost per year per person is $100,000. Life
expectancy is 40 years. Lifetime cost per person for hemophilia is $4
million. Do you want to put them all under Medicaid?
Cystic fibrosis, the case I talked about earlier; the prevalence is
about 4,000 in this country. That is not many relative to the huge
population. It is easy to spread around the cost. The average cost per
person per year is $18,000, and the average life expectancy is 30
years; $2.5 million.
This is the kind of situation which we are talking about.
Let us take a look. There are other examples. Spinal injury and head
trauma, you can also see where the costs are--around $5 million for a
lifetime situation.
Now let us review the question of why this is going to be a
reasonable cost with respect to the existing situation. Again,
insurance--the main purpose of insurance is to spread costs over a
larger population so that the cost is small to the employer and to the
employee with the insurance policy. But because of the huge number for
which we spread it, it makes it reasonable for a family to afford.
Let me remind all of my colleagues that we all have no lifetime cap.
None of the Federal employees have anything to worry about. We are all
covered, whatever the costs are. In addition to that, as this chart
shows, we are one of the 20 percent in this country that have no limits
whatsoever. There are those that have more than $1 million, about 6
percent. The biggest group is that one that has been carrying the $1
million forward for the last 20 years as long they have been in
business. That is 46 percent. So already we are at over 70 percent.
Then we go on down.
I will be candid with you. The lower, of course, your lifetime caps,
especially when you get to the really low levels, you obviously start
covering more things than normally, and you end up with more cost. But
the thing I am trying to make sure you understand is the cost that is
spread around is not that high.
Let us take a look at what some of the people say about what those
costs would be. First of all, let me run through some of these that
have given us some costs.
The American Academy of Actuaries, for instance, has given us a cost
analysis which demonstrates what we are talking about. Let me go to
Price Waterhouse first. Price Waterhouse is a noted accounting firm,
which we often look to give us accurate information, estimates that the
Jeffords amendment would save $7 billion in Medicaid costs--$7
billion--over 7 years. And more importantly, the cost to businesses
would be somewhere in the area of--especially those in the larger
areas--would be somewhere around 1 percent of their premiums.
Let us go to another one. We have several on this.
Also the National Taxpayers Union; let me tell the people on my side
of the aisle what the National Taxpayers Union says. They are
supporting it. They say it will be scored as a direct spending
reduction in the Medicaid Program by approximately $2.8 billion over a
5-year period. In addition, $2.1 billion may be saved through State and
local Medicaid Programs.
How can you say that this is not something that should be done when
we know what it is going to do to help us address the budget problems
which we have? Do you know what that amount of money means? That is
going to be replaced by the insurance premiums? But it does not even
cover the money that is drained out of all those families that went out
for expenditures on health care.
The Consumers Union, the other side of the aisle usually looks
forward to the lifetime cap amendment which would significantly benefit
consumers. The Consumers Union agrees that, if

[[Page S3586]]

health insurance policies have lifetime caps, it would be no lower than
$10 million to the people exposed. They say it is important and
essential.
Then, of course, we have to look to the Congressional Budget Office
and we have CBO's estimates. This came to us today. The Congressional
Budget Office says the amendment would increase the Federal deficit.
They are the only ones who say it is a cost after you balance out the
deductions for taxes--$120 million. So by the worst-case scenario we
have an offset for this. You could have a tiny, itty-bitty negative
impact of $120 million over 5 years.
So it is almost a no-brainer. It is hard to find out why anybody is
against it.
This is the Congressional Budget Office again. The proposal would
initially raise private insurance premiums by 0.4 percent. You want to
keep in mind that, if you are an employer, you have options. You can
increase your premiums, or you can increase your deductibles.
So it may not even cost the businessman anything. So again, the
Congressional Budget Office says that we have something here which
either costs nothing or something which is going to save the Treasury
billions of dollars over 7 years.
So it is just hard for me to figure out why there can be any
opposition to do this. Not only that. But Senator Kennedy, and I think
Senator Kassebaum, have suggested that this is a great amendment and
that it ought to be on some other bill. What other bill? Why not the
one it is most relevant to? Why not on the one with which we are trying
to make sure is helping people with their transfer from job to job?
I understand the complexity of trying to get a bill through without
any amendments on it. But I remind everyone that we have already
granted exceptions to the Finance Committee, and I asked the committee
that be one of those exemptions because I offered it at the committee
level, and they said, ``No way. Take it to the floor.'' I come to the
floor. They say, ``Sorry. No amendments even though it is relevant to
the bill.'' It will save the middle-income people billions of dollars.
It will not cost employers hardly anything, and it will establish for
the first time a good policy in this situation so that we do not drive
people through poverty to qualify for Medicaid.
Mr. President, I yield the floor.
Mr. SIMON addressed the Chair.
The PRESIDING OFFICER. The Senator from Illinois.

Privilege of the Floor

Mr. SIMON. Mr. President, I ask unanimous consent that Jayson
Slotnik, a fellow on my staff, be permitted to be on the floor during
the action on S. 1028.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SIMON. Mr. President, I rise in support of Senator Jeffords'
amendment. I am blessed to be a cosponsor of that. He mentioned the
case of Christopher Reeves. Christopher Reeves and an actor named Robin
Williams, when they were students, made a pact that they would support
one another if they ever faced this kind of an emergency. Robin
Williams, as an actor who makes a great deal of money, is able to help
Christopher Reeves. But what about the thousands of Americans who do
not have a Robin Williams?

It is very interesting. Senator Jeffords talked about the cost. We
changed the Federal insurance. In other words, all Federal employees,
including everyone here in the Senate right now--all of us--had some
changes. We had two major changes. The most costly was adding mental
health coverage for all Members--not only Members but all Federal
employees. Do you know what that cost? It costs 27 cents each pay
period. That is the additional mental health coverage cost. Twice a
month we pay 27 cents. I tried to find out what taking the $1 million
cap off cost us, and nobody knows what it cost. It is such a small
amount.
My guess is, if you took that chart that Senator Jeffords has there
of companies that have a $1 million limit and the 22 percent that do
not have any limit, that you would find really no difference in the
rates charged; no pattern of difference. You are talking about
something that does not affect very many Americans. So the total cost
is very limited.
I talked earlier today--four reporters stopped me out here, as they
stop all of us. I said to the reporters, when they were asking me about
this, ``Do you know what kind of limits you have on your insurance?''
Well, Adam Clymer of the New York Times knew, but the other three
reporters did not know. I think very few Americans have any idea what
kind of limit they have. They just know they are covered by insurance
or they are not.
We should not impoverish people before we protect them. That is what
we do with Medicaid. I think the Jeffords amendment makes a great deal
of sense, and I am proud to support it and proud to be a cosponsor.
Mr. KENNEDY addressed the Chair.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, it grieves me greatly to rise to indicate
my reservation about this amendment on this particular bill. I know how
hard the Senator has worked on this project, and in any other forum I
would be a strong supporter. I am very familiar with Chris Reeves. He
is a resident of my State out in the Berkshires. He was a strong
supporter of mine in the last campaign, a personal friend as well. I am
very familiar with the real challenges--first of all, the extraordinary
courage of this absolutely incredible human being. It is what I think
of first when I think of Christopher Reeves. As he has pointed out so
well, the human tragedy of others who are facing these kinds of
situations is incredible and incredibly difficult, and all of us are
familiar with stories of families being bankrupt because of these
ceilings which are out there. Most of them were about $1 million just
until very recently, some of them as high as $2 million.
I agree with the Senator, and it pains me to oppose him on this
particular measure. I was mindful of that during his presentation.

I ask the Senator what his disposition is, whether he might take a
voice vote here. Does he prefer that we make a tabling motion, or is he
willing to take----
Mr. JEFFORDS. That, of course, is the Senator's option. I cannot
stand here representing 100 groups who support this amendment and
taking into consideration the tremendous effort that Christopher Reeves
has put into this personally to try and convince this body to do this
reasonable thing, and not, unfortunately, from the Senator's
perspective, ask for a recorded vote. I do not mean to embarrass the
Members on this, but I just remind them that I was told I could come to
the floor and offer it, and I am being precluded. But I understand that
all got changed as we went along the way, and I do not hold any grudges
against anybody. I understand you have to stand by that no amendment
outside of the Finance Committee. I just would suggest to my colleagues
that they are not bound by any such thing and would urge them to vote
in favor of the amendment.
Incidentally, I have now heard something which occurs when you get
people nervous here, that there has been a rush to find a new cost from
CBO, and apparently they are ready to rush over and claim I do not have
enough money.
Well, I am always ready for those circumstances, and we are rushing
over with an amendment which will put a sufficient amount of money in
it so I do not get into a budget problem. If they are not around, if we
can just get the yeas and nays without going through the necessity of
me amending the amendment, that is fine, too.
Mr. SIMON. Will my colleague yield?
The PRESIDING OFFICER. The Senator from Massachusetts has the floor.
Mr. KENNEDY. I want to be very clear. I had joined with the chairman
of the committee in indicating I would oppose amendments on this that
virtually were not unanimously accepted. I should like very much to
accept it.
As I mentioned earlier in the day, there are many different features
which I should like to add.
I can remember very well I had a son who was in an NIH program, and
they terminated the NIH support. It was $3,200 for the treatment they
had to give those children every 3 weeks for 3 days for 2 years, and I
was able to afford it. Mothers and families were out there saying,
well, my child only gets 5 months, 6 months. What chance does that
child have to live?
I am very mindful of these situations. I feel very strongly about
them,

[[Page S3587]]

and I feel very sympathetic, too. But I am also mindful that we need
this legislation, and we have made a commitment at the time which I
hope the Senator from Vermont will understand. I joined with the
chairman of the committee to that effect. But I will be glad to join
with him at another time. But we are going to abide at least by the
assurances we gave to the other members of the committee. At the
appropriate time I will, or the chairman of the committee can, make a
motion to table.
Mr. SIMON. Will the Senator from Massachusetts yield?
Mr. KENNEDY. I will be glad to yield.
Mr. SIMON. I cannot speak for the chief sponsor, but when you ask for
a voice vote, the Senator from Massachusetts has a strong voice. If he
will be fairly silent in that voice vote, I would be willing to take a
voice vote, but I cannot speak for the Senator from Vermont.
Mrs. KASSEBAUM. Mr. President, if I may, I, too, am very sympathetic
to the issue that Senator Jeffords is addressing. I think we all
recognize--I believe the figures are almost 1,500 Americans at least
that would benefit from this legislation. It is more than just the
enormous financial cost. It is an emotional and difficult issue.
However, our agreement was not just with the Finance Committee.
Unless there is a consensus of support on both sides of the aisle, then
we have to oppose the amendments. I think the Senator from Vermont
knows there are many in the business community, particularly the small
business community, that have been opposed to this, who worry a great
deal about the implications of it and have said they would oppose the
whole bill if amendments like this one would be added. We felt that the
underlying amendment offered so much that we then had to also oppose
those other amendments which I think have much merit, and it is with
regret that I would, too, have to oppose it. I certainly am willing to
have a rollcall vote. I think it will be up to the sponsor of the
legislation to determine that.

Mr. KENNEDY. I make a motion to table the Jeffords amendment.
Mr. JEFFORDS. I would like to amend my amendment first to have plenty
of money in there so nobody can----
Mr. KENNEDY. I am not going to make that argument. That is fine.
Mr. JEFFORDS. All right.
Mr. KENNEDY. If it is all right with Senator Kassebaum. I have no
objection to either doing it--we are not making a point of order on the
money or questioning it at this time.

Amendment No. 3680 to Amendment No. 3679

(Purpose: To reduce delinquencies and to improve debt-collection
activities government-wide, and for other purposes)

Mr. JEFFORDS. I want to preclude that objection from being
registered, so, Mr. President, I have an amendment to my amendment.
The PRESIDING OFFICER. The Senator has the right to modify his
amendment.
Is this an amendment to the amendment?
Mr. JEFFORDS. Mr. President, it is an amendment to the amendment. I
will ask to have it reported.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

The Senator from Vermont [Mr. Jeffords] proposes an
amendment numbered 3680 to amendment No. 3679.

Mr. JEFFORDS. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with or we will be here the rest of the
evening.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The text of the amendment is printed in today's Record under
``Amendments Submitted.'')
Mr. JEFFORDS. What this does, Mr. President, is take an amount of
money which has been verified by CBO, which has yet to be utilized and
also verified by OMB, that will cover any conceivable cost of this
bill, to make sure someone does not come back and say I failed to cover
any cost of that.
I understand there will be maybe a motion to table. Let me just urge
my colleagues to please remember what we are trying to do here. You
have 100 disability groups of people who are in favor of this
amendment. You have estimates which indicate that we have eliminated
all the small businesses 25 or under. We have not pulled lifetime caps.
We have gone to $10 million, which is exactly the value of what they
were many years ago when the million dollar cap was in fashion.
What we are trying to do is prevent people going into bankruptcy in
order to qualify for Medicaid in order to take care of their sick ones.
It also improves this bill because this bill would allow an insurance
company--although they are forced to take somebody on the policy, they
can lower the lifetime caps and chop them off after a year again, and
then they are back out on the street looking for care and back onto
Medicaid.
With that, I would suffer the indulgence of a tabling motion at this
time.
The PRESIDING OFFICER. If there be no further debate, the question is
on agreeing to the amendment.
The amendment (No. 3680) was agreed to.
Mrs. KASSEBAUM. Does any Senator wish further debate on the
amendment, as amended?
If not, I move to table the amendment of the Senator from Vermont.
The PRESIDING OFFICER. The Senator from Kansas has moved to table the
amendment of the Senator from Vermont, as amended.
Mr. JEFFORDS. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mrs. KASSEBAUM. Mr. President, I ask if there could be about a 5-
minute delay to notify everybody to come.
Mr. JEFFORDS. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mrs. KASSEBAUM. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Bennett). Without objection, it is so
ordered.
Mrs. KASSEBAUM. Mr. President, I ask that we now proceed to vote on
the motion to table the amendment of the Senator from Vermont. The yeas
and nays have been ordered.
The PRESIDING OFFICER. The question is on agreeing to the motion to
lay on the table the amendment of the Senator from Vermont, No. 3679.
The yeas and nays have been ordered. The clerk will call the roll.
The bill clerk called the roll.
Mr. LOTT. I announce that the Senator from Colorado [Mr. Campbell]
and the Senator from Florida [Mr. Mack] are necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 56, nays 42, as follows:

[Rollcall Vote No. 74 Leg.]

YEAS--56

Abraham
Akaka
Ashcroft
Bennett
Bond
Bradley
Breaux
Brown
Bryan
Chafee
Coats
Cochran
Cohen
Coverdell
Craig
Daschle
Dodd
Exon
Faircloth
Ford
Frist
Gorton
Gramm
Grassley
Gregg
Hatch
Hatfield
Heflin
Hollings
Hutchison
Inhofe
Inouye
Johnston
Kassebaum
Kempthorne
Kennedy
Kerrey
Kohl
Kyl
Lieberman
McCain
Mikulski
Moseley-Braun
Moynihan
Murkowski
Murray
Nickles
Nunn
Pressler
Reid
Rockefeller
Sarbanes
Simpson
Thomas
Thompson
Thurmond

NAYS--42

Baucus
Biden
Bingaman
Boxer
Bumpers
Burns
Byrd
Conrad
D'Amato
DeWine
Dole
Domenici
Dorgan
Feingold
Feinstein
Glenn
Graham
Grams
Harkin
Helms
Jeffords
Kerry
Lautenberg
Leahy
Levin
Lott
Lugar
McConnell
Pell
Pryor
Robb
Roth
Santorum
Shelby
Simon
Smith
Snowe
Specter
Stevens
Warner
Wellstone
Wyden

NOT VOTING--2

Campbell
Mack

So the motion to lay on the table the amendment (No. 3679) was agreed
to.
Mr. KENNEDY. Mr. President, Senator Domenici has been seeking
recognition, and I believe he is willing to enter into a time
agreement.
Mr. DOMENICI. Senator Wellstone, how much time?
Mr. WELLSTONE. I think I need about 15 minutes.

[[Page S3588]]

Mr. DOMENICI. From the standpoint of proponents, we will settle on 35
minutes. You all can take whatever you would like.
Mr. KENNEDY. Mr. President, I ask that we have 40 minutes on the
Domenici-Wellstone amendment, 35 minutes to be under the control of
Senators Domenici and Wellstone, and 5 minutes under the control of
Senator Kassebaum.
Mr. JOHNSTON. Does the Senator from Massachusetts know how many
amendments and when we might expect to finish tonight?
Mr. KENNEDY. On our side there would probably be--we have Senator
Boxer's amendment, which I think will take a very short period of time.
We have Senator Conrad on visa, which I think we can work out. We are
waiting for the report of the chairman on the immigration control.
Senator Simon, a sense-of-the-Senate which I think will be very short.
We are on the Domenici-Wellstone now. There is one by Senator Dorgan on
the organ cards, which hopefully we can accept.
I do not think we have any amendments here that would require very
much time to deal with.
Mrs. KASSEBAUM. Mr. President, if the Senator from Massachusetts
would yield, there may be some amendments offered that will be
withdrawn--not all have been agreed to or cleared. I think we are
moving forward. We wish to complete this by 9:30 or 10 o'clock tonight
at the latest. We need to know exactly who will be wanting a rollcall
vote on their amendments. I think that is what everyone would like to
know.
Senator Domenici's amendment will be next. There will be a rollcall
vote I believe. At that point, we should know how many more votes would
actually be ahead of us.

Mr. JOHNSTON. Will the Senator yield for a question?
Mrs. KASSEBAUM. I am happy to.
Mr. JOHNSTON. Would it be out of the question to stack some votes
tonight?
Mrs. KASSEBAUM. We thought not. We thought it best to move forward.
After the next vote, we will be able to tell you exactly how many more
rollcall votes there will be.
Mr. DOMENICI. When you ask the Senator from Kansas a direct question,
she gives you a direct answer, right?
The PRESIDING OFFICER. There is no unanimous-consent agreement before
the Senate. The Senator from Massachusetts was propounding one, but it
was not formally propounded.

Unanimous-Consent Agreement

Mr. KENNEDY. Mr. President, I ask unanimous consent that on the
Domenici amendment that there be 40 minutes, with 35 minutes under the
control of Senators Domenici and Wellstone, 5 minutes under the control
of Senator Kassebaum and the Senator from Massachusetts, and that there
be no second-degree amendments in order to the Domenici amendment.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. DOMENICI. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.

Amendment No. 3681

(Purpose: To ensure that parity is provided under health plans for
severe mental illness services)

Mr. DOMENICI. Mr. President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from New Mexico [Mr. Domenici], for himself and
Mr. Wellstone, proposes an amendment numbered 3681.

Mr. DOMENICI. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The text of the amendment is printed in today's Record under
``Amendments Submitted.'')
Mr. DOMENICI. Mr. President, I yield myself 10 minutes and ask that I
be advised when I have used 9 minutes of that time.
Mr. President, it is with a degree of regret that I have to bring
this amendment to the floor on this bill because I understand that
Senators Kassebaum, Kennedy, and the committee of jurisdiction have
worked very hard on the basic bill that is before us. They have made
some commitments, which I gather, based on the last vote, that they
take very seriously. They are going to try to keep this bill clean.
I have to say to my fellow Senators that when you are involved and
understand what is going on out there in America with reference to the
mentally ill people and their inability to get adequate insurance
coverage, which I will explain in a little more detail to the Senate,
you have to take every opportunity you can to try to effect some major
change.
The country, in terms of insuring people for various physical
disabilities has come a long way. But this country, in terms of
insuring mentally ill people, is going backward instead of forward,
because as insurance costs go up, insurance company after insurance
company is finding a way to try to write cheaper and cheaper insurance,
and they look for ways to drop groups of people from coverage by saying
they are not covering them, or are covering them so inadequately that
they are left back in the arms of their parents or relatives. So this
is happening dramatically across America. When it comes to mental
illnesses, I submit that I know a little bit more about severe mental
illnesses because I have worked actively in committees on that issue
for a long time.
But if you happen to be a parent of somebody who has schizophrenia, a
very serious mental disease, and not some figment--it did not come
because somebody's mother did not take care of them properly; it is a
severe disease of the brain. If you happen to have one of those kinds
of persons in your family and you have an insurance policy that is
typical in America, it will, for the most part, not cover very much, it
will have a cap that is very insignificant, and it will be very
distinct from the rest of the policy coverage. In other words, they
will go out of their way to cover mental illness differently and with
less coverage than the basic coverage they are giving to physical
ailments, diseases that we all understand.
The time has come--and we can wait once again, but I believe it is
tonight--to send a signal that while we have a bill before us that is
going to alter some serious shortcomings in insurance coverage in
America--and we understand what they are and we compliment the
committee for taking one good bite at this problem--but those of us who
are worried about the problem of mental health and mental illness,
including severe mental illnesses, like manic depression, severe
depression, bipolar or serious depression, we understand that there is
medication available, there is treatment available. But, occasionally,
they have to be treated in an atmosphere that costs a lot of money, in
an environment that costs a lot of money.

This amendment is very simple. I am offering it with my friend,
Senator Wellstone. Essentially, Mr. President, it prohibits insurers
and health plans from imposing treatment restrictions or financial
requirements on services for the mentally ill that it does not impose
on services for the physically ill.
We offer this today, although this country has come a long way in
understanding and recognizing the special problems of people suffering
from mental illness. We understand that structural and institutional
discrimination continues and persists in our society. Stigmas are
rampant in this area, and I am referring to another kind of
discrimination--that is, the way health insurers and health plans treat
these individuals, and I believe this situation represents one of the
real continuing injustices in America today.
Although we now understand that mental illnesses are, in fact, for
the most part, physical illnesses, they are still treated differently
than other physical conditions. The only difference between the other
physical ailments and mental illness is that mental illness is a
disease of the brain, and it may be more complicated, but we are making
excellent strides at understanding it. Because this disease manifests
itself in our centers of thought, reason, and emotion, many find it
easy to deride those problems and to deride those who are afflicted, or
turn their back on the problem, or act as if the problem does not
exist. Mental illness is not due to sinful behavior. It is not due to a
weakness, or frail character. These illnesses are real, and they are

[[Page S3589]]

debilitating, and there are many who suffer from them. Nearly 5 million
Americans suffer from severe forms of mental illness. I will repeat
just a few of them.

Schizophrenia affects about 2 million adults a year. And I repeat,
nobody is at fault because somebody has schizophrenia and acts
differently and reasons differently. They are just as sick as your
neighbor who has cancer.
Yet only 2 percent of all individuals with mental illnesses are
covered by insurance which provides benefits equal to the coverage for
physical illnesses. I stated that in generalities a while ago. Now,
here is the objective number. Through narrowing down the definitions
through caps that are irresponsible but save money so insurance
companies do it in their own self-interest, only 2 percent of Americans
with mental illness are covered with the same degree of coverage as if
they got tuberculosis or cancer instead of manic-depression or
schizophrenia.
You can walk down any street in urban America and you will find them.
It is time to give these people access to care they need, and as you
see them in urban America sleeping on grates and other things, you
should realize that they probably started out as wonderful teenage
children in some beautiful family. And when the costs got prohibitive
and the behavior uncontrollable, they are abandoned. In fact, you find
more of them in jails than in the institutions which we ought to have
to help them. Most studies reveal that most of the severely mentally
ill are in prisons or county or city jails because of misbehavior than
in places we put together to treat them. Part of that is because
resources are not applied, and part of the reason resources are not
applied is because the insurance companies--I am not here angry at
them, I am not here fighting with insurance companies. Because what
they say is, ``How do we make money? So if we lessen the coverage for
mental health, we get a better bargain for people who want coverage for
the other things.'' But I am submitting that sooner or later we have to
say to them that you all have to cover them. If you are covering
physical illness and they get 6 months of hospitalization, you have to
do the same for mentally ill people. If not, nobody is going to care
for them.
Let me tell you, I have seen purposely and intentionally how this
destroys families. I have been to the National Alliance for the
Mentally Ill meetings with 1,000 of the finest people in America who
are there talking about their children, and in many cases they are lost
because they could not afford to pay for them when they were 19 and 20,
and they do not even know where they are. Somebody in this society is
paying for that. For the most part, the ill are paying for it, for they
are not getting taken care of right.

I thought a bill that was aimed at correcting the lack of coverage in
the private insurance industry of America--because you choose and pick
insurance companies to cover what you want and what you do not want you
do not cover--we came today to the Senate and in 1 day or 2 are going
to pass a marvelous bill that says, in two areas, you are all going to
cover something. I am just asking tonight that, in three areas, you say
you are going to cover something.
I know the motion to table will be made, and the argument will be
made that this is not the right time. And, of course, I am taking a
gamble, because with that kind of power, I might lose this amendment.
But let me suggest, if we do--and I hope we do not--you can count on
it, we are going to be back here, and we are going to find and look
until we find a vehicle that sets this thing straight.
Mr. President, when that bill was sent to the desk, I saw some
Senators watch it go up there and they saw this very thick bill. I do
not want you to think there is all kinds of language in there about
mental illness. What we have to do is pay for this.
So much of that bill is to defer the cost in the first 5 years of
this bill, and we have used offsets that are acceptable, which Senator
Wellstone and I have used at other times here but have not become law.
So we have offset it as best we could. That is what most of that is.
It is a rather simple bill. We could narrow it down. We chose not to.
We talk about mental illness. That includes all of the severe ones, but
it includes more, and it says as part of treatment, no more
discrimination, no more treating them differently.
We have cost estimates. If it was done across the board in all
policies, it would add about 1.6 percent net to the insurance coverage
across the land. It obviously would not happen overnight. It would take
some time. But, essentially, we want to give the Senate an opportunity
to vote on this tonight.
That is my explanation for now. I want to say thanks to Senator
Wellstone. He has been kind of my friend working on this for a long
time. There are some other Senators on board.

I want to yield to him now 7 minutes of my time for him to tell us
his version of why we ought to do that.
Thank you very much.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. WELLSTONE. Mr. President, I am very pleased to be here with my
colleague, Senator Pete Domenici, to introduce an amendment on an issue
that I feel very strongly about. Our amendment deals with one issue,
and we hope that we have our colleagues' vote tonight: equitable health
care coverage for mental illness services.
Mr. President, let me say it has been a real honor to work with
Senator Domenici on this issue. He has been a real leader, as has his
wife, Nancy, and I personally appreciate all of their efforts.
I am proud to cosponsor this amendment, which would require that
health plans to provide coverage for mental health services
commensurate with what is provided for other physical illnesses.
For too long, mental health has been put in parenthesis; we did not
want to talk about it, and we did not take it seriously as a country.
The stigma of mental illness has kept many in need from seeking help,
and it has prevented policymakers from providing it. And for too long,
persons in need of mental health services who reach private coverage
discriminatory limits have been dumped onto Government-funded programs.
Mr. President, I support a universal health coverage plan, and
comprehensive benefits for mental health services. While we failed to
enact legislation to achieve this during the 103d Congress, we did
increase awareness. But now we are talking about parity, and awareness
is not enough.
Our amendment would require health plans to provide parity in their
coverage of physical and mental health. Plans would be prohibited from
requiring copays, or deductibles, for mental health benefits, or
establishing lifetime limits for mental health benefits, or
establishing visit limitations for mental health services unless the
same restrictions apply to other health services.
All we ask for is equitable treatment. That is all this amendment
does. All this amendment does is say, please let us stop this
discrimination.
Mr. President, many people, or most people's instinctive reaction is
to assume that this amendment would be expensive. This is not the case.
As a matter of fact, in my State of Minnesota, where we have already
passed legislation requiring full parity for mental health and
substance abuse services, this was implemented August 1, 1995, and the
cost of the parity mandate was estimated to be 26 cents per member
provided. Minnesotans who were unable to work full time either because
they were too sick or they were forced to impoverish themselves in
order to qualify for Medicaid benefits, are now able to work and pay
taxes and be productive. Because of this discrimination, all too often
people cannot work so that they can receive medical assistance. People
are forced to impoverish themselves in order to qualify for the medical
assistance they need.

Now, in Minnesota--this is what we propose to do for our Nation,
because we have parity and we have ended this discrimination--these
same Minnesotans are now able to work, to live a life with dignity, and
to pay their taxes.
Mr. President, we have a tremendous body of evidence, new evidence,
proving that, without a doubt, mental health disorders can be diagnosed
and treated in a cost-effective manner.
In fact, we can show that within a very short period of time it costs
less

[[Page S3590]]

to treat those disorders directly and appropriately than not treat them
at all. We can say that this is true based upon studies of every sector
of our population--insured and employed, uninsured and unemployed,
people who now use the private system and those who now use the public
system.
Mr. President and colleagues, there are several arguments for
requiring parity for mental health services. First, we now have cost-
effective treatments for mental illnesses and high rates of success are
being achieved across the spectrum of diagnosis. For example, 80
percent of individuals with depression respond to treatment. Second of
all, mental illness results in physical illness, inability to work,
impaired relationships, and sometimes crime and homelessness.
Would it not be better to end the discrimination and have less of the
homelessness? Would it not be better to end the discrimination and
enable people to work and be productive citizens? And finally, Mr.
President, mental health services are already part of health delivery
in the United States.
Let us have no doubt about it, this amendment leaves all decisions
about the delivery of services to the private marketplace. The
amendment does not require the provision of mental health services to
employees, specify what care should be provided, interfere with the
discretion of employers and health plans to negotiate reimbursement
rates as they see fit, or mandate the use of any particular kind of
delivery of needed care.
What this amendment calls for is just parity. Mental illness has
touched many of our families and many of our friends. It is for this
reason and many others that it is not a partisan issue. Mental illness
is a problem affecting all sectors of American society. It shows up in
both the rural and urban areas. It affects men and women, teenagers and
the elderly, every ethnic group and people in every tax bracket. It can
be effectively treated just like heart disease or diabetes. Treatment
not only saves lives but it also saves dollars. That is why this
amendment is so important.
I look forward to the adoption of this amendment and to continuing to
work with Senator Domenici to end discrimination against this very
vulnerable population and their families. It is only old data and old
ideas that keep us from covering mental health, the same way we cover
any other real illness, whether it is acute or chronic.
I know there has been some agreement on amendments, but I plead and
implore my colleagues to please vote for this amendment. Senator
Domenici is right. Tonight is just the beginning. If we do not win
tonight--and I hope we get a very significant vote, and I hope we do
win--then, of course, we will come back.
Colleagues, please support us. Please end the discrimination. That is
what this amendment is all about.
I do not usually do this on the floor of the Senate, but I would like
to dedicate my remarks to my brother who has struggled with mental
illness almost his whole life. He is doing great now.
I yield the floor.
Mr. DOMENICI addressed the Chair.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. DOMENICI. How much time does the Senator from New Mexico have?
The PRESIDING OFFICER. The Senator has 13 minutes and 5 seconds.
Mr. DOMENICI. My good friend, Senator Simpson, desires to speak, and
I yield him 5 minutes. And then, I say to the Senator from North
Dakota, I will yield him some time.
The PRESIDING OFFICER. The Senator from Wyoming.
Mr. SIMPSON. Mr. President, I hope that all Members will read the
amendment. I know sometimes we forget to do that from time to time, it
is perhaps one of our failings. It is a very simple amendment. It is
described as ``parity.'' I think the Senator from New Mexico and the
Senator from Minnesota have covered it very well.
The important thing that you want to hear regarding it is about the
rule of its construction. It is just one construction because people
say that it is going to be tremendously costly; or that this is going
to ``open the doors'' or that this is the first step toward incurring
tremendous cost. But what the amendment says is this:

Nothing in [the subsection previous] shall be construed as
prohibiting an employee health benefit plan, or a health plan
issuer offering a group plan, or an individual health plan
from requiring preadmission screening prior to the
authorization of services covered under the plan or from
applying other limitations that restrict coverage for mental
health services to those services that are medically
necessary.

I think that is a very important thing. That is a very critical part
of this.
Let me just tell you that about 4 years ago a most beautiful girl in
our family, the niece of my wife--my wife's twin sister's daughter,
whom we had watched grow and mature from her birth--left our midst. She
was a dancer; she was an artist; she was a poet; she was a guitarist;
she was a singer; she was the rainbow of life.
We did not get or understand the signals in time, and the signals
were very clear as we all look back now out of sheer guilt and anguish.
She was tough minded, independent, loving, strong, and forceful. She
would come into your kitchen and just cook up a batch and leave the
stuff in the sink, and family would say, ``Why doesn't Susan clean up
afterwards?'' And then, ``Why doesn't Susan work? How old will she be
before she ever works?''
She began to withdraw, and then she went into some religious and
almost cultish activities, and she had a child. And that is a beautiful
child. I know that child. That is the wonderful part of it now--because
Susan is gone. And after years of reaching out to us in her way and us
not hearing and us not knowing, she one day decisively purchased a
pistol and a few hours later purchased the ammunition and went to an
isolated field, removed her shoes, sat in a the crouched position in
Bowling Green, KY, and blew her chest away.
That is what sometimes happens to these people, and we think,
``well, but they should have tried to do something for themselves.

We thought we were doing something for her. We thought she was
finally doing it for herself. She was taking medication, and it was
working. But then something, something unknown, entered her mind and
her life and she decided not to take the medication --knowing what
would happen if she did not--and then her tragic plan of ultimate
rejection came to pass.
There is a group of humans--a particular vulnerable group in society
that the mental health workers and professionals tell us about who now
are in their 37th to their 45th year, who somewhere along the line were
perhaps those involved in the early experimentation with drugs, yes.
Yes, of course, but that penalty should not be something visited upon
them forever. So I say there is not a soul in this Chamber that has not
been grievously affected in some way by these things. It is time for
healing. It is time for understanding more than anything. It is time to
minister. It is time to love and to be compassionate and time to learn
so much more about these tragic things. For these are the people who
you know and see every day, and they are making it, and they never did
before, but they are now. If we can put this in this bill in this way
with this language, I think it would be a tremendous benefit to them--
and they are our first charge--and to the rest of us in society.
I thank the Chair.
Mr. DOMENICI. How much time do we have remaining, Mr. President?
The PRESIDING OFFICER. The Senator has 8 minutes and 50 seconds.
Mr. DOMENICI. Mr. President, I yield 5 minutes to Senator Conrad.
Mr. CONRAD. Mr. President, I personally thank Senators Domenici and
Wellstone for bringing this amendment to the Chamber tonight.
I rarely take the time of my colleagues, in the evening hours, to
speak, because I often feel that it is an imposition on their time.
Tonight, I think this amendment is so important that it requires all of
us to speak. This amendment simply asks that mental illnesses be
treated on a parity basis with other illnesses. It is inescapable: An
illness is an illness. There should be no differentiation between how
we treat those who have a mental illness and a physical illness.
When I was the assistant tax commissioner in North Dakota, Senator
Dorgan was the tax commissioner. We had a young woman who was our
receptionist. She was a beautiful and vibrant young woman. She was
somebody

[[Page S3591]]

who absolutely lit up an office. One day, she just went off the deep
end with a mental illness that none of us knew that she had. Pictures
were speaking to her. She had all kinds of aberrant thoughts. It led to
her institutionalization. It led to her attempting to take her own
life. That was a young woman, because of a suicide attempt, who did
enormous damage to herself from which she will never fully recover.
That young woman had a mental illness, and that illness deserved to
be treated like any other illness. She is not alone. There are millions
like her all across America. As we sought to reach out and help this
young woman, I became somewhat educated about what was happening in our
communities. One thing I learned is that we actually treat differently
those with a physical illness and those with a mental illness, and it
is a tragedy.
In our State, we have taken the step to recognize that there should
not be discrimination between illnesses. What we have found is it does
not cost more money. Oh, it does as you begin, but as you go forward,
it does not cost more money, and it does not cost more money because,
if you fail to treat, the physical ailments mount and become much more
expensive.
I would say to my colleagues, we passed this amendment. We passed
this in the Finance Committee on Medicaid, during reconciliation. I
offered the amendment. It was adopted. It passed here on the floor of
the U.S. Senate. It was only taken out in conference.
We passed it in the Finance Committee based on the best evidence that
shows over time this will not cost money. I submitted detailed studies
from North Dakota that demonstrate that.
I hope my colleagues will vote for this amendment tonight. It is the
right thing to do. I hope my colleagues will agree to the Domenici-
Wellstone amendment. They will be proud the rest of their lives that
they did.
I yield the floor.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, I yield myself 2\1/2\ minutes.
I have difficulty in not commending, which I do, my good friends and
colleagues with whom I have worked over a very considerable time on the
issues of mental health. This is obviously an awkward position for me
to have these amendments come up and to be fighting these issues. One
of the first pieces of legislation passed during President Kennedy's
administration was the community health programs which got people out
of institutions, and into the community. I worked with Senator Domenici
and Senator Wellstone in 1990 to move the whole mental health research
out to NIH, against strong opposition at that time. In the health
insurance bill that we passed last year, we had effective equivalence
between mental health and physical health, though there were some
aspects of hospitalization that were phased in over a period of time.
So I am strongly sympathetic. I just regret this. Hopefully, it will
be defeated. Maybe we are going to continue to have these votes so
people are able to speak to them. Once again, I can understand the
frustration because we have not gone ahead on it.
It is painful for many of us who are strongly committed to the whole
issue of eliminating preexisting condition and our strong commitment to
that, to have to go on record in opposition to these amendments. But if
that is the cost, and Members of the Senate feel that is what they want
to do to many of us who have been out there working on precondition
year in and year out, we are prepared to do it.
I will join in urging that the Senate table this at the first
opportunity.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. DOMENICI. Mr. President, how much time do I have left?
The PRESIDING OFFICER. The Senator from New Mexico has 4 minutes 26
seconds.
Mr. DOMENICI. Mr. President, I certainly do not intend by my action
tonight to make it painful for Senator Kennedy, who has been a staunch
advocate. I hope that is not what he said tonight. I just believe very,
very sincerely that the time is now to get something done.
I want to explain one more time in just a brief, few words what this
amendment does not do, because I think there could be some confusion.
Let me clear up what it does not do. It does not provide an open-ended
entitlement to whatever mental health services an individual wants. It
does not limit the ability of an insurer or health plan to limit
services to only those who are medically necessary. It does not
institute a service-by-service equivalency between physical and mental
illness. It does not mandate a benefit package.
It simply makes the following common situations illegal. Let me cite
a few:
Policies that allow 365 days in-patient care for physical illness
allow only 45 days for in-patient psychiatric care.
Policies that provide a lifetime cap of $1 million for physical care
have a $50,000 cap for mental illness.
Policies providing unlimited outpatient visits for physical care
allow only 20 outpatient visits for mental illnesses.
Mr. President, 90 percent of employer-sponsored plans impose such
limits, despite the proven efficacy of treatments for mental illness.
Treatment for schizophrenia has a 60 percent success rate; manic
depression, 80 percent; major depression, 65 percent. Yet commonly
reimbursed procedures such as angioplasty and arthrectomy have only a
41-percent and a 52-percent ratio, and nobody seeks to treat them with
limitations that are imposed on mental illnesses.
The era of managed care is upon us, making tight management of
patient care the norm, and artificial cost measures to reduce
utilization are a thing of the past.
I have a number of examples of companies that have covered with
parity of treatment and, believe it or not, they have saved money and
added to their work force in ways that are measurable and objectively
beneficial to the companies that have so seen fit.
So, from my standpoint, from the standpoint of the Senator from New
Mexico, I do not seek to kill this bill. I think it is a marvelous step
in the right direction. But I ask my fellow Senators when, if not
tonight, will we ever get around to this issue? If I thought there was
another bill coming down this year, I would probably have made an
agreement so that I could have the full support of my friend from
Massachusetts and my colleague and friend from Kansas, Senator
Kassebaum. But I do not see that coming.

I believe there is plenty of evidence that the discrimination
continues. It grows more rampant. The stigma, since that discrimination
is rampant, is growing instead of diminishing, in an era when knowledge
is beginning to grow almost exponentially.
So, now is the time. Tonight is the time to send this to conference.
Deny the motion to table. Let our Senate colleagues take this to
conference. Let us work on the various interests that will be part of
that conference and see if we cannot make this a better bill because it
would have this amendment attached than it would if it fails tonight.
I yield the floor.
Mrs. KASSEBAUM addressed the Chair.
The PRESIDING OFFICER. The Senator from Kansas.
Mrs. KASSEBAUM. Mr. President, I know that many here would like to
vote in favor of this amendment offered by Senator Domenici, and
Senator Wellstone is one. It has been carefully crafted.
There is no greater dedication to this legislation than from those
who have spoken to us, as well as Senator Kennedy who, for a long time,
has been a great supporter.
So it is with real disappointment, if all debate is over, that I will
have to move to table, as it is not an amendment that has consensus of
support. And so for that reason, I only hope we can find some other
avenue later through which we can address this.
I move to table the Domenici-Wellstone amendment, and I ask for the
yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. DOMENICI. Has all time expired?
The PRESIDING OFFICER. The Senator from New Mexico has 14 seconds
remaining. The Senator from Kansas has 2 minutes.

[[Page S3592]]

Mr. DOMENICI. I yield back my time.
Mrs. KASSEBAUM. I yield back my time.
The PRESIDING OFFICER. The question is on agreeing to the motion to
lay on the table amendment No. 3681.
The yeas and nays have been ordered.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. LOTT. I announce that the Senator from Colorado, [Mr. Campbell]
and the Senator from Florida [Mr. Mack] are necessarily absent.
The PRESIDING OFFICER (Mr. Jeffords). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 33, nays 65, as follows:

[Rollcall Vote No. 75 Leg.]

YEAS--33

Ashcroft
Bond
Breaux
Brown
Bryan
Chafee
Coats
Cohen
Craig
Daschle
Dodd
Faircloth
Ford
Frist
Gorton
Gramm
Grams
Gregg
Hollings
Inhofe
Johnston
Kassebaum
Kempthorne
Kennedy
Kohl
Kyl
McCain
Nickles
Reid
Rockefeller
Roth
Smith
Thompson

NAYS--65

Abraham
Akaka
Baucus
Bennett
Biden
Bingaman
Boxer
Bradley
Bumpers
Burns
Byrd
Cochran
Conrad
Coverdell
D'Amato
DeWine
Dole
Domenici
Dorgan
Exon
Feingold
Feinstein
Glenn
Graham
Grassley
Harkin
Hatch
Hatfield
Heflin
Helms
Hutchison
Inouye
Jeffords
Kerrey
Kerry
Lautenberg
Leahy
Levin
Lieberman
Lott
Lugar
McConnell
Mikulski
Moseley-Braun
Moynihan
Murkowski
Murray
Nunn
Pell
Pressler
Pryor
Robb
Santorum
Sarbanes
Shelby
Simon
Simpson
Snowe
Specter
Stevens
Thomas
Thurmond
Warner
Wellstone
Wyden

NOT VOTING--2

Campbell
Mack

So the motion to lay on the table the amendment (No. 3681) was
rejected.
Mr. DOLE. Mr. President, I move to reconsider the vote.
Mr. SANTORUM. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. DOLE. Mr. President, I think we are making progress. I wonder if
the managers might be able to identify those amendments that would
require rollcall votes and have the debate on those amendments, and
then we can advise our other colleagues that did not have amendments
that we would probably be voting, say, at 10 o'clock or 9:30, or
whatever it might be. That would save everybody from having to stay on
the floor. When you stay on the floor, sometimes you get excited and
talk.
Mrs. KASSEBAUM. Mr. President, I say to the majority leader, on our
side, I understand that Senator Specter would like to have a vote. He
has two amendments.
Mr. DOLE. En bloc?
Mrs. KASSEBAUM. I would assume we could vote en bloc.
Mr. SPECTER. I am right here and ready to go, madam manager.
Mrs. KASSEBAUM. All right. I am not sure about Senator Thomas,
whether he will want a vote on his, and Senator Gramm. I believe those
are the only amendments that I have listed that would require--Senator
Burns, I believe, has one on telemedicine.
Mr. COATS. I have one, also.
Mrs. KASSEBAUM. I thought we were going to try to work that out.
Mr. COATS. We are not able to work that out, so we are going to have
to have a vote on it.
Mr. DOLE. How many from the Senator from Massachusetts?
Mr. KENNEDY. We have the Conrad amendment on J-1 visas, which is
acceptable. We have one other amendment where somebody wants to
introduce it, speak, and withdraw it. Senator Dorgan's amendment on
organ donor, which, I believe, has been accepted, with Senator Frist.
We have Senator Harkin's, and we are waiting to see whether Senator
Wellstone wants to work out an exchange of language or a vote. And
there is a Senator Boxer sense of the Senate.
Some of those, as I mentioned--the Conrad visa amendment, and the
organ donor amendment--have been worked out. I think they will just
take very brief comments.
Mr. DOLE. So that will be two votes?
Mr. KENNEDY. Potentially, four. I hope we get it down to three.
Mr. DOLE. Let me encourage my colleagues, if there is an opportunity
to work these out on either side, we hope we can do that and not
require a rollcall vote. If you are going to work out your amendment
and it is accepted without rollcall votes, I will look very kindly on
those amendments. I will be a conferee.

Mr. DOMENICI. Mr. President, I ask that the yeas and nays be vitiated
on the Domenici amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is agreed to.
So the amendment (No. 3681) was agreed to
Mr. DOMENICI. Mr. President, I move to reconsider the vote.
Mr. EXON. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. DOLE. Mr. President, I think the distinguished Democratic leader
wanted to add a word.
Mr. DASCHLE. Mr. President, I ask the majority leader whether or not,
to accommodate a couple of our colleagues, who, I think, were working
under the understanding that we might be able to stack votes, whether
or not it may be possible to stack the next two or three votes so as to
accommodate some of those who may have left with that understanding.
Would that be possible?
Mr. DOLE. I am satisfied with that. I think it is a good idea.
Mrs. KASSEBAUM. As long as there are so few left.
Mr. DOLE. We can stack three or four votes back to back, accept the
rest of them, and have final passage.
Mr. LEAHY. Will the majority leader yield for a question?
Mr. DOLE. Yes.
Mr. LEAHY. If we are going to stack them, do we know approximately
when the votes will start?
Mr. DOLE. How much time will the Senator from Pennsylvania take?
Mr. SPECTER. Mr. President, responding to the majority leader's
question, I think it can be disposed of in 20 minutes, 10 minutes a
side.
Mr. DOLE. Each amendment, or both?
Mr. SPECTER. I am going to start with the first amendment.
Mr. KENNEDY. We would take 5 minutes.
Mr. DOLE. Let us say an hour from now.
Mr. LEAHY. Votes will start then, an hour from now?
Mr. DOLE. Yes.

Amendment No. 3682

(Purpose: To reauthorize and expand the healthy start program to target
areas in need and to implement community driven strategies to reduce
infant mortality)

Mr. SPECTER. Mr. President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

The Senator from Pennsylvania [Mr. Specter] proposes an
amendment numbered 3682.

Mr. SPECTER. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
At the appropriate place in title III, insert the following
new section:

SEC. . REAUTHORIZATION OF HEALTHY START PROGRAM.

(a) Authorization of Appropriations.--To enable the
Secretary of Health and Human Services to carry out the
healthy start program established under the authority of
section 301 of the Public Health Service Act (42 U.S.C. 241),
there are authorized to be appropriated $100,000,000 for each
of the fiscal years 1997 through 2001.
(b) Existing Projects.--
(1) In general.--Of the amount appropriated under
subsection (a) for a fiscal year, the Secretary of Health and
Human Services shall reserve $30,000,000 for such fiscal year
among demonstration projects that received funding under the
healthy start program for fiscal year 1996.
(2) Eligibility.--To be eligible to receive funds under
paragraph (1), an existing demonstration projects shall
demonstrate to the satisfaction of Secretary of Health and
Human Services that such project has been successful in
serving needy areas and reducing infant mortality.
(3) Use of projects.--A demonstration project that receives
funding under paragraph (1) shall be utilized as a resource
center to assist in the training of those individuals to be
involved in projects established

[[Page S3593]]

under subsection (c). It shall be the goal of such projects
to become self-sustaining within the project area.
(c) New Projects.--Of the amount appropriated under
subsection (a) for a fiscal year, the Secretary of Health and
Human Services shall allocate the remaining amounts for such
fiscal year among up to 35 new demonstration projects. Such
projects shall be community-based and shall attempt to
replicate healthy start model projects that have been
determined by the Secretary of Health and Human Services to
be successful.

Mr. SPECTER. Mr. President, this is an amendment which provides for
reauthorization of Healthy Start. This amendment would reauthorize the
Healthy Start program for an additional 5 years at $100 million a year.
It is important that the reauthorization occur on this bill because,
given the Senate calendar, it is highly doubtful that this issue will
be raised on any other bill.
In my capacity as Chairman of the Appropriations Subcommittee for
Health and Human Services, I can say with some authority that we need
the authorization so that we are prepared to make the appropriate
appropriations.
Healthy Start is a program which is designed to provide prenatal care
to infants. I saw my first 1-pound baby more than a decade ago at the
Alma Ellery Clinic in Pittsburgh and, at that time, I saw a baby about
as big as my hand, weighing a pound. Some babies weigh as little as 12
ounces, and they are human tragedies, carrying scars for a lifetime,
and they are very expensive for our society, costing as much as
$250,000 each.
In my position on the Appropriations Committee, I worked to start
this program of Healthy Start, and it has had a really remarkable
success. It has been in existence for 5 years, which is a relatively
short period of time. But we already have statistics available that
show the success of the program.
The 1994 statistics received from the projects demonstrated that from
1984 to 1988, baseline statistics in Philadelphia show that infant
mortality had decreased some 28 percent. In Pittsburgh, the infant
mortality rate decreased 20 percent since the start of the Healthy
Start Program in 1993.
The Maternal and Child Health Bureau reports that for the State of
New York, between 1990 and 1994, infant mortality rates decreased by 38
percent in the Healthy Start project area, compared to a 22 percent
decline citywide.
Without going into any greater demonstration of statistics, Mr.
President, I think it is apparent that Healthy Start is an important
program. Dr. Koop commented that with these minimal four prenatal
visits, women carrying children would not give birth to low-birthweight
babies. It, obviously, has been a very important program. It exists in
some 22 cities at the present time: Boston; New York; Philadelphia;
Pittsburgh; Baltimore; Washington, the DCPD region; South Carolina;
Birmingham, AL; Cleveland, OH. I read these listings so that my
colleagues will know how many of these units are in existence in their
locales. Troy, IN; Chicago, IL; New Orleans; the Northern Plains Indian
Reservations; communities in South Dakota, North Dakota, Iowa; Oakland,
CA; and special projects in Dallas, TX; Essex County, NJ; the Florida
Panhandle; Milwaukee, WI; the Mississippi Delta; Richmond, VA; and
Savannah, GA.

The plan is to expand these projects from the 17 projects which are
now--from the 22 projects which are now in existence, to an additional
35 projects.
Mr. President, I think the value of this program is apparent on its
face. It has been in existence for 5 years. It has been very successful
and does not encumber or impede this bill in any way.
It is a little hard to understand why it is not accepted, but I think
it ought to command the attention of this House and the House of
Representatives. And I urge its adoption.
The PRESIDING OFFICER. Is there further debate?
Mr. SPECTER. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mrs. KASSEBAUM. Mr. President, is the Senator from Pennsylvania going
to offer a second-degree amendment at this time?
Mr. SPECTER. I am not.
Mrs. KASSEBAUM. Is the Senator going to wait until quarter of 10 to
speak on that? We are stacking the votes.
Mr. SPECTER. I understand we are stacking the votes. At this time I
am offering this amendment and speaking about this amendment.
Mr. HARKIN addressed the Chair.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. HARKIN. I understand the floor is open for amendments.
The PRESIDING OFFICER. There is a pending amendment which needs to be
set aside by unanimous consent.
Mr. HARKIN. I understand, if I am not mistaken, that we are going to
stack these votes. Is the Senator getting a vote right now under the
regular order? The yeas and nays were ordered.
Mr. SPECTER. As I understand it, we are stacking the amendments. But
I am not prepared to set the amendment aside at this point. I would
like to see if the managers have contrary argument.
Mrs. KASSEBAUM. Mr. President, yes. This is not acceptable. The
reason is that it is authorizing legislation which I believe needs to
come through committee and the committee procedure before we would
authorize this on this bill regarding health insurance reform.
That would be the objection of the managers of the bill.
Mr. SPECTER addressed the Chair.
The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
Mr. SPECTER. Mr. President, in response to the comments of the
Senator from Kansas, it is my strong view that a healthy start program
is directly germane and directly relevant to the pending legislation on
health care and that it is a jurisdictional question. I do not quite
understand the argument. This program has been in existence, has been a
success, and there has been no denial by the managers that it is in
existence and has been a success. It is hardly the kind of program
which is going to require additional hearings. It seems to me that it
is right for disposition. That is why I am offering the amendment.
The PRESIDING OFFICER. Is there further debate on the amendment?
Mrs. KASSEBAUM. Mr. President, I stated the reasons why we have an
objection. It is a program that has had some success. That is very
true. And healthy start is very important. It is part of other programs
in the public health sector to which that is directed. As I say, I
think it should be really reviewed in oversight so we can analyze what
is being done and what should be done. I just feel strongly that in
this instance it needs to be handled through the authorizing process
rather than an amendment.
The PRESIDING OFFICER. For clarification, there is no unanimous
consent to stack the votes at this time. So the pending business is the
amendment of the Senator from Pennsylvania.
Mrs. KASSEBAUM. Mr. President, just so I understand, I thought the
majority leader asked that votes would be stacked until 9:45. Did I
misunderstand?
The PRESIDING OFFICER. My understanding is that it was not posed as a
unanimous consent request.
Mr. DOLE. I now make that request.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. HARKIN addressed the Chair.
The PRESIDING OFFICER. The Senator from Iowa is recognized.

Amendment No. 3683 to the Committee Substitute, as Amended by No. 3675

(Purpose: To reduce health care fraud, waste, and abuse)

Mr. HARKIN. Mr. President, I send an amendment to the desk.
The PRESIDING OFFICER. The clerk will report.
The bill clerk read as follows:

The Senator from Iowa [Mr. Harkin], for himself and Mr.
Baucus, proposes an amendment numbered 3683.

Mr. HARKIN. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The text of the amendment is printed in today's Record under
``Amendments Submitted.'')
Mr. HARKIN. Mr. President, this is offered on behalf of myself and
Senator Baucus.
Mr. President, this amendment deals with the continuing problem of
waste,

[[Page S3594]]

fraud, and abuse in the Medicare system. Over the last several years we
have had numerous IG investigations, reports, GAO investigations, and
GAO reports. The data is overwhelming. No one can dispute the findings.
The Director of HCFA himself has testified before the Labor, Health and
Human Services Appropriations Subcommittee as to the validity of these
findings. No one disputes that there is tremendous waste, fraud, and
abuse in Medicare. The GAO has estimated that up to 10 percent of
Medicare funds are lost to waste, fraud, and abuse every year.
Out of a $180 billion program, 10 percent, that is up to $18 billion
lost to waste, fraud, and abuse. That is $500 per beneficiary per year.
I know that we are not going to be able to get all of it out. I
understand that. But at least we can make some important strides in
saving a lot of this money. The amendment that was adopted earlier--the
Dole-Roth amendment--had some provisions in it to combat fraud and
abuse that I have pushed and supported for a long time, including
increased resources for the HHS Inspector General and increased
resources for Medicare contractors to fight fraud and abuse, and
tougher penalties for fraudulent activities. These were in the
amendment adopted.
I say that these are positive and long overdue steps. As I said, they
are steps that I have pushed and promoted for years. However, they are
inadequate. There is much, much more that needs to be done and can be
done right now to really make a dent in the massive amounts of waste
and abuse in the system.
Mr. President, every time I go to town meetings in Iowa and I meet
with the elderly--or just basically anyone that has been involved in
the Medicare system, like people who have had parents or grandparents
who have received Medicare help and assistance--whenever you talk about
waste and abuse you get an immediate response. They know it exists all
too well. When you talk about looking at their bills and ask if they
ever look at a bill and see an item on there that they did not really
think they received, or maybe paid too much for--you watch the heads
nod--they all have, and they are outraged about it. But what they will
show you is they will hold up the form that they got from Medicare, and
it will have stamped on the front of it, ``This is not a bill.''
A couple of years ago a woman by the name of Shirley Pollock from
Atlantic, IA, got hold of me. She had received one of these for her
mother-in-law who had been in a nursing home.
For something short of 5 weeks' time, she was billed over $5,000 for
bandages. She was outraged, because she knew there was no way her
mother-in-law had used that many bandages. But on the front it said,
``This is not a bill.'' So Shirley Pollock complained to the Medicare
payor about this and was told: Do not worry about it. You do not have
to pay it anyway.
Well, as Shirley later told me, ``I got so mad because I knew
somebody's got to pay it. Obviously taxpayers or people paying into
Medicare are paying for it. Someone is paying for it. I know we didn't
receive $5,000 in bandages, and I want to do something about it.''
So she contacted my office, and we worked it through and found out,
indeed, that she was absolutely right. Her mother-in-law had never
received $5,000 in bandages--maybe $500 worth but not $5,000, and yet
the bill was paid. The bill was just paid as if nothing had happened.
So we know this is going on. And like I said, you can ask any person
in a town meeting about this, especially those who have been in
Medicare, and they will tell you that they know what we are talking
about, too.
So I am offering this amendment to add what I believe are a few more
important commonsense weapons in this fight against waste and abuse.
Now, I will for the benefit of my colleagues state at the outset that
there is one provision I have been pushing for for some time that I do
not have in this amendment because I know there is opposition to it on
the floor. I have offered it before. And that is the idea of
competitive bidding. I am not offering that as part of this package
because I know they want to get the bill through, and I am for this
bill; I am a cosponsor of it. I wish to get it through. But, obviously,
unbelievable as it may seem to me and to others, there are some who do
not believe that Medicare should adopt competitive bidding when it
comes to medical supplies so that seniors and the taxpayers get the
best price possible.
So I did not include it. I took it out because I know that that some
have said it's too controversial. But I am going to be offering that
again to get us to competitive bidding, just like the Veterans
Administration has been doing for years. It's an outrage Medicare is
losing millions because its payment system is prone to abuse and waste.
Over a period of years I've compared like bills, like items between
Medicare and the Veterans Administration, same city, same supplier.
Medicare is often paying 30 to 50 percent more than what the Veterans
Administration is. Why is that? Because the Veterans Administration
engages in competitive bidding and Medicare does not. But as I said, I
have not included that in this amendment. I wanted to make that clear.
All of the provisions in this amendment that I have offered are the
result of extensive hearings held by the Labor, Health and Human
Services Appropriations Subcommittee over the past several years. They
are all recommendations of the General Accounting Office, the inspector
general of the Department of Health and Human Services or other private
sector medical experts. All of them are commonsense steps, and I just
want to review very briefly what they are.
First, this would provide for improved information to seniors to
allow them to better help in the fight against Medicare fraud, waste,
and abuse. Seniors would be guaranteed the right to receive itemized
bills instead of a summarized report from which it may be difficult to
detect billing errors or abuses. Every Medicare payment statement would
also have to include a toll-free hotline number to report suspected
cases of fraud, waste, or abuse.
Now, to those who may say this is a burden, let me just point out
that those who are sending in the bills have to keep an itemized
record. But when they send it to the beneficiary, they can just
summarize it. So the beneficiary can look at it, and a lot of times not
even know what they are paying for and a lot of times Medicare does not
know what it is paying for. They just pay it, but they really do not
know what the itemized bill is.
The reason I know that you can go back and find the itemized bills is
that the investigations we have done by the General Accounting Office
have gone after some of these summarized bills, gone back to the
claimant, back to the hospital or the nursing home or the doctor or
whoever it might be and said, OK, what made up this summarized
statement? Well, they had to produce the itemized bill so that the
General Accounting Office could look at it. So they do have that
itemized bill. I am saying it is no more of a problem for them just to
print that out on the bill they send to Medicare. This amendment would
guarantee seniors that they could get an itemized bill so that they
know exactly what they were being charged for and how much they were
being charged for it. And, as I said, it would also require Medicare to
put on each explanation of Medicare benefits a toll-free hotline number
so that a person could report any suspected case of fraud or abuse.
That is the first part of my amendment. The second part of my
amendment establishes rewards of up to $10,000 for those providing
information that leads to a health care fraud conviction. Again, it is
to get people to step forward, to provide the information that we need,
and if it leads to a health care fraud conviction they would be
entitled to a reward up to $10,000.
The third part of my amendment prohibits Medicare payments for
wasteful and unnecessary items such as sports cars for corporate
executives, lucrative gifts to executive families and friends, tickets
to sporting and other entertainment events, and other items not related
to medical care.
In one of the most infuriating cases of abuse we found that health
care executives were padding Medicare bills with all sorts of
outrageous items identified as indirect costs. For example, we found
the following items charged to Medicare: $2,433 for a trip to Italy to
inspect a piece of sculpture; $10,215 billed to Medicare for clocks,
watches,

[[Page S3595]]

and bowls for employees and friends; thousands of dollars for a golf
tournament that was only held for executives; a $4,200 bill for a
sporting event, all billed to Medicare as indirect costs. That is
outrageous.
Now, Medicare did take one step after I prodded them at hearings. No
longer will they pay for alcohol or for lobbying expenses as indirect
costs. Well, that was a good first step, but they still have not
specifically excluded these other items. My amendment would change
that.
Next, my amendment says that we would reduce Medicare waste by giving
the private companies that administer Medicare the authority to reduce
payments for items they identify as grossly overpriced. Currently this
can only be done on a national basis by HCFA and has only been done
once, a process that took HCFA 3 years.
I am familiar with that because I initiated it several years ago. We
found a blood glucose monitor, a little device that you can buy at
Kmart or any discount store; it is for people who have diabetes. They
can get an accurate check on what their blood glucose level is. It is a
little pocket device with a battery in it. We found that Medicare was
reimbursing up to $200 for each one of those. I sent my staff down to
the local Kmart. They bought one for $49.99--50 bucks. Medicare was
reimbursing up to $200 for it.
So I went to Medicare, to HCFA. I said, ``Okay, we have to stop it.
You can go down and buy it for 50 bucks. Why are you paying $200?"
Believe it or not, from that moment to the day that they actually
reduced the price to $50 took 3 years--3 years for them to do that.
Well, this amendment would give a private company that administers
Medicare the authority to reduce payments on items that they identify
as grossly overpriced. So if they found something like a blood glucose
monitor that they were reimbursing $200 for and they could buy it for
50 bucks, they could reduce the price down themselves. Again, right
now, it takes HCFA over 3 years just to do one simple thing like that.
This is a change that has been praised both by Medicare and the HHS
Inspector General.
Next, my amendment would better assure that rapidly growing home
health services are not subject to abuse by requiring that Medicare
payments are not inflated by bills being filed in a higher payment area
outside of where the service was provided, by establishing a fine for
knowingly providing a false certification that a patient meets Medicare
home health coverage criteria and by requiring that bills submitted for
surgical dressings are itemized.

I will just read a little bit from this GAO report that covered
excessive payments for medical supplies. Here is what happens. It says:

Fiscal intermediaries pay medical supply claims without
knowing specifically what they are being asked to pay for on
behalf of beneficiaries. The claims submitted by providers
have no detailed information that would allow fiscal
intermediaries to assess the claims' reasonableness. This
lack of detail exists because HCFA guidance allows providers
to bill all medical supplies under 10 broad codes. Billed
items are not listed by type or amount. A code frequently
used to record medical supplies is code 270, that is medical/
surgical supplies, which we found included many different
items such as a $21,437 pacemaker, a 75 cent sterile sponge,
and even daily rental charges of $59 for an aqua pad.
Consequently, unless fiscal intermediaries identify these
claims for review and request additional documentation before
payment, they will pay for the claims without knowing what
the specific purchase was or whether it was covered or
medically necessary.

Again, my amendment would address that and allow them to get that
necessary information so that they would know exactly what they were
paying for. That change was recommended and drafted by the General
Accounting Office.
Next, my amendment would require Medicare to replace its outdated
computer systems with state-of-the-art private sector computer software
to detect and stop billing abuse. The General Accounting Office found
that this simple change would save about $600 million a year. Again,
this provision carries out their recommended changes to save seniors
and taxpayers money.
GAO found, in fact, that a number of the private companies that
process Medicare claims use the more sophisticated computer software on
their private sector business but are not allowed to use it on their
Medicare claims. They actually have to have two computer systems. They
have their own that they submit claims to. Then they have another set
that they have to have and another set of software just for Medicare.
As I said, the General Accounting Office said that just by making
this one change, this one change would save $600 million a year, and
the cost for doing that was about $20 million. So, again, it would
require Medicare to replace its computer systems with state-of-the-art
private sector computer technology, just what most private companies
are using today to detect and stop billing abuse. As the GAO said, the
private sector ones were so much better at detecting fraud and abuse
than the Medicare ones were. We have been after Medicare. They say they
are going to do this; maybe by the end of 1999 they might have it
changed. We could change it right now and, as GAO said, save up to $600
million a year.
Last, my amendment saves money and reduces hassle by cutting
excessive Medicare and Medicaid paperwork. There would be a uniform
application and benefit claims form that would be established and would
eliminate duplicative forms.
Mr. President, these are really modest steps. Again, these are all
steps that the GAO, the inspector general's office, and other private
sector health care experts have said are necessary to at least stem
this tremendous hemorrhaging of waste and abuse that we have in
Medicare. When you are talking about up to $18 billion a year, even if
we cannot get all of it, if we could just get half of it, that is $9
billion a year. That is a lot of money. I see no reason why we could
not get at least half of it with these modest steps that I am proposing
here.
As I said, I did not include the one on competitive bidding. We will
revisit that at another time. But I thought in the spirit of moving
this legislation along and offering something that I thought was
modest, that would move us in the right direction, that is why I took
out competitive bidding.

I offer this amendment to enhance this bill and hopefully make it a
better bill for health care in America. That is what this bill is
about, is to help us in health care reform. You cannot have real health
care reform until you stop the waste, fraud and abuse in Medicare. It
is in that spirit I offer this amendment.
I thank the Senator from Montana for his strong support over the
years, trying to weed out this waste, fraud and abuse in Medicare. He
has been a leader on this subject. I am happy to have him as a
cosponsor on this amendment.
I yield the floor.
The PRESIDING OFFICER. The Senator from Montana.
Mr. BAUCUS. Mr. President, I hope my colleagues listened very closely
to the Senator from Iowa. The big debate here is how to save Medicare.
Senators on one side of the aisle say we have to cut Medicare to save
it. We had this big debate over whether we should cut $270 billion out
of Medicare in the next 7 years. We spent a lot of time debating this
issue. Unfortunately, the majority Members in this body ended up
deciding that, yes, we should cut that much money out of Medicare over
7 years. I think every Member on this side of the aisle voted against
that.
Obviously, if we are going to save Medicare, we ought to first look
at waste. It is clear there is waste in Medicare. We all know there is
waste in Medicare. The General Accounting Office has documented the
waste. The Senator from Iowa has listed all the Federal agencies that
documented the millions of dollars lost to waste. Each of us, at home,
talks to senior citizens, to providers and others who, on an anecdotal
basis, tell us about waste in Medicare. We all know there is waste in
Medicare.
We also know it takes a long time to get something done around here,
way too long. Too many times we debate issues, not months but years. It
takes way too long to get something meaningful accomplished around
here. I think tonight we are debating a very important bill. We are
going to pass this bill, hopefully tonight, that will take solid steps
to provide better insurance coverage for millions of Americans and
thousands of Montanans. This

[[Page S3596]]

is important and I strongly support this bill. At the same time, we
have the chance to take the steps necessary to cut some of the waste in
Medicare.
Tonight, let us pass this amendment. It is not perfect. There will be
a lot of opportunities to work with it, during the conference
committee, but let us get started. Let us pass this. We all know we
should. Let us just do it. It might not be perfect, but we should not
let perfection be the enemy of the good. Every Senator here tonight
knows that this is a good amendment. We all know it is on the right
track. I, for the life of me, do not understand why we just do not
accept it tonight, work on it in the conference committee, maybe fix it
up a little bit, get it enacted into law, and begin to attack a lot of
the waste that exists in Medicare.
I hope Senators listened to the examples the Senator gave tonight.
There are many more. They are outrageous--trips to Italy, sports cars.
You would be amazed what waste, fraud, and abuse occurs in our Medicare
program. It is outrageous. So, let us begin to do something about it;
just begin. We heard the figures. GAO says up to 10 percent. That is
$18 billion.
Let us be honest, we are not going to get a full $18 billion
recovered. We know that. But, as the Senator from Iowa says, let us at
least make a start. Let us not say we are not going to do it tonight
because we have a no-amendments policy. We have already adopted one
amendment, and another one, already tonight. Certainly this is in the
category of amendments that we know should be passed. Otherwise, we run
the risk that nothing will happen to fight fraud and abuse in the
Medicare program this year.
What is going to happen next year? We do not know, as we attempt to
address the waste that exists in Medicare.
I am not going to belabor the issue. It is getting late tonight. The
Senator from Iowa has listed all the various provisions of his
amendment. I just hope we can leave the partisan fighting and political
rhetoric behind and do something which we know the people at home whom
we represent want. Let us begin to take some very critical and concrete
steps to address the waste and fraud that does exist in Medicare. That
is where we should begin, rather than just cutting Medicare. First, let
us cut the waste out of Medicare and the fraud out of Medicare before
we cut Medicare services and programs that help millions of seniors
nationwide.
I yield the floor.
The PRESIDING OFFICER. The Senator from Kansas, the majority manager,
is recognized.
Mrs. KASSEBAUM. Mr. President, I am speaking somewhat on behalf of
Senator Cohen from Maine. He has worked many years on this issue, and
has worked with Senator Harkin as well, trying to address the issues of
fraud and abuse.
The language that Senator Cohen had worked on is now part of the
bill. It is an important issue, and the very things that Senator Harkin
raised are issues Senator Cohen raised. But there have also been some
concerns, and we have to be careful, if there are some problems, to see
if we cannot get them worked out or else it poses a problem for the
underlying bill.
I yield time to the Senator from Maine.
Mr. KENNEDY. Mr. President, I wonder if we can possibly get a time
understanding. We have several Members here. I know people want to
address this, and Senator Cohen wants to speak on it. I am wondering if
the proponents of the amendment are willing to agree to a time limit.
Mrs. KASSEBAUM. There is very little time we need, Mr. President. My
guess is, if Senator Cohen says 5 minutes, that is fine.
Mrs. BOXER. I am sorry, this is a time agreement?
Mr. KENNEDY. Just with regard to the Harkin amendment, can we agree
that there be 10 minutes evenly divided? I ask unanimous consent that
there be 10 minutes equally divided.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Maine.
Mr. COHEN. Mr. President, if I can be as brief as I can within the 5-
minute limitation, the fraud and abuse provisions that we adopted in
the leadership amendment is something that I have worked on now for
over 3 years. It passed both the House and the Senate last year as part
of the budget reconciliation act. It was included in the
administration's budget reconciliation proposal.
So the legislation we have passed and adopted is something that has
been completely vetted; it has been negotiated through a lengthy
process; it has been through the hearing process; it has been on the
floor on several occasions--in fact, numerous times.
Additionally, it has received the endorsement of the administration,
the Attorney General, Secretary of Health and Human Services, the
Finance Committee of the House and Senate, as well as many private
groups. The Harkin legislation has not gone through any such review or
scrubbing; it has not received these endorsements, to my knowledge. In
fact, I am sure we do not know of all the objections to his provisions.
I do believe that there are several that are the subject of
controversy.
I am not here to argue the merits of each of the items I am about to
raise, but I know that both Health and Human Services and HCFA, the
Health Care Financing Administration, object to the section that
requires HCFA to acquire commercial software technology for Medicare
claims processing. I know HCFA has concerns with the Harkin section
that requires Medicare payments for certain items.

Again, I am not here to argue the merits of these particular items
tonight. I merely say to my colleagues, they are not without
controversy. If our objective is to pass the Kassebaum-Kennedy bill
because we want to see legislation that guarantees access,
affordability and portability, it seems to me the best thing we can do
is stay with the legislation we adopted. That is why it was included in
the leadership amendment.
So we have adopted it on several occasions. There may be some merit
to Senator Harkin's proposal, but I think because of the items that are
in controversy, it is only going to jeopardize the legislation. I
believe the fraud and abuse provisions we have adopted are an enormous
step forward. CBO has scored the amendment we adopted as saving some $3
billion, and that is going to pay for a number of items in the bill
itself.
So, Mr. President, I hope that my colleagues, when the appropriate
time comes, will move to table the Harkin amendment, that we will enjoy
the support of our colleagues, because I believe the Harkin amendment
does raise controversial issues, and the last thing we need at this
time is more controversy on this bill.
Mr. KENNEDY. I yield myself 2 minutes.
Mr. President, I have worked very closely with the Senator from Iowa,
and I admire all of his extraordinary work in all of this area. I think
it is very commendable, and I do not think we have really ensured that
a number of the recommendations have been enacted. So I am, again, very
sympathetic and supportive of the concept.
This is a matter really for the Finance Committee, and there has been
an objection raised on that vote in support of tabling the amendment.
But I give assurances to the Senator, as a member of the conference and
given the fact the whole issue of fraud will be a matter of conference,
I will do the best I can to see that we are able to include some of
those measures in the conference. That is the best at least I can do,
but I admire his work and look forward to joining with him on another
occasion.
Mr. HARKIN addressed the Chair.
The PRESIDING OFFICER. The Senator from Iowa is recognized.
Mr. HARKIN. Mr. President, I appreciate Senator Kennedy's comments,
and I hope we can get some of these adopted in conference. I say,
again, I appreciate what the Senator from Maine has done over the last
few years. He has done a great job of going after these issues of waste
and abuse. I have no major objections to what was adopted earlier.
Overall, I think it is a great step in the right direction.
We probably have been working along parallel paths. I am on the
Appropriations Committee and the Senator is on another committee, but I
first started having hearings on this 6 years ago, so we have been
working on parallel tracks. I do not think there is any need to debate
that.
I was just saying I do not know that it is necessary before we pass
anything

[[Page S3597]]

around here that we have to have the approval of the administration. I
find that kind of an odd concept at this time in the Senate that we
have to have that kind of approval. We are the legislative branch.
I point out that every single item I just mentioned has gone through
a process of hearings. We have had numerous hearings on this. We have
had the approval of the inspector general's office and the GAO.
The Senator from Maine did mention one item. Out of all of these,
there is only one item that HCFA opposes, and that is the provision in
there that mandates they use state-of-the-art computer technology. That
is because HCFA has been trying to develop its own. I have had some
pretty fair battles with HCFA on this. I guarantee the Senator from
Maine is right that they do not want that provision.
I am going to tell you they are wrong. There is high quality computer
software out in the private sector that Medicare can adopt right now.
They are wasting money developing their own. And I'm afraid by the time
that the system they are developing won't solve the problem. The GAO
study and investigation showed that. I have had Medicare intermediaries
say that they have the software that Medicare could adopt, and, in
fact, I say to the Senator from Maine that Medicare did adopt some
changes of the type I've advocated in January of this year. They
adopted a little bit of it. It will save some money, but much more
could be saved.
Lastly, let me just say the amendment of the Senator from Maine does
save $3 billion over 7 years. We do not have an estimate on how much
this would save. All I know is, just on the computer software alone,
that was $600 million in savings. I believe this amendment would save
much, much more.
Again, I do not see anything here that is controversial but for that
one item where HCFA says they are opposed to adopting private sector
computer technology. As I said every single item in this amendment is a
direct recommendation from the Inspector General, the General
Accounting Office or other experts as effective methods to stop waste,
fraud and abuse in Medicare.
This should be a completely noncontroversial amendment. I hope,
again, as the Senator from Montana said, that we will not get caught up
in jurisdictions.
Let us do what is right. What is right is to adopt this and start
saving some money in the Medicare system. The amendment of the Senator
from Maine is going to save some money. Darn right it is going to save
some money. But we can save much more by adopting these other
provisions.
The PRESIDING OFFICER. The Senator's time has expired. The minority
manager is recognized
Mr. KENNEDY. I was going to make the tabling motion and then set that
aside. What we had tried to do before is have the few amendments that
we have here incorporated.
But I am reminded by my chairman that we had one over here and that
it would be reasonable and fair to do one over there, and then we would
come back to try and do all three of these here.
Mr. CONRAD. I wonder if we can get at least an order that would be
acceptable so that those of us who have been waiting for an extended
period might get a timeframe so that we will not just be waiting around
and then find the list somehow gets altered and we wait some more.
Mr. KENNEDY. I was prepared to accept Senator Conrad's amendment. It
is going to take a minute.
Mr. KASSEBAUM. We are accepting it. So if the Senator wants to
proceed--Senator Coats has been waiting too, but that is fine. It is
acceptable.
Mr. KENNEDY. Mr. President, I make a motion to table the Harkin
amendment and ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There is
sufficient second.
The yeas and nays were ordered.
Mr. KENNEDY. Mr. President, I ask that the Harkin amendment be
temporarily set aside.
The PRESIDING OFFICER. Without objection, it is so ordered.

Amendment No. 3684

(Purpose: To extend State requested waivers of the foreign country
residence requirement with respect to international medical graduates,
and for other purposes)

Mr. CONRAD. Mr. President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from North Dakota [Mr. Conrad] proposes
amendment numbered 3684.

Mr. CONRAD. Mr. President, I ask unanimous consent that further
reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

At the appropriate place in the bill, insert the following:

SEC. . WAIVER OF FOREIGN COUNTRY RESIDENCE REQUIREMENT WITH
RESPECT TO INTERNATIONAL MEDICAL GRADUATES.

(a) Extension of Waiver Program.--Section 220(c) of the
Immigration and Nationality Technical Corrections Act of 1994
(8 U.S.C. 1182 note) is amended by striking ``June 1, 1996''
and inserting ``June 1, 2002''.
(b) Conditions on Federally Requested Waivers.--Section
212(e) of the Immigration and Nationality Act (8 U.S.C.
1184(e)) is amended by inserting after ``except that in the
case of a waiver requested by a State Department of Public
Health or its equivalent'' the following: ``or in the case of
a waiver requested by an interested United States Government
agency on behalf of an alien described in clause (iii)''.
(c) Restrictions on Federally Requested Waivers.--Section
214(k) (8 U.S.C. 1184(k)) is amended to read as follows:
``(k)(1) In the case of a request by an interested State
agency or by an interested United States Government agency
for a waiver of the two-year foreign residence requirement
under section 212(e) with respect to an alien described in
clause (iii) of that section, the Attorney General shall not
grant such waiver unless--
``(A) in the case of an alien who is otherwise
contractually obligated to return to a foreign country, the
government of such country furnishes the Director of the
United States Information Agency with a statement in writing
that it has no objection to such waiver; and
``(B)(i) in the case of a request by an interested State
agency--
``(I) the alien demonstrates a bona fide offer of full-time
employment, agrees to begin employment with the health
facility or organization named in the waiver application
within 90 days of receiving such waiver, and agrees to work
for a total of not less than three years (unless the Attorney
General determines that extenuating circumstances exist, such
as closure of the facility or hardship to the alien would
justify a lesser period of time); and
``(II) the alien's employment continues to benefit the
public interest; or
``(ii) in the case of a request by an interested United
States Government agency--
``(I) the alien demonstrates a bona fide offer of full-time
employment that has been found to be in the public interest,
agrees to begin employment with the health facility or
organization named in the waiver application within 90 days
of receiving such waiver, and agrees to work for a total of
not less than three years (unless the Attorney General
determines that extenuating circumstances exist, such as
closure of the facility or hardship to the alien would
justify a lesser period of time); and
``(II) the alien's employment continues to benefit the
public interest;
``(C) in the case of a request by an interested State
agency, the alien agrees to practice medicine in accordance
with paragraph (2) for a total of not less than three years
only in the geographic area or areas which are designated by
the Secretary of Health and Human Services as having a
shortage of health care professionals; and
``(D) in the case of a request by an interested State
agency, the grant of such a waiver would not cause the number
of waivers allotted for that State for that fiscal year to
exceed 20.
``(2)(A) Notwithstanding section 248(2) the Attorney
General may change the status of an alien that qualifies
under this subsection and section 212(e) to that of an alien
described in section 101(a)(15)(H)(i)(b).
``(B) No person who has obtained a change of status under
subparagraph (A) and who has failed to fulfill the terms of
the contract with the health facility or organization named
in the waiver application shall be eligible to apply for an
immigrant visa, for permanent residence, or for any other
change of nonimmigrant status until it is established that
such person has resided and been physically present in the
country of his nationality or his last residence for an
aggregate of at least two years following departure from
the United States.
``(3) Notwithstanding any other provisions of this
subsection, the two-year foreign residence requirement under
section 212(e) shall apply with respect to an alien in clause
(iii) of that section who has not otherwise been accorded
status under section 101(a)(27)(H)--
``(A) in the case of a request by an interested State
agency, if at any time the alien practices medicine in an
area other than an area described in paragraph (1)(C); and

[[Page S3598]]

``(B) in the case of a request by an interested United
States Government agency, if at any time the alien engages in
employment for a health facility or organization not named in
the waiver application.''.

Mr. CONARD. Mr. President, this is very simple. It is an extension of
the popular J-1 visa program for 6 years. If we fail to do this, the
authority runs out June 1. Mr. President, the J-1 visa waiver permits
each of our States to extend 20 waivers a year. And 21 of our States
have already done it. More are interested in doing it. They will not
have a chance if the authority runs out June 1.
Mr. President, the amendment I am sponsoring would extend what has
become known by some as the ``Conrad State 20 Program.'' In 1994, I
added a provision to the visa extension bill that allows state health
departments or their equivalents to participate in the process of
obtaining J-1 visa waivers. This process allows a foreign medical
graduate (FMG) who has secured employment in the United States to waive
the J-1 visa program's 2 year residency requirement.
As a condition of the J-1 visa, FMGs must return to their home
countries for at least 2 years after their visas expire before being
eligible to return. However, if the home countries do not object, FMGs
can follow a waiver process that allows them to remain and work here in
a designated health professional shortage area or medically underserved
area. Before my legislation became law, that process exclusively
involved finding an ``interested federal agency'' to recommend to the
United States Information Agency (USIA) that waiving the 2 year
requirement was in the public interest. The law now allows each State
health department or its equivalent to make this recommendation to the
USIA for up to 20 waivers per year.
This law as necessary for several reasons. Despite an abundance of
physicians in some areas of the country, other areas, especially rural
and inner city areas, have had an exceedingly hard time recruiting
Americans doctors. Many health facilities have had no other choice but
turn to FMGs to fill their primary care needs. Unfortunately, obtaining
J-1 visa waivers for qualified FMGs through the federal program is a
long and bureaucratic process that not only requires the participation
of the ``interested federal agency'' but also requires approval from
both the USIA and the Immigration and Naturalization Service.
Finding a federal agency to cooperate is difficult enough,
considering that the Department of Health and Human Services does not
participate. States who are not members of the Appalachian Regional
Commission, which is eligible to approve its own waivers, have had to
enlist any agency that is willing to take on these additional duties.
These agencies, such as the Department of Agriculture or the Department
of Housing and Urban Development, often have little or no expertise in
health care issues. Once an agency does agree to participate, the word
spreads quickly and soon that agency can be flooded with thousands of
waiver applications from across the country.
Because states can clearly determine their own health needs far
better than an agency in Washington, DC, my legislation now allows
states to go directly to the USIA to request a waiver. It also is
relieving some of the burden that participating federal agencies have
incurred in processing waiver applications.
The Conrad State 20 Program is still very new, and not every state
has yet elected to use it. But the program is beginning to work exactly
as I had hoped. At least 21 States have reported using it to obtain
waivers. More states are expected to participate in the coming months.
Unfortunately, the Conrad State 20 program is scheduled to sunset on
June 1, 1996, unless Congress approves an extension. The amendment I am
offering would extend the program for 6 more years. This is not a
permanent extension. The amendment would sunset the program on June 1,
2002.
My amendment also puts new restrictions and conditions on FMGs who
use the federal program. As a condition of using the Conrad State 20
program to acquire a waiver, FMGs must contract to work for their
original employer for at least 3 years. Otherwise, their waiver will be
revoked and they will be subject to deportation. My amendment would
apply the same 3-year contractual obligation for those who obtain a
waiver through the Federal program.
We all know that State empowerment has been a major issue of the
104th Congress. The Conrad State 20 Program is one way of giving States
more control over their health care needs. States that are using the
program want to keep it operating for a few more years. They understand
that this program does not take away jobs from American doctors, but
instead is one more valuable tool to help serve the health care needs
of rural and inner city citizens. The Senate passed my original
legislation with strong bipartisan support. I am hopeful the Senate
will agree that creating the Conrad State 20 program was very
worthwhile, and will agree to accept this modest, 6-year extension.
I hope we can accept this amendment.
Mr. KENNEDY. Mr. President, we have talked to the chairman of the
Immigration Committee, Senator Simpson. And I, as the ranking minority
member on that committee, say this makes sense. It is targeting doctors
in underserved areas. We welcome this. This is effective. It is time
sensitive in terms of the reauthorization. We urge the adoption of the
amendment.
The PRESIDING OFFICER. Is there further debate?
The question occurs on agreeing to the amendment.
The amendment (No. 3684) was agreed to.
Mr. SIMON. Mr. President, I recognize Senator Coats is going to have
his amendment next. But Senator Conrad's point that we would like some
kind of knowledge as to what order we are going to come in here--some
of us have been waiting a long time. And it will take a few minutes. I
wonder if there can be some agreement following the Coats amendment as
to who is going to be up here with their amendments.
Mrs. KASSEBAUM. After the Coats amendment there are only two
amendments I know of at this point that will require votes on this
side, one is a Gramm amendment and, I believe, perhaps a Burns
amendment.
Mr. KENNEDY. Mr. President, I ask Senator Coats, how long does he
expect to take?
Mr. COATS. There are one or two people that may want to speak on it.
They are not on the floor. I do not intend to take all that long, 15
minutes or so, 10, 15 minutes.
Mr. KENNEDY. All right. The Senator from Illinois was just trying to
get through this. He has been here and has been prepared, and Senator
Boxer. I ask unanimous consent that at the conclusion of the
consideration of Senator Coats' amendment, Senator Boxer be recognized,
and at the conclusion of Senator Boxer, Senator Simon be recognized.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KENNEDY. Could we get a time, for the benefit of our colleagues
here? Could we set a time for the Senator's amendment?
Mr. COATS. Well, it is difficult for me to determine how much
opposition there will be to this amendment.
Mr. KENNEDY. I think the opposition will not take very much time. We
would request maybe 4 minutes for the opposition.
Mr. COATS. I think we can do this then in a total of 15 minutes
equally divided.
Mr. KENNEDY. Mr. President, I ask unanimous consent that there be an
allocation of 20 minutes, 15 minutes for the Senator from Indiana, and
5 minutes for this Senator.

The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. COATS addressed the Chair.
The PRESIDING OFFICER. The Senator from Indiana is recognized.
Mr. COATS. I thank the Chair.
Mr. KENNEDY. Mr. President, I ask unanimous consent that we vitiate
that unanimous consent request until I get agreement on our side.
The PRESIDING OFFICER. Without objection, it is so ordered. The
request is vitiated.

Amendment No. 3685

(Purpose: To encourage the provision of medical services in medically
underserved communities by extending Federal liability coverage to
medical volunteers)

Mr. COATS. Mr. President, I send an amendment to the desk and ask for
its immediate consideration.

[[Page S3599]]

The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Indiana [Mr. Coats] proposes amendment
numbered 3685.

Mr. COATS. Mr. President, I ask unanimous consent that further
reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

At the appropriate place in title III, insert the following
new section:

SEC. . MEDICAL VOLUNTEERS.

(a) Short Title.--This title may be cited as the ``Medical
Volunteer Act''.
(b) Tort Claim Immunity.--
(1) General rule.--A health care professional who provides
a health care service to a medically underserved person
without receiving compensation for such health care service,
shall be regarded, for purposes of any medical malpractice
claim that may arise in connection with the provision of such
service, as an employee of the Federal Government for
purposes of the Federal tort claims provisions in title 28,
United States Code.
(2) Compensation.--For purposes of paragraph (1), a health
care professional shall be deemed to have provided a health
care service without compensation only if, prior to
furnishing a health care service, the health care
professional--
(A) agrees to furnish the health care service without
charge to any person, including any health insurance plan or
program under which the recipient is covered; and
(B) provides the recipient of the health care service with
adequate notice (as determined by the Secretary) of the
limited liability of the health care professional with
respect to the service.
(c) Preemption.--The provisions of this section shall
preempt any State law to the extent that such law is
inconsistent with such provisions. The provisions of this
section shall not preempt any State law that provides greater
incentives or protections to a health care professional
rendering a health care service.
(d) Definitions.--For purposes of this section:
(1) Health care professional.--The term ``health care
professional'' means a person who, at the time the person
provides a health care service, is licensed or certified by
the appropriate authorities for practice in a State to
furnish health care services.
(2) Health care service.--The term ``health care service''
means any medical assistance to the extent it is included in
the plan submitted under title XIX of the Social Security Act
for the State in which the service was provided.
(3) Medically underserved person.--The term ``medically
underserved person'' means a person who resides in--
(A) a medically underserved area as defined for purposes of
determining a medically underserved population under section
330 of the Public Health Service Act (42 U.S.C. 254c); or
(B) a health professional shortage area as defined in
section 332 of such Act (42 U.S.C. 254e);
and who receives care in a health care facility substantially
comparable to any of those designated in the Federally
Supported Health Centers Assistance Act (42 U.S.C. 233 et
seq.), as shall be determined in regulations promulgated by
the Secretary.
(4) Secretary.--The term ``Secretary'' means the Secretary
of the Department of Health and Human Services.

Mr. COATS. Mr. President, the amendment I offer extends the Federal
tort claim coverage to a health care professional if that health care
professional volunteers his or her medical services to a medically
underserved person. This is the same type of coverage--this is not new.
We are not breaking new ground here. We extend that same type of
Federal tort coverage for medical services provided in Indian health
care facilities, in Federal community, migrant, homeless, and public
housing health centers.
What I am attempting to do here is extend it to those volunteer
efforts--not paid--but volunteer efforts on the part of health care
professionals if those medical services are provided to people from
underserved areas that are deemed by the Secretary of Health and Human
Services as medically underserved or medically needy.
We have built into this significant patient protection, indicating
that the patient must receive notice before providing the care, and
that the provider has agreed not to charge the party for any health
care that is provided, and that the medical malpractice liability is
shifted to the Federal Tort Claims Act.
We are not in any way limiting the plaintiff's right to receive
compensation for negligence or for a successful award in a suit. We are
just simply shifting it from the provider's insurance coverage to the
Federal Tort Claims Act. The provider is deemed, for the purposes of
providing that voluntary service, an employee of the Federal Government
and therefore covered under the act.
The providers have to be licensed in the State in which the care is
provided. The care must be covered under Medicaid in that State. In
addition, the patient must receive the care in a health care facility
that is substantially comparable in nature to the Federal migrant and
community health centers that provide care to underserved populations.
This is the protection that is needed in order to ensure that the care
is provided in adequate facilities. So those facilities that are deemed
by the Secretary of Health and Human Services as federally certified--
if they are provided in substantially comparable facilities--the
coverage will qualify.
What we are attempting to do here is to provide a way that medical
personnel can provide medical services to people who otherwise cannot
afford them, people who are uninsured but where doctors and
professionals and providers in the community come together and
volunteer their time.
We all know the horrendous cost of medical liability insurance. In
many instances these medical providers cannot pay or do not choose to
pay the additional liability cost. One of the primary reasons for this
is that many of these individuals are retired. They are retired doctors
or dentists or health care providers. So they do not have umbrella
liability policies because they are not necessarily practicing on a
full-time basis. But we want to encourage these individuals--as many of
them already do--to engage in providing medical services.

I think the amendment is pretty straightforward. There has been a
question about the cost. It is interesting to note that when we
provided this liability coverage for community health centers, the
Congress set aside $10 million a year to cover potential liability
costs. It is important to note that none of this money has been used in
the 2 years that this has been in operation.
People receiving free health care from professional providers
generally are very grateful for the care and obviously are not looking
to sue, yet we have protected their rights to do so if negligence
occurs or if any liability occurs under the services. That is provided.
It just simply is that the coverage comes under the Federal tort claims
procedure rather than under the private insurance liability coverage of
the medical provider.
Again, the purpose here is to encourage the provision of free medical
services to people who either live in underserved areas--and who of us
do not represent a State that has underserved areas--or to those people
of such income level that do not have insurance or do not have the
personal wherewithal to purchase the medical service that is needed.
This is widely supported. The American Medical Association supports
this, the Catholic Health Association, the Christian Medical and Dental
Society. Senators Frist and Kassebaum have been cosponsors of this
bill. And it is supported by professionals throughout our States and
throughout our communities.
I have seen some marvelous examples of efforts where community
medical professionals gather together, provide an acceptable clinic,
volunteer their time and provide very needed services to people that
need these free services in order to receive medical care.
I hope that our colleagues could support this amendment. I thought
this was something that we might be able to work out. We were not able
to do that. I will address any questions that might be raised in
opposition to this. I reserve the balance of my time.
Mr. KENNEDY. Mr. President, I yield myself 2 minutes.
This idea is a good idea. As the author of the community health
centers, we had the Tort Claim Act covering all the medical personnel
in there. Then there was a downsizing of service corps, we had other
doctors that came in there, and we had an increase in the insurance
costs for the neighborhood health centers as a result of that.
About 4 years ago, again, we worked out with the Treasury and the
administration an indemnification program for those doctors in the
neighborhood health centers. It has worked very well. The reason that
has worked well

[[Page S3600]]

is because there is supervision and accountability at the neighborhood
health centers.
That aspect is missing in this program. That is why I will vote to
table this measure. Then we will come back, one, on the issue of what
the funding level would be in terms of it; and second, whether an
overall program can be worked in terms of the accountability. Without
an accountability, without some ideas of funding, this is not the
place, the time. It is a good idea.
I commit to working with my friend from Indiana to try and see if we
cannot make it a reality in the very near future.
Mr. COATS. Mr. President, I appreciate the offer of the Senator from
Massachusetts to work with us on this. I hardly think this needs
additional work.
First of all, it is important to understand that the bill itself
addresses the issue that the Senator raised. In the definition of
``medically underserved person'' it says the term ``medically
underserved person'' means a person who receives care in a health care
facility substantially comparable to any of those designated in the
federally-supported Health Centers Assistance Act as shall be
determined in regulations promulgated by the Secretary. The Secretary
of Health and Human Services has a sufficient amount of control by the
promulgation of regulations to certify the types of facilities, and
there is accountability.
If you feel that you need to have a Federal agency or a Federal
supervisor standing over the shoulder of a health care professional, a
doctor who might be earning $200 or $300 an hour performing services
but who volunteers his time for free, if you say we cannot trust this
person to provide adequate medical care, I think we are selling the
medical profession very, very short and we are crediting the Government
with an ability to supervise that it does not have.
We do not need a Government agency to oversee the efforts of nurses
and doctors who volunteer their time--volunteer their time--to provide
needed free medical services to underserved and low-income individuals.
Again, we are not limiting the liability of anybody that is served
here. We are not saying they cannot bring a claim. We are simply saying
that claim, if brought and if successfully brought, will be paid for
under the Federal Tort Claims Act and not paid for under the liability
insurance of the professional.
Why do we need to do that? We need to do that so we can encourage
these people to provide the care. Why is it necessary for most? Because
many of these people are retired and they are not able or in a position
to continue to pay the exorbitant medical liability insurance,
sometimes running $50,000, $60,000, or $80,000, depending on the
specialty, in order to cover themselves for the volunteer service they
get. The last thing we need is more Federal oversight in a program that
does not need oversight.
The PRESIDING OFFICER. Under the previous order the hour of 9:45
having arrived the question is on agreeing to the Specter amendment No.
3682.
Mrs. KASSEBAUM. Mr. President, I ask if we could delay this for 15
minutes. There are a couple more amendments that need to be offered.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. BOXER. Reserving the right to object, Mr. President, I do not
wish to object, but I would like to know how much time is left and what
the order will be. As I understand it, Senator Kennedy mentioned I
would go next, but if you are just going to finish everything up in 15
minutes, that would leave virtually no time for Senator Simon and
virtually no time for me.
I am confused about whether we will continue after the vote, I guess
is the point. I only wish to take 5 minutes on my amendment.

Mr. SPECTER. Mr. President, while we are doing the order here, I
think it might be appropriate to spend just a minute on a discussion
which I had with the distinguished manager, the Senator from Kansas,
talking about hearings before the Labor Committee, hopefully, by the
end of May, looking for reauthorization or authorization of the healthy
start program.
Mrs. KASSEBAUM. Mr. President, I wish the Senator from Pennsylvania
might wait until we worked out the order here.
Mr. SPECTER. I am glad to do that.
Mrs. KASSEBAUM. I suggest at this point perhaps we could go an extra
half hour, which I think will then take care of every amendment that is
there to everyone's satisfaction.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. KASSEBAUM. I respond, if I may, Mr. President, to the Senator
from Indiana. I am a cosponsor, as a matter of fact, of the Senator's
Medical Volunteer Act. I think it is a very positive step forward. It
encourages medical voluntarism and brings some small measure of relief
to the current liability system. There are objections that have been
raised to this on the Democratic side, principally, and because of our
need to try and get as strong a consensus as possible for the
underlying measure I have to object.
At the appropriate time, after all debate is concluded, I would move
to table the amendment of the Senator from Indiana.
Mr. KENNEDY. As a matter of order, I think we request to conclude
with Senator Boxer and Senator Simon and then come back to the other
side. I think that is what is the order.
The PRESIDING OFFICER. Is there further debate on the Coats
amendment?
Mrs. KASSEBAUM. If not, I ask for the yeas and nays and ask that the
amendment be set aside.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered on the motion to table the Coats
amendment.
The PRESIDING OFFICER. Under the previous order, the Senator from
California is recognized.

Amendment No. 3686

Mrs. BOXER. Thank you very much, Mr. President. I would like to be
advised when I have utilized 4 minutes and then I will wrap up my side
of the argument.
I send an amendment to the desk and ask for its immediate
consideration as a sense of the Senate.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from California [Mrs. Boxer], proposes an
amendment numbered 3686.
The Senate finds that:
Patients deserve to know the full range of treatments
available to them and,
Patients should know if doctors receive bonuses for
withholding treatment from them.
It is the sense of the Senate that Congress should
thoughtfully examine these issues to ensure that all patients
get the care they deserve.

Mrs. BOXER. Mr. President, this is such a straightforward and simple
sense-of-the-Senate. It is rather shocking to me that Members on the
other side of the aisle have objected to it. I have to thank the
chairwoman of the committee and Senator Kennedy, who were quite willing
to accept such a sense-of-the-Senate resolution. I do not know what
Members oppose this. I cannot imagine why they have not identified
themselves to me, Mr. President. I just hope that Members will read the
sense-of-the-Senate.
Let me tell you a little story about why it is so important.
This is an L.A. Times story, entitled ``HMO `Gag Clauses' on Doctors
Spur Protests.'' I will read just a few paragraphs:

The Santa Monica oncologist thought she was being a strong
advocate for her patient.
In May, she referred the patient--a Los Angeles woman in
her forties, who was rapidly losing her battle with
metastatic colon cancer--to a Johns Hopkins University
specialist using an experimental drug that had proven
effective with similar cancers. It was, in the doctor's view,
perhaps the best chance of extending the woman's life.
But the patient's managed care group had a different view
of the oncologist. It saw a doctor who said too much and
broke the rules. She received a reproachful letter from the
managed care group, stating that the Johns Hopkins specialist
was not ``in network'' and that the patient should not have
been referred there.
``This occurrence,'' the letter warned, ``had been noted in
the computer, and a future occurrence may result in
suspension of referral privilege or, in an extreme case, a
recommendation for termination.''

Mr. President, this is what is happening across the country in HMO's.
Doctors, who refer patients to specialists are being warned that they
may be fired. Doctors are receiving bonus payments from the HMO's for
not giving care to patients.

[[Page S3601]]

Now, all I am asking in this sense-of-the-Senate is that we look into
this. Already, we have looked into this in Medicare and, thank
goodness, something is being done. Last month, the Department of HHS
announced a regulation mandating that managed care plans serving
Medicare and Medicaid patients reveal any arrangements in which doctors
may face financial pressures to limit services or referrals to
specialists.
What about those who are not on Medicare, who are not on Medicaid? Do
they not deserve the same protections, at a minimum? Doctors across the
country are protesting managed care companies' practices that they
contend impede their ability to have candid discussions with patients
about treatment options.

In this time of shifting health care needs and our attempt to
restructure the health care delivery system, we must not lose sight of
the valuable doctor-patient relationship. We should revere it, we
should honor it. We should not allow the HMO's, because of the almighty
bottom line, to interfere in this relationship and gag our physicians
from telling their patients that there are other treatments for cancer,
or whatever other condition it might be.
I really do not understand why we cannot get a simple sense of the
Senate through this body.
In closing, I am going to read it to you one more time:

The Senate finds that patients deserve to know the full
range of treatments available to them, and patients should
know if doctors receive bonuses for withholding treatment
from them. It is the sense-of-the-Senate that Congress should
thoughtfully examine these issues to ensure that all patients
get the care they deserve.

Mr. President, we have a very good bill here. We can make it better,
I believe, by just pledging to look into this situation and making sure
that all of our people throughout this Nation are told all of the
options, because if they are not told, they may lose their lives. I do
not think we ought to have that on our hands.
Thank you, Mr. President. I reserve whatever time I have remaining.
Mr. KENNEDY. Mr. President, I ask unanimous consent that the Boxer
amendment be temporarily set aside.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SIMON addressed the Chair.
The PRESIDING OFFICER. The Senator from Illinois is recognized.

Amendment No. 3687

(Purpose: To express the sense of the Senate regarding the need to
ensure adequate health care coverage for all children and pregnant
women)

Mr. SIMON. Mr. President, I send an amendment to the desk and ask for
its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:

The Senator from Illinois [Mr. Simon] proposes an amendment
numbered 3687.

Mr. SIMON. Mr. President, I ask unanimous consent that reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

At the appropriate place in the bill insert the following
new section:

SEC. . SENSE OF THE SENATE REGARDING ADEQUATE HEALTH CARE
COVERAGE FOR ALL CHILDREN AND PREGNANT WOMEN.

(a) Findings.--The Senate finds the following:
(1) The health care coverage of mothers and children in the
United States is unacceptable, with more than 9,300,000
children and 500,000 expectant mothers having no health
insurance.
(2) Among industrial nations, the United States ranks 1st
in wealth but 18th in infant mortality, and 14th among such
nations in maternal mortality.
(3) 22 percent of pregnant women do not have prenatal care
in the first trimester, and 22 percent of all poor children
are uninsured, despite the medicaid program under title XIX
of the Social Security Act.
(4) Of the 1,100,000 net increase in uninsured persons from
1992 to 1993, 84 percent or 922,500 were children.
(5) Since 1987, the number of children covered by
employment based health insurance has decreased, and many
children lack health insurance despite the relative
affordability of providing insurance for children.
(6) Health care coverage for children is relatively
inexpensive and in 1993 the medicaid program spent an average
of $1,012 per child compared to $8,220 per elderly adult.
(7) Uninsured children are generally children of lower
income workers, who are less likely than higher income
workers to have health insurance for their families because
they are less likely to work for a firm that offers
insurance, and if such insurance is offered, it is often too
costly for lower income workers to purchase.
(8) In 1993, 61 percent of uninsured children were in
families with at least one parent working full time for the
entire year the child was uninsured, and about 57 percent of
uninsured children had a family income at or below 150
percent of the Federal poverty level.
(9) If Congress eliminates the Federal guarantee of
medicaid, an estimated 4,900,000 children may lose their
guarantee of health care coverage, and those same children
may be added to the currently projected 12,600,000 children
who will be uninsured by the year 2002.
(10) Studies have shown that uninsured children are less
likely than insured children to receive needed health and
preventive care, which can affect their health status
adversely throughout their lives, with such children less
likely to have routine doctor visits, receive care for
injuries, and have a regular source of medical care.
(11) The families of uninsured children are more likely to
take the children to an emergency room than to a private
physician or health maintenance organization.
(12) Children without health insurance are less likely to
be appropriately immunized or receive other preventive care
for childhood illnesses.
(13) Ensuring the health of children clearly increases
their chances to become productive members of society and
averts more serious or more expensive health conditions later
in life, and ensuring that all pregnant women receive
competent prenatal care also saves social costs.
(14) Although the United States has made great improvements
in health care coverage through the medicaid program, it is
still the only developed nation that does not ensure that all
of its children and pregnant women have health care coverage.
(15) The United States should not accept a status quo in
which children in many neighborhoods are more likely to have
access to drugs and guns than to doctors, or accept a status
quo in which health care is ensured for all prisoners but not
for all children.
(b) Sense of the Senate.--It is the sense of the Senate
that the issue of adequate health care for our mothers and
children is important to the future of the United States, and
in consideration of the importance of such issue, the Senate
should pass health care legislation in the 105th Congress
that will ensure health care coverage for all of the United
States's pregnant women and children.
Mr. SIMON. Mr. President, all this does, very simply, is say it is
the sense of the Senate that in the next congressional session,
starting in 1997, the 105th Congress pass health care legislation that
protects pregnant women and children. That is all it does.
It is very interesting. Two years ago, we were discussing health care
legislation, and virtually everyone in this body, including the
majority leader, said, ``We are going to work out some kind of health
care for all Americans.'' I have to say, in fairness to Senator Phil
Gramm, he said right from the start, ``Over my dead body. We are not
going to have any national health care program.''
We are the only western industrialized nation that does not protect
all of our citizens. Listen to this, Mr. President. I ask my colleagues
on the other side to listen to this.

In accepting the Republican nomination for President in
1928, Herbert Hoover said, ``The greatness of any nation, its
freedom from poverty and crime, its aspirations and ideals
are the direct quotient of the care of its children. . .There
should be no child in America that is not born and does not
live under sound conditions of health.''

That was in 1928, and we have not achieved Herbert Hoover's dream yet
in 1996.
Let me add, providing coverage for children is the least expensive
part of health insurance. As we get older, it is more demanding in
terms of expense. But still we do not provide it for all children.
All women and children in Italy have health care coverage, but not in
the wealthy United States of America.
All women and children in France have health care coverage, but not
in the wealthy United States of America.
All women and children have health care coverage in Canada, but not
in the wealthy United States of America.
All women and children have health care coverage in Great Britain,
but not in the wealthy United States of America.
All women and children have health care coverage in Germany, but not
in the wealthy United States of America.
All women and children have health care coverage in Luxembourg, but
not in the wealthy United States of America.
All women and children have health care coverage in Belgium, but not
in the wealthy United States of America.

[[Page S3602]]

All women and children have health care coverage in The Netherlands,
but not in the wealthy United States of America.
All women and children have health care coverage in Portugal, but not
in the wealthy United States of America.
All women and children have health care coverage in Spain, but not in
the wealthy United States of America.
All women and children have health care coverage in Finland, but not
in the wealthy United States of America.
All women and children have health care coverage in Austria, but not
in the wealthy United States of America.
All women and children have health care coverage in Denmark, but not
in the wealthy United States of America.
All women and children have health care coverage in Norway, but not
in the wealthy United States of America.
All women and children have health care coverage in Sweden, but not
in the wealthy United States of America.
All women and children have health care coverage in Japan, but not in
the wealthy United States of America.
Mr. President, what we are just saying here is, let us in the next
session of Congress--and I am not going to be here--at least protect
pregnant women and children. That is all we ask. It is a sense of the
Senate resolution.
I regret that 2 years ago--and I blame myself as much as anyone--that
we did not even get a vote on the floor of the U.S. Senate on the
fundamental issue of health care. Today, my friends, we are going to
get a vote. We do not say how it should be done; we just say it is the
sense of the Senate that in the next session of Congress, we are going
to at least protect pregnant women and children.
I do not know how we can do anything less than that. That is what my
amendment asks for.
Mrs. KASSEBAUM. Mr. President, I recognize it is just a sense-of-the-
Senate resolution. But it is about 6 pages, and it is a fairly
extensive direction for the next Congress. While there would be
certainly a great deal of support for health care coverage for pregnant
women and children, we are having a hard enough time in this Congress
figuring out what we want to do, let alone applying some issues and
directions to the next Congress.
For that reason, Mr. President, I would have to oppose.
Mr. KENNEDY. Mr. President, could we ask for the yeas and nays?
Mr. SIMON. I ask for the yeas and nays.
Mr. KENNEDY. That it would be in order to ask for the yeas and nays
on the Boxer amendment.
Mrs. KASSEBAUM. Mr. President, I move to table and ask for the yeas
and nays.
The PRESIDING OFFICER. Is there a sufficient second?
Mr. SIMON. If the Senator from Kansas will withhold for 30 seconds
for me to respond, she mentions a 5-page amendment. These are all
whereases. The conclusion is that it is a sense of the Senate. If she
wants to agree to this, I will knock out all of the whereases and we
will just take the sense of the Senate that we ought to, next session
of the Congress, pass health care legislation for pregnant women and
children.
Mrs. KASSEBAUM. Mr. President, I very much appreciate that Senator
Simon is always very accommodating. The Senator from Illinois is a
superb debater. I would still have to object. If there is no further
debate, I will move to table the Simon amendment.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. Are there further amendments?
Mr. KENNEDY. Mr. President, as I understand, the Senator is also
asking for the yeas and nays on the tabling motion of the Boxer
amendment.
Mrs. KASSEBAUM. Yes. Mr. President, if I may just speak for a moment,
this is objected to by the Finance Committee because it deals with
Medicare. They would like to debate that at another time, even though
it is just a sense-of-the-Senate resolution.
Mrs. BOXER. Mr. President, if my friend will yield for a minute, we
took out any reference to Medicare and Medicaid at the Senator's
suggestion. It has nothing to do with Medicare and Medicaid. The way it
reads now is simply that we should look to see whether patients are
being denied the information they need. We deleted all reference to
Medicaid and Medicare and asked just for the Congress to look at this
matter.

So I tried to be very accommodating, if my friend would try to help
me. As I say, we do not have any reference in here at all. We simply
ask that the Congress should thoughtfully examine the issue of
patients, finding out the full range of their treatment, and patients
should know if doctors are receiving bonuses from the treatment. It
does not mention Medicare and Medicaid.
Mr. BYRD. Mr. President, parliamentary inquiry.
The PRESIDING OFFICER. The Senator will state his parliamentary
inquiry.
Mr. BYRD. Is not a motion to table now pending?
The PRESIDING OFFICER. The Senator is correct.
Mr. BYRD. There is no debate on a motion to table.
The PRESIDING OFFICER. The Senator is correct.
Mr. BYRD. Shall we vote?
The PRESIDING OFFICER. We have a previous order to table the votes in
sequential order and vote at 10:15.
Mr. BYRD. Very well. I thank the Chair.
Several Senators addressed the Chair.
The PRESIDING OFFICER. The minority manager is recognized.

Amendment No. 3688

(Purpose: To encourage organ and tissue (including eye) donation
through the inclusion of an organ and tissue donation card with
individual income refund payments, and for other purposes)

Mr. KENNEDY. Mr. President, there are two amendments which have been
agreed to dealing with the organ transplants and information on organ
transplants, the Dorgan-Frist amendment, in terms of information on the
organ transplants. I would like to send it to the table and ask for its
immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

The Senator from Massachusetts [Mr. Kennedy], for Mr.
Dorgan, for himself and Mr. Frist, proposes an amendment
numbered 3688.

Mr. KENNEDY. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

At the end of title III, add the following:

SEC. 3 . ORGAN AND TISSUE DONATION INFORMATION INCLUDED WITH
INCOME TAX REFUND PAYMENTS.

(a) In General.--The Secretary of the Treasury shall
include with any payment of a refund of individual income tax
made during the period beginning on February 1, 1997, and
ending on June 30, 1997, a copy of the document described in
subsection (b).
(b) Text of Document.--The Secretary of the Treasury shall,
after consultation with the Secretary of Health and Human
Services and organizations promoting organ and tissue
(including eye) donation, prepare a document suitable for
inclusion with individual income tax refund payments which--
(1) encourages organ and tissue donation;
(2) includes a detachable organ and tissue donor card; and
(3) urges recipients to--
(A) sign the organ and tissue donor card;
(B) discuss organ and tissue donation with family members
and tell family members about the recipient's desire to be an
organ and tissue donor if the occasion arises; and
(C) encourage family members to request or authorize organ
and tissue donation if the occasion arises.

Mr. KENNEDY. Mr. President, I have described what it is. It is
information on organ transplant in behalf of Senator Dorgan and Senator
Frist.
The PRESIDING OFFICER. Is there further debate on the amendment? If
not, the question is on agreeing to the amendment of the Senator from
North Dakota.
The amendment (No. 3688) was agreed to.

Amendment No. 3689

(Purpose: To prohibit the establishment of certain health plan
requirements based on information relating to domestic violence)

Mr. KENNEDY. Mr. President, this amendment is in behalf of Senator
Wellstone, and it is in regards to information relating to domestic
violence. I send the amendment to the desk.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

[[Page S3603]]

The Senator from Massachusetts [Mr. Kennedy], for Mr.
Wellstone, proposes an amendment numbered 3689.

Mr. KENNEDY. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

On page 9, line 13 insert after evidence of insurability
``(including conditions arising out of act of domestic
violence);''.

The PRESIDING OFFICER. Is there further debate on the amendment? If
not, the question is on agreeing to the amendment of the Senator from
Minnesota.
The amendment (No. 3689) was agreed to.
Mr. WELLSTONE. Is it the Senators' understanding that this language
that we have accepted from the House bill ensures that women covered in
an employment-based health plan, will not be discriminated against
because of a medical condition caused by domestic violence, because of
a history of domestic violence, or because of their status as a victim
of domestic violence?
Mr. KENNEDY. Yes; that is my understanding.
Ms. KASSEBAUM. Yes; that is my understanding.
Mr. BURNS addressed the Chair.
The PRESIDING OFFICER. The Senator from Montana is recognized.
Mr. BURNS. Mr. President, I thank my friend from Kansas. We are
redrafting different language where one committee says the first shall
be the last and the last shall be first.
I would like to yield the floor to my friend from West Virginia who
has, I believe, an amendment to offer.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. ROCKEFELLER. Mr. President, the Senator from West Virginia would
ask simply for 1 minute to make the following observation.
Earlier this evening there was substantial nonpublic discussion as to
nondiscrimination and long-term care. There was then a very helpful,
constructive, and useful colloquy on the floor which agreed that in the
tax preferential treatment of long-term care, that nondiscrimination
would be completely treated. There was some disagreement as to what
Treasury was saying constituted nondiscrimination and what the Finance
Committee staff said constituted nondiscrimination. There seemed to be
a difference.
I simply, as a member of the Finance Committee, wanted to go on
record as saying that the nondiscrimination aspect--this is not just
racial, but we are talking just about the higher employer as opposed to
the lowest employer--that nondiscrimination be done in the usual,
customary, and effective manner for the tax preferential long-term care
matters that we are now discussing.

Amendment No. 3690

Mrs. KASSEBAUM. Mr. President, I have here a study request that I
cosponsored with Senator Helms which would ask HHS to study options on
point of service. It has been agreed to on both sides.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

The Senator from Kansas (Mrs. Kassebaum), for Mr. Helms,
for himself and Mrs. Kassebaum, proposes an amendment
numbered 3690.

Mrs. KASSEBAUM. Mr. President, I ask unanimous consent that reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

Amend Title III--Miscellaneous Provisions, Section 302 (a)
by striking ``two part study'' on line 19, and inserting
``three-part study'' and adding Section 302 (d):
``(d) Evaluation of Access and Choice.--Not later than June
1, 1998, the Secretary of Health and Human Services shall
prepare and submit to the appropriate Committees of Congress
a report concerning--
(1) an evaluation of the extent to which patients have
direct access to, and choice of, health care provider,
including specialty providers, within a network of providers,
as well as the opportunity to utilize providers outside of
the network, under the various types of coverage offered
under the provisions of this Act;
(2) an evaluation of the cost to the insurer of providing
out-of-network access to providers, and the feasibility of
providing out-of-network access in all health plans offered
under provisions of this Act.
(3) an evaluation of the percent of premium dollar utilized
for medical care and administration of the various types of
coverage offered, including coverage which permits out-of-
network access and choice of provider, under provisions of
this Act.

Mr. HELMS. Mr. President, one of the many reasons for my having
opposed the Clinton health plan was the well founded fear that the
American people would have been denied their right to choose their
medical care. The enormous bureaucracy of the Clinton plan made that
apprehension a certainty--which is why the American people rejected it.
In the interest of time, I will not offer my amendment to guarantee
patients the freedom to choose their health care provider.--This
amendment was originally approved by the Senate last October by a vote
of 79 to 20 when we considered Medicare reform.--I have no doubt that
this provision continues to have strong bipartisan support in the
Senate.
However, instead of offering the original amendment I submit this
amendment to require the Department of Health and Human Services to
conduct a study to make certain that any changes in the health
insurance market will not result in the loss of the American people's
freedom to choose their health care provider.
Whether Congress considers Medicare reform or health insurance
reform, patients must not be deprived of the right to choose their own
doctors. Even when Congress attempts to provide access to health
insurance, that is only half of the equation. Equally important is that
patients must not find themselves unknowingly thrown into health care
coverage that limits their freedom to choose their own health care
providers.
The purpose of my provisions is to provide to Congress the
information Congress may need to evaluate whether patients continue to
have direct access to specialist and choice of health care provider,
both in-network and out-of-network, as we make changes to the health
insurance market place. It will also determine the cost to the insurer
of providing this freedom to choose, and if the premium dollar
collected is effectively going toward patient care.
This study will not only go a long way to provide our Nation with
useful information about health care delivery, but it will also
emphasize the importance of preserving the patient's freedom of choice
when it comes to their own doctor.
The PRESIDING OFFICER. Is there further debate on the amendment? If
not, the amendment is agreed to.
The amendment (No. 3690) was agreed to.

Amendment No. 3691

(Purpose: To direct the Health Care Financing Administration to
determine reimbursement rates for telemedicine services)

Mr. BURNS. Mr. President, I ask unanimous consent that the pending
amendment be set aside.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BURNS. I send an amendment to the desk.
The PRESIDING OFFICER. The clerk will report the amendment.
The assistant legislative clerk read as follows:

The Senator from Montana [Mr. Burns], for himself and Mr.
Harkin, proposes an amendment numbered 3691.

Mr. BURNS. Mr. President, I ask unanimous consent that reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

On Page 71, line 19, add the following:

``SEC. 302.5. REIMBURSEMENT OF TELEMEDICINE.

The Health Care Financing Administration is directed to
complete their ongoing study of reimbursement of all
telemedicine services and submit a report to Congress with a
proposal for reimbursement of fee-for-service medicine by
March 1, 1997. The report shall utilize data compiled from
the current demonstration projects already under review and
gather data from other ongoing telemedicine networks. This
report shall include an analysis of the cost of services
provided via telemedicine.

Mr. BURNS. Mr. President, this amendment is sponsored also by my
friend from Iowa Mr. Harkin.
The Health Care Financing Administration has been reviewing
telemedicine demonstration projects across the country. They have been
studying them about 2 years now. They are analyzing the cost
effectiveness of providing health services via telecommunications and
how to reimburse health care providers.
Telemedicine is a technology that is spreading--thankfully--because
rural

[[Page S3604]]

areas and inner-city areas are in desperate need of health care.
Getting health care services can be a challenge, especially if you are
180 miles away from a specialist. But even if that specialist is
willing and able to visit his patients via telemedicine, HCFA will not
reimburse him for those services. And as you can imagine, many health
care providers aren't too willing to give their time without being
compensated.
The study is already underway. But there is no anticipated deadline
to finish the study and put the issue of reimbursement behind us. In
fact, at a recent telemedicine conference, a HCFA representative stated
that there would be no decision until Congress mandated one.
My amendment basically instructs HCFA to decide on reimbursement of
telemedicine services by March 1, 1997. That gives them almost an
entire year--in addition to the time they have already spent studying
the issue--to compile their data, gather data from other ongoing
demonstrations, if they choose, and determine the fee-for-service
reimbursement for services provided via telemedicine.
There is no cost associated with this, since the study is already
ongoing. I am simply asking that they finish the study and let rural
areas and urban residents access the health care services that are
currently out of their reach.
The Health Care Financing Administration has been in this process now
for a couple of years and we think it is about time that they bring
this to a close and recommend to the Congress how they are going to
deal with it. We have this new technology. We passed a telecom bill
that allows a lot of things to happen in distance learning,
telemedicine, and these kinds of things, and we think it is now time
that we move into the next generation of providing health care to our
rural areas via telecommunications.
I appreciate my good friend from Iowa being a part of this.
I yield the floor.
Mr. KENNEDY addressed the Chair.
The PRESIDING OFFICER. Is there debate on the amendment?
Mr. HARKIN addressed the Chair.
The PRESIDING OFFICER. The Senator from Iowa is recognized.
Mr. HARKIN. Mr. President, I wish to congratulate the Senator from
Montana for offering this amendment. I am proud to join with him in
this.
When I was chair of the Labor, Health and Human Services
Appropriations Subcommittee, Senator Specter and I initiated the
funding 3 years ago for the demonstration projects for telemedicine. I
know Montana was one State, Iowa was another, and there were several
other States, I think Georgia, West Virginia, others that were involved
in the demonstration projects in telemedicine.
One of the reasons that we had the demonstration projects was so that
HCFA could develop a reimbursement means and determine how to
reimburse.
We have enough data. They know. We have had 3 years of these
projects. The date the Senator has there, they can do that easily. They
can actually do that a lot sooner than that. I think the Senator is
generous in giving them that much time.
Nonetheless, there is no doubt they have enough data--they have it
now--that they can do this.
To echo what the Senator from Montana said, telemedicine will improve
access to care in rural areas. It will attract more doctors to rural
areas because then they will have the necessary backup they need for
correct diagnosis and treatment. It will lower costs in rural areas by
cutting down on travel, and it will allow more services to be done like
at our rural health clinics where they can reach out over a broader
area.
So this is a very good amendment and one that is going to help a lot
in a lot of rural areas in the United States.
I hope it will be adopted.
The PRESIDING OFFICER. Is there further debate on the amendment?
The vote now is on agreeing to the Burns amendment.
The amendment (No. 3691) was agreed to.
Mrs. KASSEBAUM addressed the Chair.
The PRESIDING OFFICER. The majority manager is recognized.

Amendment No. 3682 Withdrawn

Mrs. KASSEBAUM. I would like now to have a colloquy with the Senator
from Pennsylvania. Senator Specter and myself and Senator Kennedy have
discussed his amendment regarding healthy start and my objection had
been it was authorization on this bill which I felt needed to go
through the committee with some hearings, review what has always been
an appropriations matter rather than an authorization, and I believe
this has been agreed to by Senator Specter and we will have a hearing
if possible by the end of May.
Mr. SPECTER addressed the Chair.
The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
Mr. SPECTER. The distinguished Senator from Kansas expresses it
accurately. I think that will accomplish the purpose and lead to
authorization, or a reauthorization. That is acceptable, and I formally
withdraw the amendment.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
The minority manager is recognized.

Amendment No. 3686, as Modified

Mr. KENNEDY. Mr. President, the Senator from California, Senator
Boxer, proposed a sense-of-the-Senate. In her behalf, I have a revised
sense-of-the-Senate and I ask unanimous consent that it be in order to
send it to the desk and that it be in order for consideration at the
appropriate time in the list of amendments.
The PRESIDING OFFICER. Is the Senator modifying the underlying Boxer
amendment?
Mr. KENNEDY. The Chair is correct.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment as modified is as follows:

At the appropriate place add:
It is the sense of the Senate that patients deserve to know
the full range of treatments available to them.
Congress should thoughtfully examine these issues to ensure
that all patients get the care they deserve.

Mr. KENNEDY. I will ask for a vitiation of the yeas and nays on that
particular amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
The PRESIDING OFFICER. The hour of 10:15 having arrived, the question
is on agreeing to the motion to table amendment No. 3683. That is the
amendment offered by the Senator from Iowa, Senator Harkin. The yeas
and nays have been ordered.
Mr. DOLE addressed the Chair.
The PRESIDING OFFICER. The majority leader is recognized.
Mr. DOLE. I wanted to get consent that votes occur in the order in
which they were debated, with 1 minute of debate after the first vote
to be equally divided for explanation; that all votes after the first
vote be reduced to 10 minutes in length. I think that is satisfactory
to the managers.
The PRESIDING OFFICER. Is there objection? The Chair hears none, and
it is so ordered.

Vote on Amendment No. 3683

The PRESIDING OFFICER. The question is on agreeing to the motion to
table the Harkin amendment No. 3683. The yeas and nays have been
ordered. The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. LOTT. I announce that the Senator from Colorado [Mr. Campbell]
and the Senator from Florida [Mr. Mack] are necessarily absent.
The result was announced--yeas 62, nays 36, as follows:

[Rollcall Vote No. 76 Leg.]

YEAS--62

Abraham
Ashcroft
Bennett
Bond
Breaux
Brown
Bryan
Burns
Chafee
Coats
Cochran
Cohen
Coverdell
Craig
D'Amato
Daschle
DeWine
Dodd
Dole
Domenici
Faircloth
Ford
Frist
Gorton
Gramm
Grams
Gregg
Hatch
Hatfield
Helms
Hutchison
Inhofe
Johnston
Kassebaum
Kempthorne
Kennedy
Kerrey
Kohl
Kyl
Lott
Lugar
McCain
McConnell
Moynihan
Murkowski
Nickles
Nunn
Pressler
Reid
Robb
Roth
Santorum
Shelby
Simpson
Smith
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Warner

NAYS--36

Akaka
Baucus
Biden
Bingaman
Boxer
Bradley

[[Page S3605]]

Bumpers
Byrd
Conrad
Dorgan
Exon
Feingold
Feinstein
Glenn
Graham
Grassley
Harkin
Heflin
Hollings
Inouye
Jeffords
Kerry
Lautenberg
Leahy
Levin
Lieberman
Mikulski
Moseley-Braun
Murray
Pell
Pryor
Rockefeller
Sarbanes
Simon
Wellstone
Wyden

NOT VOTING--2

Campbell
Mack

So the motion to table the amendment (No. 3683) was agreed to.
The PRESIDING OFFICER. Under the previous order there is a minute to
be utilized by the sponsor of the bill and the opposition.
Mr. DOLE addressed the Chair.
The PRESIDING OFFICER. The majority leader.
Mr. DOLE. Mr. President, I ask unanimous consent that after all the
amendments are disposed of this evening, the vote occur on final
passage of S. 1028, as amended, on Tuesday at a time to be determined
by the majority leader after consultation of the Democratic leader. Let
me indicate why I am doing that. Senator Mack's father passed away. He
would like to make the final passage vote, unless there is some
objection.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KENNEDY. Is it the intention of the leader that we move to third
reading tonight?
Mr. DOLE. Oh, yes. I think there is only one additional vote. I
believe this will be the last vote.
The PRESIDING OFFICER. Does the sponsor of the amendment wish to
debate the amendment? If not--
Mr. SIMON addressed the Chair.
The PRESIDING OFFICER. The Senator from Illinois, Senator Simon, is
recognized.

Amendment No. 3687, as Modified

Mr. SIMON. Mr. President, I ask unanimous consent to vitiate the vote
on my amendment and to modify it by dropping 4 words that I have given
to the clerk.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
The amendment, as modified, follows:
At the appropriate place in the bill insert the following
new section:

SEC. . SENSE OF THE SENATE REGARDING ADEQUATE HEALTH CARE
COVERAGE FOR ALL CHILDREN AND PREGNANT WOMEN.

(a) Findings.--The Senate finds the following:
(1) The health care coverage of mothers and children in
the United States is unacceptable, with more than 9,300,000
children and 500,000 expectant mothers having no health
insurance.
(2) Among industrial nations, the United States ranks 1st
in wealth but 18th in infant mortality, and 14th among such
nations in maternal mortality.
(3) 22 percent of pregnant women do not have prenatal
care in the first trimester, and 22 percent of all poor
children are uninsured, despite the medicaid program under
title XIX of the Social Security Act.
(4) Of the 1,100,000 net increase in uninsured persons
from 1992 to 1993, 84 percent or 922,500 were children.
(5) Since 1987, the number of children covered by
employment based health insurance has decreased, and many
children lack health insurance despite the relative
affordability of providing insurance for children.
(6) Health care coverage for children is relatively
inexpensive and in 1993 the medicaid program spent an average
of $1,012 per child compared to $8,220 per elderly adult.
(7) Uninsured children are generally children of lower
income workers, who are less likely than higher income
workers to have health insurance for their families because
they are less likely to work for a firm that offers
insurance, and if such insurance is offered, it is often too
costly for lower income workers to purchase.
(8) In 1993, 61 percent of uninsured children were in
families with at least one parent working full time for the
entire year the child was uninsured, and about 57 percent of
uninsured children had a family income at or below 150
percent of the Federal poverty level.
(9) If Congress eliminates the Federal guarantee of
medicaid, an estimated 4,900,000 children may lose their
guarantee of health care coverage, and those same children
may be added to the currently projected 12,600,000 children
who will be uninsured by the year 2002.
(10) Studies have shown that uninsured children are less
likely than insured children to receive needed health and
preventive care, which can affect their health status
adversely throughout their lives, with such children less
likely to have routine doctor visits, receive care for
injuries, and have a regular source of medical care.
(11) The families of uninsured children are more likely
to take the children to an emergency room than to a private
physician or health maintenance organization.
(12) Children without health insurance are less likely to
be appropriately immunized or receive other preventive care
for childhood illnesses.
(13) Ensuring the health of children clearly increases
their chances to become productive members of society and
averts more serious or more expensive health conditions later
in life, and ensuring that all pregnant women receive
competent prenatal care also saves social costs.
(14) Although the United States has made great improvements
in health care coverage through the medicaid program, it is
still the only developed nation that does not ensure that all
of its children and pregnant women have health care coverage.
(15) The United States should not accept a status quo in
which children in many neighborhoods are more likely to have
access to drugs and guns than to doctors, or accept a status
quo in which health care is ensured for all prisoners but not
for all children.
(b) Sense of the Senate.--It is the sense of the Senate
that the issue of adequate health care for our mothers and
children is important to the future of the United States, and
in consideration of the importance of such issue, the Senate
should pass health care legislation that will ensure health
care coverage for all of the United States' pregnant women
and children.

Mr. DOLE. Mr. President, I urge that the amendment be agreed to.
The amendment (No. 3687), as modified was agreed to.
Mrs. KASSEBAUM addressed the Chair.
The PRESIDING OFFICER. The majority manager is recognized.
Mrs. KASSEBAUM. Parliamentary inquiry. Mr. President, I believe I
moved to table the amendment of the Senator from Indiana, is that
correct, and that I had asked for the yeas and nays at that time?
The PRESIDING OFFICER. The Senator is correct.
Mrs. KASSEBAUM. So this is a tabling motion.

Vote On Amendment No. 3685

The PRESIDING OFFICER. There is no debate on the amendment. The
question is on agreeing to the motion to lay on the table the amendment
of the Senator from Indiana, [Mr. Coats]. The yeas and nays have been
ordered. The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. LOTT. I announce that the Senator from Colorado [Mr. Campbell]
and the Senator from Florida [Mr. Mack] are necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 47, nays 51, as follows:

[Rollcall Vote No. 77 Leg.]

YEAS--47

Akaka
Biden
Bingaman
Boxer
Bradley
Breaux
Bryan
Bumpers
Byrd
Cohen
Conrad
D'Amato
Daschle
Dodd
Feingold
Feinstein
Ford
Gorton
Graham
Harkin
Hatfield
Heflin
Hollings
Inouye
Johnston
Kassebaum
Kennedy
Kerrey
Kerry
Kohl
Leahy
Levin
Mikulski
Moseley-Braun
Moynihan
Murray
Pell
Pryor
Reid
Robb
Rockefeller
Sarbanes
Shelby
Simon
Snowe
Wellstone
Wyden

NAYS--51

Abraham
Ashcroft
Baucus
Bennett
Bond
Brown
Burns
Chafee
Coats
Cochran
Coverdell
Craig
DeWine
Dole
Domenici
Dorgan
Exon
Faircloth
Frist
Glenn
Gramm
Grams
Grassley
Gregg
Hatch
Helms
Hutchison
Inhofe
Jeffords
Kempthorne
Kyl
Lautenberg
Lieberman
Lott
Lugar
McCain
McConnell
Murkowski
Nickles
Nunn
Pressler
Roth
Santorum
Simpson
Smith
Specter
Stevens
Thomas
Thompson
Thurmond
Warner

NOT VOTING--2

Campbell
Mack

The motion to lay on the table the amendment (No. 3685) was rejected.
Mr. COATS. Mr. President, I move to reconsider the vote.
Mrs. KASSEBAUM. Mr. President, I move to lay that motion on the
table.
The motion to lay on the table was agreed to.

Change of Vote

Mr. FORD. Mr. President, on amendment numbered 3681, I am recorded
voting ``yea.'' Since it will not change the outcome of the vote, I ask
unanimous consent to be changed from ``yea'' to ``nay.''
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KENNEDY. I understand that Senator Boxer's amendment is ready for
final disposition.

[[Page S3606]]

Mr. REID. Mr. President, would my friend yield for a unanimous
consent request?
Mr. KENNEDY. I think I will get acceptance for the Boxer amendment.

Amendment No. 3686

The PRESIDING OFFICER. The question is on agreeing to the Boxer
amendment, Amendment 3686, as modified.
The amendment (No. 3686), as modified, was agreed to.
Mrs. BOXER. I move to reconsider the vote.
Mr. REID. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Change of Vote

Mr. REID. Mr. President, on rollcall vote 75, it was my intention to
vote ``nay.'' Therefore, I ask unanimous consent that I be permitted to
change my vote. This will in no way affect the outcome.
The PRESIDING OFFICER. Without objection, it is so ordered.

Change of Vote

Mr. BRYAN. Mr. President, on rollcall vote 75, I voted ``yea'' and
intended to vote ``nay.'' I ask unanimous consent that I be permitted
to change my vote. This will in no way change the outcome.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Mr. President, today over 62,000 Vermonters are included
in the 39.7 million Americans without health insurance. Unfortunately,
this number is increasing every year. Health insurance has simply
become less available and affordable, especially for small businesses
and individuals. I am proud to cosponsor S. 1028, the Health Insurance
Reform Act, that will address some of the issues blocking access to
coverage that the uninsured face today.
This bill is a good bill and a step in the right direction. The bill
increases the availability of insurance by ensuring that anyone who
wants it, and can afford it, will be able to buy it. I am hopeful that
provisions to encourage small employers to form voluntary purchasing
pools will give some relief from rising health insurance premiums by
giving them more leverage to negotiate lower premiums and better
conditions of coverage.
To be clear, however, this bill does not address the larger issue of
the skyrocketing cost of health care which will continue to be a
looming problem that Americans face.
What the bill does do is end insurance practices that restrict the
availability of insurance to people with preexisting medical
conditions, or avoid enrolling or renewing coverage for older or sicker
individuals and groups. The GAO estimates that up to 21 million
Americans a year would benefit from federal laws waiving preexisting
condition exclusions for persons who had prior coverage.
What these reforms add up to is portability of health insurance--an
end to ``job lock.'' Currently, some employees are ``locked'' into
their current jobs because changing jobs might subject them to periods
without comprehensive coverage while preexisting condition limitations
were met. Under this bill, a person with previous group coverage would
receive credit from this coverage toward any new limitation period.
These portability provisions do not guarantee that an individual
currently insured would be covered after a job change--the new employer
must offer coverage for this guarantee to exist. The GAO estimates that
ending job lock will benefit as many as 4 million Americans who have
stayed in their jobs due to concerns about their preexisting
conditions.
The individuals who will benefit from this bill are real people who
have preexisting conditions that they were born with or people who
become sick or have had a severe accident. Without the Kassebaum/
Kennedy bill, insurance companies can continue to impose restrictions
on the coverage they offer to these people whose health conditions are
beyond their control. Even worse, someone seeking insurance who has an
adverse health condition can be denied insurance altogether. These are
children, teenagers, young people trying to get jobs for the first
time, our brothers, sisters, parents, and our grandparents. We cannot,
in good conscience, risk the well being of people whose health could be
dramatically affected if denied coverage for the care they need.
I am proud to say that Vermont has already addressed many of the
health insurance reforms included in S. 1028. In 1991, Vermont was the
first state in the nation to prohibit insurance companies from denying
coverage or charging excessive rates to high-risk groups. In 1992, the
state extended this to the individual market. Today in Vermont, no one
can be denied health insurance at a reasonable cost from a carrier
doing business in the state.
However, there is a large exception to this rule. Due to a Federal
law, the Employee Retirement Income Security Act [ERISA], the State of
Vermont's insurance reforms do not apply to businesses that self-insure
their health benefits programs.
For example, during the health reform debate in 1994, I was contacted
by a Vermont woman who shared with me her husband's experience of
losing health coverage due to a preexisting condition. This gentleman
had worked for the same business for over 20 years. He had a heart
condition, but had always been covered under his employer's health
insurance plan. When his employer was bought out by a self-insured
company from another state, the new employer deemed the heart condition
a preexisting condition and denied insurance coverage.
Because of stories like this, I have sought to address the issue of
self-insured employer plans being exempt from State regulation because
of ERISA in past Congresses. I am very pleased that a key component of
S. 1028 extends these nondiscrimination and portability requirements to
self-insured plans. The GAO has estimated that about 44 million
Americans are in self-insured health plans that states cannot regulate.
S. 1028 is long overdue. Nearly 2 years ago, Congress was engaged in
a great battle over how to get health care costs under control and make
health care services available to all Americans. That battle heeded few
results and left millions of Americans frustrated and disappointed that
health care would continue to be out of their reach. The obstacles that
prevented Americans from buying health insurance have not gone away and
Congress now owes it to Americans to pass the Kassebaum/Kennedy bill to
address some of the issues that these individuals face.
We must pass this bill and make the modest changes that will make it
easier for people to get the health care coverage they need. I hope in
the future we will be able to come to agreement on further health
reforms that will address the skyrocketing cost of health care--simply
requiring access to health insurance coverage does not address this
looming issue.
Mr. WARNER. Mr. President, at the close of debate during the series
of rollcall votes, I was prepared to vote in favor of the amendment
offered by the distinguished Senator from California, Senator Boxer,
proposing a Senate Resolution that the Congress fully examine
administrative practices of Health Maintenance Organizations [HMO's] in
which physicians may be precluded from providing full and complete
medical counsel, or referral for specialized care.
I am pleased that Senator Boxer's amendment was accepted but wish to
take this opportunity to indicate that had there been a rollcall vote,
I would have voted in favor of the Boxer Amendment.
No physician should feel that they are being subjected to a ``gag
rule'' in the course of their professional practice. Patients are
entitled to a full and open discussion of all medical options and
physicians should not feel restrained in the process.

liability for biomaterials

Mr. McCAIN. Mr. President, I had planned to offer an amendment which
would ensure the availability of raw materials and component parts for
implantable medical devices. This provision is necessary if Americans
are to have continued access to a wide variety of life-saving devices,
such as brain shunts, heart valves, artificial blood vessels, and
pacemakers. Unfortunately, we were unable to obtain agreement for this
amendment from my colleagues on the other side of the aisle.
Currently, the manufacturers and suppliers of materials used in
implantable medical devices are subject to substantial legal liability
for

[[Page S3607]]

selling relatively small amounts of materials to medical device
manufacturers. These sales generate relatively small profits and are
often used for purposes beyond their direct control. Due to their small
profit margins and large legal vulnerability for these sales, some of
the manufacturers and suppliers of these materials are now refusing to
provide them for use in medical devices.
It is absolutely essential that a continued supply of raw materials
and component parts is available for the invention, development,
improvement and maintenance of medical devices. Most of these devices
are made with materials and parts that are not designed or manufactured
specifically for use in implantable devices. Their primary use is in
non-medical products. Medical device manufacturers use only small
quantities of these raw materials and component parts, and this market
constitutes a small portion of the overall market for such raw
materials.
While raw materials and component parts suppliers do not design,
produce or test the final medical implant, they have been sued in cases
alleging inadequate design and testing of, or warnings related to use
of, permanently implanted medical devices. The cost of defending these
suits often exceeds the profits generated by the sale of materials.
This is the reason that some manufacturers and suppliers have begun to
cease supplying their products for use in permanently implanted medical
devices.
Unless alternative sources of supply can be found, the unavailability
of raw materials and component parts will lead to unavailability of
life-saving and life enhancing medical devices. The prospects for
development of new sources of supply for the full range of threatened
raw materials and component parts are remote, as other suppliers around
the world are refusing to sell raw materials or component parts for use
in manufacturing permanently implantable medical devices in the United
States.
The product liability concerns that are causing the unavailability of
raw materials and component parts for medical implants is part of a
larger product liability crisis in this country. Immediate action is
necessary to ensure the availability of raw materials and component
parts for medical devices so that Americans have access to the devices
they need. Addressing this problem will solve some important aspect of
our broken medical product liability system.

This issue came to my attention when I was contacted by one of my
constituents, Linda Flake Ransom, about her daughter Tara who requires
a silicon brain shunt. Without a shunt, due to Tara's condition called
hydrocephalus, excess fluid would build up in her brain, increasing
pressure, and causing permanent brain damage, blindness, paralysis and
ultimately death. With the shunt, she is a healthy, happy and
productive straight-A student with enormous promise and potential.
Tara has already undergone the brain shunt procedure five times in
her brief life. However, the next time that she needs to replace her
shunt, it is not certain that a new one will be available due to the
unavailability of shunt materials. This situation is a sad example that
our medical liability system is out of control. It is tragic, but not
surprising that manufacturers have decided not to provide materials if
they are subject to tens of millions of dollars of potential liability
for doing so.
It is essential that individuals such as Tara continue to have access
to the medical devices they need to stay alive and healthy. This
amendment would have helped to ensure the ongoing availability of
materials necessary to make these devices. It would not, in any way,
have protected negligent manufacturers or suppliers of medical devices,
or even manufacturers or suppliers of biomaterials that make negligent
claims about their products. However, it would have protected
manufacturers and suppliers whose materials are being used in a manner
that is beyond their control.
Mr. President, we must act to ensure the continued availability of
biomaterials to ensure that the lives of Tara and thousands of other
Americans are not jeopardized. Because this is a life and death
situation, I will do everything I can to assure that the Senate
addresses this issue in the near future.

health insurance reform and genetic information

Mr. HATFIELD. Mr. President, as we are all too aware, the past
several months, it has grown exceedingly difficult for Members of
Congress to focus their attention on anything other than sad
circumstances of our Federal budget. As chairman of the Appropriations
Committee, I share in the frustration. Fortunately, I am pleased to see
that in the midst of our negotiations, and setbacks, excellent progress
has been made in the area of health insurance reform. Senators
Kassebaum and Kennedy are to be commended for their efforts this past
year. While compromise may not be in fashion, they have utilized this
tool with extreme skill, crafting a bill that makes great strides
towards improving the infrastructure of health care in the United
States.
Accessibility to health care was the focus of debate in the 103d
Congress and it has become our focus again. Many of you know that the
State of Oregon is already on the cutting edge of improving
accessibility for many groups. The Oregon Health Plan, with its focus
on providing health care coverage under the Medicaid program, has
successfully prioritized those health care services most important to
its citizens. Oregon is therefore able to provide coverage to thousands
of low-income individuals who would otherwise be uncovered. Oregon is
also making progress improving its health insurance system. But issues
to accessibility, affordability and portability are national issues as
well.
Several of my colleagues have already discussed the merits of the
Health Insurance Reform Act. As one who is about to change jobs, I
strongly support the goal of increasing health insurance portability.
We must keep this focus in mind. Several amendments are being offered,
which I would normally tend to vote for. However, in light of our need
to ensure that this reform is passed and signed, I will not be
supporting such amendments. Again, several of these amendments being
considered today are excellent. But if their passage only serves to
make health insurance reform impossible to pass, my support would be in
vain and our goal to increase portability would be unmet.
Increasing the availability and renewability of health coverage for
millions of Americans is a reform Congress has sought for years.
Individuals should not be refused the opportunity to renew or change
health plans based on their preexisting conditions. Senator Kassebaum's
bill addresses this problem and it is estimated it will serve over 25
million Americans each year. But I also want to thank Senator Kassebaum
for clarifying in her bill that individuals with genetic information
that predisposes them to a disease will also benefit from the Health
Insurance Reform Act's portability conditions. This clarifying language
is a first step toward bringing important issues surrounding genetics
to their forefront. I would also like to thank Senator Harkin for his
leadership on the Labor Committee in working to see that genetic
information is protected in the health insurance reform bill.
New biomedical technologies have resulted in scientific breakthroughs
unimaginable just a generation ago. Scientists are working to decode
our DNA and will ultimately map and sequence every gene in the human
body. Such genetic research is our most advanced tool in the search for
treatments and cures to diseases such as breast cancer, Alzheimer's or
Huntington's disease. These are exciting medical frontiers, but if the
fruit of this labor is to be realized, an unhindered commitment to
genetic research must be promoted, and this includes protecting an
individual from the threat of genetic discrimination. There have
already been cases cited where a physically fit individual, with no
previous health problems, is denied insurance on the basis of a single
genetic test result.
This is a problem for two reasons. First, information about our genes
tells us much about who we are, but is not accurate enough to tell us
the state of our health in the future. Our future medical condition is
a complex puzzle, of which our genetic makeup is just one piece. Health
plans should not be discriminating on the basis of this single piece.
Second, cases have been documented of individuals who wanted

[[Page S3608]]

to participate in a genetic test, but when they were told that their
participation may threaten their insurability, they turned around and
walked out of the lab.
This is not in the best interest of research; this is not in the best
interest of society; and it is certainly not in the best interest of
the individual. Furthermore, while including genetic discrimination in
the Health Insurance Reform Act is a good start, but is just the
beginning of a process aimed at protecting the privacy and insurability
of individuals, regardless of their genetic information or family
history.
As I mentioned earlier, it is estimated that this bill will affect
about 25 million each year. I have sponsored a separate piece of
legislation, the Generic Privacy and Nondiscrimination Act, S. 1416,
with Senator Mack, which addresses the needs of millions of Americans
who may not fit within the boundaries of the bill we are discussing
today. S. 1416 also addresses issues of genetic privacy and employer
discrimination. I am hopeful that the Senate's consideration of genetic
information in this legislation will open the door wider to a deeper
understanding of these important issues.
Mr. KENNEDY. Mr. President, I want to raise two concerns about the
long-term care provisions in the leadership amendment to the Kassebaum/
Kennedy health insurance reform bill.
First, under the leadership amendment, long-term care insurance
receives the same tax treatment as medical insurance. Since long-term
care insurance is treated as medical insurance, I want to make sure
long-term care insurance provided to employees by an employer is
subject to the same nondiscrimination rules as health insurance.
Second, I have a concern that the long-term care provisions in the
leadership amendment (which includes the National Association of
Insurance Commissioners' model long-term care consumer protections)
precludes States from enacting stronger long-term care consumers
protections.
Mr. ROTH. Mr. President, with respect to the first point, long-term
care insurance is treated the same as medical insurance for tax
purposes under the leadership amendment. Since long-term care insurance
is treated as medical insurance it is intended that it will be subject
to the nondiscrimination rules applicable to medical insurance provided
to employees by an employer.
On the Senator's second point, it is not the intent of the leadership
amendment to preclude States from enacting stronger long-term care
consumer protections. A clarification of this issue can be addressed in
the conference report to the bill if necessary.

jeffords-simon and domenici-wellstone amendments

Mr. BREAUX. Mr. President, tonight the Senate voted on two amendments
to S. 1028. The first offered by Senator Jeffords and Simon, would
increase the maximum lifetime benefit caps in health insurance plans to
$10 million. The second, offered by Senators Domenici and Wellstone,
would require health plans to provide mental health benefits comparable
to their other medical benefits. I believe both of these amendments are
good policy--providing meaningful and equitable coverage for those who
purchase health insurance. Following the no amendment strategy of the
bill's managers--Senators Kassebaum and Kennedy--I regretfully voted to
table these amendments. It is the unfortunate outcome the no-amendments
strategy to have to table good policy such as these. However, the
purpose is intended to maintain an important yet fragile bipartisan
coalition to pass necessary insurance reform. I would otherwise support
these policies.
Mr. KOHL. Mr. President, earlier today I noted the serious problem
this Congress faced in 1994 when it tried to take on too many health
care-related issues under one bill. We learned that painful lesson
during debate on the President's health care reform proposal.
For that reason, I mentioned that some amendments that would come up
today, no matter how meritorious, should be considered on future
measures and not impede passage of the Health insurance Reform Act.
Several amendments required votes today that, in another context, I
would have strongly supported. The issue of life-time caps, and
treatment of mental health coverage were passionately debated and
deserve the attention of this Congress.
My votes on these issues were not intended to approve or disapprove
of their merits. My overriding concern was that they could complicate
this narrowly crafted proposal and jeopardize any chance at health
reform this year. The sooner we pass this bill to address insurance
problems of pre-existing condition exclusions, portability and
renewability, the sooner we can address other pressing problems that
affect the quality of health care in this Nation.
In the interest of time, I believe we should pass a clean health
reform bill. I also believe that Congress should carefully consider
several of the measures that failed today as soon as possible.
Ms. MOSELEY-BRAUN. Mr. President, subpart (a)(1)(B) of Section 101,
Subtitle A of Title I of the bill now before us provides that ``an
employee health benefit plan or health plan issuer offering a group
health plan may establish eligibility, continuation of eligibility,
enrollment, or premium contribution requirements under the terms of
such plan, except that such requirements shall not be based on health
status, medical condition, claims experience, receipt of health care,
medical history, evidence of insurability, or disability.'' As I
understand it, this formulation is intended to ensure that, among other
things, that participants and beneficiaries are not excluded from
health care coverage because they participate in activities such as
motorcycling, skiing, horseback riding, snowmobiling, all-terrain
vehicle riding, or other similar kinds of activities. I would like to
ask the distinguished manager of the pending bill whether my
interpretation of this provision is a correct one.
Mrs. KASSEBAUM. The Senator from Illinois is correct.
Mr. McCAIN. Mr. President, Americans deserve the security of knowing
that they will not lose their health care coverage if they get sick or
lose their job or if they can change jobs. Currently, our system does
not provide this security, and as a result many of our workers have to
choose between changing jobs and retaining adequate health care for
themselves or their families. Others live in fear of losing their
health insurance if they lose their job. And many who have paid
insurance premiums for years cannot get insurance at any price if they
get sick. Clearly these Americans deserve to know that when they are
sick or injured, they will get the medical attention that they need
when they need it, without having to worry about losing their homes,
savings and financial security.
Rather than attempting to change the entire health care system at
once, this is an incremental approach which targets these specific
problems. It will make it easier for those who change or lose their
jobs to keep their health insurance, and by limiting exclusions for
preexisting conditions, it will assure access to health care for many
who are sick. By making health care portable, the legislation will
allow millions of Americans to move to better jobs and improve their
standard of living. And by ending ``job lock,'' the legislation will
improve the fit between workers and their jobs and increase the overall
productivity of American workers. Finally, this legislation will make
it easier for small employers to obtain adequate coverage for their
employees. As a result, health insurance will be available to more
Americans.
In addition to providing portability of health insurance and limiting
exclusions for preexisting conditions, this legislation contains
certain other important provisions. It will increase the tax deduction
for health insurance for the self-employed to 80 percent, granting long
overdue tax relief to the owners of small businesses and farms. The
legislation also provides tax deductibility for long term care and
insurance, making it possible for more Americans to avoid financial
difficulty as the result of chronic illness.
Although there is broad bipartisan support for this legislation, I am
aware of the concerns that it may increase individual health insurance
premiums. The legislation addresses this issue in two ways. First, the
legislation imposes no limit on the rate which individual insurers may
charge those with

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preexisting illnesses, allowing premiums to be set at a level which
would not raise costs for others. Therefore any increase in premiums
which does occur will not be the result of this legislation but of how
each State chooses to regulate its individual insurance market. Second,
the legislation gives States considerable flexibility in how they
address the requirements of the bill. This will allow States to devise
strategies which fit their individual situations.

In the past several years, many States have taken significant steps
to reform their health care systems, and they are to be commended for
these efforts. For example, my home State of Arizona was one of the
first to use managed care to improve the efficiency of publicly funded
health care, and has passed legislation which encourages the use of
Medical Savings Accounts. There are certain reforms, however, which
only the Federal Government can make. These reforms fall in that
category, and it is our responsibility to make them.

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